353 Ark. 69, 110 S.W.3d 731 (2003)
On November 9, 1999, Rexayne Taylor and Wes Taylor were divorced. Under the divorce decree, they agreed to share joint custody of the children, with Rexayne Taylor being the primary custodial parent. Wes Taylor agreed to pay $591 biweekly in child support. Initially, the parents shared a cordial relationship, and the joint-custody arrangement worked well.1
In May 2000, a friend of Rexayne Taylor’s, Kellie Tabora, who was an admitted lesbian, moved into her home and began paying her $500 a month for living expenses.2 On May 2, 2001, a little over a year later, Wes Taylor filed a petition to modify the divorce decree. In his petition, he alleged that there had been a change in circumstances warranting a custodial change for the two boys because his former wife’s living conditions were not in the best interest of the children. Rexayne Taylor responded and denied the allegations.3
On April 10 and 11, 2002, the circuit court held a hearing on Wes Taylor’s petition. Wes Taylor’s counsel called both Rexayne Taylor and Kellie Tabora to testify at the hearing, and both women acknowledged that Kellie moved into Rexayne’s home in May 2000. Rexayne testified that Kellie slept on the couch most of the time but that, on occasion, they would sleep together in Rexayne’s bed. Rexayne stated that she was not a lesbian, that she thought homosexuality was wrong, and that she and Kellie did not have a sexual relationship. She further testified that after Wes Taylor filed his petition in May 2001, Kellie slept in a separate bed in a separate room.4 In her testimony, Kellie Tabora stated that although she was a lesbian, her last relationship had ended at least three years ago. She testified that she had slept in Rexayne’s bed about half the time prior to the filing of Wes Taylor’s petition, but that they had had no sexual contact while sleeping in the same bed. Kellie also testified that on three or four occasions, Rexayne’s children slept with both women in the same bed.5
Wes Taylor presented additional witnesses who testified that he was a good father and that his boys seemed well-adjusted. Wes Taylor testified that his usual take-home pay each week was $1,104 and added that his self-employed business, Taylor Made Systems, was growing and that he now employed seven employees. He testified that he planned to marry his girlfriend, Lynelle Crotty, and that she and others would assist him in caring for the boys, should he be awarded custody. As to his ability to assist the children with their school work, he stated that he had earned a four-year degree in computer science and that his health was good.6
In response, Rexayne Taylor presented testimony from both boys’ elementary school teachers that they were well-adjusted and enjoyable children.7 Neither teacher testified to any behavioral change in the boys.8 Rexayne Taylor took the stand and stated that she brought home $1,000 each month plus benefits from her flower shop, All About Flowers, and that she was always supportive of her children.9
On April 17, 2002, the circuit court filed its letter opinion. In it, the court found that at the time of the divorce, Wes Taylor made more money than Rexayne Taylor did and was more formally educated.10 The court further found that Wes Taylor’s business had grown and that Rexayne Taylor’s flower shop had more or less remained the same. The court concluded that even though Wes was better off financially than Rexayne at the time of the divorce it now appears that he is much more financially secure than Rexayne.11 The court next considered the lifestyle and living conditions of Rexayne Taylor. The court found that both Rexayne and Kellie Tabora had testified that Kellie had lived in Rexayne’s home since May 2000, and from May 2000 until May 2001, she and Rexayne had slept in the same bed on numerous occasions.12 On April 18, 2002, an order was entered memorializing the letter opinion. Rexayne Taylor appealed the order to the Supreme Court of Arkansas.13
Whether the circuit court erred in basing its transfer of custody in part on the fact that the father was in a better financial position and had a better educational background than the mother?14
A judicial award of custody should not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree is in the best interest of the child. This rule applies when there is a showing of facts affecting the best interest of the child that were either not presented to the chancellor or were not known by the chancellor at the time the original custody order was entered.15 Financial resources of the parties are normally irrelevant to a custody determination unless they reflect a parent's ability to provide a stable home.16 The simple fact that one parent and his family have pursued advanced degrees does not warrant a change in custody.17
No. The established facts show that at the time of the divorce Wes Taylor made more money than Rexayne Taylor did and was more formally educated.18 The circuit court found that Wes Taylor's business had grown while Rexayne Taylor's flower shop had more or less remained the same.19 Yet this financial improvement was known or within reasonable contemplation when Wes Taylor voluntarily entered the original custody agreement.20 Neither party's formal education has changed since the divorce decree.21 The bulk of the testimony at the hearing confirmed that the children were doing well in school and were not suffering academically.22
Because Wes Taylor was aware of both his superior financial situation and the parties' educational backgrounds at the time of the agreement, those circumstances cannot constitute a material change warranting modification.23
The circuit court erred in basing its transfer of custody in part on the financial and educational differences between the parents.24
Whether the circuit court erred in basing its transfer of custody on the mother’s living arrangement with an admitted lesbian?25
A parent's unmarried cohabitation with a romantic partner or a parent's promiscuous conduct or lifestyle in the presence of a child cannot be abided.26 A change of custody based on a speculative notion of potential harm is an impermissible exercise of discretion.27 The potential for social condemnation standing alone cannot justify a change in custody.28 Before a court restricts custody or visitation it must make specific factual findings based on sound evidence in the record of actual harm or likely harm rather than on stereotypical presumptions or appearances.29
Yes. The established facts show that Rexayne Taylor and Kellie Tabora both denied any sexual relationship and the circuit court credited that testimony.30 Kellie Tabora is no longer sleeping in Rexayne Taylor's bed after the petition was filed.31 The weight of the testimony from both boys' elementary school teachers was that the children were happy well-adjusted outgoing and well-parented with no behavioral changes observed.32
No finding was made that the children had in fact been harmed or adversely affected by the living arrangement.33 The circuit court premised its decision on the appearance of inappropriate behavior and the possibility that the public would assume a sexual relationship thereby subjecting the children to future ridicule.34 Because no actual harm was shown no sexual relationship existed and the decision rested on speculative future perceptions rather than concrete evidence of likely harm the living arrangement does not constitute a material change in circumstances.35
The circuit court erred in basing its transfer of custody on the mother’s living arrangement with an admitted lesbian.