McCluskey v. Kerlen

Per Curiam.

On August 31, 1981, the Probate Court of Jackson County entered a decree in which the appellants adopted a minor child, Gerald David McCluskey, who had been delivered to them at birth by the appellee, Joyce Kerlen, his natural mother. On March 9, 1982, the court entered an order setting aside the decree of adoption and awarding custody of the minor to the appellee. On that same day the appellants filed a motion in the probate court praying an order staying the execution of the custodial order pending a determination on appeal. There is no order in the record indicating that motion has been acted on by the trial court. On March 15, 1982, this case was docketed in the Court of Appeals. On March 25, 1982, the appellants filed with this court an application for an order staying the custodial order of the probate court pending the outcome of their appeal.

In Goodin v. Goodin, 240 Ark. 541, 400 S.W. 2d 665 (1966) the Supreme Court declared that a trial court has a right to fix custody during the pendency of an appeal and that there is no absolute right to a supersedeas in child custody cases. We do not depart from that declaration. However, once an appeal has been docketed in this court our jurisdiction attaches and we may, in a proper case, direct that the order of the trial court be stayed pending a final determination on appeal. Rule 8, Arkansas Rules of Appellate Procedure. The better practice in such cases is that the motion to stay the order changing custody pending an appeal should be first addressed to the trial court. If that stay is denied, the trial court should state his reasons for denial in order that on a subsequent motion to stay the order made to the appellate court, due weight may be given to the trial court’s determination.

In this case, although a motion to stay the custodial order was filed in the trial court, it was not acted on by that court and no reasons for a denial thereof are therefore before us. The record discloses that the appellants have cared for this child since birth, are fit and proper persons and there is no indication of imminent danger to the child should this stay be granted. The record also reflects that the natural mother has never seen the child nor provided for its care. In these peculiar circumstances we conclude that where custody of a minor infant is to be removed from those with whom he has lived all of his life and there is no indication that imminent danger to the child’s welfare would result, a stay order ought to be entered maintaining the status quo in order that the parental rights to review can be preserved without unnecessary emotional cost to the child.

The clerk of this court is therefore directed to issue a stay order pursuant to Rule 8 (b), Arkansas Rules of Appellate Procedure, upon the filing with her of a bond in the amount of $5,000 conditioned as provided in Rule 8 (b), and further conditioned that the appellants will not remove the child from the State of Arkansas during the pendency of this appeal and that they will indemnify and hold the appellee harmless from any and all consequences of their failure to perform the orders of the court as finally determined on this appeal.

Corbin and Glaze, JJ., concur. Mayfield, C.J., dissents.