When children are involved, a divorce can become especially difficult although it doesn't have to be that way. Parents are especially concerned about their children and who will have custody and when can the non-custodial parent exercise visitation. When it comes to child custody, Arkansas courts have no preference or presumption in favor of either parent when the parents have been married. A common misunderstanding about custody is that the mother always is granted custody. This is certainly not the case. The only question the court bases its decision as to the custody determination is "the welfare and best interest of the child."
Ark. Code Ann § 9-13-101 sets forth this standard and specifically states that a custody award will be made "without regard" to whether the parent is the father or mother. Note that this only applies if the parents were married. Ark. Code Ann. § 9-10-113 provides that if the parents have not been married at any time from conception to birth, then custody is automatically legally awarded to the mother, unless a court decides otherwise. Obviously if the biological father proves he is the father through a court in some paternity proceeding, then he may petition the court to be awarded custody.
Sometimes divorcing parents want to have “joint custody.” Although Ark. Code Ann. § 9-13-101(b)(1)(A)(ii) permits a court to award joint custody, joint custody is disfavored by the courts in Arkansas. The standard is always "the best interest of the child" and the court will likely want to know a lot more about the arrangements the parents have in place. The court will also inquire about whether the parents can get along, where the parents live and how distance may affect the child or children, and whether both parents can demonstrate their commitment to such a joint custody arrangement and to the other spouse in participating in a joint custody arrangement. As between the parents and a third party, such as siblings or grandparents having custody, there is a legal preference for the parent to have custody "unless the parent is proved to be incompetent or unfit." This is so even under circumstances where the child might be better off with a third person. Arkansas courts hold that "the state cannot interfere with this right simply to better the moral and temporal welfare of the child as against an unoffending parent." For more information see this court case among the others court cases discussing the law in Arkansas regarding third-party custody: Coffee v. Zolliecoffer, 93 Ark. App. 61 (2005).
A court may consider the child's preference as to custody, but is not bound by the child's wishes. See Ark. Code Ann § 9-13-101(a)(1)(A)(ii) or Hepp v. Hepp, 61 Ark. App. 240 (1998). Sometimes parents fight very hard over who will get custody of the children. In that case, the court may appoint an attorney ad litem to look to the best interest of and represent the children in accordance with Ark. Code Ann. § 9-13-101(e)(2). The initial custody determination is extremely important. This is because to modify custody at a later date, the burden is on the parent seeking modification, to show "a material change of circumstance" which makes it in the best interest of the child for the modification to occur. See for example Middleton v. Middleton, 83 Ark. App. 7 (2003). The Arkansas Supreme Court has held that this requires a more stringent standard whereby the party must prove additional factors showing why a modification of custody is warranted. The factors are numerous and each case is different, therefore, in order to determine if your case warrants a modification of custody, contact us to schedule a free consultation so we may evaluate your case and discuss your options.
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