Key Legal Terms
Before diving deeper into navigating Arkansas custody laws, it is important to understand the legal definitions of the terms we will use. First, it is important to note that there is a different legal framework for married and unmarried parents. The most important right when making decisions about the health, safety and welfare of a child is having the right to make those decisions (also known as having legal custody). This right includes the right to make sure that a child has a safe home and a safe environment, make the decisions about what doctors the child should see, what school they should go to, how they should be disciplined, etc. For unmarried parents, the default in Arkansas is that both parents have shared legal custody of the child (absent evidence of domestic violence). All of the rights of a parent with legal custody are shared. In addition, if the parents marry while pregnant, the presumption is that they are the joint legal custodians of the child, assuming other requirements of the law are met . This means that both parents have equal parenting rights and equal say over the children. Arkansas law does not give preference to either parent, so that the "natural father" does not have preference or priority over the "natural mother." It is different for legal custody of married parents. In Arkansas, the law presume that the father does not have legal custody of the children until the children are legitimated (that is, mother and father enter a legal marriage). There is a statute in the Arkansas Codes that says that until a child has been good jammed, the mother has exclusive legal custody (meaning she has all the decision-making rights over the child). In other words, if you never legalize the relationship between mother and father and they were never legal married, father has no decision-making authority over the children until his right to do so is established.
Unmarried Parents’ Rights Regarding Custody
The custody rights of unmarried parents in Arkansas are outlined in several sections of the state’s family code. All of these sections are prefaced with the phrase "If a child is born to unmarried parents in Arkansas… ." An important point to note is that a child is not considered the child of an unmarried father unless the parents have signed an Acknowledgment of Paternity or paternity has been established through a DNA test.
For unmarried mothers in Arkansas, having a child means she automatically shares in the right to make decisions pertaining to her child (education, medical care, etc.) with no additional legal action necessary. Custodial rights for unmarried fathers in Arkansas, however, are a little more complicated.
Children born out of wedlock in Arkansas do have a legal relationship with their father as long as that man can demonstrate a substantial relationship with the child by presenting evidence such as: While it is possible for an unmarried father’s name to be included on a child’s birth certificate, the mere fact that it is in the record does not automatically give the dad the same custodial rights that an unmarried mother would have.
Establishing legal paternity is necessary before an unmarried father can request to assume primary physical custody of a child. The law presumes that it is in a child’s best interest to have frequent contact with both parents after a separation or divorce. Courts may award primary physical custody to an unmarried mother if she presents adequate proof that it would be harmful to the child to have joint legal custody. Joint legal custody encourages shared decision making and parenting time between parents. Arkansas courts have broad discretion to determine when joint legal custody is appropriate. Although there is a strong presumption in favor of joint legal custody, it is not an absolute requirement.
Proving Paternity
Establishing Paternity is paramount to the establishment of custody. The establishment of paternity in Arkansas begins with the filing of a petition to establish paternity. This generally involves a brief document, frequently accompanied by the filing fee, which basically provides the technical information regarding the alleged father, mother and child. A relatively generic "acknowledgment of paternity" is usually appended to the petition and must be signed. Sometimes a genetic test showing that the alleged father is actually the father of the child is also appended to the petition.
An alleged father who has not been married to the mother of the child will usually have to request DNA testing through the court. If the court grants the request, both parents will be required to submit to a DNA test to determine the paternity of the child. Upon a denial of paternity, the alleged father need not submit to a blood test for purposes of establishing paternity. Where the alleged father voluntarily acknowledges his paternity and signs the "acknowledgment of paternity" document, the court may establish paternity and order support to be paid by the alleged father without further hearings or genetic testing. However, until DNA testing shows that an alleged father is actually the biological father of a child, he has no legal rights in the matter of custody or visitation.
A petition to establish paternity may be filed by the mother or the alleged father. A third-party may also file a petition, if that person has custody of the child as determined by statute and if the child has lived with the person for six months prior to the filing of the petition. A petition to establish paternity may be filed at any time.
A birth certificate will generally reflect the name of the father and mother where they were married prior to the birth of the child. In this case, the husband (father) is presumed by the law to be the father of the child. Without additional evidence, the court will generally not question the presumptions of paternity created by marriage.
A birth certificate will reflect the names of the mother and the alleged father for all other circumstances where the mother and alleged father were not married prior to the birth of the child. In this case, a presumption will not be given to paternity. The husband (father) will not be presumed to be the father of the child of the mother, and the father has no right to custody or visitation with the child until a court order to this effect is granted. The child born out of wedlock should be given the surname of the mother, until the alleged father establishes paternity.
Factors Affecting Your Child Custody Case
Factors Influencing Custody Decisions for Unmarried Parents in Arkansas Courts
The (child’s) welfare is a paramount consideration in determining any question regarding custodial environment." When addressing the child’s chances for development in accordance with his or her nature, "due regard must be given to the character and general fitness of the individuals involved." The ‘general fitness’ of each party involves the factors traditionally considered for married parents, applied in an enlightened and sympathetic manner to the unique circumstances of the unmarried parents." These factors include the home environment, work ethic, stability of the parties for housing. It is not that the mother is given preferred status over the father, nor the reverse, but rather that all things being equal, it is the mother who is chosen to be the custodian by the courts. Something more must be proven than just the machinations of modern parenthood that spurn traditional gender roles. It is not enough for the father to show he can provide for the financial needs of the children. He must go above and beyond that to show he can provide for emotional support and be a nurturer. The custody battle is more than just one of financial stability. The underlying reason for this is that in almost every case, the children will spend more time with their mother. A mother’s role is usually seen as primary, while the father takes a secondary, but more traditional, role. An Arkansas court considers three basic factors when deciding custody. The first is what is in the best interests of the child. The second is the residential placement of the child and his or her relationship with each parent. The third is the ability of each parent to provide a stable environment, not only financial but emotional dependency and nurturing care. The stability provided by each parent has far more weight than the familial structure families provide for children.
Making a Custody Agreement
It may be helpful to create a custody agreement, which is a written document that outlines the conditions of child custody for parents. Parents can create a custody agreement on their own or with the assistance of an attorney and/or a mediator. When parents are unable to do this, the court will step in and create a custody agreement based on the best interests of the children.
While it can sometimes be hard for parents to agree on parenting issues, negotiation is important. Creating an agreement outside of court can save couples a lot of time and money. It will help prevent litigation, which can damage relationships even further and cause more emotional problems for kids.
Working with an attorney to create a custody agreement can be beneficial , especially since the person creating the agreement with you should be knowledgeable about Arkansas law and what the court would consider when making decisions about child custody. When parents negotiate on their own, they might have to give up more than they would if they worked with an attorney.
Mediation can also be valuable if the parents cannot agree without the assistance of a third party. The mediator will try to resolve custody issues fairly, and this can help the couple reach an agreement without having to take the issues to court. The couple must agree on the mediator, and each parent will then present his or her view on the issues, including a specific request for what they want. The mediator will ask questions to understand both points of view and then seek to provide advice on how to proceed. If an agreement can be made that is acceptable to both parties, the mediator can write the agreement for them.
Changing Current Custody Orders
The process for modifying existing custody arrangements is fairly similar to that of establishing the orders in the first place. Arkansas law understands that as children age, their needs change and so do the needs of the family. Often, there may be a need for a parent’s lifestyle to change, or perhaps a move to a different area of the state is necessary. Any substantial change in the life of a parent can affect a court’s custody determination. Depending on the situation, the court may consider it necessary to alter the agreement. This applies to both modifications of full custody and visitation, and even modification of a grandparent’s visitation statute.
"The Act" provides that an unmarried parent can petition the court for modification of custody. The law stipulates that a parent with placement may relocate out of state with the child unless there is a significant reason that he or she should remain in Arkansas. In those instances when the custody order could be modified, an unmarried parent would file a petition seeking a determination as to custody. Any and all evidence regarding the parent’s ability to care for the child can be used to support the request.
Legal Help
Assistance for Unmarried Parents Navigating Arkansas Custody Laws
For the unmarried parents embarking on the challenging journey of navigating Arkansas custody laws and determining the best arrangement for their children, several legal resources and support services are available to help ensure a smooth and fair outcome. Legal aid organizations can provide valuable information and guidance regarding your rights and responsibilities as an unmarried parent, as well as assistance with drafting child custody agreements and understanding complex legal terminology. Organizations like the Legal Aid of Arkansas and the Arkansas Access to Justice Commission host online guides and connect individuals with a network of programs and events that address family law issues . While many family law attorneys and law firms specialize in divorce and child custody cases, they can also offer support for unmarried parents. Clients are encouraged to shop around, interviewing multiple attorneys before deciding which to hire. The American Academy of Matrimonial Lawyers publishes bi-annual lists of the best family law attorneys in each state. Online services like FindLaw provide databases of attorneys by area and testimonials of previous clients. Many essential forms and legal documents that are necessary during the divorce process are available through the Arkansas Judiciary website, which also offers informative guides and legal information.