Arkansas: Filing for Custody (With or Without Divorce)

Filing for child custody, after separation or as part of divorce, is one of the most important decisions you'll make.

In Arkansas, custody, parenting time and child support are determined as part of divorce or paternity cases.

Be aware that an Arkansas court will order joint custody and equal (or near equal) parenting time, unless one of these is true:

• There has been abuse, or another standard exception applies.
• One parent provides "clear and convincing" evidence that joint custody would not be in the child's best interests.
• Both parents agree on a different custody arrangement.

Before you start

Whether you're divorcing or seeking custody as an unmarried parent, one of you must live in Arkansas for at least 60 days before you file. Additionally, Arkansas must be the child's home state for the court to be able to decide custody.

A lawyer (if you hire one) can draft your initial documents and file them with the court for you. If you file without a lawyer, you'll do so on paper, and typically the court clerk will e-file your papers for you.

If your situation might be complex, it's a good idea to seek legal advice.

Let the court know about any true emergency involving your child's safety so they can expedite your case. There are rules for presenting an emergency to the court.

What you'll pay

Expect it will cost:

• About $150–$165 to open a case (Each court sets its own filing fees.)
• $2.50 to issue a summons
• About $50 to serve papers to the other parent (See below.)
• About $50 for a court-ordered parenting class

If you can't afford this, ask the court to waive fees by submitting an In Forma Pauperis form.

The court may order you to go to mediation, and you'll have to pay for it unless you're approved for free mediation. Mediators charge by the hour, so the cost depends on whom you hire and how long you and the other parent negotiate in session.

You may also pay for legal help. If you already have a full agreement with your ex, you may find a lawyer who charges a flat fee for a few hours of their time to file your uncontested case for you. But if you and your ex have open issues, a lawyer will charge hundreds of dollars an hour to work on your contested case.

Completing initial paperwork

The local court clerk may not open your case until you correctly submit all required initial documents. You may find you can use some statewide versions of the forms, like these:

• Domestic Relations Cover Sheet: Before you fill this out to say what type of case you're filing, ask your local court if it prefers a different cover sheet.
• Confidential Information Sheet: You'll fill out basic information to identify yourself, the other parent and your child. This information won't be available to the public.

You'll need a few more forms of which there aren't statewide versions. See if your local circuit court provides them or else have a lawyer draft these requests for you. These include:

• Complaint: This explains what happened and what you're asking the court to do about it.
• Summons: This informs your ex about your case.
• Divorce Decree (if you're divorcing): You draft it, and the judge later signs it.

Eventually, each of you must submit financial information for child support, and it's a good idea to propose a parenting plan and parenting time schedule (separately or together) — but you don't need to have those ready when you first open your case.

If you're divorcing

If you were married to each other when your child was born, you already have joint custody by default until a court orders otherwise.

Where to file: File in the Arkansas county where you live or (if you live out-of-state) in your spouse's county.

Grounds for divorce: If you've lived apart for 18 months, you may seek a divorce. (This option is essentially "no-fault.") Otherwise, you must cite fault (and be ready to prove it). Usually, people cite "general indignities," which means something has made your life "intolerable." If the fault doesn't impact your child, it won't determine who gets custody. You'll need a witness to confirm your ground and your Arkansas residency.

How long it takes: Before the court will finalize your divorce, you must wait at least 30 days from the day the case is opened and one of you must have lived in Arkansas for at least three months. If you don't have a full settlement agreement, the process will take longer. You must contact the court to schedule a hearing; the court won't initiate it.

Arkansas courts typically issue an automatic "restraining order" that says you aren't allowed to hide your assets nor disappear with your child while your divorce is in progress. This doesn't imply there has been abuse.

If you're not married

If the mother is unmarried when the child was born, she automatically has sole custody. The second parent, upon establishing parenthood, does not yet share custody but has the right to seek it.

If it hasn't been established that you're the child's parent, open a paternity case. You have to do this even if you've signed a voluntary acknowledgment of paternity (as that form only gives you a presumption of paternity).

Starting a paternity case

Where to file: File a paternity action in the Arkansas county where your child lives. You can seek custody and visitation in Arkansas if your child has lived in the state for at least six months — or, if they're a baby under six months, since birth.

How long it takes: There's no waiting period. The length depends how many issues you need the court to decide, how complex those issues are and whether you're arguing.

If the case decides custody and parenting time, child support will also be addressed.

Reopening a paternity case

Sometimes, when a court decides who the father is, no custody order is issued. (State-initiated paternity cases only address support matters, not parenting time.)

If you're in this situation, prepare a motion to establish custody and parenting time. Submit it under your paternity case number.

Tip: Be sure the mother is a party to the case. You'll need to join her as a party if the state originally opened the paternity case.

Serving the other parent and responding to service

The other parent can tell the court they know about the case by completing an Entry of Appearance, Waiver of Service of Summons, and Waiver of Notice in front of a notary.

If they don't agree to do this, they'll have to be served. Options:

• Pay the sheriff to serve the papers.
• Pay a private process server.
• Send the papers by certified mail with "restricted delivery," meaning a postal worker will hand the envelope to the other parent personally. As the post office may keep trying for 45 days, this may delay your case.

After they've been served, you must provide an affidavit of service to the court.

Once served, the defendant has 30 days to respond. Even if they don't respond, they'll receive a notice of hearing, giving them another opportunity to participate. If they don't appear, the court may finalize the case without their input.

Once your case is open

You can look up your case information online. Some documents, like the initial complaint (and eventually the final decision), are publicly available, though sensitive information may be redacted.

The next step is typically a hearing.

If your case is uncontested, the hearing may be only a few minutes, and the judge will likely approve your agreement, ending your case.

Contested hearings may be longer because the judge needs more time to understand your issues. At the end of a contested hearing, the judge explains what should happen next in the case.

Legal help in Arkansas

Two nonprofit law firms provide free legal services to low-income individuals. Legal Aid of Arkansas serves 31 of the state's counties, and the Center for Arkansas Legal Services serves the other 44.

Remember that, if you're having difficulty negotiating with the other parent, you can hire a mediator for help with reaching an agreement. See the court's directory of mediators or seek free mediation through the court. If you don't try mediation on your own, the court will likely order you to do it.

Preparing for what comes next

If you haven't turned in a parenting plan yet, keep trying to agree on one with the other parent.

If agreement isn't possible, make your own plan to propose to the court.

Either way, you can use the Custody X Change parenting plan template.

The Custody X Change online app suggests what to include while giving you the freedom to write custom provisions.

Turn to Custody X Change for a court-ready plan that supports your child and your custody request.

Our professional sources

The Applegate Firm PLLC
Kayla M. Applegate
Maumelle, AR

PPGMR Law
SaraCate Moery
Little Rock, AR

Robertson, Oswalt, & Nony, LLC
Bonnie Robertson
Little Rock, AR