"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
Sarah J. Heffley, Judge, dissenting. I dissent. The trial court in this case impermissibly considered appellant’s alleged interest in Wicca, which taints the outcome of its decision to change custody. The trial court’s mention of Wicca cannot be dismissed as a simple credibility determination. It is clear from the trial judge’s comments that he was concerned that appellant was more involved than she would admit. Obviously, the judge held her interest in Wicca against her.
In the absence of the Wicca consideration, we are left with a child who is moved from his home since birth, based on one occasion on which he had dirty fingernails (not unusual in a toddler), a common diaper rash (not unusual in a toddler), a messy car seat (not unusual with a toddler), earwax (not unusual in a toddler), and an alleged dog bite, which does not necessarily arise from neglect. The child was removed from a home, which the record reflects was otherwise appropriate in every way. In making its determination, the trial court also made a medical diagnosis without the benefit of expert testimony or reports of any type. Far be it for someone to stop taking medication that one does not need. I would reverse and remand for consideration without reference or regard to Wicca or an inappropriate medical diagnosis.
SUPPLEMENTAL OPINION ON DENIAL OF REHEARING NOVEMBER 19,2008.