Ark. Code Ann. § 9-10-113 (2026)

Research References

U. Ark. Little Rock L.J.

Legislative Survey, Family Law, 4 U. Ark. Little Rock L.J. 595.

Arkansas Law Survey, Price, Civil Procedure, 9 U. Ark. Little Rock L.J. 91.

Survey — Family Law, 10 U. Ark. Little Rock L.J. 577.

Seventeenth Annual Survey of Arkansas Law — Family Law, 17 U. Ark. Little Rock L.J. 557.

Case Notes

In General.

Under this section, a biological father may petition for custody, provided that he has established paternity. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

Trial court did not procedurally err in considering the mother's evidence of her fitness to have custody of the child where although the mother had not filed an affirmative pleading in response to the biological father's temporary custody action, custody of the child was with the mother under this section, and thus, permanent custody was the issue to be decided at the final hearing. Deaton v. Morgan, 2014 Ark. App. 521, 443 S.W.3d 580 (2014).

Trial court did not clearly err in granting custody of the child to the mother where the testimony concerning the mother's living situation, her employment, and her attentiveness to the child did not leave the appellate court with a definite and firm conviction that a mistake had been made. Deaton v. Morgan, 2014 Ark. App. 521, 443 S.W.3d 580 (2014).

Construction.

Section 9-10-109(a)(1) and subsection (a) of this section are congruous; the finding of paternity and the establishment of visitation therein is a final determination from which to use the same standards as other custody situations. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

Best Interest of Child.

Trial court did not err in awarding custody of the parties' child to the mother. There was evidence that the mother had been the primary caregiver during the child's life and was able to provide a suitable home with help from family members to care for the child. Smith v. Hudgins, 2014 Ark. App. 150, 433 S.W.3d 265 (2014).

Burden of Proof.

Each parent has the right to request a change in custody; it is then that party's burden to show that there has been a change in circumstances since the original order establishing custody or that there were facts not presented at the initial hearing that would bear on the best interests of the child. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

Fathers of illegitimate children should certainly bear the same burden as fathers of legitimate children born of marriage. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

Change in Circumstances.

It is not an unfair burden to require the biological father to prove a change of circumstances when the law presumes the child shall be in the custody of the mother and the paternity order establishes visitation. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

The chancellor did not err by charging father with showing a change of circumstances since the last custody order, which the chancellor deemed the initial determination of paternity, and adding this to the three requirements listed in subsection (c) of this section, since a “material change of circumstances” is required in other change of custody cases. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

Where a child was born outside of marriage and the father petitioned for a change of custody so that he could gain custody, although the appellate court had doubts about the father's alleged drug use, the circuit court, after weighing the evidence, properly decided that evidence existed to support a finding of changed circumstances, and determined that awarding custody of the child to the father was in the child's best interests. Cranston v. Carroll, 97 Ark. App. 23, 242 S.W.3d 643 (2006).

Order awarding custody of an illegitimate child to the child's father was upheld where the trial court did not err in not requiring the father to prove a material change of circumstances prior to the entry of the custody order; although an original visitation order did not set a future date for a custody hearing, the order was temporary in nature because it did not resolve the issue of custody. Harmon v. Wells, 98 Ark. App. 355, 255 S.W.3d 501 (2007).

In a petition for protection, paternity, and custody, a father, before being awarded custody of his minor daughter, was not required to show a material change of circumstances under this section because no order had been entered regarding custody until the father filed his petition. Donato v. Walker, 2010 Ark. App. 566, 377 S.W.3d 437 (2010).

Trial court erred in requiring a biological father to prove a material change of circumstances in order to obtain custody of his two children because it was an initial custody determination with the paternity action, not a change of custody action. Lane v. Blevins, 2013 Ark. App. 270 (2013).

In a custody case involving a child born to unmarried parents, a father was not required to establish a material change of circumstances; because the father filed his petition for custody before paternity was established, and a subsequent June 11, 2013, order was temporary in nature, the father only had to meet the three requirements in this section to be awarded custody. Moreover, the mother initially exhibited a lack of regard for the father's opportunity and time to be with the child, an award of joint custody was in the best interest of the child, and both parties were appropriate for the placement of the child in their care and custody. Ryan v. White, 2015 Ark. App. 494, 471 S.W.3d 243 (2015).

Father of an out-of-wedlock child was required to plead and establish a material change of circumstances where a paragraph in the initial paternity judgment stated that the mother had custody until a subsequent order placed the child in the custody of another person or the child turned 18, whichever was later, that paragraph was an enforceable judicial determination that clearly established custodial rights even though it was silent as to the father's visitation rights, and nothing in the order indicated that it was temporary. Rivers v. DeBoer, 2019 Ark. App. 132, 572 S.W.3d 887 (2019).

Custody to Father.

Circuit court was in the best position to judge the witnesses' credibility in what was essentially a swearing match about who would be the better custodial parent, and the appellate court deferred to the circuit court's decision granting custody of the parties' daughter born out of wedlock to the father. The circuit court's rulings banning alcohol, drugs, and cohabitation by unwed or non-blood relatives adequately addressed any other issues about the father's custody being in his daughter's best interest. Medina v. Roberts, 2010 Ark. App. 165 (2010).

In a petition for protection, paternity, and custody, the trial court properly awarded custody of the parties' minor daughter to the father because the evidence showed that the mother's temper scared her daughter, that the mother attempted to commit suicide, and that the father was an exceptional parent. Donato v. Walker, 2010 Ark. App. 566, 377 S.W.3d 437 (2010).

Order granting custody of the parties' child to the father following a finding of paternity was proper because the circuit court's finding that it was in the child's best interest to be in the custody of the father was not clearly erroneous. Although the circuit court recognized the mother's homosexual relationship, it was her “lifestyle choices” that resulted in the decision to award custody to the father, including the fact that she was not employed and was not progressing academically in college and yet she left the child in daycare. Brimberry v. Gordon, 2013 Ark. App. 473 (2013).

Trial court properly awarded custody to a father because he established his paternity, had provided housing and support for the child since her birth, and the mother failed to preserve her arguments regarding any “material change in circumstances.” Abo v. Walker, 2014 Ark. App. 500 (2014).

Custody to Third Party.

An award of custody of a child to the child's grandmother, with liberal visitation to the father was appropriate, where (1) the biological mother surrendered custody to the grandmother, (2) the father never voluntarily established his paternity and failed to assume his responsibilities toward the child for over 3 years, (3) the father recognized the difficulties he and his wife would face if there was an immediate removal of the child from the only home she had known, and (4) the grandmother also had custody of a half-sister of the child. Freshour v. West, 334 Ark. 100, 971 S.W.2d 263 (1998).

Joint Custody.

“Favored” status of joint custody specifically applies in divorce cases rather than custody cases involving children born to unmarried parents but § 9-10-109 expressly provides that, once paternity has been established, the court is ordered 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.” Accordingly, in a case concerning custody of a child born to unmarried parents, the circuit court did not err in recognizing that joint custody is “favored” under § 9-13-101. Ryan v. White, 2015 Ark. App. 494, 471 S.W.3d 243 (2015).

In awarding a biological father joint custody and increased visitation time with a child born out of wedlock, the circuit court did not improperly predicate its child custody ruling on § 9-13-101(a)(1) where it simply acknowledged the favored status joint custody received under that statute. Gibson v. Keener, 2016 Ark. App. 363, 498 S.W.3d 760 (2016).

Circuit court did not err in finding a material change in circumstances to warrant a change of custody where the evidence showed that the father's relationship with the child had blossomed into a parent-child relationship that had not yet begun at the time of the last custody order, and although there was conflicting testimony on the father's alcohol use and how much involvement he had with the child's care, the evidence supported the circuit court's conclusion that the mother and father were reasonable parents capable of co-parenting. Gibson v. Keener, 2016 Ark. App. 363, 498 S.W.3d 760 (2016).

Parental Fitness.

The chancellor was clearly justified in denying father's motion to change custody where the clear evidence established that he had not assumed the responsibilities specified in subdivision (c)(2) of this section, even if he was deemed a fit parent in other respects. State Office of Child Support Enforcement v. Mitchell, 61 Ark. App. 54, 964 S.W.2d 218 (1998).

Court properly awarded custody of child to the father where paternity was established, the father paid child support and was a fit parent, the mother was unemployed, and she failed to aid the facilitation of a relationship between the father and the child. Sheppard v. Speir, 85 Ark. App. 481, 157 S.W.3d 583 (2004).

Court erred by awarding child custody to a father because the mother lived within her means, was receiving child support, was receiving legitimate governmental aid, and managed to run an independent household where she could be a full-time parent. Although the father had held down a full-time job for several years, had his family to support his parenting, and had taken responsibility for the child, he lived with his parents, he had a sister who could not be left alone with the child due to drug-abuse concerns, and he had no experience in raising a child. Sykes v. Warren, 99 Ark. App. 210, 258 S.W.3d 788 (2007).

Trial court properly awarded custody of a child to his biological father, pursuant to subsection (a) of this section, where the father had a clean, stable, loving environment for the child; the child suffered from a dog bite wound and had dirty hygiene while in the care of his mother, whose religious beliefs and mental health were factors in the trial court's assessment of the child's best interests. Hicks v. Cook, 103 Ark. App. 207, 288 S.W.3d 244 (2008).

Presumption of Custody.

Before 1987, no provisions for presumption of custody were in this section, and either parent of an illegitimate child could petition for custody under the same three criteria; however, in 1987, the legislature changed this section be adding a presumption of custody in the mother and leaving the father with the right to seek custody after establishing paternity. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

The order establishing paternity gave the statutory presumption the effect of judicial determination. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

Implicit in an order of paternity establishing visitation is a determination that custody should continue to rest in the mother. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

Relation to Divorce Cases.

In a divorce case, a wife's argument under this section relating to children that were born out of wedlock was rejected because this section is part of the Paternity Code, and its applicability did not extend to divorce decrees; moreover, the husband alleged that he was the father of the children born out of wedlock in his divorce complaint, the allegation was uncontested by the wife, and the divorce decree stated that the husband was the father. Villanueva v. Valdivia, 2016 Ark. App. 107, 483 S.W.3d 308 (2016).

Venue.

The fact that the legislature provided for venue in two counties in § 9-10-104 (rewritten by 1989 amendment), which governs suits brought by a father to determine paternity, but only one county in this section, demonstrates that this section was intended to limit venue in custody actions to the county wherein the child resides. Fuller v. Robinson, 279 Ark. 252, 650 S.W.2d 585 (1983).

Mother properly raised a venue argument in her first responsive pleading; however, the issue was without merit because the provisions of this section were inapplicable in a case where a minor child no longer resided in Arkansas. Thomas v. Avant, 370 Ark. 377, 260 S.W.3d 266 (2007).

Cited: Roque v. Frederick, 272 Ark. 392, 614 S.W.2d 667 (1981); Jarmon v. Brown, 286 Ark. 455, 692 S.W.2d 618 (1985); Hooks v. Pratte, 53 Ark. App. 161, 920 S.W.2d 24 (1996); Leach v. Leach, 57 Ark. App. 155, 942 S.W.2d 286 (1997); Gilbert v. Moore, 364 Ark. 127, 216 S.W.3d 583 (2005).