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.