What are your legal rights when you have a child with a woman, but you’re not married to her?

Unfortunately, the answer is most likely none. When an unmarried woman has a baby, she is given full legal custody of the child under Arkansas law. In this situation, the mother has the right to make all the decisions for the child such as where the child goes to school, which doctor the child sees, or who is allowed to babysit or visit the child. She could even withhold the child from you as the father if she wanted to with no legal consequences.

How do I establish paternity?

If you want to see your child without it being in the mother’s discretion, the best and most secure way to have legal rights to your child born outside of a marriage is to file a petition for paternity within the circuit court in the county where the child lives. Doing so will help establish your paternity rights and help you establish custody or visitation by court order.

If you and the child’s mother have signed an acknowledgement of paternity, you’re one step closer to establishing your custody and visitation rights as a father. An acknowledgment of paternity is a finding of paternity, but it’s not enough on its own. It serves as a basis or the first steppingstone for establishing and enforcing your rights. Your name on the child’s birth certificate or an acknowledgment of paternity is more proof that you are the father, but they cannot stand alone on their own to establish paternity. The court must make a finding that you are the father for you to have any legal rights.

After the Court finds that you are the father, you are the father of the child in every sense of the word. You have the same rights as if the child were born during a marriage. Some of these rights include custody and visitation agreements. However, establishing paternity does not automatically give you custody or visitation and it comes with the possibility of paying child support as well. This will usually all be determined during the pendency of the court case, whether by agreement of the parties or through a trial.

Once the Court finds that you are the child’s father, the judge will likely make a finding as to custody, visitation, and parent’s rights. In Arkansas, joint custody is now the presumed outcome, but the court can award another form of custody and visitation if there is clear and convincing evidence that joint custody is not in the best interest of the child. For more on joint custody see our blog  Joint Custody: It’s Not Just for Divorced People Anymore.

Eason Law Can Help

At Eason Law, we have helped many people navigate paternity and custody issues. If you need an experienced legal team to help you navigate your criminal law matters, call us today and let us help you through the process. 

New Rules of the Game

The most common concern parents have when separating is how much time they will get to spend with their kids after the separation.  The traditional belief is that one of the parents, usually the mom, will get custody of the kids, while the dad will only get visitation every other weekend.  However, as Lee Corso would say, “Not so fast my friend.”  You can throw that traditional line of thinking out the window because today, Arkansas lawmakers have changed the rules of the game.  Now, there is a rebuttable presumption, (that means the Courts prefer it basically) that joint custody is in the best interest of the minor children, even when the parents were never married.

Joint Custody Under the Old Law

Joint custody has traditionally been disfavored in Arkansas.  This changed in 2013, when the law was amended to state that Arkansas law favors an award of joint custody in actions for divorce.  However, even after this change, judges were often hesitant to award joint custody to divorcing parents unless they were convinced the parents were truly willing to work together when deciding on what’s best for their kids.

2021- The Law Has Changed And What That Means For Your Case

This year, the Arkansas Legislature significantly amended the law on child custody again, which now provides that “[i]n an action concerning an original child custody determination in a divorce or paternity matter, there is a rebuttable presumption that joint custody is in the best interest of the child.”  The effect of the amended law is that courts are now required to order joint custody unless there is “clear and convincing evidence” that joint custody is not in the children’s best interest.  Clear and convincing evidence is a high burden to meet and requires a strong evidence showing that joint custody is not what’s best for the children.

So, what does this mean for your case?  It means that, unless you or your ex have some type of strong evidence against each other, you will ultimately end up sharing custody equally.  And this applies to paternity cases as well, not just divorces.  So even if you and the other party were never married, joint custody is still the presumed outcome.  That was not true under the previous version of the law.

Now, what happens if there is enough evidence to show joint custody is not what’s best for the children?  Does that mean one parent will only get to see the kids every other weekend?  The answer is maybe, maybe not.  Obviously, each case is different, so the right visitation (or parenting time) arrangement will not be the same for every case where joint custody isn’t awarded.  However, the new law does state that even when joint custody is ordered, the court must still set a parenting time schedule which “[m]aximizes the amount of time that each parent has with the child.”  This means that even though the parents will not be entitled to equal time with their children, the non-custodial parent should not be automatically limited to the traditional “standard” visitation of every other weekend. 

While it remains to be seen exactly how courts will implement this new law, it is clear that Arkansas is shifting away from it’s historical standards on how custody and visitation is arranged.

At Eason Law, we have helped many people navigate divorce, paternity and custody matters. Whether it be an initial divorce or paternity action or modification of custody and child support obligations, we handle it all.  If you need an experienced legal team to help you navigate your family law matters, call us today and let us help you through the process.