dissenting. The question to be decided in this case is whether the circumstances were so exceptional that interests of humanity justify departure from the general rule that, as between a parent and a grandparent, the law prefers the parent unless the parent is incompetent or unfit. See Perkins v. Perkins, 266 Ark. 957, 589 S.W.2d 588 (1979); compare Tidwell v. Tidwell, 224 Ark. 819, 276 S.W.2d 697 (1955).
The majority affirms the chancellor’s decision to deny appellant custody of his child by holding that there was no material change in circumstances upon which to base a change of custody. However, no change in circumstances is required when facts are presented which, although existing at the time of the original custody determination, were not then presented or considered. Perkins v. Perkins, supra. In the present case, the child’s father was unknown at the time that appellee assumed custody.
Nor do I agree with the majority’s conclusion that appellant voluntarily relinquished custody of the child to appellee by failing to perform parental duties before his paternity was established. This was an unusual case. When the child’s mother and father, themselves only children, first met, the mother was pregnant with her first child. The mother was then fifteen years old. She did not know who was the father of her first child. She filed an action to establish paternity of her first child, but it was proven that the man she accused was not that child’s father. The child involved in the case at bar was this teenage mother’s second child. She testified that she began dating appellant on July 21, 1992, and got pregnant in August. Her relationship with appellant ended in November. I think that appellant was fully justified in having genuine doubt about who fathered the child; consequently, the case at bar is to be distinguished from cases in which a parent voluntarily relinquished custody of his child, as was the case in Tidwell v. Tidwell, supra, and in Verser v. Ford, 37 Ark. 27 (1881). As our supreme court said in Payne v. Jones, 242 Ark. 686, 688-89, 415 S.W.2d 57, 58 (1967):
To take a parent’s child away from him and give it to strangers is an extreme measure — a step which the courts should and do take only when the evidence clearly justifies such a course. Here, as a practical matter, the award of custody to the appellees would in all probability deprive Kale of his child just as permanently and just as effectively as if the boy had been adopted by the Joneses. In Woodson v, Lee, 221 Ark. 517, 254 S.W.2d 326 (1953), we said that the right of natural parents to the custody of their children, as against strangers is “one of the highest of natural rights, and the state cannot interfere with this right simply to better the moral and temporal welfare of the child as against an unoffending parent.” We also said that “abandonment by a parent, to justify in law the adoption of his child by a stranger without his consent, is conduct which evinces a setded purpose to forego all parental duties continued for a prescribed period of time when the statute so provides. Merely permitting the child to remain for a time undisturbed in the care of others is not such an abandonment.”
Because there is no sound basis in the case at bar for finding that appellant knowingly abandoned his child, I respectfully dissent.
Jennings, J., joins in this dissent.