Allen v. Allen

2021 Ark. App. 263

VICTORIA ALLEN, TINA PANKEY, AND DONALD LONG APPELLANTS v. JESSE ALLEN APPELLEE

No. CV-20-521

ARKANSAS COURT OF APPEALS DIVISION II

May 26, 2021

APPEAL FROM THE RANDOLPH COUNTY CIRCUIT COURT

[NO. 61DR-19-111]

HONORABLE MICHELLE C. HUFF, JUDGE

AFFIRMED

N. MARK KLAPPENBACH, Judge

Appellants Victoria Allen, Tina Pankey, and Donald Long appeal from the order of the Randolph County Circuit Court awarding custody of minor child EA to appellee Jesse Allen. The circuit court found that Jesse is EA's legal father, denied Donald's petition for paternity, denied Tina's petition for guardianship, and denied Victoria's request for primary custody. Appellants now challenge the circuit court's findings as to paternity, guardianship, and custody, and we affirm.¹

Victoria and Jesse married in October 2013. Jesse was assigned the female sex at birth, but he has been living as a man since 2013. Victoria is the natural mother of EA, who wasborn in January 2015. EA was conceived via at-home artificial insemination. According to Jesse, the couple first tried to conceive using the sperm of his friend, Josh, but it did not result in pregnancy. They then tried conceiving with Donald, Victoria's best friend who was also the couple's roommate. Jesse said that he inserted a sample provided by Donald and that a pregnancy resulted after the second attempt. Jesse testified that it was "a given" that Victoria and he would be mom and dad to the child, and they discussed that Donald would be known as an uncle. Jesse said that he filled the role of father during the pregnancy and after EA was born. He went to most of Victoria's doctor's appointments, he was present at EA's birth, EA was given his middle and last name, and Jesse, Victoria, and EA took family photos together. Jesse is listed as EA's father on her birth certificate. The couple separated in September 2015. Victoria filed for divorce and the couple signed a custody and property-settlement agreement, but the divorce was ultimately dismissed. The agreement listed Jesse as Victoria's husband, stated that there was one child born of their marriage, awarded him standard visitation of EA, and provided that he would pay child support.

Jesse testified that in the three years following the separation, he saw EA quite frequently. In November 2018, Jesse contacted an attorney because he was concerned that Victoria was using drugs and that she and EA were moving around a lot. On January 8, 2019, Jesse was visiting EA in Missouri, where Victoria and EA were living with a cousin. During that visit, Victoria was pulled over and arrested on drug charges. Jesse then took EA home with him, and EA stayed in his care for the next fifteen days while Victoria was incarcerated. Tina, Victoria's mother, filed a petition to be appointed EA's guardian on January 16, 2019.

Jesse spoke to Victoria while she was incarcerated, and upon her release, Victoria took EA out to eat. Instead of returning with EA as she said she would, however, Victoria disappeared with her. Jesse said that he found out a few days later that Victoria and EA were in Texas. Aside from a FaceTime call in March, Victoria ignored his persistent requests to see EA and eventually blocked his phone number. Jesse said that Victoria told him that she had to disappear because Tina was trying to take EA from her. He introduced text messages that showed Victoria either evading his questions or failing to respond to him. Jesse filed for divorce in July 2019 and sought primary custody of EA. Victoria counterclaimed for divorce and sought custody of EA. The divorce case and the guardianship case filed by Tina were subsequently consolidated.

A hearing was held in October 2019. Victoria consented to Tina's having guardianship of EA. Because Jesse had not had contact with EA since January, the court awarded a temporary guardianship to Tina. Jesse was ordered to pay child support and was awarded increasing visitation to "reintroduce" him to EA. In December 2019, Donald filed a motion for leave to intervene and a petition for paternity asserting that he should be declared EA's legal father and awarded custody.

A final hearing was held in February 2020. Donald's attorney argued that a putative father has standing to intervene in a divorce action to seek the establishment of paternity so long as it is in the child's best interest. Accordingly, he argued that the court should grant the motion to intervene and then determine, on the basis of the evidence, whether grantingthe paternity petition is in the best interest of EA. The court granted the motion to intervene over Jesse's objection.

Jesse testified as to the history of the case as outlined above. He said that he had always been called dad by EA and Victoria until he saw EA in October 2019. He denied ever having heard EA or Victoria refer to Donald as dad; instead, he was referred to as EA's uncle. Jesse said that he had remained in contact with Donald after they were no longer roommates, and he had paid Donald to babysit EA on occasion. He said that his visits with EA had gone well, although Victoria and Tina had denied him some phone contact and visitation, and that EA had started calling him dad again. Jesse wanted full custody and said that he would not keep Victoria or Tina away from EA.

Victoria testified that she had used methamphetamine regularly for about six months, but she had last used it in February 2019. She had been participating in drug treatment and had recently started a job. She said that her drug charges would be dropped if she did not get any more felony charges, but she had recently learned that there was a warrant for her arrest in Missouri for "some sort of violation." Victoria said that she no longer consented to a guardianship because there was no longer a reason that she could not take care of EA by herself. On examination by her attorney, who was also Tina's attorney, Victoria said that if the court found it in EA's best interests to place "conditions" on her rights, she was willing to work with Tina.

Victoria said that she made the decision to have a baby on her own and told Jesse that she was going to have a baby with or without his participation. She said that she andDonald had planned since they were adolescents to help each other have children. She said the intent was for Jesse to be EA's dad in the "hands on" sense, but it was always understood that Donald was her dad and would be involved in her life. Victoria said that Donald has spent more time with EA than Jesse, noting that she and EA lived with Donald after her separation from Jesse, but she said that Jesse saw EA a lot after their separation. She acknowledged that she stopped letting Jesse see EA after her incarceration in January 2019.

Tina testified that she had filed for guardianship of EA because Victoria was using drugs and incarcerated, and she thought EA would be more comfortable with her than with Jesse. Tina said that Victoria is now a fit parent, and she did not know how to answer when questioned about why she was still pursuing the guardianship; she did not think Jesse was unfit either. Tina acknowledged that although she started to suspect that Victoria was using drugs beginning in August 2018, she did not keep EA away from Victoria. Tina said that EA has been in her custody when she is not working since January 2019; the rest of the time, EA is with Victoria, and Victoria and EA had been living with Tina's brother.

Donald testified that when EA was conceived, he was under the impression that they would have a nontraditional family unit. He said that EA calls him dad, that they have had consistent contact with each other, and that he has provided for EA. He felt that it would be in EA's best interest to be either with Tina or with him.

Jesse's attorney argued that according to Arkansas law on artificial insemination and caselaw from Arkansas and other jurisdictions, EA is the natural, legitimate child of Jesse because of his marriage to Victoria, and Donald's paternity petition should be denied. BothJesse's and Victoria's counsel argued that it was in EA's best interest to award custody to their respective clients. Donald's counsel argued that Jesse could not claim paternity based on Arkansas's statutes on artificial insemination because there were no written consents obtained, and the procedure was not performed by a physician. He argued that Donald is the biological father and a fit parent.

The circuit court denied Donald's petition for paternity. The court found that it was the intent of the parties at the time of EA's conception and birth that Jesse be her father. The court ruled that Jesse and Victoria are the natural, legal parents of EA. The court denied Tina's petition for guardianship upon finding that a guardianship was not warranted. The court then found that the custody decision would be based on a best-interest analysis and awarded Jesse primary custody of EA. The court found that he has a long history of steady employment and stable housing and no criminal history; had demonstrated that he loves and cares for EA and does not require help to raise her; and had demonstrated that he is more likely to foster a relationship between EA and Victoria. The court noted that Victoria, on the other hand, had demonstrated a lot of immaturity, had not maintained steady employment, did not have her own place to live, had drug problems in the recent past, and had an active warrant in Missouri. Victoria was awarded standard visitation.²

I. Paternity

Appellants argue that due to noncompliance with the two Arkansas statutes addressing artificial insemination, there is no basis for declaring Jesse to be EA's natural father and no basis for depriving Donald of his natural parental rights. Arkansas Code Annotated section 9-10-202 (Repl. 2020) provides that artificial insemination of a woman shall only be performed under the supervision of a licensed physician. Ark. Code Ann. § 9-10-202(a)....