concurring. I concur that the chancellor did not commit reversible error in finding that it was in the best interest of the child to award custody to appellee. However, I write separately to express my concerns about appel-lee’s ability to come before the court, absent him assuming financial responsibility for the child, with the same status as appellant in a petition for custody.
The United States Supreme Court has held that it is a violation of the equal protection clause when a state denies an illegitimate child the same rights as those afforded a legitimate child. See Gomez v. Perez, 409 U. S. 535 (1973); see also R.H. Helmholz, Support Orders, Church Courts, and the Rules of Filius Nullius: A Reassessment of the Common Law, 63 Va. L. Rev. 431, 431 (1977). Our law indicates that the obligation to support an illegitimate child arises only upon a finding of paternity. See Paul M. v. Teresa M., 36 Ark. App. 116, 818 S.W.2d 594 (1991) (once paternity is established, the law with regard to child support in a divorce case is applicable). However, when children are born into a marriage and the parents later separate or divorce, our law states that a parent has a legal obligation to support a minor child regardless of the existence of a support order. See Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002); see also Fonken v. Fonken, 334 Ark. 637, 976 S.W.2d 952 (1998). This duty to support a child in the absence of a support order is both legal and moral. See Fonken, supra.
In custody cases arising out of a divorce, the parents share the same status; each is viewed as having equally shared in the care and support of their children. Arkansas Code Annotated section 9-10-113(b) and (c) provides that a biological father who has established paternity may petition the proper court for custody of his child and that the court may award him custody upon a finding that (1) he is a fit parent to raise the child; (2) he has assumed his responsibilities toward the child by providing care, supervision, protection, and financial support for the child; and (3) it is in the best interest of the child to award custody to the biological father. I interpret this section to mean that in order for the biological father to have the same status as the mother in a petition for custody, he must have provided some form of support prior to his petition. The chancellor found that appellee began paying support after the paternity determination and that he failed to support the child when she was not living with him. I believe that appellee does not share appellant’s same status in seeking custody because he failed to support the child prior to the establishment of paternity.
If equal protection truly requires that we treat illegitimate and legitimate children the same, the statute should read so as to require a showing by the biological father that, prior to his petition for custody, he has assumed his responsibilities toward the child by providing care and financial support.
I also note that this case is distinguishable from Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993). In Norwood, a father petitioned for custody of his child after a paternity order was issued against him; thus, our supreme court held that, in order to obtain custody, he was required to show a material change in circumstances. See id. Here, appellant first filed a complaint to establish paternity. Appellee asserted that he was not the father of appellant’s child and a paternity test was ordered. When the paternity test indicated that appellee was indeed the father, he acknowledged paternity and filed a counterclaim for custody. Hence, Norwood is not applicable because appellee’s petition was filed prior to the issuance of a paternity order.