Dakoda Baker v. Shelby Baker

Cite as 2024 Ark. App. 331
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-23-324

Opinion Delivered May 22, 2024
DAKODA BAKER
APPELLANT APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
FOURTEENTH DIVISION
V.
[NO. 60DR-20-2040]

SHELBY BAKER HONORABLE SHAWN J. JOHNSON,
APPELLEE JUDGE
REVERSED AND REMANDED

RITA W. GRUBER, Judge

On January 19, 2023, the Pulaski County Circuit Court entered an original divorce

decree granting Dakoda Baker a divorce from Shelby Baker on the grounds of eighteen

months’ separation. The decree awarded the parties joint legal custody of their only child,

(MC), born in 2018, and awarded Shelby primary physical custody of MC with summer

visitation to Dakoda, who lives in Florida.

Dakoda contends on appeal that the circuit court erred by (1) relying on Arkansas

Code Annotated sections 28-1-101 et seq. (Repl. 2012) to make a custody determination and

(2) awarding Shelby primary physical custody of MC because this was not in MC’s best
interest. These points are interrelated, and we combine them as one. The issue is the circuit

court’s finding of best interest.1

The Bakers were married on March 17, 2017, and separated on May 16, 2020, while

they were living in Colorado. Shelby returned to Arkansas in May 2020 with MC, who was

the only child of the marriage. Dakoda also returned to Arkansas but soon went back to

Colorado, ultimately moving to Florida in June 2020. By agreement, the parties shared

custody of MC beginning in August 2020 and transferred physical custody every three

months. As MC approached school age, the parties anticipated that changing physical

custody every three months would no longer be feasible. Dakoda filed a complaint for

divorce in June 2020, seeking custody of MC and filed an amended complaint in February

2022.

A final hearing was held on September 27, 2022. Both parties requested an award of

joint legal custody, but each asked to be awarded primary physical custody with the other

parent to receive summer visitation. The circuit court informed the parties at the hearing’s

conclusion that “this was a really hard call” and nothing had caused anyone to win or lose.

The court stated, “We’re trying to build the best human being that we can possibly get to

that twenty-year-from-now time frame.” The court then voiced its concern about MC’s

connection to a half sibling, Shelby’s six-month-old daughter, stating that “under the laws of

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The circuit court’s award of joint legal custody is not challenged by the parties on
appeal. Nor do the parties challenge the court’s order that our statutory presumption for
joint custody was overcome by the parties’ living in separate states with significant mileage
between them.

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probate, there’s ‘all kinds’ of connections there.” Dakoda, through counsel, immediately

objected that this was not a probate case. The court stated,

It doesn’t matter. The same issue applies . . . the idea that the best
interest, and that’s what those factors are in Probate are best interest factors.
The notion that there are other siblings related, it does apply. It applies here
because this child has connections with other family members that are in their
family tree. Now, there are also family tree members in Florida, I get that. But
I, I struggle to figure out what the better arrangement would be.

I applaud Mr. Baker for setting those things up. I think that’s great.
That’s remarkable. And the family connection you have is astoundingly
wonderful. But Ms. Baker has that too. It may not be of the same dynamic that
you do, and you’re critical of it, I understand that. But what we’re going to do
because school is going to start up is that for now, during the school year, she’ll
stay here. But I’m giving you the entire summer. As soon as that summer starts,
you’ve got all ninety days or thereabouts. Visitation can be altered by motion.
We are finding that joint custody in the legal sense is awarded to you both
with, with mother as primary joint custody . . . .

The circuit court complimented the parties’ different styles of parenting and their

family connections. The court stated, “It’s the connection with this half sibling . . . that I

yield to. That and just that . . . there’s really nothing overarching to suggest that one, that

moving [MC] to Florida is, on a permanent basis is what we ought to do under these

circumstances.” This finding was reiterated in the decree: “Based upon Ark. Code. Ann. §

28-1-101 et seq., more specifically because of the minor child’s relationship with her half-

sibling, . . . the court finds it is in the minor child’s best interest that [Shelby] maintain

primary physical custody with [Dakoda] having visitation.”

In an action for divorce, the award of custody of a child of the marriage shall be made

solely in accordance with the welfare and best interest of the child. Ark. Code. Ann. § 9-13-

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101(a)(1)(A)(i) (Supp. 2023). In an action for an original child-custody determination in a

divorce or paternity matter, there exists a rebuttable presumption that joint custody is in the

best interest of the child. See Ark. Code. Ann. § 9-13-101(a)(1)(A)(iii). This presumption may

be rebutted if the court finds by clear and convincing evidence that joint custody is not in

the best interest of the child. Ark. Code. Ann. § 9-13-101(b)(1).

The value of keeping siblings together is a factor to be considered in determining

what is in a child’s best interest, but it cannot rise to the level of a presumption contradicting

the statutory best-interest standard. Atkinson v. Atkinson, 72 Ark. App. 15, 20, 32 S.W.2d 41,

45. The general rule regarding full siblings is that young children should not be separated

from each other absent exceptional circumstances. Id. This prohibition against separating

siblings in the absence of exceptional circumstances does not apply with equal force where

the children are half siblings. See also Bell v. Bell, 2022 Ark. App. 279, at 12, 646 S.W.3d 678,

687 (where “the children . . . having more time with subsequently born half siblings and

extended family on both sides” was only one of the factors that the circuit court considered

in modifying custody and visitation custody).

On appeal, Dakoda argues that the circuit court erroneously applied the legal

standards relevant to another area of law rather than the law governing visitation. Bassett v.

Emery, 2022 Ark. App. 470, is instructive. In Bassett, Cassey Bassett filed a petition to modify

custody and visitation in a previous custody award to Kendra and Jeremy Emery.2 A month

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Basset had lost custody in proceedings with the Arkansas Department of Human
Services.

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later, the Emerys filed a petition to adopt in a different court. The cases were not

consolidated, and the circuit court held a hearing on the issue of visitation. The Emerys

relied on their pending adoption petition as reason to deny Bassett’s request, contending

that it would not be in the child’s best interest to change custody or establish visitation

because of the likelihood of adoption. Id. at 3–4. They argued that it would be confusing to

the child to establish a new relationship and routine only to drastically change things again

with adoption. Id. at 4. The circuit court, agreeing with the Emerys, cited the legal standards

governing petitions to adopt a child without consent of the biological parent in its analysis

of Cassey’s petition to change custody or establish visitation. Id. Cassey’s petition was denied.

In Bassett, Cassey contended on appeal that the circuit court erroneously applied the

legal standards relevant to adoption rather than the law governing visitation. This court

reversed and remanded, agreeing with Cassey and analyzing the case as follows:

Cassey’s request for relief in her appellate brief does not seek reversal of the
denial of her petition for custody; it only asks that we reverse the court’s order
and remand the case to establish at least some minimal visitation. Because we
hold that the court erroneously applied the wrong legal standard in this case,
we reverse and remand for the court to decide the visitation issue using
Arkansas law governing a biological parent’s right to visitation.

Child-visitation cases are reviewed de novo on the record and will not
be overturned unless clearly erroneous. . . .

We cite section 9-13-101, therefore, to illustrate Cassey’s point that Arkansas
law contains legal standards governing visitation but that the circuit court in
this case erroneously applied the adoption-law elements instead.

We recognize that fixing visitation rights is a matter that lies within the
sound discretion of the circuit court, and the main consideration in making
judicial determinations concerning visitation is the best interest of the child.

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Hudson v. Kyle, 365 Ark. 341, 344, 229 S.W.3d 890, 892-93 (2006). The
Emerys argue––and the dissenting opinions would hold––that the circuit
court properly considered the pending adoption petition as part of its best-
interest analysis. We do not doubt that the circuit court was attempting to act
in the child’s best interest. We note, however, that the United States Supreme
Court has recognized that parents have a fundamental liberty interest in the
care, control, and custody of their own children, Troxel v. Granville, 530 U.S.
57, 66 (2000).

Bassett, 2022 Ark. App. 470, at 5–6 (some internal citations omitted).

In the present case, Dakoda argued at the hearing’s conclusion that the best interest

of MC lies with an award of primary physical custody to him. Shelby argued the same. The

circuit court explicitly, and sua sponte, referred to the probate code as the determining factor

to address its concerns about MC’s connections to the half sibling. Dakoda’s attorney

immediately pointed out that this was not a probate case, but the court stated that the best-

interest issues were the same and that the notion of other related siblings applied. The court’s

written order specifically stated, “Based upon Ark. Code. Ann. § 28-1-101 et seq., more

specifically because of the minor child’s relationship with her half-sibling, . . . the court finds

it is in the minor child’s best interest that [Shelby] maintain primary physical custody.”

Dakoda argues that the circuit court erroneously applied the legal standards relevant

to another area of law rather than the law governing visitation, thus making an even stronger

case for reversal than was made by the appellant in Bassett. Here, in determining that primary

physical custody with Shelby was in MC’s best interest, the circuit court explicitly and solely

relied on the Probate Code and MC’s relationship with her half sibling. Moreover, in

Atkinson v. Atkinson, 72 Ark. App. 15, 32 S.W.3d 41 (2003), we held that keeping siblings

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together cannot be the sole reason for a custody decision. See also Delgado v. Delgado, 2012

Ark. App. 100 (holding that the circuit court misstated the best-interest standard in custody

cases by finding that appellant failed to adhere to the standards adopted by the local

community but ruling that the circuit reached the right result despite apparently announcing

a wrong reason).

The analysis engaged in by the circuit court was clearly erroneous. Accordingly, we

reverse and remand to the circuit court to conduct a best-interest analysis under the legal

standards governing an original determination of child custody. See Ark. Code Ann. § 9-13-

101.

Reversed and remanded.

ABRAMSON and WOOD, JJ., agree.

Hilburn & Harper, Ltd., by: SaraCate Moery, for appellant.

Ryan C. Allen, for appellee.

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