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Gibson v. Keener

Court of Appeals of Arkansas, Division II

August 31, 2016

LINDSEY GIBSON APPELLANT
v.
MORGAN KEENER APPELLEE

         APPEAL FROM THE BOONE COUNTY CIRCUIT COURT [NO. 05-DR-10-165] HONORABLE SHAWN A. WOMACK, JUDGE

          Sexton Law Firm, by: Jane Watson Sexton, for appellant.

          Carney Law Firm, by: Jodi G. Carney, for appellee.

          BRANDON J. HARRISON, Judge

         This case started as a paternity action initiated by the Office of Child Support Enforcement (OCSE). Lindsey Gibson and Morgan Keener are the mother and father of seven-year-old K.K. An agreed order entered in August 2010 established Keener as K.K.'s father, granted OCSE a judgment for retroactive child support, established Keener's support obligations, and recognized that Gibson, as K.K.'s birth mother, had sole legal custody of K.K. pursuant to Arkansas Code Annotated section 9-10-113. A November 2010 order established Keener's visitation rights. When these orders were entered, K.K. was only a year old; Keener and Gibson were not married and had never lived together.

         Shortly thereafter in 2011, Gibson and K.K. moved into Keener's home and lived together as a family unit. In February 2012, an agreed order was entered abating Keener's obligation to pay child support. In June 2014, Gibson and K.K. moved out of Keener's home, and the parties abided by the visitation schedule contained in the circuit court's November 2010 order. That order gave Keener visitation every other weekend.

         The latest round of litigation resulting in this appeal started in July 2014 when OCSE filed a motion to set child support because (1) Gibson and Keener were no longer cohabiting and (2) Keener was no longer providing support for K.K. In August 2014, Keener filed a cross-claim against Gibson, alleging that circumstances had changed because he established a relationship with K.K. by residing in the same home for the past three years, that he had supported K.K., and that it was in K.K.'s best interest for Keener to be granted joint custody.

         Gibson appeals the circuit court's decision to give Keener joint custody of K.K. and to increase his visitation time. We affirm.

         I.

         This court performs a de novo review of child-custody matters, but we will not reverse the circuit court's findings unless they are clearly erroneous. Taylor v. Taylor, 353 Ark. 69, 110 S.W.3d 731 (2003). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been made. Smith v. Parker, 67 Ark.App. 221, 998 S.W.2d 1 (1999). We recognize and give special deference to the superior position of the circuit court to evaluate the witnesses, their testimony, and the child's best interest. Sharp v. Keeler, 99 Ark.App. 42, 256 S.W.3d 528 (2007).

         Arkansas Code Annotated section 9-10-113 sets forth the law regarding custody of a child born out of wedlock:

(a) When a child is born to an unmarried woman, legal custody of that child shall be in the woman giving birth to the child until the child reaches the age of eighteen (18) years unless a court of competent jurisdiction enters an order placing the child in the custody of another party.
(b) A biological father, provided he has established paternity in a court of competent jurisdiction, may petition the circuit court in the county where the child resides for custody of the child.
(c) The court may award custody to the biological father upon ...

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