dissenting. I believe we have not only decided a case that involves an issue of substantial public interest and one that should have been certified to our Supreme Court, but we have decided it wrongly.
The maternal grandparents are seeking visitation with their grandson, who is almost nine years old, pursuant to Ark. Code Ann. § 9-13-103(a)(l)(C) (Repl. 1998), which allows them to petition for visitation with their illegitimate grandchild. Although noticeably absent from the pleadings was a claim by appellee Jack Bennett that he is the biological father of the petitioner’s grandchild, the chancellor granted appellee’s motion for summary judgment. The chancellor, relying on Ark. Code Ann. § 20-18-408 (Supp. 1999), found as a matter of law that a child born on April 19, 1991, to an unmarried woman, was legitimatized by her subsequent marriage on January 5, 1996, to a man who on January 18, 1996, executed an acknowledgment of paternity.
Arkansas Code Annotated section 20-18-408 (Supp. 1999) provides, in part, as follows:
Upon the birth of a child to a woman that was unmarried at the time... of birth ... the person responsible under § 20-18-401 for providing birth registration information shall: Provide an opportunity for the child’s mother and natural father to complete an affidavit acknowledging paternity....
Surely, the term “natural father,” as used in section 20-18-408, is synonymous with “biological father.” Consequently, it was error for the court to grant a summary judgment without first determining whether or not the appellee was the biological father of the child and whether visitation was in the best interest of the child.
Moreover, in an unfettered statement, the majority asserts that an illegitimate child may be legitimatized by the subsequent marriage of his mother to the putative father and the public acknowledgment or recognition of the child by his father. To reach this conclusion, the majority relies on our probate code and cases interpreting our statutory law of descent and distribution. Arkansas Code Annotated section 28-9-209(2)(b)(1987) provides that “If a man has a child or children by a woman, and afterward intermarries with her and recognizes the child or children to be his, the child or children shall be deemed and considered legitimate.”
The wording in this statute clearly applies to biological fathers and not to any subsequent husbands of a woman who has a child that was born out of wedlock. But, even assuming, arguendo, that this was an appropriate application of the law of descent and distribution, it does not necessarily follow that this statute, which pertains to descent and distribution, would be applied when the question involves a matter unrelated to descent and distribution, that is, grandparents’ visitation, which is dealt with elsewhere in the statutes. In fact, our supreme court in In re Estate of F.C., 321 Ark. 191, 900 S.W.2d 200 (1995), stated that the sole purpose of the procedures outlined in section 28-9-209 is to determine intestate succession. The majority, however, discounts the court’s ruling in that case by concluding that this holding is dicta and asserts, “Arkansas has consistently held that the subsequent marriage of the mother to the putative father and public acknowledgment by the putative father renders a child born out of wedlock legitimate.” The only Arkansas authority used by the majority to support its assertion are two cases involving descent and distribution.
I do not believe the legislature intended to allow an acknowledgment of paternity five years after the birth of the child and a marriage by the mother to a man who neither claims nor has been found to be the biological father, to serve as a barrier preventing the grandparents from seeking visitation with their illegitimate grandchild.