Can Children Express Preference in Arkansas Custody Proceedings?

Wondering whether children can make their own decisions about custody? Learn more here.

When parents separate, they often have differing opinions on which parent should get custody of children. Children of separating parents often have their own opinions as well, and you may wonder how the court treats children’s opinions. In many, but not all states, the law requires the judge to consider a mature child’s opinion when determining custody.

This article will explain how a child’s preference affects custody in Arkansas. If you have additional questions about the effect of a child’s custodial preference in Arkansas after reading this article, you should consult a local family law attorney.

Overview of Custody Decisions in Arkansas

Arkansas judges will determine the custody arrangement whenever the parents can’t come to an agreement themselves. The court must consider all factors relevant to the child’s well-being when deciding custody, including each of the following:

  • the child’s best interests and welfare
  • each parent’s willingness to encourage a relationship between the child and the other parent and grandparents
  • whether either parent has committed domestic violence
  • whether either parent has committed sexual abuse or has a registered sex offender living in their household, and
  • the child’s preference, if the child is of sufficient age and maturity.

To read more information about custody decisions in Arkansas, see Child Custody in Arkansas: The Best Interests of the Child.

When Will the Court Consider a Child’s Preference?

In Arkansas, the court must consider a child’s preference when the child is of a sufficient age and mental capacity to have a reasonable opinion. There is no specific age when a judge is required to listen to the child’s opinion; the judge makes that decision on a case-by-case basis. In one case, the judge found that a child who was almost 12 was still not mature enough to form a reasonable opinion. In other cases, children as young as nine have been found to be mature enough to have their opinion considered. Courts generally consider the opinions of teenaged children.

Courts don’t have to follow the child’s preference on custody, even if he or she is mature enough to have a reasonable opinion. Courts simply have to consider the child’s preference along with the other factors relevant to custody. If the child’s preference is not in the child’s best interests, the court will decide against the child’s preference.

The judge deciding custody must determine whether the reasons a child gives for his or her preference are mature and reasonable. For example, a court will likely give a lot of weight to a child’s opinion when the child wants to live with a parent due to a better home environment, or a better relationship with that parent. On the other hand, a judge is not likely to consider a child’s preference when it’s based on the child being angry with one parent, or disliking the rules of one parent’s household.

Do Children Have to Testify About Their Custodial Preferences in Court?

In Arkansas, children do sometimes testify about their custodial preferences in court. The judge will generally take steps to ensure that the children are not harassed while testifying, since stating a custodial preference in front of the parents is already difficult for most children. For example, a judge may decide that the child will not be cross-examined by attorneys and may be the only person to ask the child questions.

The judge may also decide to interview children outside of the courtroom, in judges’ chambers, or only after excusing the parents from the courtroom. When the interview takes place in outside of the parents’ presence, the court reporter must make a record of the interview so that the child’s testimony is preserved and can be reviewed by the parents later.

If you have additional questions about the effect of children’s custodial preferences, contact an Arkansas family law attorney for help.

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