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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