For the Record: Complications in Civil Appeals in Arkansas

As attorneys, we know that civil appellate work is an entirely different animal from any other type of litigation. The Supreme Court of Arkansas has issued comprehensive rules governing each step of the appellate process, from preparing the record to filing your reply brief.

This article is about complications in appellate work when there are problems with the record prepared for your appeal. There are two main problems that arise: (1) the Circuit Clerk or court reporter responsible for transcribing the hearings in your case may take too long to put the record together for you to file your appeal timely, or (2) the Circuit Clerk may make some technical error in putting your record together. Either way, a diligent attorney has to be aware of the record, its preparation, and its contents at every step of the appellate process.

What do you do if the Circuit Clerk takes too long to prepare the record? An appellant may file a motion for extension of time to file the record on appeal. Grant or denial of the motion is up to the Circuit Court, but it is your responsibility to communicate with the Circuit Clerk and court reporter preparing any transcripts for your appeal to determine whether the record will be available within the timeline set out in the Rules of Appellate Procedure.

A much more complicated issue arises if the record you request, obtain, and pay a lot of money for is missing an important document, such as any of the various documents necessary for the Court of Appeals and Supreme Court to confirm their jurisdiction. If the record is missing any of these documents, your appeal will be dismissed for lack of jurisdiction.

There are two documents you can file to complete the record. Rule 2-2 allows you to tender an appellate record late, then gives the Clerk of the Supreme Court discretion to accept or reject the tender of the record. Under the rule, you may then challenge the Clerk’s decision to deny your tender of the record by motion. Rule 3-5 allows you to file a petition seeking a Writ of Certiorari to Complete the Record. Conceptually, Rule 3-5 makes better sense for completing a record than Rule 2-2, which discusses filing the entire record late.

Whichever approach you choose to take, your motion or petition needs to be detailed. If you hire another attorney to handle your appeal, make sure you give them all the facts necessary to prepare a detailed motion or petition.

If there is a risk that your deadline to file your appeal brief will pass while you are waiting on a ruling on your motion or petition, you can also file a motion for an extension of time to file your brief.

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Joint Custody

In custody matters, a large percentage of clients will request or at least inquire about whether the parties can share “joint custody” of the children as opposed to one party having “primary custody” or “sole custody”. The term “joint custody” is in and of itself a little ambiguous and sometimes misused, but generally, when the parties share “joint legal custody” the parties are obligated to discuss the major decisions affecting their children. The parties may share joint legal custody, but one parent may still be the primary physical custodian, which generally means that the parties are not sharing “equal” time with the minor children. You might also hear “joint custody” being referred in the context of time spent with the minor children. Typically, “joint physical custody” means that mom and dad share equal or nearly equal time with the children. Like most domestic relations issues, there are certain advantages and disadvantages to every custodial relationship which should be carefully considered when deciding what is the most appropriate relationship in any given situation.

Up until August of 2013, the position of most Arkansas Courts was that joint custody was not a favored arrangement. There are many legitimate reasons for this position, not least among them being that mom and dad are often unable to work together or put aside their own disputes to focus on the children. Many Courts would not award joint custody to the parties unless the parties mutually agreed on this arrangement. However, in August 2013, Senate Bill 901 modified Arkansas Code Annotated §9-13-101(a)(1)(A) and the position on joint custody, stating that joint custody is now “favored” in Arkansas.

What does this mean? The short answer is that no one really knows. The longer answer is that the position in Arkansas Court’s has been reversed from joint custody being not favored to now being an arrangement that a Court may favorably consider; however it is important to note that (unlike some states) the new law does not provide a presumption of joint custody. A presumption for joint custody basically means the Court must start out with the intention to award joint custody unless evidence is presented to indicate that joint custody would not be in the children’s best interests. In Arkansas, even with the new law, there is no such presumption, rather the Court is charged with examining all the evidence in a case and deciding what type of custodial relationship is going to best benefit the children.

Keep in mind that no two cases are alike, and the Court will take into consideration may factors when deciding what type of custodial arrangement will benefit the parties and, maybe most importantly, the children. The cornerstone for all decisions affecting the children is what is going to be in their best interest. It is important to discuss all options with an attorney regarding custody and which custodial relationship will be best for both you and your children.

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