Can Children Express Preference in Arkansas Custody Proceedings?

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

By , Attorney · Cooley Law School
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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 a child's preference. 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 custody decisions are made 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

In most divorce and separation cases, judges encourage parents to work together to decide the best custody arrangement for their family. However, if the parents can't agree on a reasonable solution, the judge will decide for them. Judges in Arkansas will decide where the child will live (physical custody) and allocate which parent has decision-making responsibility for the child (legal custody.)

The court can award either type of custody to one or both parents together. For example, in some cases, the court may award sole physical custody to one parent and joint legal custody to both. Or, the court can award joint physical custody and joint legal custody to both parents. In the end, the court must decide each case on an individual basis.

In Arkansas, the law presumes that joint custody is best for the children unless there is a history of domestic abuse. (Ark. Code Ann. § 9-13-101 (a)(1)(B).) However, before allocating custody to either parent, the court must consider what's best for the children using a specific set of factors, called the best interest factors.

Judges must evaluate all of the following:

  • the child's best interests and welfare (Fitzgerald v. Fitzgerald, 976 S.W.2d 956 (1998).)
  • the psychological relationship between the parents and the child
  • the child's need for stability and continuity with parents and siblings
  • each parent's past conduct towards the child
  • both parent's moral character (James v. James, 780 S.W.2d 346 (1989).)
  • 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. (Rector v. Rector, 947 S.W.2d 389 (1997).)

Regardless of how the judge awards custody, the court must put its reasoning for the final decision in writing for each parent. (Ark. Code Ann. § 16-13-510.)

When Will the Court Consider a Child's Preference?

In Arkansas, the court must consider a child's preference when the child is of 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, and 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, courts have found children as young as nine mature enough for the judge to consider their preference. In most cases, the older the child, the more weight the court will give to that child's desires for custody.

Courts don't have to follow the child's preference, even if the child is mature enough to have a reasonable opinion. Arkansas law requires the court to consider the child's preference, but the judge must also evaluate all other factors relevant to custody. In other words, if a 16-year-old child expresses a preference to live with a drug-addicted parent who doesn't have a permanent home, while the other parent owns a home and has a stable job, the court will likely award custody to the more stable parent.

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 more consideration 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 if the child is angry with one parent, or dislikes 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, the court may announce that only the judge may ask the child questions and deny either attorney's request to question the child during the hearing.

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 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.

Parenting Time in Custody Cases

Arkansas law favors frequent and continuing contact of the child with each parent. (Ark. Code Ann. § 9-13-101.) So, if the court awards physical custody to one parent, the judge will typically create a parenting time (visitation) schedule with the other parent.

Although parenting time schedules vary for each case, the court will typically schedule visitation on alternating weekends, holidays, school breaks, and some of the summer vacation. If you and the other parent have a schedule you'd like to use, as long as it's in the child's best interest, the court will accept it.

However, if a parent has a history of domestic abuse, the law creates a rebuttable presumption that it is not in the child's best interest for the abusive parent to share custody. (Ark. Code Ann. § 9-3-101 (c).) A "rebuttable presumption" means that if the abusive parent can prove to the court that visitation is not a threat to the child, the court may permit visitation.

Typically, parents can meet the burden of proof by providing evidence of court-ordered classes, drug testing, or substance-abuse treatment, if necessary. If the parent is a sex offender, the law presumes it's not in the child's best interest to have unsupervised visitation or custody with that parent. That parent must "rebut" the presumption before the court awards custody or visitation. (Ark. Code Ann. § 9-13-101(d).)

For example, one court denied parenting time to a father who made no support payments, refused to bring his child home after visitation, abused the other parent during the visitation exchanges, took the child to a pool hall, and exposed himself to the other parent's teenage sister. While non-payment of child support is generally not enough for a court to deny parenting time, the father's overall behavior, in this case, resulted in the court denying parenting time. (Lumpkin v. Gregory, 262 Ark. 561 (1977).)

Can My Child Refuse to Visit?

In most cases, no. There is no specific age in Arkansas when a child can refuse to visit with a non-custodial parent. However, Arkansas law does permit the court to consider the child's opinion on visitation if the child is of sufficient age and capacity to reason, regardless of age. So, if the child opposes the court's proposed parenting time schedule, the court will consider that child's opinion before moving forward.

If there is a court-ordered schedule for visitation, and your child refuses to go, the non-custodial parent can ask the court to enforce the order. The court may find the custodial parent in "contempt" of the court order and force the custodial parent to pay the other's attorney fees, provide make-up parenting time, or in severe cases, use the refusal in the future modification of custody cases.

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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