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Carrillo v. Ibarra

Court of Appeals of Arkansas, Division I

April 3, 2019



          Brockman, Norton & Taylor, by: C. Mac Norton, for appellant.

          Dobson Law Firm, P.A., by: R. Margaret Dobson, for appellee.


         This appeal concerns custody of a child born in 2009 to parents who were not married. Appellant Roberto E. Carrillo appeals the January 2018 order of the Jefferson County Circuit Court that denied his request for joint custody of his son and that granted custody to the child's mother, appellee Nancy Morales Ibarra. Roberto argues that the circuit court failed to give "due consideration" to Arkansas's statutory preference for joint custody and therefore erred in rejecting joint custody. We affirm.

         Child-custody cases are reviewed de novo on appeal, but we will not reverse a circuit court's findings of fact unless they are clearly erroneous. Louton v. Dulaney, 2017 Ark.App. 222, 519 S.W.3d 367. A finding of fact is clearly erroneous if, after reviewing all the evidence, the appellate court is left with a definite and firm conviction that a mistake has been made. Id. Whether a circuit court's findings are clearly erroneous turns largely on the credibility of the witnesses; therefore, we give special deference to the circuit court's superior position to evaluate the witnesses, their testimony, and the child's best interest. Id. There are no cases in which the circuit court's superior position, ability, and opportunity to observe the parties carry as great a weight as those involving minor children. Id. The primary consideration in child-custody cases is the welfare and best interest of the child; all other considerations are secondary. Id.

         The following law is relevant to this case. In an action for divorce, custody shall be made without regard to the sex of a parent but solely in accordance with the welfare and best interest of the child, and an award of joint custody is favored. Ark. Code Ann. § 9-13-101(a)(1)(A)(i), (iii) (Repl. 2015). When in the best interest of a child, custody shall be awarded in a way that assures frequent and continuing contact of the child with both parents consistent with subdivision (a)(1)(A). Ark. Code Ann. § 9-13-101(b)(1)(A)(i). In making the custody decision, the circuit court "may" consider awarding joint custody, Ark. Code Ann. § 9-13-101 (b)(1)(A)(ii), and the circuit court "may consider, among other facts" which party is more likely to allow the child frequent and continuing contact with the noncustodial parent, Ark. Code Ann. § 9-13-101(b)(2). Once paternity has been established, the circuit court is to follow the same guidelines, procedures, and requirements as if it were a case involving a child born of a marriage in awarding custody and visitation. See Ryan v. White, 2015 Ark.App. 494, 471 S.W.3d 243.

         The facts of this case are, for the most part, undisputed. Roberto and Nancy had lived together for several years when their son, EC, was born in June 2009 in Arkansas. At that time, they were living in Redfield. Roberto signed an acknowledgement of paternity and was recognized as the child's father on the birth certificate. The parties separated for some months in 2011, but they reconciled and continued to live together as a family until the fall of 2013. When they separated, EC remained with Nancy. In May 2016, Roberto filed a petition seeking to formally establish paternity, to acquire temporary visitation rights, and ultimately to have custody. In June 2016, the parties entered into an agreed temporary order in which Nancy continued to have custody while Roberto was entitled to specific visitation. An attorney ad litem was appointed to represent EC's interests.

         The matter was heard before the circuit court in July 2017 when EC was eight years old. EC was universally deemed a bright, pleasant, talented, and well-adjusted child. There was no dispute that both Roberto and Nancy are loving parents, both have good full-time jobs, and both are financially responsible toward their son. However, the parties had difficulty in communicating and agreeing where EC was concerned. Roberto wanted to have joint custody, whereas Nancy did not. Roberto asserted that he is an involved and loving father, that he lives close enough to make joint custody work, and that joint custody would be best for their son. Roberto complained that after he and Nancy separated, and until the temporary order was entered, Nancy refused to allow him to have their son overnight, and she was very controlling. Roberto stated that since the temporary order had been entered, he had had his son for every possible visitation and that their relationship was great. Nancy contended, in sum, that she had been EC's primary caregiver his whole life and that Roberto was uncooperative and unreliable in ways that made joint custody not a viable arrangement.

         Nancy's mother, who lived near Nancy in Redfield, testified that she helped care for her grandson for both Nancy and Roberto and that, regardless of this litigation's outcome, she would continue to help. EC would typically come to her house after school when he got off the bus, and one of the parents would come get EC after his or her workday ended. The grandmother also kept EC some in the summertime. She did not express any substantive concerns about Roberto's parenting, but she noted that Nancy was the parent who took EC to school and tended to doctor's visits.

         By the time of the hearing, Roberto was living in a home that was approximately a fifteen-minute drive from Nancy's house. Roberto said that he had flexibility with his job to take off work if his son got sick or needed something. Roberto acknowledged that he and Nancy had had "maybe a couple of disagreements" or "misunderstandings" but that they had worked out those issues. He agreed, though, that they had difficulty communicating with each other and that he would rather not talk to Nancy. He said that their differences were "in a way, good differences." He said that one time, Nancy asked him to take off work to care for EC because he was ill, and he took off work, but she sent EC to school the next day without telling him. He recalled another time that Nancy let EC spend the night with a friend, but Nancy would not tell him where EC was or give him a phone number to reach EC, which greatly concerned him. Ultimately Nancy went to get EC, and Roberto was able to talk to his son.

         Roberto supported the many activities that EC participated in, but he said that Nancy did not inform him that she had enrolled EC in karate classes. Roberto did not often take EC to doctor's and dentist's appointments but said he was present for the important ones. Nancy and Roberto disagreed whether EC had an eating disorder (not eating enough); she thought EC did, but Roberto "knew [EC] was eating," at least at his house. Roberto spent quality time with EC and shared his hobbies with him, but he had not attended any parent-teacher conferences, claiming to be unaware of when those conferences were going to take place. Roberto felt that his son wanted to live with him, and he had told EC that they were "going to see the judge" about having more time together. Roberto suggested a week-on, week-off schedule with his son.

         EC's first-grade and second-grade teachers testified that EC was a good student, that they had seen Nancy at many school-related events, and that Nancy clearly made EC's education a priority. They had no complaints about Roberto but noted that he had come to school only a few times and had not made efforts to communicate with them about EC. Roberto had not signed up for text or email alerts, nor had he attended parent-teacher conferences.

         Nancy testified that she has a full-time job and co-owns a daycare in Redfield, where EC would go when her mother could not care for EC. Nancy recited all the daily, academic, and extracurricular activities in EC's life and her involvement; she also recounted all of EC's events that Roberto had missed despite her having sent Roberto texts and emails about those events. Nancy recognized that they both had difficulties in communicating with each other and had different views on how to parent EC. She said that Roberto did not believe EC had an eating disorder, telling her that she was crazy and refusing to abide by any of the therapist's recommendations. She also said that Roberto was not initially supportive of EC's taking karate lessons. Nancy testified that Roberto refused to go to therapy to improve their communication even though therapy had been recommended. They had both, in the past, raised their voices to each other, but she said she had made a concerted effort to stop doing that. Nancy explained that she asked Roberto to take off work to care for EC one time, but he had instead sent her his employer's leave policy. Nancy testified about one incident in which she permitted EC to spend the night with his best friend (the child of a well-known friend), but Roberto became very upset and demanded that EC go home; as a result, she went to get EC. Nancy agreed that ...

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