¶1Petitioner, Virginia Todd, has caused to be filed in this Court a Petition for Writ of Certiorari and Application for Stay of the Trial Court’s Grant of Habeas Corpus Relief pending a decision on the merits in this Court.
¶2Petitioner makes no allegations which, even if supported by the record, would compel a finding by this Court that the trial judge’s refusal to stay its Writ of Habeas Corpus was in error.
¶3The record presented to this Court by Petitioner demonstrates that the trial judge was in a better position to determine the best interests of the child than this Court.
¶4Petition denied.
¶5concurring. The majority of this court take the view that the issues of whether the Vermont court’s determination that it had subject matter jurisdiction was incorrect, and whether the court had improperly interpreted the law of Vermont regarding the rights of putative fathers or there was an error in our own court rulings are not before us on the merits. These issues should not be addressed until the record is lodged here and the matter submitted on briefs and arguments. We addressed only the issue presented by the appellant’s motion, i.e., whether the trial court abused its discretion in denying appellant’s motion to stay the order returning custody of the minor to appellee during the pendency of the appeal. The trial court has the authority to fix the custody of minors during the pendency of an appeal and there is no absolute right to a supersedeas in child custody cases. Appellate courts do not interfere unless it appears that the trial court has manifestly abused its discretion. Goodin v. Goodin, 240 Ark. 541, 400 S.W.2d 665 (1966).
¶6The courts in both Vermont and Arkansas have found that it would be in the best interest of the child that he be returned to the custody of his father. The Arkansas court has further held that it would be in his best interest to remain in his father’s custody pending appeal. I see no abuse of discretion in that finding. Regardless of where the initial fault in this litigation lies, this child has resided with his father for at least the past three years. His initial contact with the State of Arkansas was four months prior to the entry of the trial court’s order, when his mother absconded with him to Arkansas while her prayer for relief was pending in the Vermont court. The child’s accustomed surroundings are in Vermont and his father is his accustomed custodian. There is no allegation that the father was not properly caring for the child or fostering his interest.
¶7My opinion that the majority are correct is strengthened considerably by the data supplied us with appellee’s response to the motion, which indicates that the motion presented us was filed on appellant’s behalf in absentia, while appellant was secreting herself and the child in defiance of the court. Pursuant to Rule 3, Arkansas Rules of the Supreme Court and Court of Appeals, appellee attached to his response to the motion affidavits of a deputy sheriff of Baxter County and the principal of a Mountin Home elementary school. The deputy averred that when he attempted to execute the trial court’s order he discovered that appellant had packed her belongings and left her home with the child upon learning of the court’s order, and that he had been unable to discover their whereabouts. He further averred that an information charging her with the felony of interference with court-awarded custody had been filed but he had been unable to serve it on her for the same reason. A certified copy of the information was also attached to the motion. The school principal averred that the child had been absent from school for unexplained reasons since October 3, two weeks prior to the trial court’s order. No counter affidavits have been filed in support of appellant’s motion.
¶8Absent some indication that the child’s welfare is endangered by remaining with his father pending the appeal, the motion, in my opinion, borders on the ludicrous. We have no assurances that appellant will abide by our mandate; on the contrary, we have a dear indication that she has no intention of doing so unless our opinion is favorable to her.