Arkansas – We Done You Wrong!

December 4, 2019 By Don Hubin, PhD, Chair, Board of Directors

We goofed!

Last September, NPO released the 2019 NPO Shared Parenting Report Card. This was the first update to the research that NPO pioneered in 2014 to review the child custody statutes of all 50 states and the District of Columbia and evaluate them on the degree to which they promote shared parenting.

Unfortunately, we missed a key provision of Arkansas law. In both the 2014 Report and the 2019 Report (as released in September). Arkansas statutes state that “[i]n an action for divorce, an award of joint custody is favored in Arkansas” (ARK. CODE ANN. § 9-13-101(a)(1)(A)(iii)). And, furthermore, Arkansas statutes define ‘joint custody’ strongly: “the approximate and reasonable equal division of time with the child by both parents individually as agreed to by the parents or as ordered by the court” (ARK. CODE ANN. § 9-13-101(a)(1)(A)(iii)(B)(5)).

These are important provisions of Arkansas law that should serve to promote shared parenting and, reflecting these changes, NPO has changed the grade for Arkansas’s shared parenting statutes from a ‘D-’ to a ‘C+’.

That’s a significant improvement, to be sure. But there’s plenty of room for the lawmakers in Arkansas to take further steps to promote shared parenting. The language of “favoring” shared parenting amounts only to a policy statement. It does not create a rebuttable presumption of substantially equal shared parenting. And, because of its vagueness, courts are not interpreting the statutory language as creating even a legal preference for shared parenting.

Furthermore, Arkansas statutes do not explicitly provide for shared parenting during temporary orders, which is a crucial time when families are trying to determine a pattern of post-separation parenting.

Also, there is a provision of Arkansas law–perhaps a remnant of earlier legislative activity–that seems to cut against the idea that shared parenting is favored in Arkansas. The statutes say, “the circuit court may consider awarding joint custody of a child to the parents in making an order for custody (ARK. CODE ANN. § 9-13-101(b)(1)(A)(ii), emphasis added). This merely permissive language seems to downgrade the preference for shared parenting to a mere option that a court is allowed to consider.

While NPO is not pleased that we missed these provisions of Arkansas law, we are quite pleased that they exist. The legislature in Arkansas took a significant step to recognize the value of shared parenting for children. We are grateful to Patrick Fraley, co-founder of Arkansas Advocates for Parental Equality, for pointing out our omission. 

The lawmakers in Arkansas deserve credit for attempting to improve the lives of children by encouraging shared parenting. Unfortunately, Arkansas courts aren’t getting the message. Check back tomorrow for a guest column from Patrick Fraley for more information on how the 2013 shared parenting legislation is being interpreted by Arkansas courts. NPO’s Report Card grade is based on the state’s statutory language. And the statutory provisions that Arkansas saw fit to enact in 2013 are good and should have resulted in a strong legal preference for substantially equal shared parenting. But, as Patrick will recount, Arkansas courts have ignored the will of the legislature and weakened the impact of the 2013 legislation.

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