Arkansas Joint Custody Presumption: What is Act 604?

Arkansas courts presume that joint custody with approximately equal parenting time (50/50) is in the best interest of every child in divorce and paternity cases under Ark. Code Ann. § 9-13-101. This presumption, established by Act 604 of 2021, requires the opposing party to prove by clear and convincing evidence that joint custody would harm the child. Arkansas is the only state in the nation using this elevated standard of proof, making it significantly harder to obtain sole custody compared to other states that use the lower preponderance of the evidence standard.

How the Elevated Standard Affects Sole Custody Cases

The clear and convincing evidence standard is a high bar—higher than the “more likely than not” threshold used in most other states. It requires proof that leaves the judge with a firm conviction or belief that joint custody is not in the child’s best interest. This makes sole custody awards less common in Arkansas unless there are compelling reasons.

Parents seeking sole custody (or primary physical custody with sole legal decision-making) must overcome the presumption by presenting strong, credible evidence of serious concerns that would make equal shared parenting harmful to the child.

Common Evidence to Rebut the Presumption

• History of domestic violence, child abuse, or neglect — Documented incidents, protective orders, or criminal convictions.
• Substance abuse issues — Evidence of ongoing alcohol or drug problems that impair parenting ability (e.g., failed drug tests, treatment records, or witness testimony).
• Significant mental health concerns — Conditions that substantially impair the parent’s ability to provide safe, consistent care.
• Inability or unwillingness to cooperate — A pattern of intentional conflict creation or parental alienation that disrupts the child’s well-being and cannot be mitigated by court orders.
• Other safety or stability risks — Such as criminal activity, abandonment, or living situations that pose clear danger to the child.

The Arkansas Supreme Court’s Heileman v. Cahoon decision (October 2024) reinforced that equal time is the goal, and deviations away from joint custody require careful justification. Judges must make specific findings and will often order a parenting schedule that maximizes contact with both parents even if full joint custody is not awarded.

Joint Custody Under Arkansas Law

Joint custody under Arkansas law means the approximate and reasonable equal division of time with the child by both parents individually. This definition emphasizes actual parenting time rather than merely shared decision-making authority. Courts will structure parenting schedules to achieve genuine equality in the time each parent spends with the child.

Types of Custody in Arkansas: Legal vs. Physical Custody

Arkansas divides custody into two distinct categories: legal custody and physical custody, with joint arrangements favored for both types.

• Legal custody grants the right to make major decisions about the child’s education, healthcare, religious upbringing, and extracurricular activities.
• Physical custody determines where the child lives on a day-to-day basis and which parent handles routine care, including meals, transportation, and supervision.

Under the joint custody presumption, most Arkansas custody orders award both parents shared legal custody and shared physical custody with equal (or near-equal) time.

Child Support and Jurisdiction

Arkansas uses the Income Shares Model for child support calculations under Administrative Order No. 10. Support is based on both parents’ combined incomes, adjusted for parenting time. For interstate cases, Arkansas follows the UCCJEA, where the state is the child’s “home state” after 6 consecutive months of residency.

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