Custody is only an issue when a divorcing couple has children together. The law presumes that a married couple is the child’s parents if the child was born during the marriage. But, paternity may be determined during the divorce if either of the following occur:
- A child was born before marriage and the husband or wife wants to know who the father is;
- If either party claims that the husband is not the father and;
- If you never married each other.
Moreover, when a child is born to an unmarried woman, the mother of the child has legal custody of that child automatically. That means if the father desires visitation or custody with the child, he must petition for paternity, custody, or visitation before he can have the rights of visitation or custody.
In addition, if a child was born outside of marriage, paternity must be established before the court will enter an order to obtain child support.
What is the Custody Order a Judge can Grant?
The Judge may order any of the following:
- The child shall live with one parent part of the time and the other parent part of the time;
- The parents will share in making decisions on important issues dealing with the child and;
- Joint custody is the preferred custody arrangement in Arkansas absent any additional circumstances.
If you cannot agree on who will have custody of the children, then custody becomes contested. This implies that you will have to prove to the court whether you or your spouse should have custody of your children. The judge decides who will obtain custody of the children. These decisions will depend on the local state guidelines in the best interests of the child standard.
The court considers many factors when deciding on this standard. Furthermore, Arkansas’s law considers both parents equally when deciding who will be granted custody. The judge cannot favor the mother for custody only because she is the mother.
What is the Best Interest of the Child Standard?
Each state has some guidelines that assist the courts in determining how to rule on custody decisions based on the child’s best interest. Here are some aspects to consider:
- Care: The judge is more likely to grant custody or visitation if you show that you can (and will) provide love, affection, and guidance for your child;
- Domestic Abuse: Has there been any abuse against a family member? (not only a spouse or in front of a child);
- The Character of the Parent: Examine things such as honesty, stability of work, reputation, history of any alcohol abuse, drug use, or criminal record;
- Environment: The judge may order home studies performed on the residence of each party, which can be pricey. The court may order each party to pay half of the cost of the home study. For instance, the court may consider a live-in boyfriend or girlfriend a negative factor and may order both parties to avoid overnight guests of the opposite sex if the child is in the home;
- Economics: The judge wants to collect information regarding money or other resources to provide for the child’s food, clothing, shelter, medical care, and other basic needs. However, the judge should not compare your financial condition to your spouse’s;
- Child’s Preference: The judge may consider the child’s wishes, but the judge does not have to follow the request. Some judges will allow an older child to state a preference (often alone with the judge and without the parents’ presence) and;
- Maintaining Children Together: The judge will try to keep the children together with one parent instead of splitting them up. However, the judge may separate the children if it is in their best interests. The judge may allow the children visitation rights to one another.
Furthermore, according to the Arkansas Department of Finance and Administration, Arkansas law draws a line between the issues of visitation and child support. Here are some tips to keep in mind:
- Custodial parents: You may not deny court-ordered visitations because the noncustodial parent is not paying court-ordered child support and;
- Noncustodial parents: You may not stop paying court-ordered child support because the custodial party denies court-ordered visitation periods.
Lastly, in child support orders, the noncustodial parent is ordered to pay the custodial party as stated earlier. The noncustodial parent will continue to be ordered to pay the custodial party, regardless of the location of the children. This is true until another order states otherwise or until the new custodian files a notice with the clerk’s office to redirect the support and then provides a copy of that notice to the other parties.
Even if the children are staying with someone other than the custodial party, the noncustodial parent is still obligated to pay the custodial party according to the court order.
What is Joint Custody in Arkansas?
Joint custody is defined as the” approximate and reasonable equal division of time with the child by both parents.” Joint custody is favored in Arkansas and there is a “rebuttable presumption” that joint custody is considered to be in the best interest of the child. This means that the judge will presume that joint custody is best for the child but either parent can offer evidence to change the judge’s mind.
The judge has the discretion to decide not to order joint custody if one of the following are true:
- The judge determines that there is clear and convincing evidence that joint custody is not in the best interest of the child;
- The parties agree on all issues related to custody of the child and decide upon their custody terms;
- One of the parties does not request sole, primary, or joint custody and;
- One of the parties offers evidence that convinces the judge to “rebut” the presumption and grant one parent sole custody.
If at any time, the judge determines that one parent has a pattern of intentionally creating conflict in an attempt to disrupt a current or pending joint-custody arrangement, the judge can consider such behavior to be a “material change of circumstances” and can modify a joint custody order to an order of primary custody to the non-disruptive parent.
How will a Judge Make a Decision About Custody?
The judge will typically make a custody arrangement that is in the child’s best interest as mentioned above. They will examine many factors to decide what that translates to in each case. If you are filing for custody, you should be able to provide how the custody arrangement that you want is in your child’s best interest.
You should also be prepared with as much information as possible about the other parent and yourself. This includes information on behavioral patterns and financial information.
Moreover, if you are accusing the other parent or someone they reside with of abuse, you must provide the judge with evidence of the abuse. The judge has to decide if it is more likely than not that the violence took place to consider it. Additionally, they will look at the abuser’s history of causing such injury, physical harm, assault, or causing reasonable fear of injury, physical harm, and assault to another person.
When Do I Need to Contact a Lawyer?
If you reside in Arkansas and you need assistance with child custody issues, it is recommended to reach out to an Arkansas child custody lawyer near you. Your attorney can provide you with legal advice and representation for your legal claim.