Arkansas’ Giant Leap To Fairer Shared Parenting
Tireless work culminated in the passage of a groundbreaking law that fundamentally changed the game in child custody. Now it stands as a blueprint for other states to follow.
Sometimes change comes so slowly you hardly notice. Other times there are pivotal victories you just know are game-changers. The passage by the Arkansas legislature of Act 604 in April, 2021, was one of those watershed moments.
Among other things, Act 604 created a rebuttable presumption of joint custody in all child custody cases , making Arkansas the first state to require “clear and convincing evidence” to deviate from that rebuttable presumption. (Kentucky passed a similar law in 2018, but with a lesser legal requirement to deviate.) The passage of the law fundamentally changed the rules by which child custody cases are decided in Arkansas and took away some of the discretion that judges have in deciding these cases.
Under the old Arkansas law, if parents could not agree on custody, both parents had to prove they were fit parents and then argue about what was best for the children. Under the new law, there is now a legal presumption that joint custody is best for the children that can be rebutted only by “clear and convincing evidence.” And this new law equally applies to children of unmarried parents, after the father establishes paternity by DNA or otherwise.
Before 2003, joint custody was not even allowed in Arkansas—it was considered an error for a judge to award it. That year the law changed to allow it, but it was still “disfavored.” In 2013, Arkansas law again changed so that joint custody was now “favored” and joint custody was defined as equal time with each parent. This change was similar to one in Arizona that same year, and their courts began presuming joint custody as a starting point.
Nonetheless, the Arkansas courts still were not awarding joint custody. In fact, the judges had an internal “bench book” that explained that even though the legislature said joint custody was now favored, the courts still disfavored it! The version before Act 604 said:
In an action for divorce, an award of joint custody is favored in Arkansas—per 9- 13-101(a). However, case law (both before and after adoption of Code provision above) indicates that joint custody is not normally favored unless circumstances clearly warrant such action.
In short, the Arkansas lower courts were often ignoring the 2013 change, and the Arkansas Supreme Court finally said as much in Pace v. Pace (2020). In that case, the Court described the 2013 change as “profound” and stated that parents are “no longer obligated to maintain a careful balance of cooperation to stave off a judicial dissolution of a joint-custody arrangement.”
In 2019, following the success in Kentucky in 2018, Arkansas attempted to pass a 50/50 presumption bill. But it failed in the House committee, killed by several lawyer legislators after lawyers and judges testified that joint custody was already happening. After that bill was killed, Judge Mackie Pierce (below) candidly testified in a different committee that joint custody does not happen that often.
During the 2019 legislative process, I met Dr. Patrick Fraley and his wife Gina Indelicato, who had formed Arkansas Advocates for Parental Equality. We joined forces, regrouped and developed a plan for 2021. We had great sponsors in the legislature (Sen. Alan Clark and Rep. Jimmy Gazaway) and they filed SB 18, which became Act 604 when it passed in 2021.
At the end of it all, the bill passed the Senate 33-2 and passed the House 71-16 and came into effect in the summer of 2021.
Kentucky (2018) and West Virginia (2022) also have 50/50 joint custody presumptions, but those can be rebutted with a preponderance of evidence. Arkansas is the only state to embrace the higher burden of proof of “clear and convincing evidence” to rebut the joint custody presumption.
In Arkansas, “clear and convincing evidence” is proof that “enables you without hesitation to reach a firm conviction that the allegation is true.” It is a standard of proof that falls between “preponderance of the evidence” (the standard most civil cases use and that all other states still use for child custody cases) and “beyond reasonable doubt” (reserved for criminal cases). I describe preponderance of the evidence as my law school professor taught it: If the evidence is evenly balanced and the last feather of evidence falls one way, that is a preponderance of evidence (or majority of evidence).
Our courts should require more evidence before deciding something other than 50/50 joint custody, and that is what Act 604 now requires. My testimony at the Arkansas legislature focused on the importance of requiring clear and convincing evidence to deviate from a presumption of joint custody.
What we did with Act 604 was we fundamentally changed the rules by which child custody cases are decided in Arkansas, curtailing some of the discretion judges have in deciding these cases. Since Act 604 passed, I have had several family lawyers and judges privately thank me for this change. I’ve also had many fathers, mothers, stepparents, grandparents, etc., reach out and say it absolutely made a difference in their cases. We are certainly seeing positive change on the ground in Arkansas, and I hope Act 604 is a blueprint for other states to follow.
by Brian A. Vandiver
Brian and his wife Sarah have a blended family of five. He has been an Arkansas attorney for more than 20 years and became a parental equality advocate in 2019, after his experience in Arkansas family court. He currently serves as a board member for Children & Parents United and as a volunteer for Arkansas Advocates for Parental Equality.
Dig in further to the bill and what it means for shared parenting:
Video of the Senate Judiciary committee meeting on 1/27/21 (SB 18 discussion starts around 10:15 am)
Video of the House committee meeting on 3/17/21 (SB 18 discussion starts around 4:06 pm)
A summary of Act 604 written by Dr. Patrick Fraley for National Parents Organization
A news story after Act 604 passed
Another news story
Video of Brian A. Vandiver with Kenneth Rosa at The Fathers’ Rights Movement
Video of Brian A. Vandiver with Mark Reel at The The Fathers’ Rights Movement
Video of Brian A. Vandiver with Chris Batcheller at NPO