Basic info and definitions
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 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? Is joint custody favored in Arkansas?
Joint custody is defined as the “approximate and reasonable equal division of time with the child by both parents.”1 Joint custody is favored in Arkansas and there is a “rebuttable presumption” that joint custody is in the best interest of the child. This means that the judge will assume (presume) that joint custody is what’s best for the child but either parent can offer evidence to change the judge’s mind (to “rebut” the presumption). The judge can 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 come to an agreement on all issues related to custody of the child and decide upon their own custody terms;
- One of the parties does not request sole, primary, or joint custody; or
- One of the parties offers evidence that convinces the judge to “rebut” the presumption and give one parent sole custody.2
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 and there is nothing the judge can order to reduce areas of conflict caused by the disruptive parent, 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 non-disruptive parent.3
1 A.C.A. § 9-13-101(a)(5)
2 A.C.A. § 9-13-101(a)(1)(A)(iii), (a)(1)(A)(iv)
3 A.C.A. § 9-13-101(b)(1)(A)(iii)
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.
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. A parent who is not granted sole, primary, or joint custody of his or her child is entitled to reasonable parenting time with the child unless the judge determines that parenting time between the parent and the child would seriously endanger the physical, mental, or emotional health of the child.1
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 able to seek custody. See Can the child’s grandparent file for custody?
1 A.C.A. § 9-13-101(a)(1)(A)(vi)(a)
Can a parent who committed domestic violence get custody or visitation?
If you can prove that the other parent has committed an act of domestic violence against you or against a family or household member of either of you, the judge must consider the effect of such domestic violence upon the best interests of the child. This is true even if the child was not physically injured or did not personally witness the abuse.1 If you can prove a pattern of domestic violence, the judge will assume (presume) that it is not in the best interest of the child to be placed in the custody of an abusive parent but the abusive parent can offer evidence to try to change the judge’s mind (known as a “rebuttable presumption”).2
1 A.C.A. § 9-13-101(c)(1)
2 A.C.A. § 9-13-101(c)(2)
Can a parent who is a registered sex offender, or who lives with one, get custody or visitation?
If a parent is a registered sex offender, there is a “rebuttable presumption” that it is not in the best interest of the child for that parent to get custody or unsupervised visitation. This means that the judge will assume (presume) that it is not in the best interest of the child but the sex offender parent can offer evidence to try to change the judge’s mind. The same standard applies even if the parent is not a registered sex offender but lives with someone who is – the judge will assume it’s not in the child’s best interest to be in that home unless the visitation is supervised.1
The judge can only give custody or unsupervised visitation to a parent who is a registered sex offender if the judge specifically determines that the sex offender poses no danger to the child.2
1 A.C.A. § 9-13-101(d)(2), (d)(3)
2 A.C.A. § 9-13-101(d)(1)
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)
Can the child’s grandparent file for custody?
If certain circumstances are met, a grandparent could file to join an existing custody case between the child’s parents to seek custody - for example, if there is an ongoing divorce case. This is known as ”intervening” in the case.1 However, the law does not necessarily give grandparents the right to start their own court case to seek custody of a grandchild.2
In order to intervene in a custody case, a grandparent must meet the following requirements:
- For a child who is 12 months of age or younger:
- the child lived with the grandparent for at least six months in a row; and
- the grandparent was the primary caregiver for, and financial supporter of, the grandchild during the they lived together.
- For a child who is older than 12 months:
- the child lived with the grandparent for at least one year in a row;
- the grandparent was the primary caregiver for, and financial supporter of, the grandchild during the time they lived together; and
- the continuous period of custody occurred within one year of the date the child custody proceeding began.3
1 A.C.A. § 9-13-101(2)(A)
2 Pfeifer v. Deal, 2012 Ark. App. 190 (2012)
3 A.C.A. § 9-13-101(2)(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)
Can a sibling file for visitation?
A sibling can file for visitation if the parent(s) are not allowing him/her to see his/her brother or sister. If the sibling who wants visitation is a minor, the petition can be filed by a parent, guardian, or next friend on behalf of the minor. It does not matter if they are half-siblings or full siblings, a visitation petition can be filed either way.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.
In which state do I file for custody?
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)
If I move to a new state, can I transfer my child custody case there?
After a final custody order is issued, there may come a time when you and your children move to a different state. For information about how to request to transfer the custody case to a new state, please go to the Transferring a custody case to a different state section in our general Custody page. However, it’s important to keep in mind that you may likely first need to get permission from the court or from the other parent to move your children out of state. Please talk to a lawyer to make sure your plans to move don’t violate your custody order or your state’s parental kidnapping laws.
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