In Arkansas, joint custody is presumed to be an arrangement that is in the best interest of the child (custody change as of July 28, 2021). This presumption means that the Court will automatically rule in the best interest of the child. The presumption can be overturned with clear and convincing evidence that joint custody is not in the child’s best interest.

True joint custody means that the parents share equally in the parenting schedule and decision-making. Physical custody is known as the time spent parenting with the child. The authority to make decisions for the child is known as legal custody. In true joint custody, both parents are equal in physical and legal custody.

One parent may not agree that there should be joint custody and could request the Court to grant sole or primary custody of the child. This means that the physical custody will not be equal, and one parent will have the child most of the time. Along with that, the parent will usually have to make the decisions and have legal custody as well.

In Arkansas, if you want to have primary custody, you must convince the judge that joint custody is not in the best interest of the child (unless both parents agree to the arrangement), which will involve arguing that the other parent has negative factors in their parenting abilities and environment that are improper for the child. This includes considering who is the primary caretaker of the child, if there is a pattern of domestic violence (physical or sexual), which party is most likely to encourage the child’s relationship with the other parent, and if one party is a sex offender. For example, if one parent shows a pattern of willfully creating conflict (talking bad about the other parent or how the other parent lives, etc.) in an attempt to disrupt a current or pending joint-custody arrangement, the judge is likely to place custody with the non-disruptive parent.

The custody arrangements might be mixed types. One might have a custody arrangement where primary physical custody is granted to one parent, but joint legal custody is granted to both parents. It is common in divorces for this to be ordered. This way no parent may make major decisions for the child without consulting the other parent. In some cases, they both must agree on the same decision. In these instances, parents may end up back in court over issues such as religion, school choice, medical treatment, and other issues because they cannot come to an agreement. However, it is also common that the parent having primary physical custody will be ordered to consult with the other parent, but upon disagreements, will have the final decision-making authority.

A common failure in understanding is that if one parent is granted sole or primary custody that parent gets to choose all other parenting details even when the other parent has their time with the child. This is untrue; but if convinced, a judge may specifically order that the primary custodian has this freedom to decide those parenting choices.

When one parent is not granted sole, primary, or joint custody, that parent would be entitled to reasonable parenting time determined by agreement of the parties or by the judge. Reasonable parenting time or “visitation” can be exercised in different ways and might include restrictions such as no overnights or require supervision of the parent. There are even circumstances that lead to no parenting time being ordered. This happens when the court finds that parenting time between the parent and the child would seriously endanger the physical, mental, or emotional health of the child.

Custody can be complicated. There are several factors that the judge has to consider when deciding custody. Overall, the judge will order what is in the best interests of the child based on those factors. If you need help with your child custody arrangements or need civil legal advice, call our Helpline at 501-376-3423.

AUTHOR: YIESHA L. JONES, STAFF ATTORNEY FOR THE CENTER FOR ARKANSAS LEGAL SERVICES