Cite as 2026 Ark. App. 97 ARKANSAS COURT OF APPEALS DIVISION III No. CV-25-252
ASHLYNN PETERS (NOW STEVENS) Opinion Delivered February 11, 2026 APPELLANT APPEAL FROM THE BENTON COUNTY CIRCUIT COURT V. [NO.04DR-16-1873]
DYLAN PETERS HONORABLE XOLLIE DUNCAN, APPELLEE JUDGE
REVERSED AND REMANDED
WAYMOND M. BROWN, Judge
Appellant Ashlynn Peters, now Stevens, appeals from the Benton County Circuit
Court’s order granting appellee Dylan Peters’s motion for modification of visitation with the
parties’ daughter, Minor Child (MC).1 Appellant contends that the circuit court erred in
modifying visitation because there was no material change in circumstances and because the
order failed to sufficiently determine that the modification was in MC’s best interest. We
agree that there was no material change in circumstances, and we reverse and remand.
The parties were divorced by a decree of the circuit court entered on December 5,
2016. Appellant was granted custody of MC, and appellee was granted visitation from 9:00
a.m. Saturday to 9:00 a.m. Sunday, every other week. The decree provided that the visitation
1 Born in 2015. would take place at the home of Monica Peters, appellee’s mother, located at 10900 Silver
Hollow Road, in Lowell, Arkansas. The decree also allowed the parties to agree to additional
visits if they desired. Appellee was ordered to pay $57 in weekly child support. The decree
noted that MC was currently on ARKids First health insurance (ARKids) but stated that
appellee should maintain MC’s health insurance if she no longer qualified for ARKids. The
parties were also ordered to equally divide any uncovered medical expenses. Appellee filed
a petition for modification of visitation on January 30, 2024. He alleged that there had been
a material change in circumstances to justify a change in visitation: (1) MC is now older, and
it would be in her best interest to have more time with appellee; (2) appellant agreed to
expanded visitation but had since stopped because appellant is jealous of appellee’s romantic
relationship; and (3) pursuant to the decree, appellee was ordered to effectuate his visitation
with MC at his mother’s home, but appellant had refused to allow MC to go to Monica’s
house for visitation. Appellant responded on March 1, denying the material allegations of
appellee’s petition and asking the circuit court to deny appellee’s motion.
On March 1, 2024, appellant also filed a petition for modification of the divorce
decree, for appointment of an attorney ad litem, and for drug testing of appellee. Appellant
alleged that (1) appellee’s income had increased enough to constitute a material change in
circumstances to warrant recalculation of child support; (2) appellee was to cover MC’s
health insurance if she no longer qualified for ARKids and had failed to do so; (3) appellee
2 has a history of marijuana use and smokes marijuana in MC’s presence,2 warranting a drug
test; (4) MC returns from visits with appellee exhausted and with headaches because she is
not getting sufficient sleep; and (5) an ad litem is needed to represent MC’s needs. On
March 4, appellant filed a petition to show cause and for contempt alleging that appellee
had failed to meet his child-support obligation as ordered by the circuit court and now owed
$13,500 in arrears.3 Appellant asked that appellee be made to show cause why he had not
paid child support as ordered and be held in contempt. Appellee filed answers to both of
appellant’s petitions on March 21, denying the material allegations. The circuit court
appointed an attorney ad litem on April 18, and the ad litem filed an entry of appearance
on April 24.
Because Monica’s behavior caused the ad litem some concerns, Monica was ordered
to submit to a 180-day seventeen-panel hair-follicle test on October 10. The test showed that
Monica was positive for both amphetamines and methamphetamine. A temporary order
was entered on October 15 that ordered both parties to discontinue any contact between
MC and Monica until a clean drug screen was filed with the circuit court. Even after a clean
drug screen, the party wishing to allow contact between Monica and MC must submit an
2 MC will smell marijuana and comment that it is cigarette smoke. Appellant does not smoke marijuana or allow marijuana to be smoked in MC’s presence. 3 Appellant included as an exhibit a screenshot of the Office of Child Support Enforcement’s (OCSE) website showing appellee’s balance.
3 order to the circuit court allowing Monica to resume contact with MC. The order also
prevented Monica’s husband, Jared Peters, from having contact with MC.
A hearing took place February 3 and 10, 2025. Brenda Harrison, appellee’s
grandmother, testified that appellee is remarried with newborn twins. She stated that
appellee lived with her for about three years before he was married and moved out after he
got married. She said that appellee exercised visitation with MC at her home, and she was
able to see that they have a good relationship. She testified that MC stayed with appellee at
her home every other weekend, from Friday to Sunday. She stated that appellee was able to
exercise this extended visitation until he started dating his current wife around early 2023.
She also said that MC was able to go with them to their cabin in Newton County two or
three times over the years during the summer. She stated that appellee would have MC for
either Christmas Eve or Christmas Day each year. She said that after appellant stopped
allowing extended visitation with appellee, appellant asked for permission to take MC to
Europe and promised appellee that she would again let him exercise extended visits, but
appellant did not keep her word. According to Brenda, appellant reverted to the original
visitation schedule. She testified that appellee was always with MC. She stated that MC
would sometimes stay at her house during visitation and she would sometimes stay at
Monica’s house. She admitted that the restriction that visitation takes place at Monica’s
house was not being followed but stated that appellant never said anything about it. She
stated that appellant gave MC a “track phone” so she would know every room MC went in.
4 On cross-examination, Brenda testified that appellee was also present during the
Newton County trips and that they usually stayed there three to four days. She said appellee
married his wife after about six months of dating. She stated that during this time, visitation
mostly took place at Monica’s house because MC wanted to see her. Brenda denied
threatening to spank MC if she told appellant anything about visitation, but she admitted
that she had threatened to spank MC for other reasons. She stated she did not know about
Monica’s substance-abuse problems but said that she was aware that Monica tested positive
for methamphetamine. She also stated that she did not know that Monica admitted she had
an opiate addiction. She testified that appellee told her about three years ago that he smokes
marijuana. However, she said that she has never seen appellee use it. She agreed that
visitation occurred wherever appellee was living.
On cross-examination by the ad litem, Brenda testified that the “track phone”
appellant gave MC was different than “a cell phone.” She stated that it looked like a flip
phone, but MC was texting on it. She said that she knew that it was a “tracking phone”
because appellant told appellee that she knew every move MC made. She subsequently stated
that she did not know if it was a tracking phone. She said that since appellee has been
married, she has not asked to take MC to the cabin in Newton County.
On redirect, Brenda testified that she had not seen any signs of substance abuse in
Monica. She stated that Monica told her she had taken a hair-follicle test that showed
methamphetamine in Monica’s system. She said that she did not know Monica was “doing
anything,” and she did not suspect that Monica was using methamphetamine. However, she
5 stated that Monica’s husband, Jared, did have a problem with methamphetamine. On
recross, Brenda stated that she learned Jared had a methamphetamine problem when he
checked himself into rehab. On recross by the ad litem, Brenda stated that it would not
surprise her if she heard Monica talking about UFOs outside her home, and she would not
be concerned if Monica said that aliens were watching her house. Brenda said it would cause
her concern if Monica said these things to MC.
Appellee testified that he married his wife, Kassandra, on August 6, 2023. He stated
that they dated for about a year before they were married but that he had known Kassandra
his whole life. He stated that their twins were just born in December. He said that after his
divorce from appellant, his visitation with MC was one day one weekend; and maybe two
days the next visitation. He stated it was “just hit or miss” and that they would communicate
with each other “and work something out[.]” He said they alternated holidays. He stated
that he would also get MC on her birthday. He testified that the visits with MC took place
at both Monica’s and Brenda’s houses, and they deviated from the provision in the decree
requiring the visit to take place only at Monica’s house. However, he said that appellant did
not like MC to be at Brenda’s house. He stated that when he lived at Brenda’s house, he
was able to pick MC up on Friday evenings and take her back around five o’clock Sunday
evenings. He testified that this arrangement continued until the video of Monica talking
about aliens surfaced. He said that in July 2023, he was able to keep MC for a week and that
he took her to Silver Dollar City for a couple of days during that visitation. He stated that
he believes MC has a good relationship with both Brenda and Monica. He said that MC
6 seems disappointed when she cannot spend time with Monica. He testified that he does not
believe Monica abuses methamphetamine because she “can sleep at night and sleeps like a
normal person. And, from what [he] know[s], meth does not let you sleep, you’re up, your
eyes are the size of cue balls. [He doesn’t] believe [Monica] was on any drugs.” He also stated
that his dad’s drug use was a surprise to him. He said that from 2019 to 2023. they would
revert to the court-ordered visitation schedule if he did not get MC to bed or make her brush
her teeth or shower because appellant thought he was irresponsible. He testified that he
filed his petition because he wants more time with MC, and he believes she wants more time
with him also. He stated that when he filed his petition, he was receiving only the court-
ordered visitation, and he was not receiving any holiday visitation unless the holiday fell on
his weekend. He said he believes that MC is sad because she cannot go to church with him.
He stated that MC is excited about having twin sisters and that he would like for her to be
able to spend more time with them.
On cross-examination, appellant stated that he works for Outdoor Cap Company and
makes $16 an hour. He stated that he became eligible for health insurance in October 2024
but that he did not put MC on his insurance, even though he was ordered to do so in the
divorce, because MC was on appellant’s husband’s insurance. Appellee acknowledged that
at the time of the divorce, he agreed to have visitation only one night every other weekend.
He stated that he had not kept up with either the child support he agreed to pay or his part
of the out-of-pocket medical expenses. Appellee was able to introduce a stipulated exhibit
7 from OCSE showing that he owed $5,846.05 in child-support arrears as of February 6, 2025.
Appellee said he believes MC’s getting older constitutes a material change in circumstances.
He also said he believes appellant’s decision to go back to the court-ordered visitation
is a material change. He testified that appellant told him she was reverting back to the order
because she did not want MC around Monica and Brenda and because she had problems
with his parenting skills. He admitted that even though his motion states that his visitation
with MC was reduced because appellant was jealous of Kassandra, he conceded that there
was no evidence to support his contention. Appellee said that it was during his visitation
with MC the week of July 2023 that the video of Monica talking about UFOs and aliens
came out. MC had recorded Monica on her cell phone, which has the application Life360
installed. Appellee admitted that Jared did not show the symptoms of methamphetamine
use that he stated Monica lacked. He testified that he was confident Monica had not used
methamphetamine. He stated that he was a child when Monica became addicted to opiates.
He agreed that after the video of Monica surfaced, visitation would no longer take place at
Monica’s house.
Appellee stated that MC used to stay up to 2:00 a.m. watching television when she
visited, even though he would have her in bed at least by 11:00 p.m. He acknowledged that
MC gets migraines when she does not get enough sleep. He stated that the last visit he had
with MC before the hearing, the entire family (including MC) slept in the living room
because the twins were fussy. He admitted that this was not a good idea for someone who
gets migraines. He stated that MC attends Lisa Academy, but he was unsure who her teacher
8 is. He said that he had not attended a parent/teacher conference this year because he was
not invited to. He stated that he has never contacted MC’s school and asked for copies of
her grades or anything because he believed that he is not listed as MC’s father at her school.
He admitted that he has never contacted any school MC has attended or had lunch with her
at school. He said that he was unsure of the physical location of MC’s school. Appellee did
not know the name of MC’s doctor or what extracurricular activities she was currently
involved in. He had to refer to an exhibit that had not been yet admitted to find the name
of where MC goes to counseling. Appellee stated that he checked on MC sometime after
appellant had picked up MC from his house and taken her to the doctor, but he had no
proof of it. He testified that he has a medical marijuana card, but he stopped smoking
marijuana two months ago because he did not like it anymore; that he used to spend about
$100 a month on marijuana; and that he would only smoke twice before bed. He admitted
he had smoked while MC was in his home but stated that he smoked off the property. He
subsequently said that he smokes other than at bedtime to help with his anxiety. He stated
that if MC had smelled his marijuana, he would have told her that he was smoking cigarettes.
He testified that he would “go through spurts of smoking and then [go] months without
smoking” depending on his needs and his anxiety. Appellee stated that MC went to
Monica’s only if he had to work, which was about half the visits.
On cross-examination by the ad litem, appellee stated that he asked for visitation
with MC every Thanksgiving since the divorce but has received only two Thanksgiving visits.
He said the iPhone appellant gave MC was referred to as a “tracking phone” because that is
9 why appellant gave it to her—to track her location. He admitted that he also has Life360 on
his phone but does not refer to it as a tracking phone. He said MC’s phone is the only
phone he refers to as a tracking phone. He said that he remembers agreeing to not send MC
to Monica’s house in April or May 2023 after Monica refused to take a drug test, but he
admitted that he did send MC to Monica’s in the fall, leading to the ad litem’s obtaining a
court order for Monica to submit to a hair-follicle test, which she failed. He said that in his
eyes, Monica was not on methamphetamine even after her positive drug test because Monica
is responsible, sleeps regularly, and is a great grandmother to her grandkids. He also said
that he practically saw Monica daily, so he knows that she was not on methamphetamine.
Appellee stated that he has stopped smoking marijuana and started back twice during the
pendency of this case. He said that he had never been notified of any parent/teacher
conference. He testified that even though he had known for a year that MC was in
counseling, he never reached out to or attempted to speak with her counselor.
On redirect, appellee stated that he reached out to appellant in 2019 and asked to
help him out after he received letters stating that his license was going to be taken and he
was going to be arrested for not paying child support. He said that appellant wrote a letter
stating she no longer wanted child support, and as a result, he stopped receiving the letters
and bills. He testified that he subsequently began receiving the letters and bills again,
prompting him to resume his child-support payments. He said that he was never invited to
any of MC’s counseling sessions. He stated that he and appellant do not communicate well
and that he does not know why. He said that until a couple of years ago, he contacted
10 appellant, but she told him that all communication concerning MC must go through
appellant’s husband, Charlie. He testified that he had lost two visits with MC because
appellant had taken her out of the state. He denied that MC ever complained about
migraines while at his house. He asked that his visitation be modified because he is tired of
seeing MC upset and crying with a broken heart when she cannot attend church with him
or cannot wear a new church dress or something. He said that every time he has MC, she is
upset and wants to spend more time with him. He stated that he has expressed his concerns
with appellant, but she only reiterates what his schedule is. He testified that he would love
for MC to spend more time with her baby sisters because she has been a good big sister. He
said that she offers to help with them and to hold them without being asked. He opined
that MC has a good relationship with everyone in his family. He stated that Monica
frequently watched MC when she was younger and that he believes appellant knew that
Monica was in a treatment program during that time.
On recross, appellee denied saying that he was wrong about appellant’s jealousy being
the reason appellant cut off his extended visitation. He admitted that he paid $3,000
towards his arrears shortly after appellant filed her motion for contempt but stated that the
timing was just a coincidence. He denied that appellant asked him to communicate through
Charlie about MC because he was threatening and cursing at appellant. He admitted that
he and appellant started communicating again in 2022.
Monica testified that she has been addicted to pain medication since 2008 after she
underwent eight or ten surgeries within a short amount of time. She stated that she is on
11 Suboxone, which is a maintenance drug for opiate addiction. She said that she has not
reverted to pain pills since 2008. She stated that she currently sees Dr. Dixon monthly for
her treatment plan, and she submits to a urine test each time. She said that she has never
failed her urine tests. She denied using methamphetamine and stated that she learned that
Jared used methamphetamine without her knowledge. However, she stated that she has
never taken it or been around it. She testified that she is prescribed about eleven different
medications for her medical conditions. She stated that she tested positive for
amphetamines because of the Adderall she takes.
On cross-examination, Monica testified that appellee would sometimes leave MC
with her during his visitation, and the last time he left MC with her was around August
2023. She stated that if appellee had MC for the entire weekend, she would typically have
her one of those days. She said that appellee did not usually spend the night at her house
with MC. She testified that when appellee had MC for a week, MC stayed three or four
nights at her house. She stated that appellee spent the night a “couple of times.” She said
that MC had a phone that she used to report things and that MC also recorded interactions
with her. She admitted that she tested positive for methamphetamine in October 2024 but
stated that she had no prescription that would have caused the positive result. She stated
that she could not remember if she told appellant that she has an opiate addiction. She said
that she is under treatment but that she will always be addicted. Monica underwent another
hair-follicle test a few weeks before the hearing, and it was positive only for amphetamines.
She admitted that it was not the same hair-follicle test as before. When asked why she did
12 not take a hair-follicle test paid for by appellee in April or May 2024, Monica said that she
did not have anyone to look after her grandkids and that she did not have a car. She stated
that her daughter-in-law watched her grandkids for her most recent test. Monica testified
that it would not surprise her to know appellee said that MC never stayed over at her house
during the visitations because Monica’s “memory [was] not the best.”
On cross-examination by the ad litem, Monica stated that she and Jared had been
separated for about two years, but they were still living in the same house, just sleeping in
separate bedrooms. She said that Jared left in June. She testified that she never saw Jared
do methamphetamine. She stated that she was court ordered to take a hair-follicle test about
six months after appellant tried to pay for one for her. Monica could not explain why she
tested positive in the second segment of the hair-follicle test (90 days), which covered the
time after Jared had left.
Appellant moved to dismiss appellee’s motion to modify visitation, contending that
there had been no material change in circumstances. The circuit court denied the motion.
Appellant testified that she has been married to Charlie Stevens for five years and has
a two-year-old daughter in addition to MC. She said that MC attends Lisa Academy in
Fayetteville, which is about five minutes from her home in Springdale. She stated she
informed appellee when she made the decision to remove MC from John Tyson Elementary.
She said MC is in the fourth grade and has a grade of three. She stated that MC’s favorite
subjects fluctuate between math and reading. She said that the last parent/teacher
conference was in October and took place via Zoom. She testified that MC is in the Lisa
13 Academy cheer club, which meets after school every Thursday. She said these practices are
not open to the parents. She stated that MC began counseling at Eason Counseling in
August 2023 after they began noticing issues with her in July. She said that MC seemed to
be very stressed. She stated that although there has been no diagnosis, MC goes to
counseling once or twice a month. She said she has met with the counselor at least twice to
discuss MC’s treatment and that she has also had random conversations with the counselor.
She testified that appellee was allowed to have phone visitation with MC every Thursday,
but he did not utilize it. When asked what concerns she had with appellee receiving more
visitation, she stated that appellee was not utilizing the visitation he did have and was leaving
MC with Monica. She stated that she also had concerns about drug use because appellee
denied using drugs. She said that she was unaware of Monica’s longstanding opiate
treatment and that had she been aware, she would not have allowed Monica to keep MC.
She stated that after she uncovered a video of disturbing behavior by Monica from MC’s
phone around July 2023, she told appellee that MC was not to be around Monica. She
denied stopping extended visitation because she was jealous that appellee was dating
someone.
Appellant testified that MC gets migraines when she does not get enough sleep. As
a result of the migraines, MC becomes nauseous and upset and begins crying. She said she
gave MC a bedtime and informed appellee of the importance of MC having a set bedtime.
She stated that she also has concerns about MC sharing a bedroom with the twins. Appellant
testified that she told appellee that MC should not consume junk food due to her medical
14 issues, but appellee does not listen and usually returns MC on Sunday mornings with a
hamburger, fries, and a Coke. She stated that MC has alternated insurance between ARKids
and Charlie’s insurance over the years. She said that appellee never told her that his job
provides insurance and he never told her about any change in his pay. She testified that the
$13,000 figure for arrears was a mistake and that appellee was behind about $9,000. She
said that appellant paid over $3,000 once she filed her petition. She stated that appellee
made the payment to keep from having his tax refund intercepted, which had happened
before. She said that when appellee’s tax refund was taken, he asked her to return the money
to him so he could send it through the OCSE website to get caught up. Appellant stated
that she did not believe there had been a material change in circumstances to warrant a
modification of appellee’s visitation, and she did not believe modification was in MC’s best
interest because appellee had ignored her different concerns. Appellant testified that she
had to pick MC up from appellee’s house because she was sick one night. She stated that
she took MC to the doctor that Monday, but she never heard anything from appellee.
On cross-examination, appellant stated that MC called her crying the night she picked
MC up from appellee’s house. She said that she informed appellee that she was going to
take MC to the doctor. Appellant admitted that she signed a letter and took it to OCSE in
2018 or 2019, asking that they stop enforcement of the child support. She said that after
that, she did not receive child support for a while. She agreed that since 2022, appellee had
paid more than the court-ordered amount for child support because of his arrears. She stated
that both of her children are on Charlie’s insurance and that she wanted to keep MC on
15 that insurance. She said that she told appellee she was putting MC in private school, but he
never offered his opinion about it. She stated that appellee could have set up his own
parent/teacher conference when MC was at Tyson Elementary. She admitted she did not
invite appellee to the Zoom conference at Lisa Academy. She testified that she told appellee
that MC was going to be in counseling but never invited him to a session because she leaves
it up to MC if she wants someone with her. She said that she gave appellee the Thursday
call as an option for him to use. She stated that from time to time, she allowed appellee to
have MC for the full weekend, but it was never on a consistent basis. She said she pulled
back when she felt MC’s safety was at risk. Appellant denied that MC ever went to Newton
County for three or four days. She stated that appellee’s Christmas visitation schedule was
kind of flexible. She said that appellee never asked to get MC for a week over the summer,
and she never offered due to her concerns. She stated that appellee had MC once for her
birthday because he asked to have her. She said MC had come home from visits sad but said
that it was not because the visit had been cut short. Appellant stated she has tried to
encourage a good relationship between MC and appellee by including appellee in “events
and things that go on in her life,” including her recitals, and letting him know how MC is
doing in school. She said the last time appellee dropped MC off at home, MC had a Coke.
She stated that she lives fifteen to twenty minutes from appellee and that since 2020 he has
been providing the transportation for visitation. She said that she does not allow MC to
attend church with appellee because she does not like appellee’s church.
16 On cross-examination by the ad litem, appellant stated that she asked appellee to
communicate through Charlie because appellee would call her names, curse at her, and
threaten her. She said that appellee communicated through Charlie for a little over a year.
She stated that appellee should have asked for more time with MC if he wanted it. She said
that she does not like appellee’s church because it teaches that “women should not speak in
church” and that there were other scenarios that she did not feel were right for MC’s future.
She explained that she lets MC decide if someone goes to counseling with her because she
does not want that to be the reason MC does not express herself during those sessions. She
said that she picked MC up from appellee’s house on December 21 because MC called saying
that she was sick. She stated that she waited a few days to see if MC’s symptoms were related
to her migraines. She said that she subsequently took MC to the doctor, and the doctor said
it might have been some “viral thing.”
On redirect, appellant testified that she wrote the letter to OCSE in 2018 because she
felt pressured to do so. She stated that Jared called harassing her and that appellant called
her asking if she could do anything about the child support. She said that MC got back on
ARKids in 2021 and OCSE began enforcement of the child-support order. She testified that
appellee’s payments were sporadic once child support resumed.
Appellant rested and renewed her motion to dismiss, which the circuit court denied.
The ad litem expressed that MC wanted to continue living with appellant, but she wanted
her visitations with appellee to be for two nights instead of one. The ad litem expressed
concerns that appellee leaves MC with Monica but asks for more time. She was also
17 concerned that appellee could not accept that Monica is on drugs, even after the positive
drug test. She stated that appellee was not the best judge of character for drug use. She said
that she also had serious concerns about appellee’s parenting choices because even after
Monica’s drug use was brought to his attention, appellee still sent MC to Monica’s house.
She asked the circuit court to order no marijuana use when MC is visiting and to prohibit
anyone from referring to MC’s phone as the “tracking phone.” The ad litem opined that
appellant needed some direction on notifying appellee of MC’s achievement, grades, and
other information received from the school. She stated that there was no basis to modify
custody and that appellee was not exercising the visitation he has as much as he should.
The circuit court found that there had been “a substantial change” and that it was in
MC’s best interest to spend more time with appellee. The order for contempt and
modification of visitation was filed on February 14, 2025. It stated in pertinent part:
11. Further, the Court finds a substantial change of circumstances so as to now find that it is in the minor child’s best interest to modify the parties’ Decree of Divorce and expand [appellee’s] visitation with his daughter to that as set forth in the Benton County Suggested Standard Visitation Schedule, attached hereto as Exhibit “B” and incorporated herein and made a part hereof, to include the following terms:
(a) Defendant shall have no midweek visitation;
(b) Defendant shall not use, nor be under the influence of, marijuana at any time during such visitations;
(c) That either parent is permitted to communicate with the minor child while she is with the other parent. Such communication(s) shall be on a reasonable basis. Any references to the child’s phone shall simply call it a “phone” and not a “'tracking phone” or words to that effect;
18 (d) That the [appellant] shall keep [appellee] informed as to the [MC’s] progress in school, parent teacher conferences, information she receives from [MC’s] school, and extracurricular activities of [MC]. [Appellant] shall provide the [appellee] with the contact information for [MC’s] school, teacher, counselor and all medical providers[;]
(e) [Appellee] needs to be more involved and proactive with [MC’s] school, extracurricular and counseling activities[;]
(f) That until such time as a negative drug test for methamphetamine is filed with the Court, Monica Peters shall not be allowed visitation with [MC].
Appellant timely appealed the circuit court’s order.
In reviewing domestic-relations cases, appellate courts consider the evidence de novo.4
We will not reverse the circuit court’s findings unless they are clearly erroneous. 5 When the
question whether the circuit court’s findings are clearly erroneous turns largely on the
credibility of the witnesses, we give special deference to the superior position of the circuit
court to evaluate the witnesses, their testimony, and the child’s best interest.6 A circuit court
maintains continuing jurisdiction over visitation and may modify or vacate those orders at
any time when it becomes aware of a change in circumstances or facts not known to it at the
time of the initial order.7 Although visitation is always modifiable, to promote stability and
4 Brown v. Brown, 2012 Ark. 89, 387 S.W.3d 159.
5 Id.
6 Id.
7 Id.
19 continuity for the children and to discourage repeated litigation of the same issues, courts
require more rigid standards for modification than for initial determinations. 8 Thus, the
party seeking a change in visitation has the burden to demonstrate a material change in
circumstances that warrants such a change.9 The primary consideration regarding visitation
is the best interest of the child.10 A parent cannot use the circumstances he created as
grounds to modify visitation.11
Appellant argues as her first point on appeal that the circuit court erred in modifying
visitation because there was no material change in circumstances. We agree. The circuit
court found that a substantial change of circumstances supported modification of the parties’
visitation; however, our de novo review of the evidence does not support the circuit court’s
modification of the parties’ visitation schedule in favor of appellee. In his petition to modify
custody, appellee alleged that the fact that MC had gotten older was a material change in
circumstances. We have held that the mere fact that a child has gotten older does not
constitute a material change in circumstances sufficient to warrant a modification of
visitation.12
8 Id.
9 Id.
10 Id.
11 See id.
12 See Bray v. Bray, 2020 Ark. App. 111, 595 S.W.3d 72.
20 Appellee also alleged that appellant had agreed to extended visitation and had since
stopped due to jealousy of appellee’s romantic relationship. It should be noted that appellee
testified on at least two occasions that this was not true and even stated that extended
visitation was stopped because appellant did not want MC around Monica and Brenda and
that appellant had problems with appellee’s parenting skills. The divorce decree gave
appellee visitation with MC one night, every other weekend. Appellee agreed to this
schedule. The order also stated that visitation could be extended if the parties wanted it to.
However, there was nothing stating that once additional visitation was granted, it had to
remain, even if against the desires of one party. The ad litem disagreed that appellee should
have more time when he was not using the time he already had with MC but was allowing
Monica to have MC at least half the time. It is hard for us to find a material change in
circumstances where a party is following the court-ordered visitation schedule.
Finally, appellant contended that a material change had occurred because appellant
refused to let MC go to Monica’s house for visitation as contemplated by the divorce decree.
The evidence showed that appellee exercised visitation wherever he lived and did not follow
the terms of the decree as it related to where visitation should take place. Evidence also
showed that appellant was concerned about MC’s safety around Monica, and rightfully so
because a video subsequently surfaced with Monica discussing UFOs and aliens with MC.
Monica later tested positive for methamphetamine and admitted she has an opiate addiction
and must follow a treatment plan and take a maintenance drug. Thus, we cannot say that
appellant’s failure to allow visitation at Monica’s constituted a material change in
21 circumstances. Therefore, we are left with a firm conviction that the circuit court erred by
modifying visitation.13 Because we agree with appellant that there was no material change
in circumstances in this case, we need not address the circuit court’s best-interest finding.14
Reversed and remanded.
WOOD and HIXSON, JJ., agree.
Matthews, Campbell, Rhoads, McClure & Thompson, P.A., by: Sara L. Waddoups, for
appellant.
One brief only.
13 See Heilman v. Cahoon, 2024 Ark. 164, 699 S.W.3d 85.
14 See Reynolds v. Reynolds (if the threshold requirement of a material change in circumstances is not met, there is no need for a best-interest finding).