JOINT CUSTODY: Changes in Arkansas Child Custody Law
BY CHRIS BURKS
Have Arkansas child custody laws been altered? That’s a question to which all Arkansas attorneys should know the answer. Family law practice remains brisk in Arkansas, and all attorneys know friends or family who turn to them for basic answers in times of familial turmoil. So what has changed in child custody law? Arkansas no longer disfavors joint custody. Act 1156 of 2013 enacts Senate Bill 901 of the 2013 Arkansas General Assembly.1 The specific statutory language of this change now reads: “In an action for divorce, an award of joint custody is favored in Arkansas.”2 What will this change mean? To better understand, it is useful to first look at the recent history of Arkansas custody law, what led to the change at the legislature, and arguments for and against the change, as well as to some examples of how the law plays out in practice. RECENT HISTORY OF JOINT CUSTODY For at least the past decade, Arkansas practitioners enjoyed relatively clear guidance about joint custody: joint custody was disfavored. As far back as 1984, courts found that equally divided custody of minor children may be ordered where the circumstances clearly warrant it, but it had to be shown that the interest of the child is better fostered by divided custody.3 In 2001, the Arkansas Court of Appeals 14
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stated that joint custody or equally divided custody of minor children is not favored in Arkansas unless circumstances clearly warrant such action.4 In 2004, the Arkansas Court of Appeals reiterated that joint custody or equally divided custody of minor children is disfavored in Arkansas but that Ark. Code Ann. § 9-13-101(b)(1)(A)(ii) as amended in 2003 specifically permits the court to consider such an award.5 Again in 2006, the Arkansas Court of Appeals repeated the long-standing precedent that joint custody or equally divided custody is disfavored.6 However, a majority of the 2013 Arkansas General Assembly voted to make joint custody “favored in Arkansas.” To be specific, “joint custody” is defined as “the approximate and reasonable equal division of time with the child by both parents or as so ordered by the Court.”7
CHANGE AT THE CAPITOL To better understand the change, it is important to examine what led up to the vote to make joint custody favored in Arkansas. Senator Jon Woods of Springdale was the lead Senate sponsor of Senate Bill 901 of the 2013 Arkansas General Assembly, and Representative Mark Lowery of Maumelle was the lead House Sponsor. Senator Jane English of North Little Rock and Representative Randy Alexander of Fayetteville signed on as co-sponsors of the legislation.8 On March 8, 2013, Senator Woods filed the original Senate Bill 903 and the bill was referred to the Senate Judiciary Committee. However, on March 21, 2013, an amendment to the original bill was accepted by the Senate Judiciary Committee, with Representatives Eddie Armstrong, John Baine and Bob Ballinger added as cosponsors.9 Amendment Number One to Senate Bill 903 contained a few minor changes to the text of the original draft, but most notably added the clear descriptive language found in Arkansas Code Annotated § 9-13-101(a)(1)(A)(iii): “In an action for divorce, an award of joint custody is favored in Arkansas.”10 Amendment Number One clarified the intended impact of Senate Bill 903 by adding the very concise descriptive language of the intended change: “joint custody is favored.” (Emphasis added). Not to belabor the obvious, but imagine a