Custody FAQs

Who has the upper hand in custody cases?

Joint custody by both parents was not historically favored in Arkansas until a recent change in the law made it so that joint custody must be ordered in every new family law case unless there is “clear and convincing” evidence that it is not in the best interests of the child. Protecting the rights of children is legally paramount in Arkansas, and the truth is that sometimes a child should primarily be with one parent over the other. All things considered, both mothers and fathers rights should be considered and protected in matters of custody and support of their children.

The law states that in a divorce, the award of custody of a child of a marriage shall be made without regard to the sex of a parent and solely in accordance with the welfare and best interest of the child. A.C.A. § 9-13-101(a)(1)(A)(i).

In determining the best interest of the child, the court may consider the preferences of the child if the child is of a sufficient age and mental capacity to reason, regardless of chronological age. A.C.A. § 9-13-101(a)(1)(A)(ii).

Other factors to be considered may include the parent's behavior at home, financial wellbeing, history of physical or sexual abuse, and drug or alcohol problems.

Is Arkansas Now Joint Custody state?

Yes. Joint custody is now defined as "the approximate and reasonable equal division of time with the child by both parents individually as agreed to by the parents or as ordered by the court." A.C.A. 9-13-101(a)(5). In a divorce case that concerns an original child custody determination, there is a presumption that joint custody is in the best interest of the child. A.C.A. § 9-13-101(a)(1)(A)(iv)(a). This presumption may be rebutted in one or more of five ways:

By establishing clear and convincing evidence that joint custody is not in the best interest of the child. A.C.A. § 9-13-101(a)(1)(A)(iv)(b)(1).
By the parties reaching an agreement on all issues related to custody of the child. A.C.A. § 9-13-101(a)(1)(A)(iv)(b)(2).
By one of the parties not requesting sole, primary, or joint custody. A.C.A. § 9-13-101(a)(1)(A)(iv)(b)(3).
By establishing through a preponderance of the evidence that one of the parents has engaged in a pattern of domestic abuse. A.C.A. § 9-13-101(c)(2).
By establishing that one of the parents, or a person one of the parents lives with, is a registered sex offender, unless the Court makes a specific finding that the sex offender poses no danger to the child. A.C.A. § 9-13-101(d)(1).

What is the Home State Rule?

Typically, you can only file for custody in Arkansas if Arkansas is the state where the child has lived with a parent or a person acting as a parent for at least six months in a row before the start of your child-custody case. If the child is younger than six months old, then you can file for custody if Arkansas is the state where the child has lived since birth with a parent or a person acting as a parent. A.C.A. § 9-19-102(7).

Also, if the child is currently absent from Arkansas but Arkansas is the last state in which the child lived for six months in a row, and the parent(s) or the person(s) acting as a parent(s) continues to live in Arkansas during the child's absence, then you may still file for custody.

May grandparents get custody of grandchildren?

Yes, a grandparent may be granted custody, depending on the circumstances. According to A.C.A. § 9-13-101(a)(2)(B), a grandparent may petition for custody of a grandchild who is twelve months of age or younger when:

The grandchild resided with the grandparent for at least six continuous months prior to the grandchild's first birthday;
The grandparent was the primary caregiver for and financial supporter of the grandchild during the time the grandchild resided with the grandparent; and
The continuous custody occurred within one year of the date when the child custody case began.