"Arkansas Code Annotated section 9-10-113(a) provides that an illegitimate child shall be in the custody of its mother unless a court of competent jurisdiction enters an order placing the child in the custody of another party. Section 9-10-113(b) provides that a biological father may petition the court for custody if he has established paternity in a court of competent jurisdiction. Custody may be awarded to a biological father upon a showing that (1) he is a fit parent to raise the child; (2) he has assumed his responsibilities toward the child by providing care, supervision, protection, and financial support for the child; and (3) it is in the best interest of the child to award custody to the biological father."
How later courts described this case
- "Arkansas Code Annotated section 9-10-113(a) provides that an illegitimate child shall be in the custody of its mother unless a court of competent jurisdiction enters an order placing the child in the custody of another party. Section 9-10-113(b) provides that a biological father may petition the court for custody if he has established paternity in a court of competent jurisdiction. Custody may be awarded to a biological father upon a showing that (1) he is a fit parent to raise the child; (2) he has assumed his responsibilities toward the child by providing care, supervision, protection, and financial support for the child; and (3) it is in the best interest of the child to award custody to the biological father."
Written by the judges who cited it.
The opinion
Wendell L. Griffen, Judge, concurring. I join the majority because I agree that the trial judge did not err in awarding custody of Joshua to appellee. I write separately to emphasize that the change of custody in this case does not turn on appellant’s religion, be it Baptist, Methodist, Wiccan, or no religion at all. The issue is whether the trial judge’s change of custody is clearly erroneous where he found that appellant failed to provide a safe and sanitary home environment for the child, where he cited concerns regarding appellant’s mental health, and where he mentioned appellant’s involvement in Wicca, expressed disbelief in appellant’s testimony that she was joking concerning her involvement with Wicca, and expressed concern about appellant’s truthfulness regarding the extent of her interest or involvement with Wicca.
First, there is no basis for us to hold that the trial court resolved the change-of-custody dispute on appellant’s interest in or involvement with Wicca, despite the substantial emphasis devoted to that subject by both parties on appeal. The parties argue as if they tried the matter of appellant’s involvement in Wicca to the trial judge, and argue as if the trial judge decided the custody issue on that basis. However, neither party below objected to the trial judge considering appellant’s involvement in Wicca. As appellant did not object to any questions about Wicca, and as the trial judge made no disparaging or otherwise unfavorable comments about Wicca during the trial or in the letter opinion, her contention that she lost custody of her child due to judicial religious bigotry is bottomed on conjecture and surmise.
Second, even if one considers the trial judge’s mention of Wicca to represent an expression of prejudice, the prejudice was not against Wicca but was against what the judge considered appellant’s lack of truthfulness concerning her interest or involvement in Wicca. The trial judge clearly did not believe appellant’s testimony that she was merely joking about her interest in Wicca. We routinely defer to a trial judge’s determination regarding witness credibility. That this trial judge expressed concern about the truthfulness of appellant’s testimony concerning Wicca does not warrant reversal.
Ultimately, the trial judge changed custody because he found that appellant failed to provide a safe and sanitary home environment for the child, and due to his concerns about appellant’s mental health. Those reasons, supported by the record before us, constitute sufficient grounds for changing custody, no matter what the trial judge concluded regarding appellant’s truthfulness as to her involvement with Wicca.