Arkansas Code of 1987 (2023) › Title 9 - FAMILY LAW (§§ 9-2-101 — 9-34-204) › Subtitle 2 - DOMESTIC RELATIONS (§§ 9-8-101 — 9) › Chapter 13 - CHILD CUSTODY AND VISITATION (§§ 9-13-101 — 9-13-407) › Subchapter 1 - GENERAL PROVISIONS (§§ 9-13-101 — 9-13-110) › Section 9-13-101 - Award of custody - Definition

(a)
(1)
(A)
(i)
In an action for divorce, the award of custody of a child of the marriage shall be made without regard to the sex of a parent but solely in accordance with the welfare and best interest of the child.
(ii)
In determining the best interest of the child, the court may consider the preferences of the child if the child is of a sufficient age and mental capacity to reason, regardless of chronological age.
(iii)
In an action for divorce, an award of joint custody is favored in Arkansas.
(iv)
(a)
In an action concerning an original child custody determination in a divorce or paternity matter, there is a rebuttable presumption that joint custody is in the best interest of the child.
(b)
The presumption that joint custody is in the best interest of the child may be rebutted:
(1)
If the court finds by clear and convincing evidence that joint custody is not in the best interest of the child;
(2)
If the parties have reached an agreement on all issues related to custody of the child;
(3)
If one (1) of the parties does not request sole, primary, or joint custody; or
(4)
If a rebuttable presumption described in subsection (c) or subsection (d) of this section is established by the evidence.
(c)
The circuit court may enter an order to reduce areas of conflict in a manner determined appropriate by the court.
(B)
When a court order holds that it is in the best interest of a child to award custody to a grandparent, the award of custody shall be made without regard to the sex of the grandparent.
(2)
(A)
Upon petition by a grandparent who meets the requirements of subdivision (a)(2)(B)(i) or subdivision (a)(2)(B)(ii) of this section, a circuit court shall grant the grandparent a right to intervene pursuant to Rule 24(a) of the Arkansas Rules of Civil Procedure.
(B)
(i)
A grandparent shall be entitled to notice and shall be granted an opportunity to be heard in any child custody proceeding involving a grandchild who is twelve (12) months of age or younger when:
(a)
The grandchild resided with the grandparent for at least six (6) continuous months prior to the grandchild's first birthday;
(b)
The grandparent was the primary caregiver for and financial supporter of the grandchild during the time the grandchild resided with the grandparent; and
(c)
The continuous custody occurred within one (1) year of the date the child custody proceeding was initiated.
(ii)
A grandparent shall be entitled to notice and shall be granted an opportunity to be heard in any child custody proceeding involving a grandchild who is twelve (12) months of age or older when:
(a)
The grandchild resided with this grandparent for at least one (1) continuous year regardless of age;
(b)
The grandparent was the primary caregiver for and financial supporter of the grandchild during the time the grandchild resided with the grandparent; and
(c)
The continuous custody occurred within one (1) year of the date the child custody proceeding was initiated.
(iii)
Notice to a grandparent shall be given by the moving party.
(3)
For purposes of this section, "grandparent" does not mean a parent of a putative father of a child.
(4)
(A)
The party that initiates a child custody proceeding shall notify the circuit court of the name and address of any grandparent who is entitled to notice under the provisions of subdivision (a)(2) of this section.
(B)
The notice shall be in accordance with §
16-55-114
.
(5)
As used in this section, "joint custody" means the approximate and reasonable equal division of time with the child by both parents individually as agreed to by the parents or as ordered by the court.
(b)
(1)
(A)
(i)
When in the best interest of a child, custody shall be awarded in such a way so as to assure the frequent and continuing contact of the child with both parents consistent with subdivision (a)(1)(A) of this section.
(ii)
To this effect, the circuit court shall consider awarding joint custody of a child to the parents in making an order for custody.
(iii)
If, at any time, the circuit court finds by a preponderance of the evidence that one (1) parent demonstrates a pattern of willfully creating conflict in an attempt to disrupt a current or pending joint-custody arrangement and the circuit court is unable to enter an order that will reduce areas of conflict caused by the disruptive parent, the circuit court may deem such behavior as a material change of circumstances and may change a joint custody order to an order of primary custody to the nondisruptive parent.
(iv)
If a modification of a child custody decree is based on the active duty status of a parent as a member of the United States Armed Forces deployed outside of the United States or the federal active duty status of a parent as a member of a state National Guard or reserve component:
(a)
Any modification of the child custody decree shall:
(1)
Be temporary; and
(2)
Revert back to the previous child custody decree at the end of the deployment or federal active duty unless both parties consent to a modification that continues after the deployment or federal active duty; and
(b)
The deployment or federal active duty status shall be considered the equivalent of daily parental presence and parental involvement with the child.
(v)
Child support under a joint custody order is issued at the discretion of the court and shall:
(a)
Be consistent with Supreme Court Administrative Order No. 10 - Child Support Guidelines; or
(b)
Deviate from Supreme Court Administrative Order No. 10 - Child Support Guidelines as permitted by the rule.
(vi)
A court shall consider the best interest of the child when making a child custody determination.
(vii)
(a)
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 court finds after a hearing that parenting time between the parent and the child would seriously endanger the physical, mental, or emotional health of the child.
(b)
At the request of a party, a court shall issue a written order that:
(1)
Is specific as to the frequency, timing, duration, condition, and method of scheduling parenting time with a parent who is not granted sole, primary, or joint custody of his or her child; and
(2)
Takes into consideration the developmental age of the child.
(B)
If a grandparent meets the requirements of subdivision (a)(2)(B)(i) or subdivision (a)(2)(B)(ii) of this section and is a party to the proceedings, the circuit court may consider the continuing contact between the child and a grandparent who is a party, and the circuit court may consider orders to assure the continuing contact between the grandparent and the child.
(2)
To this effect, in making an order for custody, the court may consider, among other facts, which party is more likely to allow the child or children frequent and continuing contact with the noncustodial parent and the noncustodial grandparent who meets the requirements of subdivision (a)(2)(B)(i) or subdivision (a)(2)(B)(ii) of this section.
(3)
After a hearing on the merits of a child custody action, if a court determines that the presumption in subdivision (a)(1)(A)(iv)
(a)
of this section is rebutted, the court shall enter a written order that includes the following:
(A)
Facts, findings, and conclusions of law concerning the basis for the court's determination; and
(B)
A parenting time schedule that:
(i)
Maximizes the amount of time that each parent has with the child; and
(ii)
Is consistent with the best interest of the child.
(c)
(1)
If a party to an action concerning custody of or a right to visitation with a child has committed an act of domestic violence against the party making the allegation or a family or household member of either party and such allegations are proven by a preponderance of the evidence, the circuit court must consider the effect of such domestic violence upon the best interests of the child, whether or not the child was physically injured or personally witnessed the abuse, together with such facts and circumstances as the circuit court deems relevant in making a directive pursuant to this section.
(2)
There is a rebuttable presumption that it is not in the best interest of the child to be placed in the custody of an abusive parent in cases in which there is a finding by a preponderance of the evidence that the parent has engaged in a pattern of domestic abuse.
(d)
(1)
If a party to an action concerning custody of or a right to visitation with a child is a sex offender who is required to register under the Sex Offender Registration Act of 1997, §
12-12-901
et seq., the circuit court may not award custody or unsupervised visitation of the child to the sex offender unless the circuit court makes a specific finding that the sex offender poses no danger to the child.
(2)
There is a rebuttable presumption that it is not in the best interest of the child to be placed in the care or custody of a sex offender or to have unsupervised visitation with a sex offender.
(3)
There is a rebuttable presumption that it is not in the best interest of the child to be placed in the home of a sex offender or to have unsupervised visitation in a home in which a sex offender resides.
(e)
(1)
The Director of the Administrative Office of the Courts is authorized to establish an attorney ad litem program to represent children in circuit court cases in which custody is an issue.
(2)
When a circuit judge determines that the appointment of an attorney ad litem would facilitate a case in which custody is an issue and further protect the rights of the child, the circuit judge may appoint a private attorney to represent the child.
(3)
(A)
The Supreme Court, with the advice of the circuit judges, shall adopt standards of practice and qualifications for service for attorneys who seek to be appointed to provide legal representation for children in custody cases.
(B)
(i)
In extraordinary cases, the circuit court may appoint an attorney ad litem who does not meet the required standards and qualifications.
(ii)
The attorney may not be appointed in subsequent cases until he or she has made efforts to meet the standards and qualifications.
(4)
When attorneys are appointed pursuant to subdivision (e)(2) of this section, the fees for services and reimbursable expenses shall be paid from funds appropriated for that purpose to the Administrative Office of the Courts.
(5)
(A)
When a circuit judge orders the payment of funds for the fees and expenses authorized by this section, the circuit judge shall transmit a copy of the order to the office, which is authorized to pay the funds.
(B)
The circuit court may also require the parties to pay all or a portion of the expenses, depending on the ability of the parties to pay.
(6)
The office shall establish guidelines to provide a maximum amount of expenses and fees per hour and per case that will be paid pursuant to this section.
(7)
In order to ensure that each judicial district will have an appropriate amount of funds to utilize for ad litem representation in custody cases, the funds appropriated shall be apportioned based upon a formula developed by the office and approved by the Arkansas Judicial Council, Inc. and the Administrative Rules Subcommittee of the Legislative Council.
(8)
(A)
The office shall develop a statistical survey that each attorney who serves as an ad litem shall complete upon the conclusion of the case.
(B)
Statistics shall include the ages of children served, whether the custody issue arises at a divorce or post-divorce stage, whether psychological services were ordered, and any other relevant information.
Amended by Act 2021, No. 604,§ 4, eff. 7/28/2021.
Amended by Act 2021, No. 604,§ 3, eff. 7/28/2021.
Amended by Act 2021, No. 604,§ 2, eff. 7/28/2021.
Amended by Act 2021, No. 604,§ 1, eff. 7/28/2021.
Amended by Act 2019, No. 315,§ 713, eff. 7/24/2019.
Amended by Act 2019, No. 906,§ 1, eff. 7/24/2019.
Amended by Act 2013, No. 1156,§ 3, eff. 8/16/2013
Amended by Act 2013, No. 1156,§ 2, eff. 8/16/2013
Amended by Act 2013, No. 1156,§ 1, eff. 8/16/2013
Acts 1979, No. 278, § 1; A.S.A. 1947, § 34-2726; Acts 1997, No. 905, § 1; 1997, No. 1328 § 1; 1999, No. 708, § 2; 2001, No. 1235, § 1; 2001, No. 1497, § 1; 2003, No. 92, § 1; 2005, No. 80, § 1; 2007, No. 56, § 1; 2011, No. 344, § 2