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O'Bannon v. O'Bannon11/20/2003
id. page 630:
Continuity ... does not trump all other considerations. Depending on the facts, a parent who has been a child's primary caregiver may not necessarily be comparatively more fit than the other parent to have permanent custody of the child.
Wife contends that, if the Trial Court found a material change in circumstances, it was further required to conduct a best interest analysis to determine whether placement with either party over the other was in the best interest of the parties' children. Wife argues:
A careful review of the record indicates that the Trial Court did no analysis of the Father's circumstances, his living arrangements, or his general ability to care for or meet the day to day needs of Amy and Grace. In fact, at the conclusion of the March 20, 2002 hearing in this cause, Mother's trial counsel attempted to remind the Trial Court that at that time, the Father lived in a small house or apartment that did not even have a separate bed for these children. ... To which the Trial Court responded "You all work on your parenting plan and if you have an objection to Mr. Bannon's place to care for his children and if he cannot come up with a suitable place then I will hear you." (Emphasis in original.)
Wife argues that had the Court conducted such further analysis it would have determined that it was in the children's best interest that they remain with their mother.
It is conceded that both Husband and Wife love these children and that the children love their parents. We further note that, in his opening argument at trial, Wife's counsel conceded that Husband "is, for all intensive [sic.] purposes, a good father." Wife also conceded in her testimony that, aside from his discussion with the children of matters relating to her relocation that she felt were "too adult for them to understand", Husband is a good father. The only evidence in the record regarding Husband's living accommodations is his testimony:
SK: It's true, is it not, that as we sit here today, you still live in the same one bedroom house that you lived in when we first filed this action?
DO: That is correct.
SK: And it's the same one bedroom house that you were living in in March, when we did this deposition.
DO: That is correct.
SK: And did you bring any photographs of this house so we could show the judge exactly how small it is?
DO: No. No, I did not.
SK: Well, is it your plan, if you get custody of these girls, to - to move them into this small house with you and then move them out -
DO: Absolutely not. Absolutely not. On top of what I pay in child support I could afford a very nice house.
We find nothing in this testimony, or in the record otherwise, which warrants the conclusion that the house referred to would offer inadequate accommodation for the children. We also note that, after the Court's offer to hear any objection Wife might have to Husband's residence or his inability to provide a suitable residence for the children, no objection was made by Wife nor did she raise the matter of Husband's living accommodations at the August 22, 2002, hearing on her motion to rehear. Given the protractive and acrimonious nature of this case we deem it appropriate to summarize the Chancellor's findings respecting a change in custody:
a. Mrs. Riddle's vindictiveness and shocking behavior telling others that Mr. O'Bannon was a pedophile. The overwhelming proof that she did this and that she did so "during the throes of a period in which she was trying to protect herself."
b. The slanderou
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