The law in plain words
Under Ark. Code 9-13-101, custody in a divorce is decided "solely in accordance with the welfare and best interest of the child." The sex of a parent plays no part.
Wondering who usually ends up with custody? Our page on the chances of getting full custody in Arkansas explains what the figures can and cannot show.
What custody means in Arkansas
Arkansas's statute defines only one custody term.
- Joint custody: "the approximate and reasonable equal division of time with the child by both parents."
- Parenting time: the time a parent without custody spends with the child.
- Attorney ad litem: a lawyer the judge may appoint to represent the child.
Joint custody does not have to be an exact 50/50 split. The Supreme Court said so in Cooper v. Kalkwarf (2017).
Terms like "primary physical custody" and "joint legal custody" are not defined in the statute. The Supreme Court has urged that orders define them.
The joint custody presumption
Act 604 of 2021 took effect on July 28, 2021. In a first custody decision in a divorce or paternity case, joint custody is presumed to be in the child's best interest.
The presumption can be overcome in four ways:
- the court finds, by clear and convincing evidence, that joint custody is not in the child's best interest
- the parents have agreed on all custody issues
- one parent does not ask for custody at all
- the domestic abuse or sex offender presumption is proved
Clear and convincing evidence is a high bar. It is more than "more likely than not."
If the presumption is overcome after a hearing, the judge must give written reasons. The schedule must still maximize each parent's time, consistent with the child's best interest.
Is Arkansas a 50/50 state?
In a first custody decision, close to it. Arkansas presumes joint custody, which the statute defines as roughly equal time. It is a starting point, not a guarantee.
- Not exact: joint custody need not be a precise 50/50 split.
- Can be overcome: in any of the four ways above.
- Not for changes: the Court of Appeals has held the presumption does not apply when a parent asks to change an existing order.
Since 2021, the judge must consider joint custody in every custody order.
How judges decide
Arkansas has no single statutory checklist. The court's top concern is the child's welfare. Judges draw on the statute, court decisions and a Supreme Court rule for attorneys ad litem.
- The child's preference, if mature enough to reason
- Which parent will support contact with the other parent
- A pattern of willfully creating conflict to disrupt joint custody
- Domestic violence, which must be considered
- The psychological bond between each parent and the child
- Stability and continuity in the child's relationships
- Moral fitness, stability, love and affection, and other facts about the child, which an attorney ad litem must review
A registered sex offender cannot get custody or unsupervised visits, unless the court specifically finds no danger.
Your child's preference
Arkansas sets no age at which a child decides. The judge may consider the child's preference if the child can reason, "regardless of chronological age."
The preference is not binding. In Hobby v. Walker (2011), the Court of Appeals said a judge may give it little weight.
In a case to change custody, a preference alone usually is not a material change. An attorney ad litem must tell the judge the child's wishes, even when they disagree with them.
Mothers' and fathers' rights
In a divorce, neither parent starts ahead. Custody must be decided "without regard to the sex of a parent."
Unmarried parents are different, as the next section explains. Until a court rules, the mother has custody.
If you were never married
Under Ark. Code 9-10-113, when a child is born to an unmarried mother, she has legal custody until the child turns 18. That changes only if a court orders otherwise.
A father must first establish paternity in court. He can then petition for custody in the county where the child lives. He must show:
- he is a fit parent
- he has given the child care, supervision, protection and financial support
- custody with him is in the child's best interest
In Powers v. Martin (2021), the Court of Appeals said that once paternity is established, "the presumption of awarding custody to the mother is erased." How this fits with the 2021 joint custody presumption is not yet settled.
- Acknowledgment of paternity: signing one is a conclusive finding of paternity.
- Changing your mind: a signer can rescind it with Vital Records within 60 days. Any earlier court or agency hearing about the child, including on support, ends that window.
- After that: it can be challenged only for fraud, threats or pressure, or a serious mistake about the facts.
Domestic violence
Under 9-13-101, the court must consider domestic violence proven more likely than not. That applies even if the child was not hurt and did not see it.
If a parent has a pattern of domestic abuse, the law presumes custody with that parent is not in the child's best interest. Proving that also defeats the joint custody presumption.
A parent's parenting time can be denied only if, after a hearing, it would seriously endanger the child.
Bills in 2025 to strengthen the domestic abuse presumption did not pass.
Emergency custody
Arkansas has no separate emergency custody procedure in its statutes. Parents use these routes:
- Order of protection: if a petition shows immediate danger, a judge can grant a temporary order without notice. The official form includes temporary custody of the children.
- The full hearing: within 30 days of filing, or at the next court date, whichever is later.
- Inside a custody case: judges can issue emergency custody orders without notice, and a hearing follows.
Arkansas courts can also act in an emergency to protect a child who is in the state.
Moving with your child
Arkansas has no relocation statute. The rules come from Supreme Court decisions.
- Primary custodian: under Hollandsworth v. Knyzewski (2003), a move is presumed acceptable. The other parent must rebut that.
- Joint custody: under Singletary v. Singletary (2013), there is no presumption. The move is treated as a request to change custody.
- Who counts as primary: under Cooper v. Kalkwarf (2017), the moving parent must be labeled primary and actually have significantly more time.
Courts weigh the reason for the move and the opportunities in the new location. They also weigh visitation, extended family and the child's preference.
Legal Aid of Arkansas suggests asking for the divorce decree to require both parents to live in the same state.
Changing custody
Changing custody is a two-step process:
- a material change in circumstances since the last order
- that the change is in the child's best interest
The standard is stricter than for a first order, to protect stability. The parent asking for the change carries the burden.
Failed communication, increasing alienation and an inability to cooperate can all be material changes. Under the statute, a parent's willful pattern of creating conflict can turn joint custody into primary custody for the other parent. That applies if the court cannot reduce the conflict another way.
The 2021 joint custody presumption does not apply to these requests. Since August 2025, a first responder's work schedule alone cannot justify a permanent custody change.
Parenting time and grandparents
A parent without custody is entitled to reasonable parenting time. If asked, the court must set a specific written schedule suited to the child's age.
Arkansas has no statewide standard visitation schedule. Some courts have their own guidelines, and one county's standard was mainly every other weekend. Our schedule comparison tool can help you compare rotations.
Legal Aid describes a federally funded Access and Visitation Mediation Program, with no cost for the mediation itself. Check it is still available.
Grandparents can seek visitation in limited cases, such as after a divorce or a parent's death. The parent's decision is presumed correct. The grandparent must prove a significant relationship and that visits serve the child.
How to file for custody in Arkansas
Custody cases are heard in circuit court, in the domestic relations division. Arkansas must usually be the child's home state for six months.
- Prepare your petition. Arkansas has no official statewide custody petition form, so many parents use a lawyer or Legal Aid.
- Add the court's forms. These include the Domestic Relations Cover Sheet, the Affidavit of Financial Means and the Confidential Information Sheet.
- File with the circuit clerk and pay the fee, or ask for a waiver.
- Serve the other parent.
Circuit clerks cannot give legal advice. Legal Aid of Arkansas offers free help to people who qualify.
How much does it cost to file for custody in Arkansas?
County circuit clerks list a $165 fee for a new case, including custody. Check with your clerk, as e-filing charges can apply.
| Filing | Fee |
|---|---|
| New circuit court case | $165 |
| Reopening a closed case, same parties and issues | $50 |
If you cannot afford the fee, file a petition to proceed in forma pauperis, with a sworn affidavit of your finances. The judge decides.
What changed in 2021 to 2025
Arkansas's main custody change came in 2021.
- July 28, 2021: Act 604 created the joint custody presumption for first custody decisions.
- August 1, 2023: Act 763 rewrote the rules for starting a paternity case. After 18, only the child can start one.
- August 5, 2025: a first responder's work schedule alone cannot justify a permanent custody change.
- 2025: bills to strengthen the domestic abuse presumption died.
The 2026 sessions passed no custody laws.
Building the record
A parent who argues joint custody would not suit the child needs strong, clear proof to overcome Arkansas's presumption. Missed exchanges, daily care and safety concerns are all shown by dates.
Note each one as it happens. Casewell keeps those notes and the messages behind them together, so a lawyer can read a clear timeline.
Before you record a call or a handover, check whether you can record your co-parent in Arkansas.
A clearer way to prepare
Come to court ready, not stressed.
Turn messages, receipts and everyday notes into a clear attorney-ready record.
New record
Late pickup
Pickup was scheduled for 5:00pm. The other parent arrived at 5:42pm.
Report ready
Your report is ready
Ready for your attorney or lawyer to review.
An Arkansas custody record
Arkansas judges weigh stability and each parent's support for the other. Keep these items current so your facts are ready.
Keep the record Arkansas judges weigh
Casewell keeps dated parenting time, care notes and the messages behind them in one private place. Export the period a lawyer needs as a focused PDF.
Is Arkansas a 50/50 custody state?
In a first custody decision, Arkansas presumes joint custody, meaning roughly equal time. A parent can overcome it, and it does not apply to changing an existing order.
Who has custody of a child if the parents are not married in Arkansas?
The mother has legal custody until a court orders otherwise. A father must establish paternity, then show he is fit, has cared for the child and that custody serves the child.
How do I file for emergency custody in Arkansas?
If there is abuse, an order of protection can award temporary custody quickly, without notice. Within a custody case, a judge can also issue an emergency order.
At what age can a child choose which parent to live with in Arkansas?
No age lets a child choose. The judge may consider the preference of a child who can reason, regardless of age, but it is not binding.
Can a custodial parent move away with the child in Arkansas?
A primary custodian's move is presumed acceptable. With joint custody, there is no presumption, and the move is treated as a request to change custody.
How much does it cost to file for custody in Arkansas?
County clerks list $165 for a new case. If you cannot afford it, you can ask the judge to let you file without paying fees.
Sources
This page summarizes the Arkansas Code, Title 9, Arkansas court rules and appellate decisions as of October 2026. It explains the law in general terms and is not legal advice.
- Arkansas Act 604 of 2021 โ joint custody presumption checked
- Ark. Code 9-13-101 โ custody (Justia mirror) checked
- Ark. Code 9-10-113 โ custody of a child born to an unmarried mother (Justia mirror) checked
- Arkansas Act 388 of 2025 โ first responders and custody checked
- Cooper v. Kalkwarf, 2017 Ark. 331 โ joint custody and relocation checked
- Hollandsworth v. Knyzewski, 353 Ark. 470 (2003) โ relocation checked
- Singletary v. Singletary, 2013 Ark. 506 โ relocation with joint custody checked
- Legal Aid of Arkansas โ child custody and visitation checked