Court of Appeals of Arkansas, Divisions IV, I & II
KARLEY D. RIVERS APPELLANT
CALEB DEBOER APPELLEE
FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35DR-16-641]
HONORABLE WILLIAM BENTON, JUDGE
Robinson & Zakrzewski, P.A., by: Luke Zakrzewski, for
McKissic & Associates, PLLC, by: Jackie B. Harris, for
BRANDON J. HARRISON, JUDGE
a custody case, with a legal twist. Karley Rivers appeals the
circuit court's order that switched custody of her minor
son, G.D., to his father, Caleb DeBoer. The parents were not
married when their son was born. Rivers had custody of G.D.
from his birth in 2009 until the court changed that in its 12
October 2017 order. She argues that the circuit court erred
by awarding custody to DeBoer because the "proof did not
evince a material change in circumstances warranting a
custody modification," and the change was not otherwise
in G.D.'s best interest.
twist is that an interpretive tussle has arisen over how to
apply an Arkansas statute addressing custody of children born
out of wedlock-and the case law that has dealt with it-to
this case's facts and procedural course. Some history
will place the parties' dispute, and this court's
disagreement over how to decide it, in context.
2011, the Arkansas Office of Child Support Enforcement (OCSE)
filed a paternity complaint in the Jefferson County Circuit
Court. The complaint alleged that DeBoer is the father of
G.D., who was born out of wedlock to Karley Rivers in 2009.
In the paternity complaint, Alicia Morris, the child's
maternal grandmother, was listed as G.D.'s then
custodian. DeBoer did not answer the complaint, so OCSE moved
for a default judgment.
received one, in August 2011, when the circuit court entered
a judgment of paternity, determined that DeBoer is G.D.'s
father, and required him to start paying child support, among
other things. The judgment misidentified Morris (the maternal
grandmother) as G.D.'s biological mother but to no ill
effect. More to the point, the judgment states, in paragraph
Pursuant to Ark. Code Ann. § 9-10-113 . . . the woman
giving birth to the child(ren) of this action, has legal
custody of the minor child(ren) until the child(ren) reaches
the age of eighteen (18) years unless a court of competent
jurisdiction enters an order placing the child(ren) in the
custody of another.
say more about this paragraph, and the court's judgment
as a whole, in due course. For now, just know that paragraph
13 has a leading role in this appeal.
court interventions occurred in the family's lives
custody wise, as far as the record shows, for approximately
five years after the 2011 paternity judgment was entered. In
mid-July 2016, however, DeBoer filed a change-of-custody
petition against Rivers (and grandmother Morris). In his
"Petition for Change of Custody," DeBoer admitted
that the circuit court adjudicated him G.D.'s father in
the 2011 paternity case and asked the court to determine that
a material change in circumstances had occurred since that
time. DeBoer's petition sought primary physical custody
of G.D. The father further alleged that "it is currently
in the best interest of [G.D.] that custody be placed"
with him. Rivers's drug use was the concern in July 2016.
responded. She admitted that the court had previously
adjudicated DeBoer's paternity, explained that G.D. was
residing with Rivers in her mother's home, and otherwise
opposed DeBoer's petition. In her counterpetition, Rivers
stated that DeBoer had "stated no grounds or any facts
or allegations that would indicate a material change in
circumstances has occurred." DeBoer responded.
later, in February 2017, DeBoer filed an emergency petition
for temporary custody of G.D. because Rivers was in a
drug-rehabilitation facility in Florida, which made her
unable to care for G.D. A couple of weeks later, Rivers and
DeBoer jointly moved to consolidate OCSE's decided
paternity case with the pending custody case. The circuit
court did so.
2017, the court held a hearing on DeBoer's custody
petition. After receiving testimony from DeBoer, Rivers,
DeBoer's employer, and DeBoer's wife, the court
continued the hearing until September. During part two of the
custody hearing, Rivers called her father and DeBoer's
mother to testify. Rivers testified, too. And DeBoer took the
stand to rebut some of his mother's testimony; then the
parties made closing arguments. The court did not rule from
on 12 October 2017, the court entered a written order finding
that the August 2011 default judgment had established
DeBoer's paternity of G.D., that DeBoer was fit to raise
G.D., and that DeBoer had assumed his responsibilities toward
G.D. by providing care, supervision, protection, and
financial support. The court also found that "[i]t [wa]s
in the best interest of [G.D.]" to award custody to the
father. (These findings comport with Ark. Code Ann. §
9-10-113 (Repl. 2015)). Consequently, the court awarded
custody to DeBoer and granted Rivers reasonable visitation.
The order also noted that to the extent grandmother Morris
had made a claim for custody, the claim was abandoned and
dismissed. Rivers filed a timely notice of appeal, and here
the case has landed.
main point: did the circuit court err by awarding custody to
DeBoer because, according to Rivers, the "proof did not
evince a material change in circumstances warranting a
custody modification"? A rather common legal question in
this court has taken an uncommon turn. This is so because, as
the dissent shows, a disagreement has arisen over whether
DeBoer had to plead and prove that a material change in
circumstances had occurred. More specifically, the issue is
whether DeBoer was required to establish that a material
change in circumstances had occurred between the time the
August 2011 "Default Judgment of Paternity" was
entered and when he filed for the change in July 2016. Our
dissenting colleagues believe the father was not required to
prove such a change because an initial custody determination
was not made in the 2011 paternity judgment. In other words,
because the custodial provision in the paternity judgment was
entered pursuant only to the out-of-wedlock statute, it is
not a judicial determination of custody.
respectfully disagree with our colleagues on this important
facet of child-custody law. What follows is our view of
Arkansas law on when the biological father seeking custody of
a child born out of wedlock must show a material change in
August 2011 Judgment. Did the circuit court's
judgment place custody of G.D. with his mother, Rivers? If
the judgment placed custody of the child with his mother- and
if the judicial determination was a final custodial decision
rather than a temporary one- then a legal consequence
attaches. The consequence is that DeBoer was required to
prove in his 2016 change-of-custody case that a material
change in circumstances had occurred since the 2011 paternity
judgment was entered.
return to the paragraph in the court's paternity judgment
over which there are competing interpretations:
13. Pursuant to Ark. Code Ann. § 9-10-113, [KARLEY
RIVERS], the woman giving birth to the child(ren) of this
action, has legal custody of the minor child(ren) until the
child(ren) reaches the age of eighteen (18) years unless a
court of competent jurisdiction enters an order placing the
child(ren) in the custody of another.
paragraph 13 to state that, as of 29 August 2011, Rivers had
custody of G.D. until a subsequent court order places him in
the custody of another person, or he turns eighteen,
whichever event would come first. The authority under which
the court initially gave Rivers custody was based on a
statute that has been in place since 1987. The court simply
exercised its authority under law and entered an enforceable
judgment. Because the judgment placed custody of G.D. with
Rivers, it is, by definition, the first (initial) custody
order. Whether it was a temporary or a final decision then
becomes the next pivotal question.
the parties' court papers is valuable here. Each parent
seems to have understood that DeBoer had to plead and prove a
material change in circumstances when he sought custody of
G.D. DeBoer's petition, which we mentioned earlier,
included these paragraphs and prayer for relief:
1. By Order of the Circuit Court of Jefferson County,
Arkansas, Domestic Relations Division, No. DR-2011-855 . . .
Caleb J. DeBoer was adjudicated the father of G.D., minor . .
. born out of wedlock to Karley Rivers.
2. In that Order Karley Rivers was granted custody of the