637 S.W.3d 274
Ark. Ct. App.2021Background
- Kristi and Daniel cohabited after a 2008 relationship; their child JH was born July 17, 2009. After the relationship ended, the parties shared roughly equal time with JH.
- Kristi remarried and relocated to Little Rock in 2019 and sought to move JH there at summer’s end; Daniel filed for paternity and full custody on July 2, 2019.
- Daniel had signed an acknowledgment of paternity in 2014; Kristi later obtained DNA testing showing a zero percent probability that Daniel is the biological father.
- The circuit court found the acknowledgment’s presumption rebutted by the DNA, concluded Daniel stood in loco parentis, found both parents fit, applied relocation factors, and awarded Daniel primary custody; it also imputed income to Kristi, ordered child support, and awarded attorney’s fees and costs to Daniel.
- Kristi appealed, arguing a biological parent’s custody preference prevails unless the parent is unfit; Daniel did not file a cross-appeal contesting the court’s findings on paternity/in loco parentis.
Issues
| Issue | Plaintiff's Argument (Priesmeyer) | Defendant's Argument (Huggins) | Held |
|---|---|---|---|
| Whether custody may be awarded to a non‑biological person who stood in loco parentis when the biological parent is fit | Biological parent preference controls; custody to non‑biological parent is improper absent unfitness | Daniel argued his in loco parentis status (and acknowledgment) justified custody | Reversed: biological parent’s custody rights prevail unless natural parent is found unfit; circuit court erred in awarding custody to Daniel |
| Whether the voluntary acknowledgment of paternity conclusively established Daniel as JH’s father despite DNA | Kristi relied on DNA showing Daniel is not biological father | Daniel argued acknowledgment creates conclusive paternity under Ark. Code § 9‑10‑120 | Not addressed on merits by appellate court (Daniel failed to file cross‑appeal); lower court had found the acknowledgment’s presumption rebutted by DNA |
| Imputation of income and child support order against Kristi | Kristi disputed income imputation and resulting support order tied to custody award | Daniel relied on court’s imputation to support child‑support award | Reversed (support order tied to reversed custody); remanded for further proceedings consistent with opinion |
| Award of attorney’s fees and costs to Daniel | Kristi challenged fee/cost awards as tied to erroneous custody/support rulings | Daniel sought fees/costs as awarded below | Reversed (fees and costs vacated along with custody/support awards); remanded |
Key Cases Cited
- Stamps v. Rawlins, 297 Ark. 370 (preference for biological parents in custody matters)
- McCrillis v. Hicks, 518 S.W.3d 734 (appellate discussion applying biological‑parent preference in loco parentis disputes)
- Daniel v. Spivey, 386 S.W.3d 424 (standard of review for custody and mixed questions of law and fact)