ARKANSAS FAMILY LAW SUMMARY - Law Firm Law Office of Hawley Holman Attorneys Texarkana, Texas

A. MARRIAGE IN GENERAL creates the status of husband and wife. Once this legal status has been formed, the law imposes various obligations and liabilities upon the parties.

B. CONTROVERSIES ARISING IN ANTICIPATION OF MARRIAGE

1. Breach of Promise to Marry is still a permitted action in Arkansas. Recovery may be allowed for actual damages, expenditures made in preparation for marriage, loss to reputation, mental anguish, and injury to health, but not for loss of expected benefits, such as social and financial position. Punitive damages can be awarded if shown that the defendant acted maliciously.

2. Gifts in Contemplation of Marriage: Most jurisdictions hold that engagement gifts (e.g., a diamond engagement ring) are made in contemplation of marriage and are conditioned upon the subsequent marriage actually taking place. If the marriage does not occur, engagement gifts must be returned. With gifts other than the ring, factors such as the type of property given, fraud, conditions attached to the gift, and the intent of the donor with regard to the gift may be relevant in determining whether the gift will be viewed as given in anticipation of marriage.

C. LIMITATIONS ON WHO MAY MARRY

1. Age: A recent change in the law, as of July 31, 2007, was intended to establish 18 as the minimum age to marry, while also allowing pregnant minors to marry with parental consent. An extraneous "not" in the bill, however, allows anyone who is not pregnant to marry at any age if the parents allow it. It is uncertain as to whether the governor will call a special session to correct the law before the legislature's regularly scheduled session, not due to begin until 2009.

Prior to this change in the law, marital capacity was conferred upon males over the age of 17 and females over the age of 16. Males and females under 18 must have the written consent of both parents unless one is deceased, or unless the parents are divorced while the judge is given the authority to order a license in the case of an underage applicant to a proposed marriage if the female is pregnant.

2. Consanguinity: Marriages between persons who are "too closely" related (consanguinity) are prohibited, whether the relationship is by whole blood or half blood. Under Arkansas law, all marriages between parents and children, including grandparents and grandchildren of every degree; between brothers and sisters of the half as well as the whole blood; and between uncles and nieces, and between aunts and nephews, and between first cousins are declared to be incestuous and absolutely void.

3. Sex of Parties: Same-sex marriages are generally prohibited as per Arkansas statute. Moreover, the federal Defense of Marriage Act provides that states are not required to give full faith and credit to same-sex marriages legally entered in other states.

4. Mental Capacity

To give contractual consent to a valid marriage, each party must possess the ability to comprehend and voluntarily agree.

5. Physical Capacity

A person must possess the capability for sexual intercourse in order to be married.

6. Bigamy or Polygamy

To be validly married, a person must not already have a prior undissolved marriage to another living spouse.

D. PROCEDURAL REQUIREMENTS

License and solemnization required for a valid marriage.

1. License: obtain a marriage license prior to the solemnization.

a. Blood Tests: not required.

b. Waiting Period: no mandatory waiting period required between issuance of the license and performance of ceremony.

2. Solemnization by a ceremony performed by judicial officer or member of clergy. Arkansas law now allows any Justice of the Peace to solemnize a marriage in any county rather than just the county wherein his is an official. Moreover, it is no longer required that the Justice of the Peace have served at least three terms in order to solemnize a marriage; only two terms are now required under Amendment 55 to the Arkansas Constitution.

a. Completion and Filing of License must be completed by the one who solemnized the marriage and filed with the local government office as a public record of the marriage.

b. Proxy Marriages are ones where the solemnization ceremony is performed even though one party is unable to attend with the absent party authorizing in writing a third party to act as his proxy.

E. STATE OF MIND REQUIREMENTS

1. Capacity to Consent includes mental capacity to understand actions and agree to them; someone under the influence of alcohol or drugs may lack the mental capacity to enter into marriage. Capacity determined at the time the marriage ceremony took place.

2. Intent means that parties must, of their own free will, intend to enter into a marriage relationship. If one party uses fraud, duress, coercion, or force to induce the other party to enter the marriage, the validity of the marriage will be subject to attack.

3. Marriage for a Limited Purpose is a "sham marriage," which is a marriage entered into for a limited purpose (e.g., marriage for immigration purposes only). May be valid so long as the parties were competent and had satisfied all procedural requirements, but collateral agreements between the parties as to the nature of their relationship that are contrary to a marital relationship (e.g., an agreement not to be responsible for each other's support) would be invalid as a matter of public policy. Such marriages invalid, unless the parties intended to assume the usual obligations and status of marriage.

F. COVENANT MARRIAGE

Authorized in 2001 by the legislature, "covenant marriages" are available for couples who understand and agree that marriage is a lifelong relationship; who receive authorized counseling; who agree to make reasonable efforts to preserve the marriage if difficulties should arise; who may seek a divorce only if there has been a complete and total breach of the marital covenant; and who accept restrictive grounds for divorce.

G. COMMON LAW MARRIAGE

Basic requirements for the creation of a valid marriage at common law are:

(i) exchange of consents between two people;

(ii) cohabitation; and

(iii) holding out publicly of living together as husband and wife, which may include using a common last name, having a joint bank account, and telling people in the community they consider themselves married.

(No specific length of time required establishing a common law marriage.)

1. Common law marriages abolished in most states, including Arkansas; however, Arkansas will recognize such marriages from another state that are valid by laws of the other state if proponent can establish the existence of a valid common law marriage in the other state.

2. Compare-Putative Marriages; a doctrine that enables a court to provide equitable relief to a party who acted in good faith in entering a marriage subsequently declared invalid. A putative spouse may acquire rights of a legal spouse, including rights to alimony and property when the marriage is invalidated. However, it is generally held that rights of putative spouse may not supersede a legal spouse's rights, and the court must use equity in apportioning rights to alimony and property.

H. CONFLICTS PRINCIPLES

The general conflicts principles applicable to out-of-state marriages are the same for both common law marriages and marriages generally. The validity is judged by the law of the place in which the marriage was entered or attempted to be entered. The statute is limited to couples that actually resided in the foreign state or country where the marriage was decreed and consummated.

I. PREMARITAL CONTRACTS

Generally, premarital contracts between prospective spouses (also called antenuptial contracts), other than contracts to marry, are valid and usually pertain to property; contract principals apply. The purpose of premarital agreements is to provide for a distribution of assets upon divorce or death in a way that is different from what the law would ordinarily require.

1. Consideration: entry into the marriage is sufficient consideration to support an antenuptial contract.

2. Statute of Frauds: antenuptial contracts must be in writing and signed by the party to be charged, but partial performance of an oral contract, or detrimental reliance upon it, may remove the transaction from the statute.

Note: the Arkansas Premarital Agreement Act of 1987 requires a premarital agreement be in writing, signed and acknowledged by both parties.

3. Content of Contract

Under the Uniform Premarital Agreement Act ("UPAA"), essentially the same as the Arkansas statute, parties to the agreement may contract with respect to:

(i) The parties' rights and obligations in any of the property of either or both of them;

(ii.) The right to buy, sell, lease, assign, dispose of, or otherwise manage and control property;

(iii) Disposition of property upon separation, dissolution, death, or any other event;

(iv) Modification or elimination of spousal support;

(v) Making of a will or trust to carry out the provisions of the agreement;

(vi) Ownership rights in and disposition of the death benefit from a life insurance policy;

(vii) Choice of law governing construction of the agreement; and

(viii)Any other matter not in violation of public policy or a criminal statute.

Note: Right of a child to support may not be adversely affected by the agreement.

4. Amendment or Revocation: after marriage, a premarital agreement may be amended/revoked only by written agreement signed by the parties and is enforceable without consideration.

5. Enforcement by Courts: because the parties to an antenuptial contract do not deal at arm's length, but rather out of a relationship of mutual trust and confidence, courts strictly scrutinize the contract for good faith and lack of undue influence and will generally consider the following factors as to whether the agreement is valid:

a. Agreement must be entered into voluntarily, i.e., without fraud, duress, or overreaching.

b. Full and fair disclosure of the parties' financial worth generally required.

c. Fair and reasonableprovision for the claiming spouse is a factor for courts reviewing such agreements, taking into consideration the age of the parties and whether they have been married before may influence what the court deems to be fair and reasonable financial terms. When fair and reasonable provision has not been made for the spouse attacking the agreement, the agreement is presumed to be the product of overreaching; a presumption that may only be overcome by the other spouse showing that there was full and fair disclosure and an opportunity to consult with independent counsel.

1) Disproportionate Provisions: if provisions made for a spouse in the agreement are disproportionate to the means available, a presumption arises there has been designed concealment, and the burden is on the other spouse to show the spouse had, or ought to have had, knowledge of the character and extent of the assets.

d. Independent Counsel, although not required, if independent counsel represents both parties, the risk of a finding of overreaching in an agreement will be lessened.

e. Compare-Uniform Act Requirements indicate that a court will consider only two things: voluntariness and unconscionability. A premarital agreement is unenforceable if the party against whom enforcement is sought proves that she did not act voluntarily, or agreement was unconscionable when executed and before execution that party was not provided fair disclosure of the other party's finances, did not waive in writing such disclosure, and did not have adequate knowledge of the other party's property or financial obligations.

6. Property Rights vs. Alimony: courts are less likely to enforce provisions that would eliminate or severely limit alimony upon divorce, especially if the spouse would he left a pauper. Under the UPAA, if a premarital agreement would cause a party to the agreement to become eligible for support under public assistance at the time of separation or dissolution, a court may disregard the agreement and require time other party to provide support so as to avoid eligibility for public assistance.

7. When Marriage Is Void: if marriage is void, an agreement that would otherwise have been a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result.

8. Statute of Limitation: an action asserting a claim for relief under a premarital agreement is tolled during the marriage, but equitable defenses limiting the time for enforcement, including laches and estoppel, are available.

J. POST-NUPTIAL AGREEMENTS

Close Scrutiny not Required: Arkansas appears to endorse postnuptial agreements without the requirement of close scrutiny to ensure it is fair and equitable, which is the requirement many states; in fact, some states do not even allow such agreements. Because there is no postnuptial agreement statute in Arkansas, such agreements should be analyzed under contract law, simply requiring the elements of a valid contract to be satisfied.

II. THE MARRIAGE RELATIONSHIP

A. RIGHTS AND RESPONSIBILITIES OF SPOUSES

1. Individual Rights

There is a trend to eliminate legal disabilities once imposed upon married women and their property. Since the passage of the Arkansas Married Woman's Act in 1915, wives have been permitted to own property independently, sign contracts, sue and be sued. Related concepts of privacy has also led to restrictions on one spouse's control over the other spouse's decision to undergo sterilization or abortion.

2. Property

Each spouse owns and controls her own property both before and during marriage, but principles of agency, real property, and tenancy by the entirety may apply.

a. Tenancy by the Entirety: in Arkansas, if the spouse takes title to real estate in their joint names, a tenancy by the entirety is presumptively created, which includes a right of survivorship and prohibits the conveyance or encumbrance of the property by one spouse; a presumption that may be overcome by express language to the contrary in the conveyance. Upon dissolution of the marriage, property held by the entirety becomes property held as tenants in common by operation of law.

b. Marital Property: courts have broad discretion in the equitable distribution of property acquired during marriage, no matter how title to property is held or by whom.

Note that the court of appeals recently held that the trial court's decision to reduce a wife's portion of marital property was correct because she had demonstrated a pattern of appropriating the couple's assets for her sole use. The appeals court noted that no corroboration was even need to supplement belief by the husband that the wife had appropriated assets for her own use and enjoyment given that the wife had established a pattern of appropriating the marital assets for her sole use and had even admitted to removing items from the safe deposit box and to emptying the parties' joint savings account. Moreover, the appeals court stated the wife's inability to remember where she deposited the funds diminished her credibility.

3. Support

Spouses are obligated to support one another; thus, a spouse who is not receiving support may petition the court for alimony and child support pursuant to a legal separation or pending divorce action. The extent of support is determined by the circumstances of the parties: the need of one spouse for the funds and the ability of the other spouse to pay.

a. Responsibility for Other Spouse's Obligations: principles of agency may require that one spouse be held liable to a third party for the other spouse's purchases if those purchases were expressly or impliedly authorized. The spouse with financial ability is liable to third-party merchants for goods or services they have provided to the marital partner, provided the goods can be described as a "necessary" (food, clothing, medical care).

4. Name Change: a woman is not required to adopt her husband's surname after marriage; she may retain her own name.

5. Suits Between Spouses: under the Married Woman's Act, spouses are now permitted to bring tort actions against each other, regardless of whether they are negligently or intentionally based.

6. Marital Rape: in Arkansas, the definition of rape provides no exception for spouses, but most other sexual offenses exclude activities between spouses.

7. Spousal Abuse and Protective Orders are available in all 50 states to allow battered spouses to seek some form of "stay away" or protection orders against violent spouses. If the Arkansas court has in personam jurisdiction over the defendant, the court is authorized to issue a temporary restraining order ("TRO") against the spouse to prevent the plaintiff from being subjected to physical violence or the threat of violence. The court may order the spouse to cease the conduct, and to refrain from entering the premises of the plaintiff, and may grant any other appropriate remedy. Arkansas law now gives the issuing court discretion to extend the maximum period of an order of protection from no less than 90 days up to ten years as opposed to the previous maximum limit of two years. Arkansas law also now requires the disclosure of the existence of any pending litigation between parties and the disclosure of any prior filings of a petition for an order of protection by the moving party to be included in petitions for orders of protection.

a. Domestic Abuse Act: the legislature in Arkansas has made several attempts to provide similar protection to spouses who may not desire a divorce and to individuals who not married to companions. Under the Domestic Abuse Act of 1991, the circuit court may issue an order of protection, even if a divorce is not sought. To expedite matters, court clerks are to provide simplified forms and clerical assistance. Violation of an order of protection is a criminal offense, within the power of the circuit court. A police officer may arrest without a warrant when there is probable cause to believe a domestic abuse crime had been committed within four hours of the time of the arrest.

In a recent opinion, the appeals court in Arkansas held that threatening text messages from her boyfriend, wherein he made physical threats of harm against his girlfriend and threatened to kill her dog qualified as domestic abuse, despite the fact that the girlfriend waited a few months before filing for the order of protection, noting that the term "imminent", as included in the state statute, meant at the time of the alleged abuse, not at the time of the filing of the petition.

B. FAMILY PRIVACY

1. Common Law Doctrine: generally, the internal affairs of a family cannot be regulated by the courts as families have the right to expect privacy for actions within their homes and freedom from government interference in domestic affairs.

2. Constitutional Privacy: though not specifically mentioned in the Constitution, the Supreme Court has recognized the right of personal privacy is constitutionally protected because it is implicit in the concept of "liberty" within the protection of the Due Process Clause. Privacy is considered a fundamental right; therefore, any regulation of it (other than in the abortion area) is invalid unless it is found to be necessary to a compelling government interest.

a. Marriage

The right to marry is a fundamental right; thus, a law prohibiting a class of adults from marrying will likely be found invalid unless the government can demonstrate the law is narrowly tailored to promote a compelling, overriding, or at least important interest.

b. Reproductive Choices

1) Procreation: this is a fundamental right protected by the Constitution.

2) Contraception: because of the constitutional right of privacy, the state can neither make the use of contraceptives by adults a crime nor prohibit the distribution of contraceptives to single or married adults Moreover, a state cannot prohibit distribution of nonmedical contraceptives to adults except through licensed pharmacists, nor prohibit sales of these contraceptives to persons under age 16 who do not have approval of a licensed physician.

3) Abortion: as held by the Supreme Court in the case Roe v. Wade, the right of privacy includes the right of a woman to have an abortion under certain circumstances without undue interference from the state. The Court has also found that the state has a compelling interest in protecting the health of both the woman and the fetus. These compelling interests may conflict with each other and with the woman's privacy right. The latest plurality opinion adopted a pre-viability rule and a post-viability rule.

a) Pre-Viability Rule-No Undue Burden

Before the time when the fetus has a realistic chance of survival outside the womb, a state may adopt regulations protecting the health of the woman or the fetus only if the regulation does not impose an undue burden or substantial obstacle to the woman's right to an abortion. The mere fact that the regulation makes it more difficult or expensive to obtain an abortion is not of itself an undue burden or substantial obstacle. The following regulations are not considered undue burdens:

(i) A statute requiring that abortions be performed by licensed physicians and requiring the physician to provide the woman with certain information regarding the abortion;

(ii) A statute requiring that abortions be performed in a medical facility equipped with all the medical equipment found in a hospital surgery room;

(iii) A statute requiring a 24-hour waiting period; and

(iv) A statute requiring a minor to obtain her parent's consent or requiring the doctor to notify one or both of a minor's parents, provided the statute contains a bypass procedure whereby the minor may obtain the abortion without parental consent or notification with the consent of a judge.

(1) Spousal Notification Is Undue Burden

It is an undue burden to require a woman to sign a statement that she has notified her spouse that she is about to undergo an abortion.

(2) Ban on "Partial Birth" Abortions Is Undue Burden

A state may not completely ban all "partial birth" abortions because such a ban would not make any exception for the woman's health and would impose an undue burden on a woman's right to choose the most common method for pre-viability, second-trimester abortions.

b) Post-Viability Rule-May Be Prohibited Except to Protect Woman's Health

Once the fetus is viable, the state's interest in the fetus may override the woman's right to abortion, but it does not override the state's interest in the woman's health. Therefore, unless an abortion is necessary to protect the health of the woman, the state can prevent the abortion of a viable fetus. Viability is a medical question left to the attending physician's judgment, but the state may require certain tests to determine viability.

c) The "Woman's Right to Know Act of 2001"

The "Woman's Right to Know Act of 2001" requires that the woman be given information about medical risks connected with an abortion, the probable gestational age of the fetus, and the availability of medical assistance benefits.

c. Familial Rights

The right of privacy includes the right of related persons to live together. Thus, a zoning ordinance prohibiting persons beyond a certain degree of relation (extended families) from living in a single household has been found unconstitutional because there is no compelling state interest to justify such a rule.

d. Right to Educate Children

The right of privacy includes the right of parents to educate their children outside the public schools, subject to the state's right to prescribe reasonable educational standards.

e. Rights in the Care, Custody, and Control of Children

The right to privacy includes the rights of parents to decide issues concerning the care, custody, and control of their children. For example, parents' decisions regarding whether third parties (e.g., grandparents) may have visitation with their children have constitutional protection.

3. Husband-Wife Evidentiary Privilege

There are two separate husband-wife privileges: spousal immunity (the privilege not to testify against a spouse in a criminal case) and the privilege for confidential marital communications. Neither of these privileges applies in actions between the spouses or in cases involving crimes against the testifying spouse or the children.

a. Communications Between Spouses

Arkansas evidence rules provide that a communication is confidential if it is made privately by any person to his spouse and is not intended for disclosure to any other person. The accused in a criminal proceeding has a privilege to prevent his spouse from testifying as to any confidential communication. This privilege does not apply to:

(i) civil proceedings;

(ii) statements that were intended to be disclosed;

(iii) reports made in nonjudicial proceedings; and

(iv) crimes against family members or their property.

b. Compare-No Parent-Child Privilege

III. TERMINATION OF MARRIAGE

A. ANNULMENT

An annulment is a declaration that a marriage is invalid; i.e., that due to an impediment at the time of the marriage, no marriage ever occurred. Thus, once a decree of annulment has been entered, the parties generally are treated as if they had never been married. Two types of marriage are subject to annulment: void marriages and voidable marriages.

1. Void/Voidable Distinction

a. Void Marriage: one that never existed for any purpose; a complete nullity. If a marriage is void, no subsequent act can ratify the marriage. Generally, parties may walk away from void marriages without court order; the reason for bringing an annulment action is usually to have the court determine property distribution and child custody. Any interested party may seek annulment of a void marriage, and the marriage is subject to collateral attack (i.e., in actions other than for annulment, such as probate actions) even after the death of one of the parties.

1) May Become Merely Voidable if the impediment is later removed. For example, if a wife had a previous spouse from whom she erroneously believed she was divorced, her marriage to her second husband would be void. If her first husband later died, however, her second marriage would then be voidable rather than void. In fact, if the marriage is ratified afterward by continuing the relationship, it may become valid.

b. Voidable Marriage: if voidable, one of the spouses may bring an action to have the marriage declared invalid because of an impediment existing at the time of the marriage. This type of marriage cannot be attacked collaterally or by third parties. A voidable marriage is deemed valid unless one spouse seeks to have it annulled. If the spouse with the cause of action ratifies the marriage by continuing the relationship, or if one spouse dies, the marriage can no longer be invalidated.

2. Grounds for Annulment:

a. Bigamy or Polygamy: in all states, if either party to the marriage has another living spouse (not former spouse), the marriage is void.

b. Consanguinity: marriages where the parties are too closely related are prohibited. Arkansas and the majority of states consider these marriages void rather than voidable.

c. Nonage: a spouse under the statutory age at the time of the marriage who married in violation of the statute (i.e., without getting required parental and/or judicial consent) can demand a judgment of annulment on the ground of nonage. However, upon reaching the specified age, may ratify the marriage by continuing in the relationship. These marriages are considered voidable.

d. Lack of Physical Capacity to Enter into Marriage: incurable physical impotence (the inability to have normal sexual relations with a spouse) is a ground for annulment. Applies to wives as well as husbands, and that the inability to have children is not impotence. These marriages are considered voidable. Thus, if the plaintiff knew or should have known of the impotence before marriage, the annulment will be denied. Likewise, if the plaintiff continued to cohabit with the impotent spouse long after learning of the condition, it could be deemed ratification or laches barring annulment.

e. Lack of Understanding Necessary to Consent: may be sufficient to annul a marriage if there was as follows:

(i) a lack of understanding due to a mental condition or the influence of drugs or alcohol;

(ii) a lack of mutual assent to the marriage;

(iii) duress; or

(iv) fraud going to the essentials of marriage.

These types of marriages are generally voidable.

1) Mental Incompetence: a marriage may be annulled because a party was incapable of consenting to a marriage for lack of understanding due to mental infirmity or because of alcohol or drugs.

2) Force: if either party entered the marriage as a result of force, the marriage is voidable and subject to an annulment action by the aggrieved party.

3) Fraud: a ground for annulment when the misrepresentation goes to the essentials of marriage. Misrepresentation as to ability or willingness to engage in sexual relations or bear children is considered to go to the essentials of marriage. Examples of when some courts have also found fraud sufficient to invalidate a marriage include cases where:

a) The wife failed to disclose a pregnancy by someone other than the husband, but not where the wife merely misrepresented that she was pregnant;

b) A party concealed the existence of a venereal disease or drug addiction, but not where the party concealed a prior mental illness;

c) A party never intended to fulfill any of the duties of marriage (e.g., married for ulterior motives, such as to avoid deportation); and

d) A party misrepresented his religion or intent to participate in a religious ceremony.

3. Defenses

a. Void Marriages-No Impediment: such marriages are of no legal effect. The only way to defend an action to annul a void marriage is to deny the existence of the defect that allegedly caused the marriage to be void, if the impediment has been removed, the marriage becomes voidable.

b. Voidable Marriage-Equitable Defenses: in addition to denying the existence of the defect that allegedly caused the marriage to be voidable and the defense of ratification, courts recognize other equitable defenses, such as laches, estoppel, and unclean hands, as defenses to suits to annul voidable marriages although laches and estoppel will often be subsumed in the defense of ratification, and unclean hands (recrimination) is no longer applied by a majority of courts.

4. Children of Annulled Marriage

Most states recognize children of an annulled marriage as marital children, even if the marriage was void. Child support and custody in these cases are handled the same as in a divorce action.

5. Alimony

Many states have enacted statutes that allow courts to award permanent alimony in annulment suits the same as in divorce cases. In the absence of such a statute, alimony is not awarded in annulment suits. This is because alimony is a substitute for support owed to a spouse. If the annulment declares there was no marriage, it is inconsistent to award support due only to a spouse. Even in states without a statute, however, courts generally award temporary alimony during the pendency of the suit.

6. Division of Property

In most cases, courts attempt to place the parties in their pre-"marriage" position. Usually courts try to divide the property by giving to each party that property to which he has legal or equitable title, although some courts use standards of property division closer to those used in divorce cases.

7. Jurisdiction

Most states have specific statutes conferring jurisdiction in annulment actions on specific courts, but in states without statutes, annulment actions are heard by equity courts.

a. Jurisdiction Among States: the state of domicile of either of the parties has jurisdiction to hear the annulment action. Many states also provide that the state where the marriage was celebrated also has jurisdiction.

b. Recognition of Decree: annulment decrees rendered with proper jurisdiction are entitled to recognition by other states under the Full Faith and Credit Clause of the United States Constitution. Likewise, a decree rendered without appropriate jurisdiction would not be entitled to full faith and credit.

B. DIVORCE AND SEPARATION

1. Divorce: a decree of absolute divorce terminates the marriage relationship. There is no such thing as a common law divorce.

a. Three Divorce Actions in Arkansas

1) Separate Maintenance

The separate maintenance action is not statutory, but instead arises under the broad power of equity. This action attempts to regularize the relationship of spouses who cannot live together, but do not have grounds for divorce or do not wish for a divorce. The party must establish only separation and perhaps an absence of fault, not any grounds for divorce.

The court can award temporary support and temporary custody or use of property and make other arrangements regarding debts, assets, insurance, and benefits. However, the court cannot absolutely and finally divide property or change ownership. Typically, the parties seek separate maintenance. If the court finds no grounds to award a divorce, it may award support.

2) A Mensa Et Thoro

Courts have the power to grant a limited divorce or a divorce from bed and board ("a mensa et thoro"), as well as the power to grant an absolute divorce ("a vinculo matrorninii"). The grounds for the limited divorce are the same as for the absolute divorce. The limited divorce is a separation of the parties, which attempts to regularize their financial, property, and custodial relations, while declining to divorce them, thus disallowing remarriage. The court may grant such a divorce if he finds a possibility of reconciliation.

3) A Vinculo Matromninii

This divorce from the bonds of matrimony is the complete, absolute traditional divorce.

b. "No-Fault" Divorce

1) Eighteen Months Separation: considered a "no-fault" ground for divorce. Either party may sue, and fault is irrelevant. The divorce is granted regardless of:

(i) whether the separation was the voluntary act of one party or by the mutual consent of both parties;

(ii) whether the separation was due to the fault of either or both parties;

(iii) which party left the marital abode; and

(iv) whether the separation was intentional or caused by other factors (such as job relocation).

The only requirement is 18 months' separation without sexual relations.

2) Incurable Insanity with a Three-Year Separation: this statutory provision has meticulous provisions for continued maintenance of the insane spouse. Here again, fault should not be a consideration.

c. Grounds

1) Impotence requires that either party was impotent at the time of the marriage contract and still is impotent.

2) Felony or Other Infamous Crime where either party is convicted of a felony.

3) Habitual Drunkenness for One Year, Cruelty and Indignities

a) Habitual Drunkenness for One Year

The Arkansas Supreme Court has examined the concept of habitual drunkenness but produced no exact definition. The court has found that one need not be constantly drunk, drunk more often than sober, or incapacitated from conducting business to be considered habitually drunk. The court has made reference to the inability to resist temptation as a factor to consider.

b) Cruelty

Because of the breadth of the ground of divorce known as "indignities," the ground called "cruelty" is seldom used. The statute actually uses the language "such cruel and barbarous treatment as to endanger the life of the other." Its traditional definition, thus, requires something more than a mental injury. A party must demonstrate that cruelty has been so great as to cause physical illness or injury.

c) General Indignities

Such indignities to the person of the other as shall render that spouse's condition intolerable constitute one ground for divorce. The Supreme Court of Arkansas has defined indignities as "unmerited reproach, rudeness, contempt, steady neglect, and open insult, habitually and systematically pursued to the extent of rendering married life intolerable."

For a divorce to be based on indignities, the conduct must "manifest settled hate, alienation and estrangement, and be constantly and systematically pursued with the purpose and effect of causing an enduring alienation and estrangement and rendering the condition of the spouse intolerable." Mere lack of congeniality and resulting quarrels are not sufficient to show general indignities.

Indignities must persist over a length of time so as to indicate a condition of settled hatred or enduring estrangement. For example, 67 days of indignities was held to be insufficient and the court has found that indignities cannot develop in a marriage of just six months.

4) Adultery

Adultery is sexual intercourse by a married person with a person other than his spouse. The difficulty with this ground is lack of proof in the event the party who allegedly engaged in intercourse with the spouse is unavailable or unwilling to testify. The traditional proof required is an opportunity to engage in sexual intercourse and the inclination to do so.

5) Willful Failure to Support

Under this gender-neutral statute, the court must determine what constitutes support and what level must be achieved to satisfy the statutory requirement.

d. Defenses to Fault Grounds

With the advent of no-fault grounds, these defenses, like the grounds on which they are based, are rarely invoked. Many states have abolished these defenses altogether, but most remain on the books (though rarely used) in most states.

1) Collusion is an agreement to simulate grounds for divorce, or an agreement not to bring up an existing or potentially existing defense. Collusion between the parties to a divorce proceeding may preclude the granting of a decree of divorce, even if adequate cause for a divorce exists.

2) Connivance is the willing consent by one spouse to the other spouse's misconduct. This defense is usually limited to adultery cases. Connivance has been abolished as a defense in many states, and in those where it remains, it is almost never used.

3) Condonation asserts that while marital offenses may have occurred in the past, they were forgiven with full knowledge that they had been committed. Resumption of marital relations after the forgiveness is the key element of this defense. Condonation, where the doctrine still exists, is not only a good defense to a fault ground for divorce but also cuts off the defense of recrimination.

4) Recrimination is a form of the doctrine of unclean hands) is a defense that arises when the party seeking the divorce is also guilty of misconduct for which a divorce may be granted. That offense may be pleaded to bar a suit for divorce, irrespective of the ground on which the suit was brought. To put it simply, if both parties have grounds for divorce, neither can get one! This doctrine is nearly extinct. Many states have expressly abolished it, and in the few places where it remains technically viable, courts use various techniques to avoid its impact. The Arkansas Supreme Court has applied this defense inconsistently, and on occasion the court has used the doctrine of comparative rectitude, in which the fault of each party is examined and the divorce is granted to the party least at fault.

5) Provocation is an affirmative defense in which the defendant admits his fault, but affirmatively argues that his actions were provoked or caused by the actions of the plaintiff, and thus the plaintiff should be barred from divorce.

2. The Divorce Suit

a. No Default Judgment: proof required for a divorce action is treated differently than other actions. There is no "default judgment" in the sense that the plaintiff wins without proof.

b. Proof of Residence Required: plaintiff must always offer proof of residence, and that proof must be corroborated via oral testimony or verified affidavits of nonparties.

c. Corroboration Required for Divorce Based on Eighteen Months' Separation

d. Uncontested Divorce-No Corroboration: testimony of plaintiff alone is sufficient. But the testimony of the plaintiff must be sufficient to establish grounds for divorce. For example, a spouse's testimony that couple had "problems during marriage" and could no longer live together insufficient to support divorce.

e. Defendant's Answer: If defendant files an answer denying grounds for divorce, plaintiff must offer corroboration, even if defendant does not appear at the hearing. The court may consider testimony (in the form of stipulations or depositions) given by parties who were not present in court. In the absence of an express written waiver of corroboration, a divorce granted in a contested case without corroboration of the grounds will be set aside on appeal.

f. How Much Corroboration Is Required?

Although some cases state that in a contested divorce action, relatively slight corroboration is required to establish the grounds for divorce, other decisions emphasize that generalities, opinions, beliefs, and conclusions are not enough. The witness's testimony must be directed toward specific language, acts, and conduct. Testimony such as "he was never kind to her" and "there was tenseness in the house" is not sufficient.

Such a determination must be based on facts testified to by witnesses, and not on the beliefs or conclusions of the witnesses. It is essential, therefore, that proof should be made of specific acts and language showing the alleged rudeness, contempt, and indignities. General statements of a witness that the defendant was rude or contemptuous toward the plaintiff are not sufficient. The witness must state facts-that is, specific acts and conduct from which he arrives at his conclusion. The court must be able to determine whether those acts and such conduct are of such a nature as to justify the conclusion or belief reached by the witness.

g. Final when Judgment Is Entered

Under Arkansas law, a divorce decree is final when a formal judgment is entered, regardless of when an announcement of divorce is made from the bench.

3. Jurisdiction and Recognition of Decrees

a. In Rem Action: divorce actions are regarded as in rem actions because they deal with the dissolution of a status that may be regarded as the res. The presence of that res in a state gives the state's courts subject matter jurisdiction. For a century, divorce actions and other family law actions were heard in chancery court in Arkansas. However, with the merger of law and equity in 2001, these actions are now filed in circuit court and assigned to the domestic relations division.

b. Proof of Residency and Cause of Action: party seeking divorce must prove the following:

(i) Residence in Arkansas of either the plaintiff or defendant for 60 days prior to commencement of the action and residence in the state for three (3) months before the final judgment granting the decree of divorce;

(ii) That the cause for divorce existed within five years before the complaint was filed; and

(iii) That the cause of action for divorce existed or occurred in Arkansas, or, if it occurred outside, the acts constitute grounds under Arkansas law.

(Note that at least 30 days must elapse between the filing of the complaint and the granting of a divorce decree.)

c. Divisible Divorce: no requirement of personal service on the defendant. That statement, however, applies only with respect to the power of the court to dissolve the marital status. If the court awards alimony or divides property not subject to its jurisdiction, then in personam jurisdiction must be established. This concept is known as divisible divorce.

d. Long Arm Jurisdiction statute provides the basis for in personam jurisdiction over an absent spouse if his actions while in Arkansas constitute grounds for divorce. The Arkansas court has the power not only to dissolve the marriage but also to grant alimony, attorneys' fees, and child support to the plaintiff.

e. Action for Support: if a spouse obtains a valid divorce in another jurisdiction, but could not seek support there because of a lack of in personam jurisdiction, the spouse may commence an independent action against the Arkansas spouse for support. Such an approach is consistent with the doctrine of divisible divorce.

f. Recognition of Decrees-Full Faith and Credit: a divorce decree obtained in one state is recognized as valid in other states as long as one of the parties was domiciled in the state that granted the decree. For other provisions of divorce decrees regarding alimony, attorneys' fees, child support, and property rights to be given full faith and credit, the court must have had personal jurisdiction over the defendant.

g. Comity: full faith and credit does not apply to judgments from foreign countries, but their judgments may be honored on principles of comity and reciprocity. Courts are most likely to recognize foreign decrees when one party was domiciled in the country rendering the judgment.

4. Division of Property

Three main approaches used by the states to divide property upon divorce:

(i) community property (under which all property acquired during marriage is deemed owned one-half by each spouse, and all property brought into the marriage or acquired by gift or bequest is deemed separate property);

(ii) equitable division of all of the property owned by either spouse, whether acquired before or after the marriage; and

(iii) equitable division of marital property (which means that each spouse takes his separate property and the court divides the property acquired during marriage on an equitable basis-not necessarily one-half to each).

The most popular approach is the third, and that is what will be addressed below. Arkansas follows this approach, and the courts are generally authorized to effectuate an equitable distribution of all property, real or personal, including pensions, acquired by either spouse during the marriage. This property division scheme recognizes the partnership theory of marriage. Arkansas case law provides that the property is to be valued, and thereby divided, as of the date of the divorce. Property distribution decrees are not modifiable. These awards can be reopened on grounds sufficient to reopen any judgment such as fraud.

a. Separate Property: generally, each spouse can take out of the marriage any property that she owned prior to the marriage, any appreciation it has earned, plus any additional property acquired during the marriage through gift or by reason of the death of another (e.g., life insurance proceeds; payments made under a deferred compensation plan or an individual retirement account; property acquired by right of survivorship, by a trust distribution, by bequest or inheritance, or by a payable on death or a transfer on death arrangement).

b. Marital Property: the courts have authority to order an "equitable distribution" of all marital property (no matter how title is held). Marital property is defined as all property acquired by either spouse subsequent to the marriage except:

(i) Property acquired by gift or by reason of the death of another;

(ii) Property acquired in exchange for separate property;

(iii) Property acquired by a spouse after a decree of divorce from bed and board;

(iv) Property excluded by valid agreement of the parties;

(v) The increase in value of separate property;

(vi) Benefits received or to be received from a workers' compensation claim, Social Security claim, or personal injury claim when those benefits are for permanent disability or future medical expenses; and

(vii) Income from separate property.

Note: Marital property may include property acquired after separation, but before divorce.

1) Factors Considered: Note that marital fault is generally not a factor in division of property. When a divorce decree is entered, all marital property shall be distributed one-half to each party unless the court finds such a division to be inequitable. In that event, the court shall make some other division that the court deems equitable, taking into consideration:

a) The length of the marriage;

b) The age, health, and station in life of the parties;

c) The occupation of the parties;

d) The amount and sources of income of the parties;

e) The vocational skills of the parties;

f) The employability of the parties;

g) The estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income;

h) The contribution of each party to the acquisition, preservation, or appreciation of marital property, including services as a homemaker; and

i) The federal income tax consequences of the court's division of property.

2) Court Must State Reasoning

The court must state its reasoning and basis for not dividing marital property equally between the parties. For example, in dividing marital property, the court may elect to give one party more than one-half because a portion of the separate property might not be susceptible to a division in kind or a forced sale such as with a share of a medical practice. Likewise, the court may consider the overall financial status of the parties.

3) Broad Distribution Power

The judge has broad power to distribute the property to achieve an equitable division and may order credits, set-offs, and apportion marital debts

a) Remedies Available to the Court

The trial court may use discovery techniques to locate marital property after the divorce and may use contempt powers to enforce a decree.

b) Estates By the Entirety

Upon the final divorce decree, any estate by the entirety or survivorship is automatically dissolved and the parties are treated as tenants in common, unless the court order specifically decrees otherwise. Therefore, in making the distribution, the court may partition the property, deed the property to one spouse, give one party possession of the family home while the children remain in school, set a deadline for the sale of the house, require the parties to make mortgage or insurance payments, or order similar acts.

4) Possible Division of Nonmarital Property

All other property that does not fit the description of marital property shall be returned to the party who owned it prior to the marriage unless the court finds equitable reasons for dividing it differently in accordance with the criteria mentioned above. Thus, although there is a presumption that nonmarital property owned prior to the marriage will be returned to the spouse who owned it originally, occasionally nonmarital property may be divided. For example, the non-owning spouse may be entitled to an equitable adjustment if marital funds were used to pay off debts or improve the owning spouse's property. However, nonmarital property acquired during the marriage cannot be divided.

5) Tracing

As long as nonmarital property can be traced, it will retain its separate identity; burden is on the party who asserts that the property is nonmarital to trace its identity.

6) Transfers of Property in Confidential Relationship

When a confidential relationship exists between spouses, and one spouse has the superior position of dominance or advantage, the other spouse may offer evidence to invoke the presumption that a transfer of property to the dominant spouse be treated as invalid due to coercion and undue influence. The dominant spouse then has the burden of rebutting the presumption by showing that the transfer was freely made.

c. Issues in Marital Property

1) Pensions

Pensions that have vested are considered marital property subject to equitable distribution; thus, the portion of a pension earned by one party during the years that the marriage existed must be divided by the court in an equitable fashion. A vested pension may be partially marital and partially nonmarital. Ordinarily the spouse is entitled to only a one-half interest in any retirement benefits acquired by the other spouse during marriage.

a) Military Retirement Benefits

Vested military retirement pay is marital property. In contrast, nonvested military retirement benefits are not marital property.

b) Federal Benefits

While federal retirement benefits are marital property and divisible, Social Security benefits are not.

c) Methods of Valuation May Differ

The courts recognize different ways of valuing a pension plan for purposes of division. For example, in a defined contribution pension plan (i.e., a retirement savings plan such as a 40 1(k) or the state teacher retirement system), its value may be based upon the total contribution made rather than the present value of the benefits.

d) Qualified Domestic Relations Orders

Chancery courts are authorized to issue a qualified domestic relations order ("QDRO"), which directs managers of retirement plans to allot the annuities and benefits to particular individuals.

2) Professional License or Degree Generally Not Distributable

A clear majority of jurisdictions that have ruled on the matter hold that just as a spouse's earning capacity is not distributable property, neither is a professional license or educational degree on which the increased earning capacity is based. The rationale for such decisions is that a license or degree has none of the usual attributes of property (e.g., it cannot be purchased, transferred, or inherited); thus, it may not be classified or distributed as marital property, even when the attainment of the license or degree was made possible through the support of the other spouse. To avoid unfair results, some jurisdictions have compensated supporting spouses for their contribution during the other spouse's training or education (e.g., on a theory of unjust enrichment, by amending statutes to make the supporting spouse's contribution a factor on which alimony may be based, or by awarding "reimbursement alimony".

a) Three-Part Test to Determine Character of License or Degree

Arkansas has adopted a three-part test to determine whether a professional degree or license can be characterized as marital property. The court must examine whether:

(i) there is significant accumulated marital property;

(ii) the other spouse is ineligible for support; and

(iii) the other spouse already benefited financially from the increased earning capacity.

This can be contrasted with the situation where the divorce takes place immediately after the acquisition of the professional degree or license and the potential for higher earnings. In that instance the spouse has not received the "benefits" of the marriage and a different division may be appropriate.

b) Valuation

When courts distribute a license or degree as marital property, its value must be determined so that the court can award a percentage of its value to the other spouse. Once value is determined, courts may distribute the proper amount to the other spouse by awarding that spouse more marital property or alimony based on the court's valuation of the license or degree. In cases where there is little property to be divided and alimony is not granted, the nondegreed spouse may be awarded his equitable share of the degree in a lump sum or in a series of payments.

3) Damage Awards in Tort Suits

Many states hold that if a cause of action for personal injury accrues between the date of marriage and the final separation, the proceeds from the settlement or award are marital assets subject to equitable distribution no matter when they are paid. An unliquidated personal injury claim of a spouse against a third party is marital property, even though it accrues after separation and even though a complaint has not been filed at the time of the divorce. This unliquidated property interest might be divided by having the court reserve jurisdiction until the claim is pressed or extinguished, or having the court assign each party a fixed percentage of future benefits. However, an Arkansas statute provides that part of the value of the claim might remain nonmarital property.

4) Distribution of Stock

Stock in a closed corporation may present difficult issues. If the stock is clearly nonmarital (acquired prior to marriage), the increase in the value is also nonmarital. However, the court may still recognize that the increase in value of non-marital property was due in part to the contributions of the other spouse, and use the overall distribution to reflect the contributions. Stock options constitute marital property if acquired during the marriage.

5) Partnership Interests

A partnership interest may be marital property; the value of such an interest is normally to be divided equally. The divorce of a partner in a law firm raises interesting questions of the value of his interest. Contingency fee contracts are marital property to be divided, with the court retaining jurisdiction until the fees are received.

6) Good Will of a Business

The good will of a business is a business asset with a determinable value and is marital property, subject to division. However, the good will must have a value independent of the presence or reputation of a particular individual-an asset that may be sold, transferred, conveyed, or pledged. The other spouse must offer evidence establishing the marketability of that good will as a business asset.

d. Mixed Property

1) Commingled Property

Separate property may become marital property if it is inextricably mingled with marital property or with the separate property of the other spouse. or mingling does not occur if the separate property can be traced into the new product. Property acquired in part out of marital funds and in part out of one spouse's separate funds may be part marital property and part separate property.

2) Transmutation of Separate Property

Arkansas follows the rule that if property is placed in the names of both the husband and the wife, the property is presumed to be held by them as tenants by the entirety. For example, when separate funds are deposited in a joint bank account, there is a strong presumption that the owner of the separate funds has made a gift of an interest in the funds to the other spouse. This presumption may be overcome by clear and convincing evidence. Merely placing the separate property temporarily in a joint checking account to make a record and then transferring it back to separate property may not destroy its nonmarital status.

3) Improvement of Separate Property

When separate property is improved by the use of marital funds or the effort of the other spouse, courts generally hold that the property remains separate property, but most jurisdictions grant the marital estate or the nonowning spouse reimbursement for the value added to the separate property.

4) Property Acquired Before Marriage but Paid for After Marriage

Courts are split as to how to classify property that was acquired by a spouse prior to marriage, but was paid for in whole or in part after marriage from marital funds. The most widely accepted position seems to be that the property should be apportioned between separate and marital interests in proportion to the contribution of separate and marital funds used to pay for the property.

5) Property Acquired During Marriage but Paid After Divorce

Marital property includes salary bonuses, required by an employment contract and accrued during the marriage, even if not paid until after the divorce. However, marital property does not include a contractual right to compensation for future services because that amount has not been earned during the marriage.

5. Maintenance and Alimony

Maintenance is the right to spousal support while the parties are still married. Many courts require proof that the parties are living separate and apart before maintenance can be ordered. In other states, maintenance can be ordered at any time, even while the parties are still living together. When a divorce decree is entered in Arkansas, the court may "make such order touching the alimony of the wife or the husband and care of the child or children, if there be any, as are reasonable from the circumstances of the parties and the nature of the case."

a. Purpose

The purpose of maintenance and alimony is to ensure an adequate income stream for persons whose economic dependency has resulted, at least in part, from the marital relationship. Alimony is not a reward to the receiving spouse nor is it a punishment for the paying spouse; it is an attempt to rectify the economic imbalance in the earning power and standard of living of the spouses. The trend is to award alimony less frequently than in the past. Reasons for this trend are the increased numbers of couples where both spouses work (neither is economically dependent) and the increased availability of marital property to be distributed, regardless of how it is titled. Alimony can be awarded to either spouse.

b. Amount of Alimony

The court has wide discretion in awarding as much alimony as is necessary for the maintenance of the party requesting it. Factors considered by the court in determining the amount of alimony, if any, include:

(i) The financial circumstances of both parties;

(ii) The financial needs and obligations of both parties;

(iii) The couple's past standard of living;

(iv) The value of jointly owned property;

(v) The amount and nature of the income, both current and anticipated, of both parties;

(vi) The extent and nature of the resources and assets of each of the parties;

(vii) The amount of income of each that is "spendable";

(viii)The amounts which, after entry of the decree, will be available to each of the parties for the payment of living expenses;

(ix) The earning ability and capacity of both parties;

(x) Property awarded or given to one of the parties, either by the court or the other party;

(xi) The disposition made of the homestead or jointly owned property;

(xii) The health condition and medical needs of both parties;

(xiii)The duration of the marriage; and

(xiv)The amount of child support awarded.

c. Effect of Marital Fault

While a few states still require that a spouse be without marital fault in order to claim spousal support, in Arkansas, marital fault is generally not a factor in deciding whether alimony should be awarded. The main factors influencing the amount of the award are the requesting spouse's needs and the paying spouse's ability to pay. The purpose of alimony is not punitive, but to continue one spouse's duty to the other arising out of the marital relationship.

d. Types of Alimony

1) Permanent Periodic Alimony paid regularly (usually monthly) to provide for the maintenance and support of a spouse who has neither the resources nor the ability to be self-sustaining. It is modifiable by petitioning the court and demonstrating a substantial change in circumstances.

2) Lump Sum Alimony is not modifiable. The award is final and survives the death of the payor spouse.

3) Rehabilitative Alimony consists of periodic payments for a limited period of time calculated to enable a spouse to gain skills or education necessary so that he can then enter (or re-enter) the workforce and become self-supporting. This type of alimony is more common in situations where there are fewer marital assets to divide between the parties.

4) Reimbursement Alimony is neither modifiable nor terminable, to a spouse who supported the other spouse while the latter obtained a professional license or degree. The amount awarded in such cases is based on the amount of the supporting spouse's contribution, not the value of the professional license or degree. This award may be given even when the supporting spouse is not otherwise eligible for spousal support.

e. Termination of Alimony

Periodic alimony generally terminates upon the death of either spouse, or the remarriage of the recipient spouse. Alimony also ends if the recipient establishes a relationship with another person that results in a child and a court order directing the other person to pay support to the recipient of alimony. This new relationship is treated as the equivalent of marriage.

The continuation of alimony is not contingent upon the good conduct of the recipient. For example, in one case the court held that the husband, who was required by a divorce decree to pay alimony, was not relieved of that requirement when his ex-wife cohabited on a permanent basis with another man. Even though the new man was contributing to household expenses, he had no legal responsibility for the ex-wife's support, and therefore the support responsibility pursuant to the divorce decree remained intact. Likewise, Arkansas does not recognize any "de facto" marriage as a basis for terminating alimony.

f. Tax Consequences of Alimony

Generally, alimony payments are includible in the income of the recipient spouse and are deductible by the payor, unless stated otherwise in the divorce or separation instrument.

C. CHILD SUPPORT

1. Duty to Pay Support

Generally, both parents equally share a duty to support their children. An action for support may be brought at any time until the child reaches the age of 23.

2. Amount of Award-Guidelines

In a divorce action, the court is directed to make an award for the care of the children, as is "reasonable from the circumstances of the parties and the nature of the case." The award of support to one party for the benefit of the children is generally based on monetary need and ability to pay. Unlike alimony, however, the courts have less discretion in setting the amount because of the proliferation of child support guidelines that have been adopted by the states. In setting child support, the chancellor is directed to refer to the family support chart. A rebuttable presumption provides that the amount stated in the chart is the correct amount of support. In addition to the award of child support, the court order shall provide for the child's health care needs, including health insurance if available to either parent at a reasonable cost. The chart assumes that the custodial parent is employed. It further assumes that the noncustodial parent will have visitation every other weekend and for several weeks during the summer.

a. Determining Support

The amount of child support is based on weekly or monthly take-home pay. Support is based on all sources of income, not merely that received from the primary employment. Judges have more discretion in calculating the support to be assessed against a self-employed payor. Once the take-home pay is determined, the court refers to the chart. For example, if monthly take-home pay is $1,000, the custodial parent is entitled to $236 for one child and $342 for two children, if monthly take-home pay is $3,000, the custodial parent is entitled to $536 for one child and $771 for two children. At the maximum take-home pay levels, the custodial parent is entitled to 15% for one child and 21% for two children. After determining child support under the chart, the court may consider other matters that may have a strong bearing in determining whether the amount of support is equitable. For example, the chancellor may consider the payor spouse's other children, even if not supported under a court order, in determining the financial ability to support another child.

Recently, the Court held that the trial court properly relied on the net-worth approach only after determining that the appellant's tax returns were unreliable. Pursuant to Administrative Order No. 10, a deviation from the child support guidelines is allowed when tax return figures are untrustworthy. Note, that in this case, the Supreme Court explicitly endorsed the correct method to apply the net-worth approach. It involves establishing a beginning net-worth at a start of a relevant period and ending net-worth at the end of the period and considers living expenses as allowed deductions for the same period.

Arkansas is one of the most liberal states in defining income for purposes of child support. For example, a recent appeals court opinion affirmed a trial court's decision to award fifteen (15) percent of a father's stock sale's proceeds to the mother, but also affirming the trial court's previous order requiring the mother to account for any expenditures derived from the lump sum received from the sale of the stock.

b. Tax Exemptions

The court has authority to give one parent the right to claim the children as tax exemptions. Such an award may justify or necessitate a deviation from the family support chart.

c. Private Agreements Not Recognized

Generally, courts do not recognize private agreements between the parties for the payment of child support; nor do voluntary expenditures by the payor reduce the amount of child support arrearages.

d. Retroactive Support

Because a parent has a legal duty to support a child even without a court order, an award may be retroactive and is not limited to reimbursement of actual support expenses.

3. Independent from Visitation Rights

As visitation is primarily for the benefit of the children, a noncustodial parent's obligation to pay child support is independent of visitation rights. The custodial parent generally cannot deny visitation rights to a noncustodial parent who fails to make child support payments.

4. Termination of Duty of Support

The duty to pay child support automatically terminates when the child reaches, age 18, unless the child is still in high school. In fact, recent changes in Arkansas law extend the obligation to pay child support under certain circumstances with a new provision that states that the support obligation continues, "if the child is still attending high school, upon the child's high school graduation or the end of the school year after the child reaches nineteen years of age, whichever is earlier." Child support also terminates when the minor is married or emancipated. However, the duty to support a child does not cease at majority if the child is then disabled and needs support. The law imposes no duty to support if the child becomes disabled at a later time. In addition, an agreement of the parties may allow child support to continue past the age of majority.

5. Full Faith and Credit for Child Support Orders Act

Under the Full Faith and Credit for Child Support Orders Act, full faith and credit must be given to another court's child support order if

(i) the court had jurisdiction over the matter and the parties, and

(ii) the parties had reasonable notice and an opportunity to be heard.

Once a court enters a child support order consistent with the FFCCSOA, the court has continuing, exclusive jurisdiction to modify the order:

(i) if the child or one of the parties resides in the state; or

(ii) when the child and the parties no longer reside in the state, if the parties consent in open court or in a record that the court may continue to exercise jurisdiction to modify the order.

6. Tax Consequences of Child Support

Child support payments are neither includible in the income of the custodial parent nor deductible by the payor parent.

D. MODIFICATION OF ALIMONY AND CHILD SUPPORT AWARDS

1. Alimony

a. Only Periodic Alimony May Be Modified: Courts retain the authority to modify an alimony award based upon a change in circumstances occurring after the alimony order was entered. If there is no award of alimony in a divorce order or if a lump sum was ordered, there is no ongoing award to modify and all future rights to alimony are terminated. For this reason, nominal alimony is frequently included in a decree, so that the right to future modification will be preserved.

b. Grounds for Modification: The grounds for modifying an alimony award are a substantial and material change in circumstances affecting the needs of the recipient spouse or the ability to pay of the obligor spouse. The judge may prospectively adjust alimony. Generally, an obligor's self-induced reduction in income will not be sufficient to reduce alimony; e.g., if an ex-husband quits his job and refuses to look for a new job, his claims that alimony should be reduced will be rejected. Also, the recipient spouse's completion of education does not mandate the termination of alimony.

2. Child Support

Child support is modifiable based on a substantial change in circumstances affecting the needs of the children or the ability of the parents to pay. Under the Arkansas statute, a change in gross income of the payor of at least 20% or more than $100 a month permits either the payor or the payee to petition the court for an adjustment. Other factors considered in child support modification are material changes in circumstances pertaining to:

(i) employment;

(ii) growth of the children;

(iii) inflation;

(iv) income;

(v) retirement;

(vi) disabling illness.

The court may also consider equitable defenses to modification such as unclean hands.

Most recently, the Arkansas legislature enacted a bill, which provides that either parent's ability to provide health insurance may be considered a material change of circumstances as it pertains to child support modifications. The previous version of the law only included the noncustodial parent's ability to provide health insurance as a material change.

a. Court Has Limited Power to Reduce Support: Regardless of the wording of a settlement agreement between the parents, the court always has the power to modify child support. Ordinarily, the court has no power to reduce or remit accumulated court-ordered support payments. However, there are circumstances in which the chancellor is justified in withholding judgment for unpaid child support, such as if one parent denies the other temporary custody or defeats the other's visitation rights by concealing the child's whereabouts.

b. Parents May Not Reduce Support: Courts do not recognize private agreements modifying the amount of child support.

3. Overdue Payments Not Modified

Most states, including Arkansas, hold that past-due installments of support cannot be retroactively modified-if the court orders a modification, it will be effective only as to future payments. However, a spouse entitled to alimony can waive her right to collect past-due installments of alimony. If the obligor spouse relies on an agreement with the recipient spouse for a reduction of alimony payments, the recipient spouse may be estopped from later asserting her right to arrearages. Likewise, equitable defenses may prevent the enforcement of child support judgments.

The Arkansas Supreme Court recently held that a man adjudicated not to be a biological father of a child is not free from obligation to pay past due child support. The state statute simply provides relief for any future child support obligations, not arrearages. Moreover, the court stated that the legal obligation to pay support is not suspended while a motion challenging the adjudication of paternity is pending.

E. ENFORCEMENT OF AWARDS

1. Alimony

Alimony awards, like any other orders of the court, may be enforced by filing a petition with the court that entered the order to hold the party who is not complying with the order in contempt of court.

a. Civil Contempt: purpose of civil contempt is to obtain compliance with a court order. An obligor who has the ability to pay may be found in civil contempt and incarcerated, but will "hold the keys to the jailhouse" in that he can gain his release by paying the amount specified.

b. Criminal Contempt: a specific sentence imposed upon a defaulting obligor to punish him for willful failure to pay.

c. Other Sanctions used to obtain compliance with an alimony order include:

1) Judgment against the noncomplying party;

2) Seizure of real estate of the noncomplying party;

3) Attachment of the wages of the noncomplying party; and

4) Order of payment of attorneys' fees.

2. Child Support

The remedies available against the nonpaying obligor are the same as those listed above for alimony. Actions for the collection of accumulated child support may be brought at any time up to and including live years after the child reaches age 18. The right to pursue child support arrearages belongs to either the custodial parent or the child.

a. Wage Withholding and Payment to Court Clerk: federal legislation has required the states to strengthen their procedures for collecting child support. One such measure is the mechanism for automatic wage withholding. Once the court has issued a support order, the court can issue an income deduction order to the obligor's employer. The employer must then deduct the ordered sum from the obligor's check and forward it to the court. (Some states require that child support payments be made through the registry of the court so the court has a computer record of what has been paid and whether the party is in default.) Certain notice requirements to the obligor must be met before the wage withholding order can go into effect.

b. Interception of Tax Refunds under federal legislation, a state may seek to intercept a federal tax refund of an individual who owes at least $500 in support arrearages. Notice is required, and the obligor must also be notified of procedures for contesting the interception. .

c. Licenses Not Granted or Renewed: Many states are now making the grant or renewal of professional licenses and drivers' licenses contingent on payment of child support obligations. One such statute has withstood a challenge on constitutional grounds.

d. Child Support Recovery Act: this act makes it a federal criminal offense to willfully fail to pay past-due child support to a child who resides in another state if the amount has been unpaid for more than one year or if the amount due is greater than $5,000. Venue under the CSRA is in any district in which a crime under the CSRA was begun, continued, or completed.

3. Uniform Interstate Family Support Act

The Uniform Interstate Family Support Act ("UIFSA") has been adopted in all 50 states, including Arkansas. The purpose of UIFSA is to simplify collection of child support or sometimes spousal support where the original support order was issued in one jurisdiction but the obligor or the child resides in another.

a. Jurisdiction-Home State Controls

The general rule is that jurisdiction is proper in the state in which the first action for support under UIFSA is filed. If a petition has already been filed in one state, jurisdiction may be exercised in another state only if:

(i) the second petition is filed before the time to answer the first petition has expired;

(ii) the petitioner in the second state has timely objected to jurisdiction in the first state; and

(iii) the second state is the child's home state. In other words, the home state "trumps" the "first to file" rule of jurisdiction, and the court of the first petition must decline to exercise jurisdiction.

b. Controlling Law

UIFSA provides that the law of the issuing state governs proceedings under the Act. The exception is in questions involving the statute of limitations, in which case the longer of the two states' limitations periods will govern. Also, if there are two support orders in two different jurisdictions, the law of the child's home state controls.

c. Enforcement of a Support Order

UIFSA provides two methods for enforcement of a support order or income-withholding order issued by a court in another state:

1) Direct Enforcement via Income Withholding

The obligee or the support enforcement agency in the obligee's state may mail the order directly to the employer of the obligor in another state and the employer must withhold wages automatically, unless there is a timely objection from the obligor. Alternatively, the order may be mailed to the support enforcement agency in the obligor's state to seek administrative enforcement of the order.

2) Registration of Support Order or Income-Withholding Order

UIFSA also provides for registration of a support order with a sister state through court action. The issuing state sends the order to the state where the obligor resides. The order is registered when the receiving court files the order as a foreign judgment. After registration, the order is subject to the same enforcement procedures as if the order had been issued in that state.

d. Modifying a Support Order

UIFSA limits the ability of another court to modify the original support order. The role of the obligor's state is only to enforce the original order, unless the parties no longer reside in the issuing state or the parties agree in writing that the nonissuing court may assert jurisdiction to modify the order. When dealing with issues of child support enforcement, the court has no authority to consider collateral matters, including visitation.

F. MEDIATION

In recent years, there has been a strong movement toward alternative means of dispute resolution in domestic relations cases. Statutes in a number of states provide for mediation and arbitration as an alternative means of providing just, effective, and less expensive resolutions of family disputes. Arkansas law permits a court, prior to or after granting a divorce, to require the parties to submit to mediation or complete two hours of classes on parenting issues.

1. Mediator's Duties

Some states provide that the court may refer the parties to a court-provided mediation system or to a court-approved mediator. The mediator is not a marriage counselor, but a neutral person who helps the parties work through such issues as child support, custody, and visitation.

2. Confidentiality

All information in the mediator's files is privileged and confidential and may not be disclosed without the written consent of all parties to the proceeding. The mediation proceeding itself is also confidential and inadmissible in subsequent legal proceedings unless both parties agree otherwise.

3. Agreements Reached Through Mediation

If the parties come to an agreement, it is reduced to writing and reviewed by the parties and their attorneys. This agreement may be approved by the court and made a part of the final judgment, enforceable in the same manner as any other court order.

G. SEPARATION AGREEMENTS

A separation agreement is an agreement entered into during the marriage, prior to the issuance of a divorce decree, in which, in addition to agreeing to remain separate and apart, the parties may resolve certain economic issues (alimony, property division) and custody rights. Separation agreements are governed by general contract principles and may be enforced by the courts.

1. Full and Fair Disclosure Required

As with antenuptial agreements, there must be full and fair disclosure by both parties in order for the agreement to be enforceable. In addition, the agreement must be entered into voluntarily (free of undue influence or coercion) and be essentially fair. Representation by independent counsel can help lessen the risk that the agreement will be overturned.

2. Consideration

Consideration for separation agreements is generally found in the mutual promises by the parties to pay support, release property rights, or take custody of children.

3. Effect of Provisions

Provisions in a separation agreement concerning property division and alimony are treated differently from provisions relating to child custody. As long as the requirements above are met (i.e., the agreement is not unconscionable), provisions relating to property and alimony will be enforced by the court. A court will not enforce child custody provisions, however, that are not in the child's best interests. In other words, the court is not bound by the separation agreement on these matters. Thus, even if the court decides to go along with these provisions, the award of custody is always subject to modification by the court.

4. Separation Agreements and Divorce Decrees

a. Merger into Decree

If it is stated in a divorce decree that the terms of a separation agreement are merged into the decree, or if the specific provisions of the agreement are repeated in the decree and the court orders compliance with them, the whole agreement assumes the status of a court judgment . As such, it may be enforced by court processes such as contempt, direct execution, etc. In addition, the standards for modification are those that would apply to court judgments.

b. No Merger

If the requirements for merger are not met, the agreement retains its separate character as a contract and enforcement follows the normal processes for contract enforcement, not for judgment enforcement. Note that if the court merely states that it is incorporating the agreement by reference, it is generally insufficient to constitute merger. Because the agreement itself is not included in the decree, the parties lack notice of terms for which violation would be punishable by contempt if merger were found. Enforcement of the agreement must be sought within the five-year statute of limitations for written contracts.

1) Modification of Unmerged Agreement

Modification of such unmerged agreements at a later time is difficult because courts hold that incorporating the agreement operates as a conclusive and binding determination as to the validity of the agreement, meaning that principles of resjudicata would preclude a collateral attack on the agreement. Courts have no power to modify independent settlement agreements that are merely incorporated into a divorce decree. However, a trial court is not bound to incorporate a settlement agreement of the parties and has discretion to approve, disapprove, or modify it.

IV. CHILD CUSTODY

A. CUSTODY DEFINED

Having custody of a minor child can mean legal custody, which is the right to make major decisions affecting the child's life (e.g., regarding religion, medical care, education), or physical custody, which is the actual possession and control of the child, or both. "Joint custody" can mean either joint legal custody (parents share the decisionmaking, but the child remains with one parent), or joint physical custody (child divides time between each parent's home), or both.

B. UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT

In all states, divorce courts are authorized to make custody awards, and state statutes determine which state courts have jurisdiction to hear child custody cases. As between two states, the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") controls. Arkansas has adopted the UCCJEA.

1. Purposes-To Avoid Jurisdictional Disputes and Strengthen Enforcement Procedures: specifically, the purposes of the Act are to avoid jurisdictional disputes with courts of other states in matters of child custody and visitation, to promote interstate cooperation, and to facilitate the interstate enforcement of custody and visitation orders.

2. Initial Custody Determination

a. Primary Test-Home State Jurisdiction

The most important jurisdictional test is what state is the child's "home state." A child's home state is defined as the state in which the child lived with a parent (or a person acting as a parent) for at least six consecutive months immediately before the commencement of the proceeding, and if the child is less than six months old, (the home state is defined as where the child has lived since birth). In determining whether the six-month test is met, temporary absences are disregarded. A court has jurisdiction to initially enter or to modify a child custody or visitation order if the state

(i) is the child's home state, or

(ii) was the child's home state within the past six months and the child is absent from the state, but a parent or person acting as a parent (e.g., guardian) continues to live in the state.

b. When "Home State" Rule Does Not Apply

1) No Home State-Significant Connection and Substantial Evidence Available: A court has jurisdiction to enter or modify a child custody or visitation order if no other state has home state jurisdiction or a court of the home state has declined to exercise jurisdiction on the "inconvenient forum" ground discussed below, and (i) the child and at least one parent (or person acting as a parent) have a significant connection with the state, and (ii) substantial evidence is available in the state concerning the child's care, protection, training, and personal relationships.

For example, the appeals court recently held that an Arkansas court's continuing and exclusive jurisdiction is terminated when the child and neither parent lives in Arkansas anymore pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act.

2) All Other States with Jurisdiction Decline: A court has jurisdiction if all other states having jurisdiction under the home state or significant connection test have declined jurisdiction on the ground that the court of this state is a more appropriate forum.

3) Default Jurisdiction: A court has jurisdiction to enter or modify a child custody or visitation order if no other state has jurisdiction under either the "home state" or "significant connection" test.

3. Exclusive Continuing Jurisdiction

The court that made the initial child custody or visitation determination has exclusive continuing jurisdiction over the matter until the court determines that:

(i) neither the child nor the child's parents (or persons acting as parents) continue to reside in the state; or

(ii) the child no longer has a significant connection with the state (e.g., a close relationship with a parent who lives in the state), and substantial evidence relating to the child's care, protection, training, and personal relationships is no longer available in the state.

Even if an original decree state no longer has home state jurisdiction that state retains exclusive, continuing jurisdiction as long as the child has a significant connection with the state. However, if a parent remains in the state but the relationship between the child and that parent becomes so tenuous that a court could no longer find significant connections and substantial evidence in the state, the state loses jurisdiction.

4. When Court May Decline Jurisdiction

a. Inconvenient Forum

A court that has jurisdiction under one of the above tests may decline to exercise its jurisdiction if it determines that it is an inconvenient forum under the circumstances and that a court in another state is a more appropriate forum, taking into account such factors as whether domestic violence is involved, the length of time the child resided outside the state, the distance between the court in this state and the other state, the relative financial circumstances of the parties, and the nature and location of relevant evidence.

b. Party's Unjustifiable Conduct

A court may decline to exercise jurisdiction if the party seeking to invoke the court's jurisdiction has engaged in unjustifiable conduct, such as wrongfully taking the child from another state.

5. Temporary Emergency Jurisdiction Abandonment or Abuse

A court has temporary emergency jurisdiction if (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because the child or her sibling or parent is subjected to or threatened with mistreatment or abuse.

6. Enforcement of Another State's Order

In enforcing a custody or visitation order of another state, a court may use any remedy that is available to enforce one of its own orders. UCCJEA also provides the following remedies:

a. Registration of Order

A custody or visitation order can be registered in the state, with or without a simultaneous request for enforcement. If the registration is not successfully challenged, the court can thereafter grant any relief available for enforcement of a registered child custody determination.

b. Expedited Enforcement in Habeas-Type Proceeding

The UCCJEA establishes a procedure similar to a habeas corpus proceeding. Upon the filing of a petition, the court issues an order directing that the respondent appear in person at a hearing that is to be held the next judicial day after service of the order or the first judicial day possible. The order states the court will award petitioner immediate physical possession of the child unless respondent establishes that:

(i) The custody or visitation order was not registered, and (1) the issuing court did not have jurisdiction, (2) the order had been stayed or vacated, or (3) the respondent was entitled to notice, but notice was not given before the court issued the order for which enforcement is sought; or

(ii) The order was registered and confirmed, but the order has been stayed or vacated.

c. Warrant to Take Physical Custody of Child

Upon filing a petition seeking enforcement of a custody or visitation order, petitioner may file a verified application for issuance of a warrant to take physical possession of the child. The court will issue the warrant if it finds the child is imminently likely to suffer serious physical harm or be removed from the state.

d. Role of Law Enforcement Officials

A prosecutor, law enforcement officer, or other public official may take any lawful action to locate a child, obtain return of a child, or enforce a custody or visitation order (i) when requested by a court, or (ii) if there is reasonable belief that person holding child has violated a criminal statute.

C. BEST INTERESTS OF CHILD STANDARD

The standard to be applied in awarding custody and visitation is the best interests of the child. Custody is not awarded to reward or punish either parent. Factors courts often consider in making this determination include:

(i) The moral fitness of each parent;

(ii) The age, gender, and health of the child;

(iii) The attitude of each parent toward the child;

(iv) The psychological relationship between the parents and the child;

(v) The physical and mental health of the parties;

(vi) The need for stability and continuity in child's relationship parents and siblings;

(vii)The potential for disruption in the child's social and family relationship by an award of custody;

(viii)The past conduct of the parents toward the child;

(ix) The strength and sincerity of the parents' desire to have custody;

(x) The reasonable preferences of the child;

(xi) The parents' affection and guidance; and

(xii)The continuation of a religious education, if any.

Custody is to be awarded in such a way as to assure frequent and continuing contact of the child with both parents. Although generally siblings should be kept together, that goal is subordinate to the primary standard of the best interests of the child.

1. Child's Preference: preference of a young child (under age eight) often will not be considered or will not be given much weight. In contrast, the preference of an older child (over age 12) is often given great weight; however, preference of child is not binding on court. Usually the child's preference is determined by questioning in the judge's chambers. The judge usually asks questions that have been discussed with counsel. Counsel are usually permitted to be present during this questioning, and a record of the proceedings is kept.

2. Effect of Primary Caregiver Status: generally, preference cannot be shown to one parent on the basis of gender or financial ability. If after considering all of the relevant factors, the court is left to decide between two qualified parents, the award will often go to the parent who has been the primary caregiver up to this point. A primary caregiver is the one most involved in the child's day-to-day life (e.g., feeding, clothing, carpooling). This result is justified under the best interests test because it awards custody to the parent with whom the child has formed the closest emotional and physical ties. It also has the advantage of stability for the child.

a. "Tender Years" Doctrine: until 1979, Arkansas adhered to the "tender years" doctrine, which gave preference to the mother in the case of young children. Now, however, an award of custody shall be made "without regard to the sex of the parent but solely in accordance with the welfare and best interests of the children."

3. Other Issues Faced in Child Custody

Difficult decisions have been faced by the courts on issues of health problems of one parent, "unusual" religious traditions by one parent, and the alleged moral shortcomings of a parent.

a. Nonmarital Sexual Relationships

Arkansas case law "simply has never condoned a parent's unmarried cohabitation, or a parent's promiscuous conduct or lifestyle, when such conduct is in the presence of a child."

b. Other Moral Concerns

Such evidence may be relevant and admissible in a change of custody proceeding, because the personal morality of the parent is always a factor when determining custody.

4. Custodial Parent Generally Has Decision-making Power

Generally, the custodial parent has the authority to make all essential decisions in raising the child, subject of course to the best interests of the child. In some instances, a court may require joint decisions or at least notification as to such matters as major medical treatment.

D. COUNSEL FOR THE CHILD

Most courts have authority to appoint counsel (or a guardian ad litem) for a child in a custody dispute although this is usually done only when the counsel could provide substantial assistance in reaching a result in the child's best interests. The child's counsel has a duty to act on behalf of the child, advocating the child's preference if the child is old enough to have one. This counsel may also be charged with the responsibility of performing an investigation and making a report and recommendation to the court. The parents must pay the fees for the child's attorney if able to do so. In Arkansas, the Administrative Office of the Courts is authorized to establish an attorney ad litem program to represent children in custody disputes.

E. VISITATION

The strong policy of the law to promote the relationship between the child and both parents requires that when an award of sole custody is made to one parent, the other party is given reasonable visitation rights. Visitation schedules depend on such factors as the age of the child and the geographical proximity of the custodial and noncustodial parents.

1. Visitation Schedule

Once the custody issue has been decided, the parties generally agree to a visitation schedule, or if unable to agree, the court exercises its discretion to impose one. Provided proper jurisdiction exists, the court may award visitation rights against an out-of-state parent, with full faith and credit being given to the visitation order.

2. Independent of Support Rights

A noncustodial parent's obligation to support his children is independent of that parent's visitation rights. In other words, the custodial parent may not withhold visitation from a noncustodial parent because of his failure to pay support.

3. Limitations Imposed on Conduct

The court may make orders limiting a parents' conduct to protect the child. For example, a court may limit a party's right to visitation if that person engages in conduct that might injure the child (e.g., drinking heavily when caring for the child during visitation). Absolute denial of visitation is rare. Usually, the court will restrict visitation by ordering the party to refrain from the offensive conduct, having the visitation supervised by another adult, or by allowing the noncustodial parent to visit the child only within the confines of the custodial parent's home. The court may even order the parent to see that the children attend church during their visitation.

Note that Arkansas law now provides that if a sex offender seeks custody or visitation then the court "may not award custody or unsupervised visitation of the child to the sex offender unless the circuit court makes a specific finding that the sex offender poses no danger to the child. Another provision added to the statute under this Act, provided a rebuttable presumption that awarding custody or granting visitation of a minor child to a sex offender is not in the best interest of the child.

4. Remedy-Contempt

As with custody orders, contempt is the primary remedy for violation of visitation orders. If one party consistently and willfully denies visitation rights to the other party, the court may eventually view this conduct as so detrimental to the child that it may consider changing custody. The reasoning behind such a change, however, is not to punish the custodial parent, but to foster the best interests of the child.

5. Rights of Nonparents to Visitation

a. Visitation Rights of Grandparents

Visitation rights may be granted to grandparents only when the child is born out of wedlock or the marital relationship between the child's parents has been severed by death, divorce, or legal separation. Note that the statutory rights of biological grandparents to visitation are canceled when their child's parental rights are terminated and a stepparent adopts the grandchild.

1) Presumption in Favor of Fit Parent

There is a rebuttable presumption that a fit parent's decision regarding visitation is in the child's best interest. To rebut the presumption, a grandparent must show that the grandparent has established a significant and viable relationship with the child and that visitation is in the best interest of the child.

a) Significant and Viable Relationship

To establish that a significant and viable relationship exists, the grandparent must prove by a preponderance of the evidence that:

(i) the child resided with the grandparent for at least six consecutive months (with or without the parent);

(ii) the grandparent was the child's caregiver on a regular basis for at least six consecutive months;

(iii) the grandparent had frequent and regular contact with the child for at least 12 consecutive months; or

(iv) that the loss of the relationship is likely to harm the child.

b) Visitation Is in Best Interest of the Child

To establish that visitation is in the best interest of the child, the grandparent must prove by a preponderance of the evidence that:

(i) the grandparent has the capacity to give the child love, affection, and guidance;

(ii) the loss of the relationship is likely to harm the child; and

(iii) the grandparent is willing to cooperate with the parent if visitation is allowed.

b. Visitation Rights of Siblings and Other Third Parties

Reasonable visitation rights may be granted to siblings, regardless of the degree of blood relationship, even if their parents are opposed to sibling visitation. In addition, the doctrine of "in loco parentis" may permit the court to award visitation rights to others beyond grandparents and siblings. For example, stepparents who have developed a parental relationship with children may seek visitation. However, the United States Supreme Court has held that, as long as a parent is fit, that parent's determination as to the appropriateness of nonparent visitation must be given "special weight." A judge may not override a fit parent's decision regarding third-party visitation merely because he feels a "better" decision could be made or visitation would be in the best interests of the child.

6. Modification of Visitation

Although the court has continuing jurisdiction over visitation decrees, it has no authority to alter visitation unless a material change in circumstances has occurred.

F. JOINT CUSTODY

As discussed above, "joint custody" can mean joint legal custody, joint physical custody, or both. While most states do not have a presumption in favor of joint custody, a majority of states have a statute that in some way encourages the award of joint custody. As a general rule, Arkansas courts do not favor joint custody.

1. Parents' Hostility May Preclude Joint Custody Award

If the parents have historically been unable to communicate or cooperate with respect to decisions regarding their children, or if they are so hostile to one another that cooperation is unlikely, courts will not award joint custody; a few courts do not award joint custody unless the parties agree to it.

2. Factors Considered

In determining whether joint custody (particularly joint physical custody) is appropriate in a particular case, courts often consider the following factors:

a. The fitness of both parents;

b. Whether the parents agree on joint custody;

c. The parents' ability to communicate and cooperate concerning the child's well being;

d. The child's preference;

e. The level of involvement of both parents in the child's life (i.e., whether one parent was the primary caregiver);

f. The geographical proximity of the two homes;

g. The similarity or dissimilarity of the two homes;

h. The effect of joint custody award on the child's psychological development; and

i. The parents' ability to physically carry out the joint custody order.

If the parents agree to joint custody, the court will generally go along unless the court determines the arrangement is not in the child's best interests; e.g., if the court felt the child would benefit from a more stable environment.

G. ENFORCEMENT

1. Contempt

Violations of custody and visitation orders are normally punishable by civil contempt proceedings; fines or incarceration may be imposed.

2. Habeas Corpus Proceeding

A state habeas corpus proceeding is a way that a person claiming custody of a child who is physically in the possession of another can be heard by the court. The federal writ of habeas corpus is not available for child custody disputes.

a. Limited to Custody Only

Only a person who is claiming physical custody of the child can use this remedy; it cannot be used to enforce visitation rights.

b. Issues Considered

While some states adhere to the notion that a habeas proceeding addresses only the question of who has a legal right to the child, many states will reopen the issue of which placement is in the best interests of the child.

c. Enforcement

Habeas corpus judgments are enforceable by contempt proceedings.

3. Suit in Equity

This action asks the court to enjoin conduct in violation of a custody order; this is not as limited as habeas corpus and has virtually replaced it.

4. Out-of-State Custody Decrees

An out-of-state custody decree will be enforced if a certified copy of the decree is filed with the clerk of court. Although the court that renders the custody decree usually retains continuing jurisdiction to modify the decree, another court may modify an out-of-state decree if:

(i) The foreign court declines jurisdiction, and this court has proper jurisdiction under the UCCJEA; and

(ii) The out-of-state party is given a statutorily specified amount of notice (e.g., 20 days) prior to any hearing.

The court can request a foreign court to conduct an evidentiary hearing and to forward transcripts and documents; due consideration must be given to the transcripts and documents of previous proceedings.

5. Child Snatching

a. Enforcement of Decree

If the noncustodial party snatches the child and removes her to another state, the custodial party, depending on the rules of the jurisdiction to which the snatcher fled, must either:

(i) file the custody decree in the foreign jurisdiction and obtain an order enforcing the decree; or

(ii) obtain a writ of habeas corpus from the foreign court and serve it on the snatcher.

In many jurisdictions, the only issues in the habeas corpus hearing are whether the custody order is valid and whether the petitioner is entitled, as a matter of law, to custody of the child. In these states, the merits of the custody award are not considered.

b. Criminal Sanctions

While parental kidnapping is not a federal crime, most states have enacted laws making it a felony to snatch a child in violation of a judicial custody order.

c. Federal Parental Kidnapping Prevention Act

As a general rule, full faith and credit must be given only to final orders entered by the courts of another state, and child custody orders do not meet the "final order" test because they are subject to modification. To address this concern, Congress in the Parental Kidnapping Prevention Act ("PKPA") has mandated that full faith and credit be given to the child custody or visitation determination of another state if the Act's jurisdictional standards are met. The jurisdictional standards set forth in the PKPA are substantially the same as those in the UCCJEA, except that emergency-based jurisdiction is not made temporary in the PKPA. The PKPA also allows states to use a federal parent locator service in custody and kidnapping cases.

d. International Parental Kidnapping Prevention

Under the International Parental Kidnapping Crime Act ("IPKCA"), a parent is prohibited from removing a child from the United States, or from retaining outside of the United States a child who has been in the United States, with the intent to obstruct the other parent's right to physical custody.

e. Hague Convention on Civil Aspects of Child Abduction

Under the Hague Convention, adopted by the United States, if a person's rights of custody have been violated by either a wrongful removal or retention of a child in a foreign country, the return of the child to the parent with custody is required, and the wronged party may file suit. United States courts differ as to whether this Convention also applies to visitation rights. It is a complete defense to the Convention if there is a grave risk that returning the child would expose her to physical or psychological harm or place the child in an intolerable situation.

6. Tort Damages

In addition to the above methods for recovering a child, a parent can be awarded tort damages for the period of time the child is wrongfully out of the parent's custody.

H. MODIFICATION OF CUSTODY DECREES

Custody orders are always modifiable.

1. Procedural Issues: Modification may be made upon motion of one of the parties, or in some cases, the court's own motion. Actions for modification are usually begun by filing a petition in the original action. The other party must have adequate notice and an opportunity to be heard. To modify a decree rendered in another state, a new action must be brought.

2. Standard for Modification-Material Change in Circumstances: The court has continuing jurisdiction and may modify custody if the best interests of the child demand. A petition for a change of custody is a two-step analysis:

(i) whether there has been a material change in circumstances since the most recent custody degree; and

(ii) whether a change of custody is in the best interests of the child. Child custody may not be altered absent a material change in circumstances.

A change in the circumstances of the noncustodial parent, by itself, is not sufficient to justify changing custody. In connection with other factors, the remarriage of the noncustodial parent may be a basis to change custody.

I. RELOCATION OF CUSTODIAL PARENT AND CHILD

Relocation of a custodial parent and child is not, by itself, a material change in circumstances justifying a change in custody. There is now a presumption in favor of relocation, with the burden on the noncustodial parent to rebut the relocation presumption. Thus, a custodial parent is not required to prove a real advantage to herself and to the child in relocating, even when moving to another state. The court should use the best interest of the child as the standard in making a relocation determination and should consider the following factors:

(i) the reason for relocation;

(ii) the educational, health, and leisure opportunities available in the new location;

(iii) the visitation and communication schedule for the noncustodial parent;

(iv) the effect of the move on extended family relationships in the new location as well as in Arkansas; and

(v) the child's preference, taking into account the child's age and maturity and the reasons given by the child for that preference.

Recent legislative enactments in Arkansas provide flexibility for courts in modifying court orders of child custody and visitation for parents who are members of the Armed Forces and who are military mobilized; the legislation also includes a new emergency clause for proceedings involving such situations.

J. MEDIATION

As with other issues, child custody problems are good candidates for mediation or other alternative methods of dispute resolution. This is an especially effective means of resolving conflicts arising in joint custody cases, i.e., when parents with joint custody cannot agree on a decision affecting the child.

V. RIGHTS OF UNMARRIED COHABITANTS

A. CONTRACTS BETWEEN UNMARRIED COHABITANTS

Contracts between unmarried cohabitants are invalid only when sexual relations constitute the only consideration; i.e., if there is any consideration for the contract besides sexual relations, it is valid.

1. Express Contracts

Express contracts between the parties regarding earnings and property rights will generally be enforced.

2. Implied Contracts

If there is no express contract, courts sometimes find an implied contract, implied agreement of partnership or joint venture, constructive trust, or resulting trust. Courts are less likely to enforce an implied contract than an express one.

B. DIVISION OF PROPERTY

Parties who cohabit for substantial periods of time but do not marry frequently develop expectations that they will be entitled to share the other person's property in the event of a breakup. In the absence of an express contract, courts often grant an equitable distribution of property based on constructive trust, resulting trust, or quantum meruit. Some courts make this type of award in some form of rehabilitative alimony. Arkansas, however, has been unreceptive to these types of claims.

C. GENERAL STATUS OF COHABITANT'S RIGHTS

Unmarried cohabitants do not assume any special status merely by living together (unless they meet the requirements for a valid common law marriage). Arkansas does not recognize any type of de facto marriage. Unmarried cohabitants retain the full rights they have as individuals. Not many generalizations can be made about the law in this area. For example, unmarried individuals cannot be denied access to birth control because of their unmarried status; their constitutional right to privacy is the same as married persons' rights. In contrast, tax laws providing different treatment for married and unmarried individuals have been upheld.

VI. NONMARITAL CHILDREN

A. DEFINITION

A nonmarital child (also called an illegitimate child or a child born out of wedlock) is one born to an unmarried woman. Until recently, such children occupied a disadvantaged place in society and were not accorded the same rights as marital offspring were. Since the label of nonmarital child is a disadvantage, courts have defined the term marital child in such a way as to include as many children as possible.

B. PRESUMPTION OF MARITAL CHILD

The child of a married woman is presumed to be the child of her husband, a presumption rebuttable only by clear and convincing evidence (such as blood tests) that he is not the father; this presumption is one of the strongest in the law. A mother, her husband, and the putative father are permitted to testify about the paternity of a child. (However, a child born during a marriage has no standing to challenge the presumption that he is a marital child.) If the presumption is rebutted, the court may declare the child's paternity, establish the child's biological parents, and set a support obligation. Once paternity is established, a duty of support attaches, and the father may assert rights to visitation and custody. Most states by statute extend the presumption to children of void and voidable marriages as well as to children born within a gestation period following the dissolution of a marriage.

C. CONSTITUTIONAL LIMITS ON DISCRIMINATION

Distinctions drawn between marital and nonmarital children are almost always suspect under the Equal Protection Clause. When analyzing the constitutionality of a government action based on such a classification, the courts will apply the intermediate scrutiny standard and strike the action unless it is substantially related to an important governmental interest.

1. No Punitive Purpose

When the Supreme Court examines a classification based on the child's status as nonmarital, it gives greater attention to the purpose behind the distinction. It will not uphold discriminatory legislation intended to punish the offspring of illicit relationships.

a. Inheritance from Father

A state statute cannot absolutely exclude nonmarital children from inheriting from their intestate fathers. However, to promote efficient disposition of property at death (an important government interest), a state can require that the paternity of the father be proved before his death, since the requirement is substantially related to the important interest. Under Arkansas law, a nonmarital child may inherit from the father if:

(i) there is written acknowledgment of paternity;

(ii) there is written consent to have the father's name on the birth certificate;

(iii) paternity is determined;

(iv) the parents marry;

(v) there is a de facto marriage; or

(vi) a court issues a support order.

b. Statute of Limitations on Paternity Suits May Be Discriminatory

The Supreme Court struck down a state statute that required nonmarital children to bring paternity suits within six years of their birth while allowing marital children to seek support from parents at any time. The Court found that the law was not substantially related to the state interest of preventing stale or fraudulent claims.

c. Government Benefits

Government benefits may not be denied to nonmarital children solely because they were born out of wedlock.

d. Wrongful Death Claims

Nonmarital children may not be precluded from suing for a parent's wrongful death solely because of their status as children born out of wedlock.

2. Immigration Preference to Marital Children-Permissible

Due to the plenary power over immigration, the Court has upheld a federal law granting immigration preferences to marital children.

3. Treatment of Unmarried Parents

a. Tort Recovery

Unmarried mothers may recover in tort for the death of their children, but unmarried fathers may be precluded from doing so if they did not previously legally recognize their children.

b. Citizenship of Child Born Abroad to Unmarried American Parent

When an unmarried American woman gives birth abroad, her child is automatically granted United States citizenship. In contrast, when the child of an unmarried American man is born abroad, the man must take specific steps to establish his paternity in order to make his child a United States citizen. This discrimination based on the gender of the parent is permissible because it promotes the important governmental interest of avoiding proof of parentage problems, which is more difficult to resolve for fathers than mothers.

c. Unwed Father's Due Process Rights

Unwed parents have rights to raise their own children. If an unwed father of a nonmarital child is a part of the "family unit" that includes the child, the relationship between the father and child will be protected by due process. The father cannot be deemed unfit to have custody rights just because he is unmarried.

1) Unwed Father's Right to Relationship with Newborn

A father's right to a continued parental relationship is defined by his manifestations of parental responsibility. In the case of newborn infants, this means that the qualifying interest of the unwed father requires willingness by him to assume custody of the child-not merely block an adoption by others. Other factors to be considered include: public acknowledgment of paternity; payment of pregnancy and birth expenses; steps taken to establish legal responsibility for the child; and other factors evincing a commitment to the child.

D. CHANGE IN CHILD'S STATUS

Every state has a statute enabling parents to change the status of their children born out of wedlock. Most statutes provide that any child is the lawful child of his mother. The statutes provide that a child is also the lawful child of his father if:

(i) The parents were married after the child's birth (some states additionally require the father's acknowledgment);

(ii) The father holds the child out as his biological child; (iii) The father consents to be named on the birth certificate;

(iii) The father consents to be named on the birth certificate;

(iv) The father has acknowledged paternity (e.g., by an "affidavit of birth out of wedlock" or an "affidavit acknowledging paternity"); or

(v) There is a judicial decree establishing paternity (limited in some states to suits during the father's lifetime).

These provisions are incorporated into Arkansas law, which permits a nonmarital child to inherit from the estate of the father. Most statutes do not enumerate all of the above. Instead, most are limited to two or three. Some, for example, will not find a change in status even if paternity has been established in a judicial proceeding for support.

E. SUIT TO ESTABLISH PATERNITY

Most paternity suits are brought for the purpose of obtaining support from the child's putative father. If paternity has been established in a divorce action, the principle of res judicata prevents the ex-husband or the ex-wife from raising the issue of paternity in a subsequent suit.

1. Those Who May Bring the Action: paternity suit may be brought by the biological mother, the putative father, the child, or the Office of Child Support Enforcement. The action is brought in the Juvenile Division of Chancery Court and may be brought "at any time."

2. Statute of Limitations: no statute of limitation bars an action for paternity.

3. Standard of Proof: a preponderance of the evidence is required to establish paternity. But if the alleged father is deceased, clear and convincing evidence is required.

4. Evidence: in addition to testimony as to sexual relations between the mother, the alleged father, and other men, blood tests and other scientific examinations may be given to determine whether the "putative father can be excluded as being the biological father of the child and to establish the probability of paternity if the testing does not exclude the putative father?' If the results of the paternity tests establish a 95% probability that the putative father is the biological father of the child, that evidence (in connection with corroborating testimony of the mother in regard to access during the probable period of conception) shall constitute a prima-facie case of paternity. The burden of proof shall shift to the putative father to rebut the proof.

5. Effect of Proof of Nonpaternity: if blood tests establish that the defendant cannot be the child's father, the case must be dismissed.

6. Child Support: nonmarital children have the same right to child support as marital children. The court can order child support payable until age 18 on the same basis as a child custody action. Child support may be awarded retroactively and is not limited to amounts actually expended by the mother on the child. The grant or denial of back child support rests upon underlying circumstances.

7. Expenses for the Mother: court may award "living-in" expenses for the mother-expenses in connection with pregnancy and delivery.

8. Visitation Rights: once paternity is established, the court may grant visitation rights to the father. The court can even award custody to the father if: he is a fit parent, he has assumed his responsibilities toward the child, and the best interests of the child do so require. Recent Arkansas statutory language provides that when in the best interest of a child, visitation shall be awarded in a way that assures the frequent and continuing contact of the child with the mother and the biological father.

9. Name of Child: best interests of the child standard applies in determining the surname of the child. If the best interests of the child require, the court may order the child to take the surname of the father. The trial court is to consider six factors in making this decision: (i) child's preference; (ii) effect of a change of the child's surname on the preservation and development of the child's relationship with each parent; (iii) length of time child has borne a given name; (iv) degree of community respect associated with present and proposed surname; (v) difficulties, harassment, or embarrassment that child may experience from bearing present or proposed surname; and (vi) existence of any parental misconduct or neglect.

VII. PARENT, CHILD, AND THE STATE

A. LEGAL DISABILITIES OF CHILDHOOD

The law creates both disabilities and privileges for those under age 18. Based on their immaturity and vulnerability, children are treated differently from adults under the law.

1. Property: A child may own and convey property, but the child can disaffirm the conveyance upon reaching the age of majority.

2. Contracts: A child may enter into and enforce contracts, but the child may disaffirm his contracts (i.e., the child can avoid liability) at any time before reaching the age of majority or within a reasonable time thereafter. Contracts for necessaries, however, cannot be disaffirmed.

3. Medical Care: Under a certain age, children are incapable of consenting to medical care; thus, parental consent is almost always required before emergency medical treatment is administered, but the state can override the withholding of such consent if it would cause irremediable injury to the child (e.g., state can order lifesaving blood transfusion over parents' objection). With regard to nonemergency medical care, many states have laws enabling minors to give valid consent to abortions, to obtain birth control, and to consent to treatment for sexually transmitted diseases.

4. Torts: Children are generally liable for their own torts, but may be judged by a more lenient standard than that used for adults.

5. Criminal Acts: Most states adjudicate crimes committed by children under juvenile delinquency laws (whose purpose is supervision and rehabilitation) rather than under the criminal statutes. Delinquency laws apply until the child reaches a certain age, generally 16 or 18, depending on the particular state statute.

6. Wills: Children cannot make valid wills.

B. EMANCIPATION

Emancipation of a minor is defined as the removal of the disabilities of minority. When a child is emancipated, he is considered to be an adult and his parents are relieved of their duty of support. Most states consider married minors to be emancipated. There is also a process in some states where a child of a given age (e.g., 16) can petition for a judicial decree of emancipation. This procedure is most often used when the child is no longer living with his parents and is self-supporting.

C. DUTY OF SUPPORT

Parents have a duty to support their children, and some states have laws requiring children to support their parents in later years.

D. EDUCATION

States can require that children attend school up to a certain age, but parents decide where their children attend school.

E. TORT SUITS AND THE FAMILY

1. Intrafamily Tort Immunities

a. Injury to Person

Under the traditional view, one member of a family unit (i.e., husband, wife, or unemancipated child) could not sue another in tort for personal injury. This view has undergone substantial change in most states.

1) Husband/Wife Immunity Abolished

Most states have abolished interspousal immunity; either spouse may now maintain a tort action against the other.

2) Parent/Child Immunity Limited

Some states have abolished parent-child immunity; however, these states generally grant parents broad discretion in the parents' exercise of parental authority or supervision. The remaining states retain parent-child immunity but do not apply it in cases of intentional tortious conduct and, in many of these states, in automobile accident cases (at least to the extent of insurance coverage). Of those states retaining parent-child immunity, many apply a "reasonable parent" test, which judges a parent's conduct by asking whether it comported with that of a reasonable and prudent parent under similar circumstances.

b. Injury to Property

A suit for property damage may usually be maintained by any family member against any other family member. In short, to the extent that intrafamily tort immunity exists, it applies to personal, not property, injuries.

2. Interference with the Marital Relationship

In most jurisdictions, either spouse may bring an action for the loss of the other's consortium or services due to injuries resulting from a defendant's tortious conduct, whether the defendant's conduct was intentional, negligent, or based on strict liability.

3. Interference with the Parent-Child Relationship

a. Tortious Injury

A child has no action against one who tortiously injures his parent. In contrast, a parent may maintain an action for loss of the child's services when the child is injured as a result of a defendant's tortious conduct, whether the conduct was intentional, negligent, or based on strict liability.

b. Interference with Custody

In addition to a suit in equity or a habeas corpus petition, a parent whose custody is interfered with may recover tort damages in actions for abduction or enticement or based on civil conspiracy.

1) Suit for Abduction or Enticement: a parent whose child was abducted from the parent's custody or enticed away may bring an action for damages, which may include: loss of the child's services, loss of the child's society, parent's mental and emotional distress, expenses incurred in attempts to regain custody, and costs of medical treatment needed because of the abduction. Punitive damages are also appropriate, and this action can be brought against a noncustodial parent who removes a child from the custodial parent.

2) Civil Conspiracy to Conceal Information About Newborn's Birth or Location: once a child is born, both parents, even if unwed, have a right to establish a parent-child relationship with the child. Parties who conspire to affirmatively and intentionally conceal information about a newborn child's birth or physical location may be held liable for their participation in a civil conspiracy and may face punitive damages.

4. Nature of Action for Family Relationship Interference

Except for claims based on direct interference with relationships (e.g., suit for abduction), the action for interference with family relationships is derivative. Recovery in the derivative action depends on the potential success of the injured family member's own action; thus, any defense that would prevent recovery by the injured family member, such as her own contributory negligence, will also prevent recovery in the derivative action for interference with family relationships.

F. PARENTAL AUTONOMY

Parents retain authority to make decisions on most matters concerning the upbringing of their children. All states, however, have child abuse and neglect laws, as well as compulsory school attendance laws that take precedence over parental autonomy.

1. Children in Need of Supervision

Nearly all states have statutes giving courts jurisdiction over children whose behavior does not meet certain standards of behavior but which is not criminal (e.g., habitual truancy, habitual disobedience of parental directives, running away from home). These children are usually called children in need of supervision. The Arkansas Juvenile Code provides elaborate administrative and judicial sanctions and remedies to deal with children in need of supervision as well as children subject to abuse and juveniles who commit criminal actions. The remedies can include: counseling and other family services, administrative supervision, restitution fines, probation, transfer of custody, placement in a foster home, and commitment to a youth services center. For juveniles between the ages of 14 and 18 who commit specified felonies, the Prosecuting attorney has discretion to prosecute the juveniles in circuit court as adults.

2. Termination of Parental Rights

The parents' right to raise their children is a fundamental right protected by the Constitution; therefore, parents must be accorded due process before parental rights may be terminated.

a. Right to Counsel

Due process does not require the appointment of counsel for indigent persons in every case in which the state seeks to terminate parental status, but only when "fundamental fairness" requires the appointment given the serious consequence of such a proceeding, counsel will usually be appointed.

b. Standard of Proof

To terminate parental rights, the state's allegations must be proved by clear and convincing evidence.

c. Grounds

Parents may voluntarily relinquish all rights to their child. In addition, the Department of Human Services may initiate court proceedings to terminate parental rights because of parental misconduct in order to permanently place the child with a new family. Grounds for involuntary termination of parental rights include:

1) The infliction of Serious physical harm on the child, including sexual abuse. Note that abuse of one child in the family can be grounds for the termination of rights as to other children as well.

2) Abandonment (i.e., parent does not communicate with the child, support the child, or show any real interest in the child).

3) Neglect or deprivation, which means a failure to meet minimum standards of care.

4) The failure to provide support for a child without justifiable cause for a specified time period (e.g., one year).

5) Mental illness or retardation of the parent so severe as to make the Parent incapable of caring for the child. Courts are far more reluctant to terminate parental rights for physical illnesses that impair a parent's ability to care for the child.

6) Parental unfitness, which is best described as conduct by the parent that seriously harms the child Physically or Psychologically (e.g., habitual abuse of alcohol or drugs, or criminal Conduct by the parent).

G. CUSTODIAL DISPUTES BETWEEN PARENTS AND THIRD PARTIES

Most custodial disputes between parents and third parties arise in divorce actions when there is a claim that neither parent is fit, but this situation may also occur in guardianship proceedings, dependency and neglect proceedings, and proceedings leading to adoption.

1. Different Standard

In cases where the custody dispute is between a parent and nonparent the decision no longer turns on the child's best interests alone. The courts give great weight to the interests of the natural parent, and the prevailing view is that a natural parent has a right to raise her child. Absent voluntary relinquishment, the parent is entitled to custody unless it is shown that the parent is unfit. If so, the court can award custody to someone other than the natural parent.

2. Circumstances Warranting Award to Nonparent

Despite the deference accorded the natural parent's rights, many states, including Arkansas, have ruled that when there are special circumstances present (e.g., the natural parent has abandoned, neglected, abused, surrendered Custody or been found unfit), the best interests of the child may lie in custody being awarded to a third party; thus, the right of a parent to raise a child is not absolute. The most common example of this situation is when a biological parent leaves a young child with a third party (e.g., a grandparent) for a prolonged period of time (several years) and then shows up and wants to regain custody. The court may find that, based on a special circumstance (e.g., abandonment of the child), the biological parent has lost the right to rear the child, and that applying the best interests of the child test, the child should remain in the custody of the third party.

VIII. ADOPTION

A. DEFINED

Adoption is defined as a legal proceeding whereby the legal relationship between biological parents and their child is terminated (if not previously extinguished) and a new legal relationship of parent and child is established between the child and his new adoptive parents. Adoption is purely statutory; it was not recognized at common law.

1. Agency Placements

Licensed adoption agencies may act as intermediaries between the natural and adoptive parents in arranging adoptions.

2. Private or Independent Adoption

Independent adoption is the process of natural parents contracting directly with the adoptive parents to have their children adopted. Arkansas allows "private" persons (such as non-agency affiliated doctors or lawyers) to act as intermediaries in arranging adoptions.

3. State Placements

The Department of Human Services may be appointed as a child's guardian with power to consent to adoption if the parents' rights were terminated at a prior hearing.

B. JURISDICTION

Most states require a person to be a resident of the county where the petition to adopt is filed. In Arkansas, the adoptive parents must be physically present in the state for 30 days before filing a petition to adopt or the natural parents must reside in Arkansas for 30 days before executing consent to adoption.

C. PROCEDURAL CONSIDERATIONS

Every adoption involves two steps: (i) termination of the biological parents' rights, and (ii) creation of a new legal parent-child relationship. The first step is usually obtaining the consent of the natural parents to the proposed adoption.

1. Parties Required to Consent

Consent to adopt must be given by the following persons:

(i) The mother of the child;

(ii) The father of the child if the father was married to the mother, if he has custody, or he has otherwise legally recognized the minor;

(iii) Any person lawfully entitled to custody; and

(iv) The minor, if over 10 years of age, unless the court dispenses with the minor's consent in the best interests of the minor.

a. Not Necessary If Rights Terminated

If parental rights were previously terminated in another proceeding (such as a neglect or child abuse case), parental consent to an adoption is not necessary.

b. Requirement Waived If Consent Unreasonably Withheld

The requirement of parental consent may be waived if the court determines that it is being unreasonably withheld against the best interests of the child. Such waivers occur most frequently when it is found that the parent has deserted or abandoned the child, has failed to pay mandated support for 12 months, or has failed to have communication with the child for 12 months. Generally, parents who fall into this category are not entitled to notice and an opportunity to be heard. A person who wishes to adopt a child without the consent of the parent must show by clear and convincing evidence that consent is unnecessary and that the best interest of the child would be served.

c. Rights of Unmarried Fathers

How much voice will be given to the unmarried father of a child up for adoption will depend on how actively involved the father has been in that child's life to date.

1) Involvement in Child's Life

Such factors as whether the father lived with the mother and cared for the child, or visited the child regularly if he did not live with them, admitted paternity, or paid child support will all be weighed in deciding whether an unmarried father can veto a prospective adoption.

2) Newborn Infants

The unwed father's interest in his newborn child creates a constitutional right to have the opportunity to develop a "quality relationship" with the infant, absent a finding of unfitness. Under federal law, these interests must be recognized in appropriate circumstances; however, a father's right to a continued parental relationship depends on his manifestations of parental responsibility (e.g., a willingness by him to assume custody of the child-not merely block the adoption by others).

3) When Consent Is Unnecessary

Some state statutes even provide that if a parent cannot be located, or has abandoned the child and failed to provide support for a specified length of time, that parent's consent is not required. The father of a nonmarital child who has never attempted to establish a legal or personal relationship with the child has no right to notice prior to the adoption of the child by other persons.

4) Putative Father Registry

Arkansas has a putative father registry for possible fathers. Fathers who fail to register may waive the right to notice of any adoption proceedings, and a father who made no effort to ask if the unwed mother was pregnant or had a baby may not be entitled to notice.

2. Procedure for Obtaining Consents

Consent must be in writing, signed by the adult or the guardian ad litem of a minor and may be withdrawn within 10 days after it is signed or the child is born, whichever is later.

3. Withdrawal of Consent

Consent is invalid unless it states the parent has a statutory right of withdrawal of the consent. Notice and hearing must be afforded to the person seeking the adoption, the person seeking withdrawal, and the agency placing the child for adoption.

4. Investigation and Court Approval

The court must approve the adoption, and most states require that an investigation take place regarding the suitability of the proposed adoption. If the minor is being placed with a close relative, the investigation can be waived.

5. Payment of Money Prohibited

A parent or guardian of a minor may not receive a fee, compensation, or any thing of value as consideration for the relinquishment of a minor for adoption. But, adoptive parents may pay to the natural mother incidental costs for prenatal, delivery, and postnatal costs.

6. Governing Standard

The governing judicial standard is the best interests of the child, which may permit adoption by strangers, despite the opposition of a biological parent.

7. Confidentiality of Adoption Proceedings-Sealed Records

In most states, the records of proceedings in adoption cases are sealed, and information contained in them is not available to the public or to adoptees. A small minority of states have passed legislation allowing adopted children to learn the identification of their birth mothers.

D. VIOLATION OF ADOPTION STATUTE

To discourage the "sale" of babies in violation of state laws, most state adoption procedures must be strictly adhered to, and violations are often punishable as crimes.

E. CONSEQUENCES OF ADOPTION

1. Birth Certificates: a decree of adoption results in a new birth certificate for the child, listing the adoptive parents as the child's parents.

2. Rights and Liabilities: the effect of the adoption is to cut off the biological parents' rights and obligations (to visitation and custody, to pay child support) and creates a new set of rights and duties between the adoptive parents and the child as if they were biologically related with the adopted child having the right to inherit from the adoptive parents, and in many states to also inherit from the biological parents, though such inheritances do not often occur.

3. Limitation Period: challenges to adoption, including for fraud or jurisdiction, must be made within one year of the adoption decree.

IX. ALTERNATIVES TO ADOPTION

A. IN GENERAL

Alternatives to adoption are available today and include artificial insemination, surrogacy, in vitro fertilization, and embryo transplantation. With each of these procedures, it is possible that persons other than the intended parents are involved, which, in turn, raises questions as to the rights of the parties. When only the intended parents are involved (i.e., fertilization of a woman's egg by her husband's sperm by any means), there is no problem; they are the child's parents, and no one else has parental rights. However, to deal with the consequences when third parties are involved in the process, the Uniform Status of Children of Assisted Conception Act was promulgated in 1998 and has been incorporated into the Uniform Parentage Act (2000). Most states, however, including Arkansas, have yet to adopt such legislation.

B. STATUS OF CHILDREN

Except as provided with regard to surrogacy arrangements, a child born to a married woman by means of artificial insemination (in which fertilization occurs inside the woman's body by inseminating her mechanically with the sperm of her husband or a donor) is the marital child of the woman and her husband if the husband consents in writing to the artificial insemination; thus, the husband has a duty to support the child, and the sperm donor has no duty to support and no parental rights as to the child.

C. SURROGACY

A surrogate is defined as an adult woman who enters into an agreement to bear a child, conceived through assisted reproduction, for the intended parent(s). Under Arkansas law, a child born by means of artificial insemination to a surrogate mother is the child of: (i) the biological father and the woman intended to be the mother, if the biological father is married; (ii) the biological father only, if he is unmarried; or (iii) the woman intended to be the mother, if an anonymous donor's sperm was used for artificial insemination. No Arkansas statute specifically prohibits payment of money to a surrogate mother who carries the child during pregnancy, but adoption statutes in other states have been interpreted as such.

D. OWNERSHIP OF FERTILIZED OVUM IN VITRO

A cryogenically preserved product of in vitro fertilization is generally referred to as a "frozen embryo." Extensive problems may arise with regard to ownership of a frozen embryo, and resolution of such problems may turn on whether the frozen embryo is viewed as "property" or as a "person."

ARKANSAS FAMILY LAW OUTLINE SUMMARY