Arkansas law is clear that an award of child custody is determined by the best interest of the child. Whether it is an initial custody determination or a change of custody, case law states that judges are required to set aside presumptions that daughters should be raised by the mothers or sons should be raised by their fathers. Arkansas has even removed the presumption that young children should be cared for by their mother. What the judge must consider is the welfare and best interest of the child. Everything else takes a back seat.

But how does the judge decide what is in the best interest of the child? And what can be used as evidence to prove custody with one parent over the other is in the best interest of the child?

The psychological relationship between the child and the parent is a big part of the decision. The court will consider which home provides the best stability and continuity for the child. Stability and continuity can mean many things, from the child’s daily and seasonal schedule to the child’s relationships with parents, siblings, and the community.

The past conduct of a parent toward a child can be considered by the judge. The most obvious example is that the court will not want to place children in homes with parents who have abused them in the past. Courts are always hesitant to place children with parents who have never abused the child, but have abused the other parent. But less obvious conduct can have an impact too. Evidence of a flaw in moral character has been upheld in Arkansas custody cases.

The court can consider the preference of the child, if the opinion is viewed as reasonable. However, a child’s preference is not binding. For example, a teenager may prefer one parent because they let them hang out with their friends all the time, but the court may recognize that the structure provided by the other parent is better for the child’s welfare.

Joint custody is permitted (and technically “favored” by statute although not in practice) in some situations where the court believes that it is in the best interest of the child that frequent contact with both parents continues. And even though there is a presumption that a natural parent should be awarded custody over a non-natural parent, if the best interest of the child is with a step-parent, grandparent, or other party, when the natural parent is incompetent or found to be an unfit parent.

Some people think that fault in the divorce, such as an affair, is a factor in determining custody; however, it is not. In Arkansas, an award of custody cannot be used as an award or punishment and the welfare of the child is always the primary test.

Courts are hesitant to divide siblings and living with siblings can be a source of stability and continuity that is vital to the upbringing of a child. This preference is relaxed somewhat with half-siblings.

As you may notice, this is not an exhaustive list of facts that courts will consider. Common sense will usually guide you in the right direction when thinking about how you can prove your children belong with you.

If you have questions or concerns about winning or protecting custody of your children or about fighting for custody of your children from somebody else, you need to contact an attorney. Clarke Mixon at Owens, Mixon, Heller & Smith, P.A. has decades of experience fighting for custody rights. If you would like to speak with Clarke, please call 1-870-336-6505 or email him at