Karley D. RIVERS, Appellant
Caleb DEBOER, Appellee
FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35DR-16-641],
HONORABLE WILLIAM BENTON, JUDGE
& Zakrzewski, P.A., by: Luke Zakrzewski, for appellant.
& Associates, PLLC, Pine Bluff, by: Jackie B. Harris, for
J. HARRISON, Judge
is a custody case, with a legal twist. Karley Rivers appeals
the circuit courts 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 cases facts and procedural course. Some
history will place the parties dispute, and this courts
disagreement over how to decide it, in context.
June 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
childs 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
will say more about this paragraph, and the courts 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 familys 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. DeBoers 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. Riverss drug use was the concern in July 2016.
responded. She admitted that the court had previously
adjudicated DeBoers paternity, explained that G.D. was
residing with Rivers in her mothers home, and otherwise
opposed DeBoers 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 OCSEs decided paternity
case with the pending custody case. The circuit court did so.
2017, the court held a hearing on DeBoers custody petition.
After receiving testimony from DeBoer, Rivers, DeBoers
employer, and DeBoers wife, the court continued the hearing
until September. During part two of the custody hearing,
Rivers called her father and DeBoers mother to testify.
Rivers testified, too. And DeBoer took the stand to rebut
some of his mothers testimony; then the parties made closing
arguments. The court did not rule from the bench.
on 12 October 2017, the court entered a written order finding
that the August 2011 default judgment had established
DeBoers 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
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
The August 2011 Judgment.
the circuit courts 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 courts 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.
read 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.
Revisiting 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. DeBoers 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 ...