Unless both parties agree on the terms of a divorce, the process can take years from start to finish. During this time, someone clearly has to be taking care of the children. This is where temporary custody orders come in. They are orders given by the court stating who has custody of the children before the evidence has been presented and ruled on. The importance of these orders can not be understated. For a long, drawn-out divorce, it can mean years of separation from or limited time with one's children. When it comes time for the formal custody ruling, the temporary custody will have established a status quo that favors the parent having temporary custody. In some cases, the court has even unfairly required a "material change of circumstances" before considering the modification of the temporary order.
Temporary custody orders are not addressed in Arkansas law, creating a legal void. Since the evidence regarding custody has yet to be presented in court, the only "fair" determination is that both parents are equally fit and entitled to equal time with their children. Anything else is prejudicial. A default judgement of joint custody in temporary determinations would also limit the unfortunate situation where one parent "assumes" the role of primary custodian simply by taking the children - a situation with no real consequence under current law. Similar to the presumption of joint custody in final custody determinations, we recognize that there are situations where joint custody is clearly not in the best interest of the child, such as cases of abuse, neglect, or parental kidnapping.
Arkansas Advocates for Parental Equality supports the inclusion of temporary custody orders in the Arkansas Code. We propose that such orders include: