Like most states, the Arkansas family law statutes instruct judges to base custody decisions on the best interests of the children. However, what defines “best interests” can vary a great deal from jurisdiction to jurisdiction. Arkansas law does not assume that joint parenting post-divorce is always in the best interests of a child, and courts lean toward one parent having physical custody and the other having visitation.
Best Interests Standards
Arkansas courts don’t automatically presume either parent to be the best parent based on gender. However, the best interests standards do favor the parent who typically cared for the children during the marriage, and this is often the mother. Another important best interests factor is the question of which parent will promote healthy, frequent contact between the children and their non-custodial parent. Arkansas courts take a dim view of either parent attempting to estrange their children from the other, so parenting patterns throughout the divorce process can be important. Judges will also consider each parent’s character when deciding with whom the children should make their primary home. An upstanding citizen who has the respect of his co-workers and peers would likely have an advantage over a parent who has difficulty holding down a job and makes poor personal choices. Arkansas courts will consider the preferences of the children, but the law doesn’t obligate judges to award custody according to a child’s wishes.
Recognized Forms of Custody
Arkansas judges won't order joint custody against parents' wishes, but they generally will not refuse to order it when divorcing parents request it. In this arrangement, children split their time between their parents’ homes on a relatively equal basis, and parents jointly make important decisions on their children’s behalf as well. These "friendly parent provisions" require joint parenting post-divorce much like during the marriage. Absent such a mutual agreement between parents, Arkansas judges will usually order primary physical custody with one parent, and visitation rights for the other. Judges are more likely to order joint legal custody, where parents share decision-making, than joint physical custody, and they will do so when both parents agree.
When parents can’t agree on a custody arrangement, trial becomes inevitable. If the court gets involved to determine custody, Arkansas judges can order home studies of each parent’s home in an effort to determine which is the better environment for the children. Arkansas law also provides for attorneys ad litem, court-approved investigators -- usually licensed attorneys -- who will conduct a deeper investigation into the suitability of each parent for primary physical custody. The attorney ad litem then makes a recommendation to the court regarding which parent should have primary physical custody and which should have visitation. Either parent has the right to request a criminal background check on the other, as well as drug screening of the other, under Arkansas law. However, it’s usually not advisable to undertake such a request lightly. If the court views the request as frivolous, or as an attempt to color the court’s opinion of the other parent through false accusations, the tactic might backfire.
Some Arkansas judges have designed their own visitation schedules for implementation when parents can’t agree on one. These schedules can vary from judge to judge, and from district to district. State law doesn’t dictate them; they’re based on each individual judge’s opinion regarding how much time a non-custodial parent should have with his children. In the 2nd Judicial District, a commonly ordered visitation schedule involves every other weekend, and a weeknight on the parent’s “off” week when he doesn’t have the children the following weekend. Judges in this district often rotate major holidays and children’s birthdays between parents on a year-to-year basis.
The Arkansas statutes contain several provisions for interference with custody or visitation, including criminal charges. If one parent refuses to comply with scheduled visitation -- either refusing to relinquish the children to the non-custodial parent for visitation or refusing to return the child to the custodial parent at the end of visitation -- this is a Class C misdemeanor under Arkansas’s laws. The charge can escalate for repeated actions or for taking the child out of state. The wronged parent can also file an action in family court for contempt of court. If interference occurs often enough, the court can change the custody arrangement, transferring primary physical custody from one parent to the other.
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