The opinion
Melvin Mayfield, Chief Judge, concurring. While I believe the decision appealed from should be affirmed, I do not think this case should be considered a precedent for any new rule of law.
In what I suppose is the majority opinion it is said Act 278 of 1979 mandates that child custody preference based on gender may no longer be made. The logical result of that view would seem to be that custody must be equally divided if everything else is equal. But I do not agree that is what Act 278 means and I do not agree that is what this case means.
Also, I do not think this case repeals the so-called “tender years doctrine.” In the first place, I deny the existence of any “doctrine” or “rule” which grants custody of young children to the mother simply because she is the mother. I think it is an expression which describes the fact stated in DeCroo v. DeCroo, 266 Ark. 275 , 583 S.W. 2d 80 (1979), that “it is often in the best interest of the children, especially when they are very young, that they be awarded to the mother.” And this is exactly what Act 278 says should be done — "the award of custody of the children of the marriage shall be made .. . solely in accordance with the welfare and the best interest of the children.”
So, if the welfare and best interest of the children require that their custody be awarded to the mother, I hope the chancellors of the state will not think this case or Act 278 stands in the way of doing what is best for the children.
I also hope any argument about "outdated preferences” will not keep chancellors from finding that it is in the best interest of young children to be placed in the custody of their mother.
And I hope any idea that “the tender years doctrine” has been repealed will not cause chancellors to think they must divide the custody of children in order to avoid the claim that there was a preference based on gender.