How Domestic Violence Affects Child Custody in Arkansas

Domestic violence hurts both adults and children in profound and lasting ways. It can have a detrimental impact on people's health, welfare, and legal rights. It even affects child custody orders.

This article will explain what domestic violence is and how it affects child custody. If you have any questions after you read this article, consult with a family law attorney for advice.

Domestic Violence Overview

All too often, people who are victims of domestic violence don't seek out much-needed help because they don't think that what they endured is really abuse. But Arkansas law defines "domestic abuse" as including all the following behaviors:

• physical harm
• bodily injury
• assault
• threats that cause fear of physical harm, bodily injury, or assault, and
• any sexual conduct involving either minors or adults that occurs between family or household members.

The law protects family and household members from abuse, and defines them as:

• current spouses
• former spouses
• people related by blood to the fourth degree
• any children living in a household
• people who are living together currently or who have lived together in the past
• people who have a child in common, and
• people who are currently or in the past have been in a dating relationship.

"Dating relationships" don't include casual friendships or ordinary business or social relationships. A judge will look at the length and type of the relationship, as well as the frequency of the interactions between two people, when it decides whether they're involved in a dating relationship.

If you're a victim of domestic violence, you can go to court and ask for a domestic abuse protection order. Arkansas Law Help provides forms and instructions for getting orders of protection. You can also download the forms from the Arkansas Courts' Domestic Violence page.

Community Resources

Arkansas, like most other states, has a network of legal aid and practical assistance (like shelters and counseling) for victims of domestic violence. The Arkansas Coalition Against Domestic Violence maintains a map with contact information for shelters throughout the state, as well as a separate listing of affiliated shelters and hotlines.

Victims can also call the National Domestic Violence Hotline at 800-799-7233. It's available 24 hours a day, seven days a week.

Domestic Abuse and Child Custody

In Arkansas, as in all states, there are two kinds of custody: legal and physical. Physical custody refers to where a child lives and receives basic daily care, like feeding and bathing. Legal custody refers to a parent's right to make decisions for a child about important matters like education and religion.

When judges are making custody decisions in Arkansas, they must consider certain factors to determine the best interests of a child. Domestic violence plays an important role in a judge's custody decision. If an abused parent can prove it is more likely true than not that the other parent committed an act of domestic violence against the child, the other parent, or another family or household member, the court must consider the effect of the domestic violence on the child's interests. The judge has to consider evidence about whether the child was physically injured or personally witnessed the abuse, as well as any other pertinent facts.

Even more seriously, if an abused parent can prove that it's more likely true than not that the other parent has engaged in a pattern of domestic violence, then the court has to apply a "rebuttable presumption" that it's not in the best interests of the child to give the abusive parent custody. This means that unless the perpetrating parent can prove that the victim parent is probably wrong and there hasn't been a history of domestic violence, the perpetrator isn't likely to get custody.

It doesn't matter whether the violence has stayed "in the family" because the court will also consider a parent's behavior toward others. Every time a judge decides that an abusive parent has perpetrated domestic violence against the other parent, the child, or another household member, the court has consider the following supplemental factors when deciding how to divide custody and visitation:

• how best to protect the safety and well-being of the child and the victim parent, and
• the perpetrator's history of causing physical harm, bodily injury, assault, or making threats of the same to another person.

If the victim parent relocates or doesn't appear in court because the parent is afraid of an abuser, the judge won't hold that against the parent.

Impact on Visitation

If there has been domestic abuse in a family, the judge's paramount consideration, when writing a visitation award, is to make sure the child and the other parent are safe. Among other things, the court can:

• order the abusive parent to undergo and pay for drug testing, in cases where chemical dependency is an issue
• appoint a "guardian ad litem" (advocate for the child) to investigate the case and protect the child's welfare
• prohibit overnight visits
• order visitation to be supervised by another responsible adult, under conditions established by the court and at the perpetrating parent's expense, and
• require the perpetrating parent to undergo treatment, counseling, and parenting classes, at the parent's expense.

Termination of Parental Rights

In the most severe cases, where there is a serious pattern of child abuse, the Arkansas Department of Human Services is empowered to terminate a parent's rights. Termination of parental rights means that a parent loses all rights to both the physical and legal custody of a child.