Prior to 2013, Arkanas courts explicitly favored custody situations with one parent as the primary custodian and the other as the noncustodial parent. This concept was established based on outdated child psychology in a society much different than it is now. Despite the mounting evidence of the benefits of joint custody over primary custody, our courts continued to "do as they have always done." Additionally, although Arkansas law stated courts were to consider both parents equally when deciding who to award custody in accordance with the “best interest of the child”, the reality was nowhere near equal. The most recent census data showed that 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mutual preference between the parties, a significant part is also due to old habits of the courts and the influence of outdated beliefs and gender stereotypes.
The concept of parental equality made an appearance in Arkansas in 2013 when the state legislature passed Act 1156. This bill, sponsored by Sen. Jon Woods and Rep. Mark Lowery, stated “In an action for divorce, an award of joint custody is favored in Arkansas” where joint custody was defined as the “approximate and reasonable equal division of time with the child by both parents individually.” We applaud the state legislature for passing this bill and recognizing the importance of both parents, an idea the courts had been reluctant to accept.
The limitation of this bill is that it only “favored” joint custody and did not make it a rebuttable presumption. The bill has the legal authority of a suggestion and continues to allow the judges too much discretion when deciding custody. For a judge who has been giving unequal custody favoring the mother for the last 40 years, the liklihood of that judge changing his or her entire approach to custody is low. A rebuttable presumption of joint custody would mean that joint custody is the default judgment and deviation from this requires sufficient evidence to justify another arrangement. Furthermore, the custody order would have to include the judge's statement as to why he or she deviated from the presumption. The burden of evidence to rebut the presumption will fall on the party not wanting to share joint custody.
We understand that equally shared parenting is not appropriate for all situations, such as child or spousal abuse, neglect, and parental kidnapping. However, these situations are exceptions rather than the norm and easily allow for the rebuttal of the presumption of joint custody. If a rebuttable presumption for joint custody is added to the law, we support the inclusion of clear language excluding the situations noted above.
By asking for joint custody to be a rebuttable presumption, we are simply asking the legislature to stand behind the principles of Act 1156. It does not change the spirit of the law in any way - just its implementation. The "suggestions" of the law are meaningless unless they are accompanied by actions. Every custody case is different and the courts will still have the ability to create individualized solutions. However, the presumption of joint custody creates an new, equal starting point upon which custody can then be determined.