What factors will the court look at when determining custody?

One of the hardest parts of going through a divorce is coming to terms with the fact that your child (or children) may not be living with you on a permanent basis after the divorce. Many people still believe that the mother always ends up with the children and the father gets the kids every other weekend. This is not true. Over the last several years, Arkansas courts have routinely favored granting joint custody to the parties. The judge will look at several factors in determining whether one parent should be awarded custody over the other parent or if joint custody is in the best interest of the children.

Please note that there are different types of custody arrangements. Legal custody refers to who makes decisions about the child’s medical care, education, religion and other important determinations. Physical custody refers to who the child lives with. A judge may grant sole custody to one parent on either or both types. And, as stated above, a judge may grant joint physical and legal custody to the parents. For the purpose of this article, we are only talking about physical custody.

The Times – They Are A Changin’

In Arkansas, the key phrase you will hear over and over when determining custody of children is “the best interest of the child.” The statute reads, “In an action for divorce, the award of custody of a child of the marriage shall be made without regard to the sex of a parent but solely in accordance with the welfare and best interest of the child.” Ark. Code Ann. §9-13-101(a). What does this mean? It means that courts no longer have a presumption that young girls should be raised by their mothers and young boys by their fathers. Furthermore, Arkansas has abolished the “Tender Years” doctrine. This doctrine created a presumption that the mother could best care for a young child (usually infants and up to two years of age). And what this really means is that both parties involved start off the custody negotiations and litigation on a level playing field.

So, What Is The “Best Interest Of The Child?”

Safety. Safety is the number one priority of the court. In addition to safety, the court likes to provide children with consistency and routine. For instance, if living with you full time would disrupt the child’s schedule or interactions with friends and other family members, the judge may decide to grant custody to the other parent.

But can my child have a say who they live with? Actually, yes. While it is untrue that a child gets to decide who they want to live with once they turn a certain age, the child’s preference will be considered by the judge as long as the child is of “sufficient age and mental capacity.”

Other factors the court may consider in determining the best interest of a child can include 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, and the past conduct of the parents toward the child.

Other Factors The Court May Consider

1. the child’s schedule of activities.
2. the physical and mental health of the parents
3. the current relationship the child has with each parent
4. the work schedule of each parent
5. the living accommodations of each parent (will the child have their own bedroom, etc.).