Charles Freshour v. Brenda West and State of Arkansas Ex Rel. Office of Child Support Enforcement

Charles FRESHOUR v. Brenda WEST and 
State of Arkansas ex rel. Office of 
Child Support Enforcement

CA 97-612                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                       Divisions I and II
                 Opinion delivered March 4, 1998


1.   Parent & child -- custody cases -- factors on review. -- In child-
     custody cases, a chancellor's findings will not be reversed
     unless they are clearly erroneous or clearly against a
     preponderance of the evidence; the appellate court gives due
     regard to the opportunity of the trial court to judge the
     credibility of the witnesses and to the chancellor's superior
     position to determine the facts.

2.   Parent & child -- custody cases -- primary consideration. -- The primary
     consideration in child-custody cases is the welfare and best
     interest of the children involved; all other considerations
     are secondary; the welfare of the child is the polestar in
     every child-custody case.

3.   Parent & child -- custody cases -- change-of-custody determination. -- In
     deciding whether a change of custody is warranted, a
     chancellor must first determine whether there has been a
     material change in circumstances of the parties since the most
     recent custody decree; if material changes have occurred, the
     chancellor must then determine custodial placement, with the
     primary consideration being the best interest of the child;
     the party seeking modification of a child-custody order has
     the burden of showing a material change in circumstances.

4.   Parent & child -- chancellor's denial of change of custody affirmed --
     appellant failed to show material change of circumstances. -- Where
     appellee had exercised custody of the child most of her life
     since she was born; where appellant denied paternity after
     appellee assigned her rights to child support to the Pulaski
     County Child Support Enforcement Unit and alleged in an
     affidavit that appellant was the child's biological father;
     and where appellant's change-of-custody motion was filed only
     after DNA testing had established paternity, the appellate
     court had no difficulty affirming the chancellor's decision
     denying appellant's motion because appellant failed to show a
     material change of circumstances to justify a change in
     custody. 

5.   Parent & child -- showing necessary for award of custody to father of
     child born out of wedlock. -- Arkansas Code Annotated section 9-10-
     113(c)(Repl. 1993) provides that a court may award custody of
     a child born out of wedlock 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.  
6.   Parent & child -- chancellor justified in denying change-of-custody motion
     where proof established that appellant had failed to assume statutory
     responsibilities. -- Emphasizing the importance of the evidence
     that appellant took virtually no interest in and provided no
     support, care, supervision, or protection for the child until
     the paternity action aimed at recovering the money that had
     been paid on the child's behalf had been filed by the Office
     of Child Support Enforcement, the appellate court held that
     the chancellor was clearly justified in denying appellant's
     motion to change custody where the proof established that he
     had not assumed the responsibilities specified at Ark. Code
     Ann.  9-10-113(c)(2), even if appellant had been deemed a fit
     parent in other respects.

7.   Parent & child -- chancellor's finding that child's best interest was
     served by remaining in appellee's custody was not clearly erroneous. --
     The appellate court also affirmed the chancellor's denial of
     appellant's change-of-custody motion because her finding that
     it was in the child's best interest to remain in appellee's
     custody was not clearly erroneous; the court reiterated that
     it is fundamental that the primary consideration in child-
     custody cases is the welfare and best interest of the children
     involved; all other considerations, including the legal
     preference favoring biological parents over third persons, are
     secondary.  
8.   Parent & child -- custody cases -- burden on chancellor to use powers of
     perception. -- A heavier burden is placed on a chancellor in
     child-custody cases to utilize, to the fullest extent, all of
     her powers of perception in evaluating the witnesses, their
     testimony, and the child's best interests; there are no cases
     in which the superior ability, position, and opportunity of
     the chancellor to observe the parties carries as great a
     weight as those involving child custody.

9.   Parent & child -- appellate court affirmed chancellor's finding that
     child's best interest was served by remaining in appellee's custody. --
     The appellate court affirmed the chancellor's finding that it
     was in the child's best interest that she remain in the
     custody of appellee where the proof showed that the child had
     lived with appellee for practically her entire life; that she
     had known no other parent figure; that she had grown up with
     an older half-sister, unrelated to appellant, with whom she
     enjoyed a familial bond and from whom she would have been
     separated had appellant been granted custody; appellee had
     given the child a home, nurture, and a sense of stability that
     the chancellor was entitled to consider in evaluating whether
     her best interest would be served by granting appellant's
     motion to change custody based only on his status as
     biological father, particularly where appellant had failed to
     provide those vital elements for the child's life.

     Appeal from Pulaski Chancery Court, Seventh Division; Rita J.
Gruber, Judge; affirmed.
     Mildred Havard Hansen, for appellant.
     Gary L. Sullivan, for appellee.

     Wendell L. Griffen, Judge.
     Charles Freshour has appealed the decision of the Pulaski
County Chancery Court that denied his motion to change custody of
his minor child from her maternal grandmother.  Appellant contends
that the chancellor erred in maintaining custody of his child, born
out of wedlock, with her legal guardian and maternal grandmother,
appellee Brenda West, despite a finding that appellant was not
unfit to have custody of the child.  We find no error and affirm. 
     Appellant and the noncustodial mother, Tera West (þWestþ),
conceived a child together when they were both 17 years old.  West
gave birth to Victoria West on May 11, 1993.   Appellant was unsure
whether he was the father of the child, and after initially
visiting Victoria in the hospital at her birth, followed the advice
of legal counsel who advised him against visiting the child.  West
lived with her mother, appellee, so after Victoria was born, West
and Victoria returned home to live with appellee.  Some time
afterwards, appellee directed West to leave the residence because
she refused to follow house rules. Victoria has remained with
appellee since that time.  Appellant eventually moved to Texas,
studied to be a mechanic, married, and established a family life in
Houston, Texas.
     Meanwhile, appellee became Victoriaþs legal guardian pursuant
to Ark. Code Ann.  9-10-113 (Repl. 1993).  She applied for and
received AFDC and Medicaid benefits for Victoria.  As a result, the
Pulaski County Office of Child Support Enforcement (OCSE), filed a
paternity action to determine whether appellant was Victoriaþs
father.  After paternity testing confirmed that appellant was
Victoriaþs biological father, appellant filed a petition for change
of custody in which he sought custody of Victoria, who was three
years old when the petition was filed. 
     After hearings on September 27, 1996, and October 4, 1996, the
chancellor ruled that although she could not find appellant either
unfit or incompetent, it would be in the best interest of Victoria
for her to remain in the custody of appellee. Appellant challenges
that decision on appeal and argues that a decree should have been
entered awarding custody to him because he is the biological parent
and, therefore, preferred in the eyes of the law over all other
persons, including a grandparent, unless found unfit or
incompetent. See Feight v. Feight, 253 Ark. 950, 490 S.W.2d 140
(1973)(as between a parent and a grandparent, the law prefers the
former unless the parent is incompetent or unfit); Golden v.
Golden, 57 Ark. App. 143, 942 S.W.2d 282 (1997)(there is a
preference for the parent above all other custodians); Ideker v.
Short, 48 Ark. App. 118, 892 S.W.2d 278 (1995); McKee v. Bates, 10
Ark. App. 51, 661 S.W.2d 415 (1983). 
     In child-custody cases, a chancellor's findings will not be
reversed unless they are clearly erroneous or clearly against a
preponderance of the evidence.  Ark. R. Civ. P. 52(a); Ideker v.
Short, supra.  We give due regard to the opportunity of the trial
court to judge the credibility of the witnesses, and to the
chancellorþs superior position to determine the facts. Id.  The
primary consideration in child-custody cases is the welfare and
best interest of the children involved; all other considerations
are secondary. Id.  The welfare of the child is the polestar in
every child-custody case. Id.
     The flaw in appellantþs reasoning arises from his failure to
appreciate the factors involved when a change-of-custody petition
is considered.  Appellant plainly sought a decision that changed
custody from appellee.  In deciding whether a change of custody is
warranted, a chancellor must first determine whether there has been
a material change in circumstances of the parties since the most
recent custody decree; if material changes have occurred, the
chancellor must then determine custodial placement, with the
primary consideration being the best interest of the child. Turner
v. Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997).  The party
seeking modification of a child-custody order has the burden of
showing a material change in circumstances. Jones v. Jones, 326
Ark. 481, 931 S.W.2d 767 (1996).   
     We have no difficulty affirming the chancellorþs decision
because appellant failed to show a material change of circumstances
to justify a change in custody.  Appellee has exercised custody of
Victoria most of her life since the child was born on May 11, 1993. 
After appellee assigned her rights to child support to the Pulaski
County Child Support Enforcement Unit and alleged in a June 6,
1995, affidavit that appellant was the childþs biological father,
appellant denied paternity.  His May 14, 1996, motion for change of
custody was filed only after DNA testing had established paternity.
     More important, however, is the clear evidence that appellant
took virtually no interest in and provided no support, care,
supervision, and protection for Victoria until the paternity action
aimed at recovering the money that had been paid on Victoriaþs
behalf had been filed by the Office of Child Support Enforcement. 
In that regard, we note that Ark. Code Ann.  9-10-113(c)(Repl.
1993) provides that a court may award custody of a child born out
of wedlock 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.  The chancellor was clearly justified in denying
appellantþs motion to change custody where the proof established
that he had not assumed the responsibilities specified at section
9-10-113(c)(2), even if appellant was deemed a fit parent in other
respects.
     We also affirm the chancellor because her finding that it is
in Victoriaþs best interest to remain in the custody of appellee is
not clearly erroneous.  Aside from the fact that appellant failed
to establish a material change of circumstances to justify
modifying the custody arrangement, it is fundamental that the
primary consideration in child-custody cases is the welfare and
best interest of the children involved; all other considerations,
including the legal preference favoring biological parents over
third persons, are secondary.  Our appellate decisions have
consistently recognized that a heavier burden is placed on a
chancellor in child-custody cases to utilize, to the fullest
extent, all of her powers of perception in evaluating the
witnesses, their testimony, and the childþs best interests, and
that we know of no cases in which the superior ability, position,
and opportunity of the chancellor to observe the parties carries as
great a weight as those involving child custody. Turner v. Benson,
supra. 
     These controlling principles clearly lead us to affirm the
chancellorþs finding that it is in Victoriaþs best interest that
she remain in the custody of appellee.  The proof shows that
Victoria has lived with appellee for practically her entire life,
and that she has known no other parent figure.  She also has grown
up with an older half-sister, unrelated to appellant, with whom she
enjoys a familial bond and from whom she would be separated if
appellant is granted custody.  Appellee has given Victoria a home,
nurture, and a sense of stability that the chancellor was entitled
to consider in evaluating whether her best interest would be served
by granting appellantþs motion to change custody based only on his
status as biological father, particularly where appellant had
failed to provide those vital elements for the childþs life.  We
decline appellantþs invitation to reverse the chancellor and to
hold, in effect, that his status as a biological parent trumps what
is in the best interest of his  four-year-old daughter.
     Finally, we note that appellant emphasizes the chancellorþs
assessment that he is a fit person to take custody if appelleeþs
circumstances change, and characterizes that assessment as an
almost impossible hurdle that will prevent him from ever having
custody of his daughter.  We do not know whether appelleeþs
circumstances will change, and neither did the chancellor. 
However, the chancellor was well informed about what Victoriaþs
circumstances had been insofar as appellant was concerned.  Between
appellant and appellee, the proof concerning who had acted to
protect and advance Victoriaþs best interest was clear and
uncontradicted.  If appellant views the chancellorþs decision as a
hurdle, he can remember that the chancellor decided what was in
Victoriaþs best interest based upon proof that appellant had acted
without apparent regard for her interest as long as it appeared
convenient and/or financially advantageous to do so.  The principle
that the best interest of the child is the polestar in determining
child custody disputes not only allowed the chancellor to rule as
she did, it practically dictated the result that she reached when
one considers how appellant had behaved concerning Victoriaþs best
interest.
     The fact that appellant was but seventeen years old when
Victoria was conceived, while remarkable, is legally insignificant. 
Victoria was his responsibility.  He left her.  He cannot fault the
chancellor for correctly observing that appellee has provided the
care that he was obligated but refused to provide.  Nor can he use
his biological status as father to erase his disregard for the
childþs best interest by his demonstrated failure and refusal to
provide for her for most of her life.
     Appellee was Victoriaþs legal guardian, and appellant only
moved for custody after OCSE sought reimbursement for public
benefits paid to support Victoria.  There had been no material
change in circumstances that would prompt a change of custody, as
appellant had virtually abandoned the minor child until he was
sought out by OCSE.  However, even if a change in circumstances had
been shown, the chancellorþs decision that it was in the best
interest of the minor child to be placed with the maternal
grandmother was not clearly erroneous.
     Affirmed.
     Arey, Stroud, and Neal, JJ., agree.
     Pittman and Jennings, JJ., dissent.

     John Mauzy Pittman, Judge, dissenting.  The question to be
decided in this case is whether the circumstances were so
exceptional that interests of humanity justify departure from the
general rule that, as between a parent and a grandparent, the law
prefers the parent unless the parent is incompetent or unfit.  See
Perkins v. Perkins, 266 Ark. 957,  589 S.W.2d 588 (1979); compare
Tidwell v. Tidwell, 224 Ark. 819, 276 S.W.2d 697 (1955).  
     The majority affirms the chancellor's decision to deny
appellant custody of his child by holding that there was no
material change in circumstances upon which to base a change of
custody.  However, no change in circumstances is required when
facts are presented which, although existing at the time of the
original custody determination, were not then presented or
considered.  Perkins v. Perkins, supra.  In the present case, the
child's father was unknown at the time that appellee assumed
custody.
     Nor do I agree with the majority's conclusion that appellant
voluntarily relinquished custody of the child to appellee by
failing to perform parental duties before his paternity was
established.  This was an unusual case.  When the child's mother
and father, themselves only children, first met, the mother was
pregnant with her first child.  The mother was then fifteen years
old.  She did not know who was the father of her first child.  She
filed an action to establish paternity of her first child, but it
was proven that the man she accused was not that child's father. 
The child involved in the case at bar was this teenage mother's
second child.  She testified that she began dating appellant on
July 21, 1992, and got pregnant in August.  Her relationship with
appellant ended in November.  I think that appellant was fully
justified in having genuine doubt about who fathered the child;
consequently, the case at bar is to be distinguished from cases in
which a parent voluntarily relinquished custody of his child, as
was the case in Tidwell v. Tidwell, supra, and in Verser v. Ford,
37 Ark. 27 (1881).  As our supreme court said in Payne v. Jones,
242 Ark. 686, 688-89, 415 S.W.2d 57, 58 (1967):
     To take a parent's child away from him and give it to
     strangers is an extreme measure -- a step which the
     courts should and do take only when the evidence clearly
     justifies such a course. Here, as a practical matter, the
     award of custody to the appellees would in all
     probability deprive Kale of his child just as permanently
     and just as effectively as if the boy had been adopted by
     the Joneses. In Woodson v. Lee, 221 Ark. 517, 254 S.W.2d 326 (1953), we said that the right of natural parents to
     the custody of their children, as against strangers is
     "one of the highest of natural rights, and the state
     cannot interfere with this right simply to better the
     moral and temporal welfare of the child as against an
     unoffending parent."  We also said that "abandonment by
     a parent, to justify in law the adoption of his child by
     a stranger without his consent, is conduct which evinces
     a settled purpose to forego all parental duties continued
     for a prescribed period of time when the statute so
     provides. Merely permitting the child to remain for a
     time undisturbed in the care of others is not such an
     abandonment."

Because there is no sound basis in the case at bar for finding that
appellant knowingly abandoned his child, I respectfully dissent.
     Jennings, J., joins in this dissent.