Child Custody

According to Arkansas law, “…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.” When a judge is considering the best interest of a child, he or she is considering factors such as:

• Child’s preference assuming the child is of sufficient age and capacity to reason.
• The home environment of each parent. A court ordered home study might be performed. Normally, each party is asked to pay half of the cost of the home study. An example of a possible negative finding is a live-in boyfriend or girlfriend.
• Work schedules of parents.
• The court will consider both parties’ financial condition. This is not necessarily comparing the financial condition of the parties, but rather to determine if the child’s basic needs for food, clothing, shelter and medical care can be met.
• Parent character such as honesty, caring attitude, reputation are considered.
• Any history of drug, alcohol or domestic abuse.
• Who will most likely provide continued contact with the other parent?
• Most of the time the courts will attempt to keep siblings together, but if it is not in the child’s best interest, the courts may divide the custody between parents.

After the judge considers the above factors, he or she will determine the best type of custody for your situation. There are five types of custody.

1. Joint physical and legal custody – This allows both parents to have authority to make decisions on behalf of the child. The child spends equal time with each parent.
2. Joint physical custody – One designated parent makes decisions on behalf of the child, but the child spends equal time with each parent.
3. Joint legal custody – Both parents have authority to make decisions on behalf of the child, but the child may spend more time with one parent than the other.
4. Sole legal and physical custody – One parent makes decisions and the child spends the majority of time with him or her.
5. Third-party custody – This could be a grandparent or the state becomes the custodian of child (foster care, adoption, etc.). The court will only choose this as a last resort if the parent(s) is/are considered incompetent or unfit.

If parents cannot work together to determine a “liberal” (the parents work together to decide when, where and how long the visitation takes place) custody agreement, then the court will designate a visitation schedule. A standard visitation schedule might be every other weekend, alternating holidays and an extended period during the summer. A visitation start date should be included in the order. Just as the custody is determined by the best interest of the child, so is the visitation schedule.

After the custody, visitation and child support are determined by the courts and a party is not doing what he or she is required to do, the other party can petition the court by filing a contempt action. The party filing must prove the other parent did not follow what the courts set forth. If the judge agrees with the contempt charge, it is up to him or her to make the party obey.

Modifications to a custody agreement can be made if the party asking can prove a substantial and material change in circumstance. What is considered a substantial and material change in circumstance is vague by definition. The individual factors depend on the state and the judge’s discretion. Examples are:

• One or both of the parents have moved and now live a substantial distance apart.
• The custodial parent’s environment changes—such as living with someone else.
• One parent refuses to comply with court orders.
• The child becomes old enough to state a preference.
• A parent is charged with familial abuse.

There are many other facts a judge will consider, again, each case is unique.

The key thing to remember about child custody and visitation is that no two cases are exactly alike. While your friends that have previously gone through a similar circumstance are well intentioned, it is best to follow the advice of your attorney. Allow Kevin Hickey Law Partners to use our expertise to help you determine what is best for you and your unique situation.