Please consider getting help from an organization in your area before proceeding with court action. Go to AR Places that Help to find organizations and legal services in your area. In our general Custody page, we have information about custody that is not specific to any state. The page includes a section about how to try to transfer your custody case to a new state where you are living so that you can modify the custody order from your new state.
What is custody?
Custody is the physical care and supervision of a child (under 18 years of age). When you get a custody order from a court, it will address these two types of custody:
Physical custody describes who the child lives with on a day-to-day basis.
Legal custody describes who has the right and responsibility for major decisions concerning the child. Some of those decisions include:
- where the child goes to school,
- what kind of healthcare the child receives, and
- what religious training the child attends.
What are some pros and cons of filing for custody?
There are many reasons people choose not to get a custody order from a court. Some people decide not to get a custody order because they don’t want to get the courts involved. Some parents make an informal agreement that works well for them. Some parents may think going to court will provoke the other parent, or they are worried that the other parent might get custody or visitation.
However, getting a custody order from a court can give you certain legal rights. Getting a custody order can give you:
- The right to make decisions about your child
- The right to physical custody of your child (to have your child live with you)
Without a custody order, it is possible that you may not have these legal rights, even if you’re the parent that takes care of the child every day. If you are married and there is no custody order, both parents have equal custody rights until a court order awards custody to one of the parents. If the parents have never been married and there is no custody order, the mother of the child has legal custody by law.
Should I start a court case to ask for supervised visitation?
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation).
However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.
In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to AR Finding a Lawyer to seek out legal advice.
General information and definitions
What options are there for legal custody?
When a parent has sole legal custody, one parent has the right and responsibility to make all of the major decisions affecting the child’s life.
When parents have joint legal custody, the parents share the decision-making. The decision-making isn’t always shared equally - a judge can give one parent power to make certain decisions by herself while both parents have equal rights and responsibilities for other decisions.
Joint legal custody works best when both parents are able to put aside their differences and plan together for the welfare of the child. It is often very difficult to share these rights and responsibilities when one parent has abused the other.
What options are there for physical custody?
Sole physical custody is when the child lives with only one parent on a day-to-day basis.
Joint physical custody is when there is an approximate and reasonable equal division of time with the child by both parents - this can either be agreed to by the parents or ordered by the judge.1 It does not necessarily mean the child spends equal amounts of time with each parent. The child spends blocks of time with each of the parents, who share the right and responsibility to raise the child in their home. Each parent has more than simple visitation privileges.
Like joint legal custody, joint physical custody works best when both parents are able to put aside their differences and plan together for the welfare of the child. It is often very difficult when one parent has abused the other.
1 A.C.A. § 9-13-101(a)(5)
What is joint custody?
Joint custody is when parents have both joint physical custody and joint legal custody. In an action for divorce, an award of joint custody is favored in Arkansas.1 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 change a joint custody order to an order of primary custody to the nondisruptive parent.2
1 A.C.A. §§ 9-13-101(a)(1)(A)(iii)
2 A.C.A. §§ 9-13-101(b)(1)(A)(iii)
Who can get custody or visitation
Who can get custody?
Generally, at least one of the child’s parents is entitled to custody, unless there is strong evidence that both parents are unfit or unless one of the situations described in the following questions apply.
If both parents have passed away or they are unfit, the judge can give custody to another person or to an agency, such as the Department of Human Services. What the judge will decide depends on what s/he believes is in the best interest of the child.
Grandparents may also be entitled to custody. See I am the child’s grandparent. Can I get custody?
Can a parent who committed violence get custody or visitation?
Sometimes. Custody or visitation by an abusive parent may be allowed, but only if the judge believes that you and your children can stay safe. To help keep you safe, the judge can order supervised visits or for the pick-up and drop-off of your children to happen in a protected place. The judge may also order the parent to attend counseling and not use or have alcohol and other drugs.
If the judge does not believe that you or your children are still in danger, the judge may order custody or visitation without any measures to protect you or your child. Therefore, it is important that the judge believes you when you talk about the violence. You may want to keep evidence of the violence ready, if you have it.
if you feel there is still a risk of violence, you can ask the judge:
1) for pick-up and drop-off of your children to happen in a protected place,
2) to permit someone other than you to take or pick up the children for visits, and
3) to order only email contact between the parents or messages left on an answering service.
Can a sex offender get custody or visitation?
The judge cannot award custody or unsupervised visitation to a sex offender unless the judge specifically determines that the sex offender poses no danger to the child. The judge is supposed to assume (although the other parent can try to convince the judge otherwise) that it is not in the best interest of the child to be in the care or custody of a sex offender, to have unsupervised visitation with a sex offender, to be placed in the home where a sex offender lives, or to have unsupervised visitation in a home in which a sex offender lives.1
1 A.C.A. § 9-13-101(d)
I am the child’s grandparent. Can I get custody?
It depends. You will have an opportunity to file for custody and be heard in any child custody proceeding involving your grandchild if you are the primary caregiver and financial supporter of your grandchild and it is in the child’s best interest to be in your legal custody.
Even though you may have the right to file for custody, a judge may or may not give it to you. A judge will look at many factors to try to decide if giving you custody is in the child’s best interest.
If my child was conceived from rape, can the rapist get custody or visitation?
If you have conceived a child from being raped, and the man is convicted in criminal court of raping you, all of his rights to custody, visitation, or other contact with the child are terminated immediately upon being convicted for the rape in which the child was conceived.1 However, the rapist can still be ordered to pay child support (and the child may still be able to inherit from his estate upon his death).2
Note: The biological mother of a child conceived as a result of rape may petition the court to reinstate the rapist’s parental rights if she chooses.3
1 A.C.A. § 9-10-121(a)
2 A.C.A. § 9-10-121(c),(d)
3 A.C.A. § 9-10-121(b)
When can a grandparent or great-grandparent petition for visitation?
A grandparent or great-grandparent can file a petition for visitation if any of the following are true:
- the parents have divorced, or separated, or one of the parents has died;
- the child was born to an unmarried mother (only a maternal grandparent can file a petition unless paternity has been established);
- the judge finds by “clear and convincing evidence” that the primary custodian of the child is unfit; or
- the judge finds by “clear and convincing evidence” that there are important (compelling) circumstances in favor of grandparent visitation. When making that decision, the judge can consider any of the following factors:
- the love, affection, and other emotional ties between the grandparent and child;
- the length and quality of the relationship between the grandparent and child;
- the mental and physical health of the grandparent, the parent, and the child;
- any positive and negative effects of visitation being granted or denied;
- the wishes of the child;
- the reason the parent denied visitation;
- the reason the grandparent is asking for visitation;
- any history of abuse, neglect, or domestic violence;
- whether the parental rights of the parent to which the grandparents are related have been terminated; and
- other factors that impact the best interest of the child.1
1 A.C.A. § 9-13-103 (b)
What does a grandparent or great-grandparent have to prove to get visitation?
For a court to award visitation to a grandparent or great-grandparent, the grandparent has to prove that s/he has established a “significant and viable relationship” with the child and that visitation would be in the child’s best interest.1
To establish a “significant and viable relationship” with the child, the grandparent or great-grandparent must prove any of the following:
- the child lived with the grandparent for at least six months in a row, without the child’s parent living there too;
- the grandparent was the primary caregiver to the child for six months in a row;
- the grandparent has had regular contact with the child for at least 12 months in a row; or
- any other facts that show that the loss of the relationship between the grandparent and the child is likely to harm the child.2
To establish that visitation is in the best interest of the child, the grandparent or great-grandparent has to show that all of the following are true:
- s/he can give the child love, affection, emotional support, and guidance;
- the grandparent is willing to cooperate with the custodial parent or other guardian;
- awarding visitation would not interfere with the parent-child relationship; and
- the loss of the relationship between the grandparent and child is likely to:
- harm the child;
- cause emotional distress to the child;
- result in the emotional abuse of the child; or
- result in the emotional neglect of the child.3
1 A.C.A. § 9-13-103(c)
2 A.C.A. § 9-13-103(d)
3 A.C.A. § 9-13-103(e)
I can’t see my brother or sister. Can I file for visitation?
Yes. If you’re not currently allowed to see your brother or sister (regardless of whether s/he is your full sibling), you can ask the court for visitation.1
1 A.C.A. § 9-13-102
How the custody process works
How will a judge make a decision about custody?
The judge will try to make a custody arrangement that is in the child’s best interest. S/he will look at many factors to decide what that is.
If you are filing for custody, you should be able to show 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.
If you are accusing the other parent - or someone he lives with - of abuse, you must provide the judge with evidence of the abuse. The judge has to decide that it is more likely than not that the violence took place to take it into consideration. S/he will also 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. See Can a parent who committed violence get custody or visitation?
A judge may also look at a history of drug or alcohol abuse when determining the child’s best interest. A judge may order drug testing for either or both parents.
The judge can also consider the preferences of the child if s/he is of a sufficient age and mental capacity to reasonably give a preference, regardless of child’s chronological (actual) age.1 However, a judge will look at other things, too, to determine what is in the child’s best interest. There is no specific age when a child is mature enough – judges look at that on a case-by-case basis.
Note: In an action for divorce, an award of joint custody is favored in Arkansas.2
1 A.C.A. §§ 9-13-101; 9-13-108
2 A.C.A. § 9-13-101(a)(1)(A)(iii)
If I have moved away from the house where the father and children currently live, will this hurt my chances of gaining custody?
It depends. If you left because the other parent committed an act of domestic or family violence against you, a judge will most likely not hold it against you in a custody hearing.
Do I need a lawyer?
You have the right to file for custody without a lawyer. However, it may be difficult for you to file a proper petition without the help of a lawyer. Also, if the other parent has a lawyer, this will make it more difficult for you to show that the custody arrangement you want is in your child’s best interest.
It is better to have the help of a lawyer if you can get it. If you’re a victim of domestic violence, a lawyer knowledgeable about domestic abuse can be most helpful when seeking custody. Ask any potential lawyer if s/he is familiar with domestic abuse and the behavior patterns of abusers and their victims. To find legal help in AR please visit our AR Finding a Lawyer page under the Places that Help tab on the top of this screen.
If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.
Can I file for custody in Arkansas?
You can usually only file for custody in Arkansas if Arkansas is your child’s “home state”. Please see Are there any exceptions to the home state rule? for a list of exceptions.
Arkansas is your child’s “home state” if:
- your child has lived in Arkansas for the last 6 months in a row or longer, or
- Arkansas was the last state that your child lived in for at least 6 months in a row or longer, or
- your child is less than six months old but has lived in Arkansas since birth .
Leaving Arkansas for a short period of time will not change its status as your child’s home state.
Are there any exceptions to the home state rule?
Yes. In some cases, you can file for custody in a state where the children and at least one parent have “significant connections.” Usually, however, you can only do this if there is no home state or if the home state has agreed to let another state have jurisdiction. This can be complicated, and if you think this applies to your situation, please talk to a lawyer in both states about this. For a list of legal resources, please see AR Finding a Lawyer.
You can also file for temporary emergency custody in a state other than the home state if the child is present in the state and:
1. the child has been abandoned or it is necessary in an emergency to protect the child because the child OR
2. a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.1
1 A.C.A. § 9-19-204
What are the steps for filing for custody?
The specific steps for filing for custody vary, depending on your particular situation.
Usually, if parents are going through a divorce, child custody will be decided during the divorce.
If the parents were never married or aren’t getting a divorce, either parent can petition (ask) the court for custody. To file for custody, you will need to draft (write) paperwork asking the court for custody. You will then need to file (turn in) that paperwork to the court, along with money to pay a filing fee. The filing fee may vary by county. Once you have turned in your paperwork and your filing fee, you may be assigned a date to:
- return to court for a hearing in front of a judge;
- go to mediation with the other parent; or
- take other steps in your custody case.
Custody matters are often complicated. If you can get a lawyer to draft the paperwork for you, it might make the process significantly easier for you. You will find a list of legal resources on our AR Finding a Lawyer page.
What does an attorney ad litem mean?
An attorney ad litem is an attorney appointed to represent the child’s best interest. The attorney ad litem is not there to represent either you or the other parent, but to try to represent what s/he thinks is in the child’s best interest. Attorneys ad litem have to meet certain guidelines and standards of practice for attorneys.
The judge can appoint an attorney ad litem whenever s/he thinks that it is in the best interest of the child and that the case will be better facilitated by appointing a private attorney to represent the child in a custody case.
Generally, both parents split the attorney ad litem’s fees and expenses.1
1 A.C.A. § 9-13-106
What is mediation?
Mediation uses a neutral third-party, called a mediator, to try to help the parents agree on matters relating to custody and visitation of your child.
The court may order you to take part in mediation. The session will be conducted informally as a conference or series of conferences, or by telephone.
If you are a survivor of domestic violence, you should talk to a lawyer or domestic violence advocate before going to mediation, or have a lawyer go with you if you can. Your abuser may use mediation as an opportunity for further control and abuse, and he may intimidate you into thinking an agreement is reasonable when it is not. A lawyer and/or victim advocate can help you prepare for this. To find someone in your are please visit our AR Places that Help page.
If the mediator determines that mediation efforts are unsuccessful, s/he will end mediation and notify the judge that the mediation efforts have failed. The custody proceeding will then continue.
Can I get financial support for my children and myself?
If you have temporary custody the judge can order the other parent to pay temporary reasonable support to both you and your children. Later, as part of the custody hearing, the judge may also order child support. The amount will be in accordance with child support guidelines, unless the judge finds good reason to vary from the guidelines.
After a custody order is in place
If a custody order is already in place, how can I get it changed?
Because custody is decided based on what is in the best interest of the child, an order is not usually permanent. If you have a custody order already in place, you can ask the court to make changes to it (modify it).
Generally, the judge will not change the custody order unless there are new facts that were not available to the judge at the time the last order was made, or there has been a “substantial (material) change in circumstances.” The law specifically names one possible change in circumstances as follows: If, at any time, the judge finds that one parent has shown a pattern of purposefully creating conflict in an attempt to disrupt a joint-custody arrangement, the judge can consider such behavior as a material change of circumstances and can change a joint custody order to an order of primary custody to the non-disruptive parent.1
To modify a custody order, you usually need to go to the court that issued the order, even if you have moved. Generally, once a court has jurisdiction (the power to hear the case), that court will keep jurisdiction over all future custody decisions. In some situations, if you and your child have moved, you can ask the court to change the jurisdiction to the new state, or county, that you are in. For more information, see our Changing a final custody order section of our general Custody page. Trying to change the venue (location) of a case can be complicated and if you have moved to a new state, we recommend that you talk to a lawyer for help and advice. Go to the AR Finding a Lawyer page to find someone who can help you.
1 A.C.A. § 9-13-101(b)(1)(A)(iii)
Can I change the state where the case is being heard?
If you move to another state, you may be able to change the state where the custody case is being heard. You will have to ask the judge that is hearing the case to change the jurisdiction of your case. This is often complicated, and as with all custody issues, we recommend that you talk to a lawyer about this. To find a lawyer in your area please visit our AR Finding a Lawyer page under the Places that Help tab on the top of this screen.
Can a parent who does not have custody have access to the child’s records?
Any parent who has been awarded visitation rights by the court can ask for the child’s school records. Public school districts or colleges may be required by law to release those records to a parent with visitation rights. It is common for both parents to be granted equal access to all medical and education records, as well as free access to the medical care providers and educators.1
1 A.C.A. § 9-13-301