Freshour v. West
In Freshour v. West, 334 Ark. 100, 971 S.W.2d 263 (1998), the natural father challenged the award of custody of the child, Victoria, to the maternal grandmother, Brenda West.
The child's mother had surrendered physical custody to Ms. West, who was the child's sole caretaker. The court explained its holding as follows:
Charles contends that when the chancellor found him to be a fit parent, the chancellor was obliged to place Victoria in his custody. Charles's argument overlooks the fact that the supreme court cases he cites all involved custody cases where the children were legitimate at the time of birth. However, in the instant case, Charles's responsibility for Victoria was established under Arkansas's paternity statute, 9-10-113, and any right Charles may have to the custody of Victoria depends upon the requirements provided in 9-10-113.
The record further reflects that Charles never voluntarily attempted to establish his paternity of Victoria, and such paternity was only established after the State initiated this paternity action against him. In short, for more than three years, Charles failed to make any effort to assume his responsibilities toward Victoria as required under 9-10-113(c)(2), and this failure is sufficient for us to uphold the chancellor's finding and authority to deny Charles custody.
The chancellor also found that, under 9-10-113(c)(3), it was in Victoria's best interest for her to remain in Brenda's custody. We hold the evidence is sufficient to support that finding as well. In this respect, the chancellor gave full consideration to Charles's growth in maturity since Victoria's birth - Charles has since married, works steadily, and now responsibly supports two children in his marriage. Nonetheless, in making his argument, even Charles recognizes the difficulties he and his wife would face if there was an immediate removal of Victoria from the only home she has known.
We emphasize that, while there is a preference in custody cases to award a child to its biological parent, that preference is not absolute. See Larkin v. Pridgett, 241 Ark. 193, 407 S.W.2d 374 (1966) (where a biological mother sought custody of an illegitimate son, but court upheld award to paternal grandparents); Tidwell v. Tidwell, 224 Ark. 819, 276 S.W.2d 697 (1955) (where court upheld nine-months-per-year custody of legitimate child in paternal grandparents). Rather, of prime concern, and the controlling factor, is the best interest of the child. Larkin, 241 Ark. at 199, 407 S.W.2d at 377. (334 Ark. at 102-105, 971 S.W.2d at 264-266.)