Determining Custody in Arkansas

Posted by on February 21, 2013 in Blog, Family Law

How does a court decide who gets custody in a divorce case?  There’s no simple answer to this question, but a case out of Benton County, which was recently affirmed on appeal, holds that what the parties do while the divorce is pending is certainly one thing which the court will consider in making the determination.  Magee v Magee, 2013 Ark. App. 108.  Ultimately, the “unyielding consideration remains the welfare and best interest of the child” when a court is making custody determinations.  Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998).  However, the exact factors that a court will consider in deciding what is in the best interest of the child, are often very broad, as the Magee case illustrates.

Without going too much into the details of the case, Lisa Magee appears to have been having an affair behind the back of her husband David Magee, prompting him to file for divorce.  As the case was pending, Lisa continued to see her paramour, and exposed the Magee children to the affair along the way, going so far as to putting her lover’s name on records at the children’s school so that he could pick them up in the afternoon.  There was also testimony that she consumed alcohol and used profanity around the children, as well as disparaged David in the children’s presence.  Almost all of these actions are prohibited in most Arkansas court’s Standing Orders while a domestic relations case is pending, and certainly in most court’s Standard Visitation Schedules when it comes to post-trial behavior.  See for example the Benton County Standard Visitation Schedule. While the court did not single out any one of those as the reason to award David primary custody, it is clear that all of Lisa’s behavior taken as a whole factored into the court’s decision, not to mention the fact that there is previous caselaw in Arkansas holding that it is acceptable to consider evidence of an affair when determining what is in a child’s best interest Atkinson v. Atkinson, 72 Ark. App. 15, 32 S.W.3d 41 (2000).

Of course, there are many other factors that a court may consider in determining what is in the best interest of the child, some of which include: which parent has been the primary caretaker of the children previously, which parent will be better about facilitating a loving relationship between the noncustodial parent and the children, which parent has the resources (both financial, as well as emotional, psychological, educational,  etc.) to provide a stable environment for the children, as well as issues such as suitable employment, availability of health insurance, proximity of a support network, such as extended family, etc.  In short, if you are facing a divorce or separation and there are children involved, both sides are well-advised to seek legal advice so that they can hopefully minimize the effect of the litigation on the children and reach an agreement that works best for everyone involved.

Standard attorney disclaimer:  Nothing contained in this post is intended to be construed as legal advice.  Unless otherwise stated, no attorney-client relationship exists between the author and the reader.  Past performance should not create an expectation of future results.  You should consult an attorney for advice regarding your individual situation.  While I invite you to contact my office and welcome your calls, letters and electronic mail, simply contacting my office does not create an attorney-client relationship.  Please do not send any confidential information to my office until such time as an attorney-client relationship has been established.