Arkansas law states that the primary consideration in child custody is the welfare and best interests of each minor child involved in the case. The “best interests” standard is the law in all 50 states. The best interests concept is identified as a child rights principle in the United Nations Convention on the Rights of the Child. In child custody disputes, each parent claims that it is in their child’s best interests for one parent to have custody or primary residential status as opposed to the other parent, raising the question: What does “best interests” mean?
Arkansas statutes and appellate decisions do not provide a complete definition of best interests or a comprehensive list of factors for determining best interests. To the contrary, Arkansas appellate courts have said, “there is no exhaustive list of factors a circuit court must consider when analyzing the best interest of the child.” This is because child custody disputes are largely comparative – between two parents – and situational. What is determined to be in one child’s best interests in one case may be different from another child’s best interests in another case with very similar facts. You cannot predict what a judge may decide based solely on what happened in a separate case.
Parents, attorneys, and judges have some guidance from the law. When determining the best interests of the child, courts should consider:
- The psychological relationship between the parent and the child
- The need for stability and continuity in the child’s relationship with the parents and siblings
- The past conduct of the parents toward the child
- The reasonable preference of the child
Promiscuous conduct or lifestyle in the presence of a child may be a factor against a parent receiving custody. Courts are given more guidance and factors to consider in certain types of contested cases, such as a request to relocate a minor child, grandparent visitation, or changing a child’s name. Otherwise, judges deciding child custody cases have broad discretion to make best interest determinations based on the particular facts and circumstances of each individual case brought before them.
Arkansas law favors joint custody. Generally, each parent should have frequent and continuing contact with the child. If one parent continuously disrupts the relationship between the child and the other parent, the nondisruptive parent may receive custody. In a child custody dispute, the court may consider which parent is more likely to facilitate frequent and continuing contact between each child and the other parent and award custody to the least disruptive parent. It is presumed that custody of a child may not be placed with a parent who has been determined to have engaged in a pattern of domestic abuse. A registered sex offender may not have custody or unsupervised visitation with their child unless the court specifically determines that the sex offender does not pose a danger to the child.
Courts are prohibited from making child custody decisions based solely on the gender or religious preferences of a parent. Courts may not make custody awards to gratify the desires of either parent or to reward or punish a parent. A judge may consider the sexual orientation of a parent only if there is evidence that there is actual harm or adverse effect to a minor child as a result of exposure to the parent’s relationship. A parent’s financial resources are usually irrelevant, except to the extent they may impact that parent’s ability to provide a stable home for a minor child.
Custody and visitation cases are decided based on each case's specific facts, with the child's best interests being the primary consideration. Judges have broad discretion in making these decisions, so parents should focus on presenting child-centered evidence that supports their case. No parent should assume they will be awarded custody or primary status without admissible evidence showing why that outcome would be best for each minor child involved.