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)
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 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)
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