When someone is going through a contested divorce and child custody is one of the areas under dispute, you’ll want to know how it gets decided. Regardless of the specifics of your case, you will likely be told that custody—along with other things—will be based on whatever is in the child’s best interest.

Custody disputes can be a stressful and emotional time for children and parents alike. To give you a better understanding of the process, here are some of the factors that go into determining what constitutes whether something is in the child’s best interest.

The Gender Of The Parents

The gender of the parent is not a factor that plays into determining the best interests of a child. In other words, there is no assumption that a mother is a better parent than the father or the other way around. 

By extension, sons are not going to be given to fathers or daughters given to mothers solely based on their gender. Previously, there was the presumption that a mother was in the best position to care for a younger child. This was known as the “tender years doctrine.” It has since been abolished and will not factor into custody. 

“Clear & Convincing”

This is another very important phrase you may hear. Act 604 states that joint custody will be ordered unless there is clear and convincing evidence demonstrating that it wouldn’t be in the child’s best interest. 

Because of Act 604, it is presumed that joint physical and legal custody is in the best interests of the child. Each parent has equal say in the medical, educational, and religious decisions of the child. In addition, they will both have the child for 182 nights a year. The reason for that is because an overnight stay constitutes one day with the child. 

Other Factors

People often ask about whether the child has a say in who they live with and whether the “at-fault” parent, the person who may have caused the divorce, plays into custody. Does being at-fault constitute clear and convincing evidence that joint custody isn’t in the child’s best interest? No, it does not.

Fault in the divorce does not get factored into custody orders. Lastly, the court has the ability to listen to a child’s wishes if they are of “sufficient age and mental capacity.”


If you are going through a divorce and are facing a custody dispute, put your trust in the firm that has established itself as one of the best family law firms in Arkansas. OMG Law will stand next to you and provide professional and reliable legal services. Don’t face these challenges alone. Contact OMG Law to schedule a consultation.