The opinion
Ed. F. McFaddin, Justice, dissenting. I agree with the Majority Opinion that the Oklahoma order of adoption is void insofar as concerned the appellant, Boyd D. Olney, the father of the baby concerned; but I dissent from the concluding sentence of the Majority Opinion which reads: “The decree is reversed and the cause remanded with directions that the writ of habeas corpus be issued vesting in the appellant the exclusive right to the care and custody of his child.”
There is no claim by anyone that the Oklahoma order of adoption was other than valid insofar as concerns the mother of the baby. She gave her written consent to the order of adoption and therefore she was bound by it. So we have a case in which the order of adoption is void as to the father of the child, but valid as to the mother of the child. In such a situation the adopting parents (the appellees, Mr. and Mrs. Gordon) stand in the shoes of the mother, and are subrogated to all of her rights. In a habeas corpus proceeding between the mother and father, the issue is always what is for the best interest of the child. Waller v. Waller, 220 Ark. 19 , 245 S. W. 2d 814 . The Chancery Court held that the Oklahoma decree was entitled to full faith and credit, and so the Chancery Court never passed on what was for the best interest of the child as between the appellant and the appellees. But in equity appeals, the Supreme Court tries the case de novo on the record, and enters the decree that should have been entered. We should therefore decide what is for the best interest of the child.
The appellees offered abundant evidence in the record now before us that the best interest of the child would be served by giving the appellees his care and custody.' Mr. Gordon is a man 31 years of age, and Mrs. Gordon is 25; they have been married for eight years; they were born and reared in Oklahoma; each has a college degree; and they have no other children. Mr. Gordon is employed by the Geiger Chemical Company and has been so employed since June 1963; and they own their own home in Fort Smith. They took this little baby boy when he was a week old, and they have cared for him and nourished him ever since. The Gordons are members of the Presbyterian Church in Fort Smith, and they attend church regularly. They have insurance policies on the baby so that when he becomes of college age he will go to college. The pastor of the church testified that the Gordons were regular in church attendance, and that Mrs. Gordon taught in the Vacation Church School. The Gordons’ neighbors testified as to their good standing in the community and the fine care that they take of the baby.
Opposed to that testimony there was the testimony of Mr. Olney that he was in a position to support his child; that he had been previously married and divorced before the marriage to the mother of this baby; that he is living with a brother and sister-in-law, who have four children; and that he is expecting his brother and sister-in-law to assist him in looking after the child while he is at work. Neither the brother nor the sister-in-law testified. To take a little baby boy the age of this child away from the people who have had him since he was a week old, and give him to a man who has never known the child and who claims that he has only a brother and sister-in-law to help him look after the child: I cannot believe that such would be for the best interest of the child; and the best interest of the child is always the paramount consideration.
In trying the case de novo on the record, I think we should award the care and custody of the child to the appellees, Mr. and Mrs. Gordon, with Mr. Olney to have full rights of visitation. He remains the father of the child. As the child grows older change of circumstances may come about when Mr. Olney should have the boy during vacation periods from school, etc.; and when the boy becomes fourteen he could be heard to speak his own mind as regards custody. But on the present record I would certainly leave the child with Mr. and Mrs. Gordon.
It is true that the Chancery Court decided this case solely on the question of affording full faith and credit to the Oklahoma decree; and so the Chancery Court has never really passed on what was for the best interest of the child, although that was the question' before the Court on which evidence was introduced, as previously stated. If it should be thought that the Chancery Court should make the initial decision as to care and custody before that issue comes to us, then I would certainly remand the case to the Chancery Court to determine what was for the best interest of the child. Setting aside the order of adoption so far as Mr. Olney is concerned is proper; but it does not follow that when the order of adoption is set aside as far as Mr. Olney is concerned, that he should thereby have the exclusive care and custody of the child. As I have heretofore stated, the appellees stand in the place of the mother of the child on this question of the best interest of the child.