When parents divorce, they need to learn the child custody and visitation options that are available to them and the legal standards applied to the different options. In some cases, divorcing couples are ultimately able to agree on custody and visitation issues without the need for a court hearing. Whether an agreement can be reached or not, knowledgeable advice and representation from an experienced family law attorney often makes all the difference.
The set of parental responsibilities regarding day-to-day care of the child as well as the rights to direct the child’s daily activities is known legally as physical custody. Legal custody means the rights and responsibilities associated with decisions regarding the child’s upbringing.
There are many options regarding the division of these rights and responsibilities between divorcing parents. NW Arkansas Courts favor custody solutions that allow one parent to be the primary care giver and the primary decision maker.
Sole physical and legal custody occurs when one parent retains the exclusive, primary right to have the child live with him or her and also has the exclusive right to control the child’s upbringing. This is the most common type of custody in NW Arkansas and normally includes a visitation schedule for the non-custodial parent. When one parent ends up with primary responsibility for the couple’s children, the other parent (known as the non-custodial parent) usually has rights to maintain contact with the children through ongoing visitation.
In joint custody in Arkansas, children spend an equal amount of time with each parent and both parents share responsibility for decision-making. Unfortunately, Arkansas Judges have seen that these types of arrangements seldom work and families are often back in Court within a short time.
Divorcing couples often tackle custody and visitation issues as soon as they separate. Courts generally honor both the long and short-term custody arrangements of parents when they reach agreements about their children. When couples can’t agree, procedures exist throughout the divorce process to resolve custody conflicts.
Temporary Hearing: The family court holds a temporary hearing shortly after the initial papers are filed. If custody is contested at this point, the court will issue an order deciding custody that will be in effect until the court enters its final Divorce Decree.
Custody and Mandatory Mediation: Many Judges in Arkansas now require parties in a contested divorce to attempt mediation, an alternative dispute resolution process where divorcing couples work with a specially trained neutral third party to try and resolve some or all of their disagreements. Couples who resolve their custody disputes through mediation can include a provision in their final divorce agreement that makes it mandatory to return, as a means of resolving future custody and visitation disputes.
Attorney Ad Litem: If the parties are unable to reach an agreement regarding custody, some Judges will order a custody evaluation prior to trial by an outside attorney who represents the children. This attorney is called an Attorney ad Litem and will talk with the children, the parents individually and other people who might have insight into the children’s situation, like teachers and counselors. The Attorney ad Litem will give the Judge a recommendation regarding what arrangement is in the best interests of the child. Arkansas Judges place a very high consideration on the opinion of the Attorney ad Litem, but still sometimes rule contrary to the Attorney ad Litem’s recommendation.
Custody Trial: Arkansas Courts decide contested custody cases based upon a determination of what arrangement is in the best interests of the child which includes a review of such things as the child’s age and attachment to the parent that has been the primary caretaker, parental physical and mental health, any history of domestic violence or abuse of drugs or alcohol and any instances of criminal charges. Unlike many other states, Arkansas Judges do not allow the child to choose which parent they prefer to live with but, depending upon the age of the child they may be willing to listen to the child’s preference and the motivation for the preference, however they do not want children to testify.
Once custody and a schedule of visitation has been reached, specific procedures must be followed in order to change the arrangement. If couples have reached an agreement through mediation, they may have to go back to mediation in order to make any modifications. Custody established through court order requires additional court involvement. In order to support a request for a change the parent seeking the modification must show a substantial change in circumstances.
The resolution of child custody and visitation disputes requires separating parents to act rationally in their child’s best interests at a time when they are facing the overwhelming stress of divorce. Advice from an experienced family law attorney will help you understand the options available to you in your particular situation and make a plan that will serve the best interests of you and your children.
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