There has been much recent ink spilled—or, in this digital age, electrons moved—over the issue of joint custody in Arkansas. This year’s legislative session dramatically changed the long-standing practice in Arkansas courts that disfavored joint custody. Arkansas law now “favors” joint custody. As to whether that was a wise decision, Arkansas family lawyers are sharply divided. And this is not the place to decide that question.
Another question that has loomed over this discussion, however, is the practical effect that this change might have. That is, will the change in the law actually affect the way judges decide cases? And how will Arkansas appellate courts view the change? As with any time there is a change in the law, the answer to these questions will come in stages as judges and justices try to figure what to do with the new law.
The Arkansas Supreme Court’s recent decision in Singletary v. Singletary, 2013 Ark. 506, sheds light on how joint-custody arrangements affect another contentious aspect of Arkansas family law: a custodial parent’s attempt to relocate across state lines. Arkansas law gives the custodial parent (the one with primary custody of the children) the presumption that any relocation with the children is in their best interest. This is known as the “Hollandsworth presumption” because it was first announced in the Arkansas Supreme Court’s 2003 decision in Hollandsworth v. Hollandsworth, 353 Ark. 470, 109 S.W.3d 653. This presumption means that the non-custodial parent can’t prevent the children’s relocation simply because it would make visitation more difficult. Arkansas law defers to the custodial parent.
In Singletary, the Court made it clear that in a true joint-custody arrangement, no parent—even if they are the primary decision maker for the children—can lean on the Hollandsworth presumption. Instead, courts must analyze any challenge to child custody under the traditional framework: First, has there been a material change in circumstances? And second, is the change in custody in the children’s best interest?
From a practical perspective, this makes the joint-custody option much less favorable to the parent who might otherwise be granted sole or primary custody of the children. He or she will not enjoy the Hollandsworth presumption when deciding whether to relocate with the children. On the other hand, it makes the joint-custody option much more favorable to the parent who would probably not be able to get sole or primary custody of the children. In that case, the parent who shares joint custody with the other parent would not need to overcome the Hollandsworth presumption in order to stop another parent’s relocation efforts.
Thus, despite the fact that Arkansas law now favors joint custody, Singletary now makes that option much less attractive for one parent and much more attractive for another—encouraging the heated litigation of that issue.
Since the Singletary decision, the appeals courts in Arkansas have continued to consider joint custody’s effect on relocation. The courts have made it clear that the terms used are not as important as the actual time spent with each parent.