Since their inception, family courts in the United States have favored custody situations with one parent as the primary custodian and the other as the noncustodial parent. The "Tender Years" doctrine played an integral role in establishing this precedent and was ingrained into family law in the 1800's. This stated that the mother was the preferred custodian for young children and would be awarded sole or primary custody unless she was proven unfit. This concept came about during the time when it was near universal that mothers raised the children at home while fathers worked elsewhere. The latter half of the 20th century saw societal norms and gender roles undergo significant changes as more mothers worked outside the home, more children attended daycare, and fathers took a more active role with their children. Subsequently, the tender years doctrine slowly changed into the theory that young children form attachments with only one caregiver and that it was up to the courts to determine which parent this was - another flawed concept known as "monotropy."
Ultimately, both ideas have been disproven and are widely disregarded in modern psychology, replaced by the idea that children do best when they have prolonged, meaningful contact with both parents. However, because of these outdated beliefs, Arkansas and many other states maintained custody laws late into the 20th century that explicitly favored the mother as the primary custodian and essentially did not allow joint custody. The first change didn't come until 1979 when the Arkansas legislature passed Act 278, stating that the award of custody "be made without regard to the sex of the parent" but solely in the "best interests of the children." Despite this favorable change in the law, custody determinations remained one-sided in the courtroom. The most recent national analysis of custody determinations was published in 1995 and showed that custody was awarded to mothers 72% of the time, joint 16%, and fathers 9% (NCHS 1995). Much more recent, the latest census data showed 81.7% of custodial parents were mothers and only 18.3% were fathers (US Census 2013). Whereas some of this discrepancy is due to mutual preference between the parties, a significant part is also due to old habits of the courts and the influence of outdated beliefs and gender stereotypes.
As the evidence supporting shared parenting grew, a national movement supporting this concept started to spread across the nation. The state legislature took notice and passed Act 92 in 2003. This included the statement "in making an order for custody, the court may consider awarding joint custody of a child to the parents," essentially telling the courts that this is a viable option, something that had not previously been written in the law and was certainly not being practiced. As in the case of maternal preference, the courts continued to maintain their own trajectory and resist the changes in American society and science. As of 2006, the Arkansas Court of Appeals was still reaffirming that joint custody was NOT favored in Arkansas (Bailey v. Bailey, 97 Ark. App. 96). It wasn't until 2013 that the Arkansas legislature again rose to the occasion and passed Act 1156, clearly stating "In an action for divorce, an award of joint custody is favored in Arkansas" where joint custody is defined as the "approximate and reasonably equal division of time." Unfortunately, the Arkansas courts interpreted this to mean that joint custody is now allowed, but not preferred over sole or primary custody. As such, some judges now order it routinely, but many do not. Without a legal presumption, the courts can and will continue to continue down the path of inequality and ignore the evidence supporting joint custody.
Times have changed, society has changed, gender roles have changed, and scientific evidence has grown. The benefits of joint custody and shared parenting can no longer be ignored. This brief history of custodial rights in Arkansas only skims the surface. There is far to go until every parent in our state has equal rights without regard to gender or marital status. One should not expect to find justice and equality in our courtrooms, who have held onto the relics of 19th century law for too long and continued to perpetuate the failed winner-take-all approach to family law. We recognize that the power to bring equal parental rights to Arkansas lies within the voice of the people and their elected representatives - not the courts. As such, this is where Arkansas Advocates for Parental Equality is focusing most of its attention.