Poverty Law Practice Manual Family Law
Contents Marriage ...... 3 Domestic Abuse ...... 6
Divorce ...... 9 Paternity ...... 17 Child Support ...... 19
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and Parental Kidnapping Protection Act (PKPA) 22
A collaboration of Center for Arkansas Legal Services and Legal Aid of Arkansas, Inc. 1-800-9-LAW-AID (1-800-952-9243) | arlegalservices.org | arlegalaid.org
Introduction Welcome to the Poverty Law Practice Manual. This manual is designed to help legal aid and pro bono attorneys better understand poverty law issues in Arkansas. The Center for Arkansas Legal Services and Legal Aid of Arkansas, Inc., maintain this manual. You can learn more about free legal aid in Arkansas by visiting arlegalservices.org.
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______I ______
Marriage ______
Definition Arkansas law defines marriage as a civil contractual relationship between qualified people. A.C.A. § 9-11-101. In 2001, the legislature enacted the Covenant Marriage Act, which allows persons to choose to enter into a more restrictive form of marriage known as a covenant marriage. A.C.A. § 9-11-803. Under a covenant marriage, a party can only seek dissolution of the marriage when there has been a complete and total breach of the covenant commitment. A.C.A. § 9-11-803.
A. Arkansas Requirements 1. Capacity Statutory requirements for marriage are found at A.C.A. §§ 9-11-101 to 221 and 9-11-701 to 706. Marriage is considered a civil contract to which the parties must be capable of consenting to and entering into the marriage contract. A.C.A. § 9-11- 101. Morris v. Morris a. Age 17-year-old males and 16-year-old females are capable of contracting marriage, A.C.A. § 9-11-102(a), but parties under 18 must have consent from their legal custodial parent(s). A.C.A. § 9-11-102(b)(1). The age requirement may be waived if the prospective wife is pregnant, A.C.A. § 9-11-103, but parental consent of each party is required. A.C.A. § 9-11-103(a)(2)(C).
b. Mental Capacity Both parties must be mentally capable of entering into a contract. An intoxicated person or person of unsound mind is not legally capable of marriage. A.C.A. § 9-12-201; Vance v. Hinch, 222 Ark. 494, 261 S.W.2d. 412 (1953); Bickley v. Carter, 190 Ark. 501, 79 S.W.2d 436 (1935).
c. Physical Capacity Both parties must be physically capable of entering into the marriage state. A.C.A. § 9-12-201.
d. Prohibited Relationships Ancestors, descendants, siblings, aunts, uncles, and first cousins are prohibited from marrying. A.C.A. § 9-11- 106(a).
e. Unmarried Persons Only unmarried people, including people whose marriages were ended by divorce or annulment, widows, or widowers, can contract marriage. A.C.A. § 9-12-101. A person becomes divorced and unmarried at the time the divorce is granted not at the time of entry of the decree of record. A.C.A. § 9-11-706.
f. Same Sex Marriage Marriage shall only be between a man and a woman. A marriage between persons of the same sex is void. A.C.A. § 9-11-109.
2. Consent Both parties must consent to the marriage. A.C.A. § 9-11-101. The consent of a party may not be obtained through force or fraud. A.C.A. § 9-12-201. In Shatford v. Shatford, 214 Ark. 612, 217 S.W.2d 917 (1949), the Supreme Court affirmed the annulment of a marriage into which the husband entered based upon false representations by the wife that she was pregnant with his child.
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3. License and Ceremony The parties must apply at a county clerk's office for an Arkansas marriage license. A.C.A. §§ 9-11-201 and 202. Arkansas residence is not required to obtain a license, but all persons planning to marry in Arkansas must obtain their license in this state. A.C.A. § 9-11-202. At the time of application, the parties must pay a license fee ($60.00), sign a "notice of intention to wed," and enter into a bond with the state ($100). A.C.A. §§ 9-11-203, 204, 205 and 210. The license should be returned to the county clerk for recording within sixty (60) days from the date it is issued. A.C.A. § 9-11-218. The marriage is not void if license is not filed. A.C.A. § 9-11-205(g). All marriages must be solemnized by certain public officials, regularly ordained ministers, or in accordance with the traditional Quaker rite. A.C.A. § 9-11-213.
B. Effect of Non-Compliance Introduction Failure to comply with technical requirements of marriage may not have a practical effect and probably will not affect the legitimacy of children born after the irregular marriage. A.C.A. §§ 9-11-205 and 28-9-209. The remedies for non-compliance fall into four categories.
1. Forfeiture of Bond If the marriage license is not duly executed and officially signed by some person authorized by law to solemnize marriage in this state, the bond required by § 9-11-210 shall remain in full force and effect, A.C.A. § 9-11-218.
2. Criminal Sanctions It is a misdemeanor: (a) to marry prohibited relatives and to knowingly perform such ceremonies, A.C.A. § 9-11-106; (b) to fail to comply with the notice-to-wed provisions, §§ 9-11-205 -206; (c) to improperly solemnize or report marriages; or (d) to fail to endorse and return the marriage license, §§ 9-11-216, -217, and -219.
3. Annulment Not all deficiencies in a marriage are grounds for annulment. A.C.A. § 9-12-201 states the grounds for granting an annulment are any of the following: • where one of the parties was incapable from "want of age or understanding" of consenting to the marriage including intoxication from drugs or alcohol • where one of the parties was "incapable from physical cause" • where one party's consent was obtained by force or by fraud
These requirements are discussed in more detail, supra. However, please note that all these conditions must exist at the time of, or in connection with, the parties' entry into marriage. This is contrary to a common misconception that something occurs (or fails to occur) after the marriage ceremony.
The law governing annulment is the law of the state where the marriage is performed and NOT the law where the annulment action is brought. An annulment action is an attack on the parties’ entry into marriage. Feigenbaum v. Feigenbaum, 210 Ark. 186, 194 S.W. 2d 1012 (1946).
In annulment actions, circuit court has jurisdiction, and venue is in the county where the plaintiff resides. The plaintiff has the burden of proving the grounds for annulment. A.C.A. § 9-12-202 and Shatford, supra. A person who continues the marriage relationship after discovering grounds for annulment may be precluded from suing for annulment. Stilley v. Stilley, 219 Ark. 813, 244 S.W.2d 958 (1952).
4. Void Marriage Subject to the Statute of Frauds (see below), a lease agreement may be oral or in writing. Any lease agreement involving direct or indirect federal rent subsidies should always be in writing, and in fact, most such agreements utilize HUD approved form
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5. Divorce Ordinarily, divorce is a remedy for events occurring after the marriage ceremony (only one of the grounds, physical impotence, must exist at the time of the marriage ceremony and at the time of the divorce). A.C.A. § 9-12-301. Divorce is discussed in more detail in the divorce section.
C. Marriages Contracted Outside Arkansas A.C.A. § 9-11-107 states that marriages contracted in accordance with local law in other states or foreign countries are valid in Arkansas.
A number of states recognize common law marriages. These are generally arrangements where a couple lived together (in some states, there is a minimum time period for such cohabitation) and held themselves out as married, despite never having fulfilled formal requirements for marriage. Lester v. Celebrezze, 221 F. Supp. 607 (E.D. Ark. 1963). Arkansas does not recognize common law marriages which were "contracted" within Arkansas but does recognize those which met the requirements of the jurisdiction in which they were contracted. Stilley v. Stilley, 219 Ark. 813, 244 S.W.2d 958 (1952). However, residency in a state in which a common law marriage may be created is necessary for the recognition of the common law marriage. Brissett v. Sykes, 313 Ark. 515, 855 S.W. 2d 330 (1993). Mere visits or sojourns of parties to a common law marriage state are insufficient. Walker v. Yarbrough, 257 Ark 300, 516 S.W. 2d 390 (1974).
Exception: A.C.A. § 9-11-107 “shall not apply to a marriage between persons of the same sex.”
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______II ______
Domestic Abuse ______
A. Dynamics of Domestic Abuse One in four women (25%) has experienced domestic violence in her lifetime (Extent, Nature, and Consequences of Intimate Partner Violence, US Dept. of Justice 2000). Between 600,000 and 6 million women and between 100,000 and 6 million men are victims of domestic violence each year (Intimate Partner Violence, US Dept. of Justice, 2002). At least 1/3 of the females who visit a hospital emergency room are there because of domestic violence (Arkansas Coalition Against Domestic Violence). Lurking behind these numbers is the fact that domestic violence is one of the most under reported crimes in this country.
Domestic violence is not just physical. It includes patterns of forcible control that one person exercises over another. It causes physical harm, arouses fear, makes victims do things that they do not want to do, or stops them from doing things that they want to do. It can be physical, emotional, or sexual; economic abuse; or isolation.
Then there are the silent witnesses: the children. Studies suggest that between 3.3 and 10 million children witness some form of domestic violence annually (Children as witnesses to marital violence: A risk factor for lifelong problems among a nationally representative sample of American men and women, Strauss, M.A. 1992). Those who witness domestic violence are at a higher risk of becoming batterers or victims themselves. In a national survey of American families, 50% of the men who frequently assaulted their wives also frequently abused their children (Physical Violence in American Families: Risk Factors and Adaptations to Violence in 8,145 Families, Strauss, et al. 1990). These children are at a high risk for alcohol and substance abuse, truancy problems, discipline problems, and relationship problems. Children live what they learn and learn what they live. Domestic violence passes from one generation to the next.
Victims of domestic violence come from all walks of life. Women of all races and income are vulnerable to violence by an intimate partner. Domestic violence discriminates against no one. It could be your neighbor, your child’s teacher, the president of the PTA, someone you work with, or someone in your church circle.
To stop this violence, we must all do our part, because domestic violence affects everyone, whether through actual abuse of a friend or family member, the dollars spent for law enforcement, lost work hours, or hospital programs.
B. Why Does the Abused Stay with the Abuser? Many people often ask, “Why do women stay?” It is important to understand that each victim of abuse will have their own list of reasons for staying in a violent relationship. Here is a list of common reasons a victim might stay: • fear of the batterer’s violence: a victim’s chances of being killed or seriously injured increase by 75% when leaving a violent relationship • immobilization by psychological or physical trauma: victims are often too injured or too frightened to tell or escape • connection to the perpetrator through children: some stay in the relationship because of their beliefs and for the sake of their children’s need for a father or because of the abuser’s previous threats to flee with the children, to have the children taken away, or to harm them • belief in cultural, family, or religious values: support systems are not always supportive of a victim leaving the relationship or seeking help; family or religious systems can actually pressure a victim into staying in the violent relationship • continual hope and belief that the violence will end or that the abuser will change: victims believe promises made by the batterer and want the violence to end but do not necessarily want the relationship to end; victims may believe that they have the power to change the relationship for the better • belief batterer will commit suicide or engage in self-destructive behavior: many batterers threaten suicide or use any means necessary to place guilt and worry on the victim
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• lack of funds: it costs approximately $1,500 to set up household in the first month without housing assistance; public housing lists are long, sometimes over six months, and many victims do not qualify • lack of real alternatives for employment and financial assistance: domestic violence is the number one cause of loss of employment to women in the United States
C. Safety Planning Attorneys representing victims of domestic abuse should always discuss safety planning with their clients. A safety plan should include such things as a determination of where your client will go if they have to leave home, a list of neighbors your client can talk to about the violence and ask to call the police if they hear a disturbance, a checklist of safety preparations for leaving their abusive spouse or partner, a checklist covering what your client will need to do to ensure their safety and or their children's safety once they have left their abusive spouse or partner, and what your client should do once they have obtained an order of protection. Sample safety plans are available from the Arkansas Coalition Against Domestic Violence and from Arkansas Legal Service Online, respectively, below: • domesticpeace.com/safety-plan • arlegalservices.org/files/FSSafetyPlanExample.pdf
D. Order of Protection • the petition shall be filed in the county where the petitioner resides, where the alleged incident of abuse occurred, or where the respondent can be served; A.C.A. § 9-15-201 • the petition must be filed with an affidavit made under oath stating specific facts and circumstances of the abuse and state the specific relief sought; A.C.A § 9-15-201 • the court shall issue an ex parte temporary order of protection when the petition alleges an immediate and present danger of domestic abuse and the court finds sufficient evidence to support the petition; A.C.A. § 9-15-206 • persons covered by this act include spouses, former spouses, parents, children, persons related by blood within the fourth degree of consanguinity (generally through great-great-grandparents, great-grandchildren, etc.), persons residing or who have resided together, persons who are cohabiting or have cohabited and persons who have had a child in common or have been in a dating relationship; A.C.A. § 9-15-103(b) • the petition may be filed regardless of whether there is any pending litigation between the parties; A.C.A. § 9-15-201(f) • the petitioner cannot be assessed a filing fee or other costs unless the court determines the allegations of abuse to be false; A.C.A. § 9-15-202 • the petitioner can omit their addresses from all documents filed with the court but must provide the court with mailing address; the court may order disclosure if necessary; in the final order, the petitioner’s home and business address may be excluded from notice to respondent; A.C.A. § 9-15-206(g) • the court shall not deny relief because the abuse did not occur within 120 days of the filing of the petition or because the respondent is incarcerated; A.C.A. § 9-15-214 and 9-15-206(f) • available relief at hearing on the merits include: o exclude respondent from shared residence, place of business, school, or other location of the petitioner or victim o award temporary custody, temporary visitation, child support, or spousal support o direct law enforcement to assist petitioner in gaining possession of the dwelling and other relief as directed by the court o set visitation; award attorney’s fees o prohibit abusing party directly or through an agent from contacting the petitioner or victim, except as ordered o order other relief as the court deems necessary or appropriate for the protection of the petitioner
A.C.A. § 9-15-205.
• violation of an order of protection; it is a Class A misdemeanor to violate the terms of an order of protection; the crime is punishable by up to one-year imprisonment in the county jail or a fine of up to one thousand dollars or both; A.C.A. § 5-53-134; further, upon allegation of violation of an order of protection, a court may issue show cause notices for alleged violations of the court’s order; A.C.A. § 9-15-210 • no mutual orders of protection; a circuit court shall not grant mutual orders of protection to opposing parties unless each party has done or does all of the following: o properly filed and served a petition for a protection order
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o committed domestic abuse as defined in the Act o poses a risk of violence to the other o otherwise satisfied all prerequisites for the type of order and remedies sought
A.C.A. § 9-15-216
1. Time Frames • a hearing must be held within 30 days of the date the petition is filed or at the next court date, whichever is later; if service cannot be had on the respondent within five days of the scheduled hearing, the court may set a new date for the hearing; A.C.A. § 9-15-204 • a hearing must be held within 30 days of the date a temporary order is entered and notice shall be served in compliance with the applicable rules of civil procedure regarding service; A.C.A. § 9-15-206 • a temporary order of protection shall be effective until the date of the hearing described in A.C.A. § 9-15-204; A.C.A. § 9-15-206(c) • a full order of protection shall be granted for not less than 90 days nor more than ten years, and may be renewed at a subsequent hearing upon a finding by the court that the threat of domestic abuse still exists; A.C.A. § 9-15- 205(b) • any order of protection issued by the court may be modified upon application of either party, notice to all parties, and a hearing thereon; A.C.A. § 9-15-209
2. Duties of the Clerk The clerk must provide simplified forms to the petitioner and provide clerical assistance (writing and filing of a petition) to the petitioner if the petitioner is not represented by counsel. A.C.A. § 9-15-203(a). The form of the petition is set forth at A.C.A. § 9-15-203(d).
3. Duties of Law Enforcement Any order of protection is enforceable by any law enforcement agency with proper jurisdiction. A.C.A. § 9-15-207(a). Such an order of protection is then enforceable in every county of this state by any court or law enforcement officer. A.C.A. § 9- 15-207(g). The court may order a law enforcement officer to accompany the petitioner and assist in placing the petitioner in possession of the dwelling or residence, or to otherwise assist in execution or service of the order of protection. A.C.A. § 9- 15-208. An officer may make a warrantless arrest for violation of an order of protection and/or domestic abuse, regardless of whether or not the violation occurred in the presence of the officer. A.C.A. § 16-81-113, § 9-15-207(f). An officer shall not arrest a petitioner for the violation of an order of protection issued against a respondent. A.C.A. § 9-15-207(e).
4. Full Faith and Credit Any order of protection from another state, a federally recognized Indian tribe, or a territory shall be afforded full faith and credit by the courts of this state and shall be enforced by law enforcement of this state. A.C.A. § 9-15-302(a).
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______III ______
Divorce ______
A. Actions for Divorce, Separate Maintenance, and Alimony There are three ways to alter or end a marital relationship: an absolute divorce, a divorce from bed and board, and a separate maintenance. A.C.A. § 9-12-301. An absolute divorce restores unmarried rights and status to the parties, including the right to remarry. Oliphant v. Oliphant, 177 Ark. 613, 7 S.W.2d 783 (1928). A person divorced from bed and board may not remarry because the marriage bond has not been dissolved; it has only been suspended as to cohabitation. Likewise, separate maintenance is not a divorce action and the parties may not remarry.
A divorce action can raise any or all of the following issues: • jurisdiction • venue • grounds for divorce • defenses to divorce • division of real property • division of personal property (including intangible property, such as claims against others, retirement benefits or accounts, stock, bonds, bank accounts, etc.) • the allocation of debt • if there are children born to or adopted by the parties: o custody o visitation o support • alimony (spousal support) • restoration of the wife's maiden name
Divorce from bed and board will adjudicate the possession, but not the ownership, of property.
An action for separate maintenance does not seek a divorce but does adjudicate the rights and obligations of a married couple who are living apart. No grounds need be proven in this action; the plaintiff merely must prove that a separation exists. See Womack v. Womack, 247 Ark. 1130, 449 S.W.2d 399 (1970). Hill v. Rowles, 223 Ark. 115, 264 S.W.2d 638 (1954). Spencer v. Spencer, 275 Ark. 112, 627 S.W. 2d 550 (1982).
An action for separate maintenance can involve all of the issues listed above for a divorce, except: grounds for divorce, defenses to divorce, and restoration of the wife's maiden name. Like a divorce from bed and board, an action for separate maintenance will determine the right of possession of real and personal property, but not ownership.
Divorce from bed and board is rare; separate maintenance is more common. Separate maintenance sometimes is used to adjudicate rights of parties who separate in anticipation of seeking a divorce based upon an eighteen-month separation. It can also be used by a party who does not wish to divorce, for religious or other reasons. The other party can, however, file for absolute divorce once they acquire new grounds after entry of the decree of separate maintenance or following an eighteen- month separation (see II.B.3., Grounds, below).
Arkansas recognizes an independent action for alimony. A.C.A. § 9-12-302; Harmon v. Harmon, 152 Ark. 129, 237 S.W. 1096 (1922). Kesterson v. Kesterson, 21 Ark. App. 287, 731 S.W.2d 786 (1987).
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B. Requirements for Obtaining a Divorce 1. Residence To obtain a divorce, the plaintiff must prove residence in the state, by either the plaintiff or the defendant for sixty (60) days before the commencement of the action, and residence in the state for three (3) full months before the final judgment granting the decree of divorce. A.C.A. § 9-12-307(a)(1)(A). As defined by the statute, “residence” means "actual presence" in Arkansas. A.C.A. § 9-12-307(b). The purpose of this definition included in the statute may be to substitute the concept of residence for the trickier concept of domicile. Wheat v. Wheat, 229 Ark. 842, 318 S.W.2d 793 (1958). Walther v. Walther, 233 Ark. 155, 343 S.W.2d 408 (1961). Since residence is a jurisdictional requirement, failure to satisfy it may make the divorce decree subject to collateral attack.
No divorce decree can be granted until thirty (30) days after the complaint is filed, including cases where the grounds for divorce is eighteen (18) months separation. A.C.A. § 9-12-307(a)(1)(B).
2. Jurisdiction and Venue The circuit courts have jurisdiction for all divorce cases. A.C.A. § 9-12-302. Venue is in the county where the plaintiff lives if the plaintiff is an Arkansas resident. Otherwise the case must be filed in the county where the defendant resides. A.C.A. § 9-12-303(a). The 60-day and three-month requirements of A.C.A. § 9-12-307 are jurisdictional only and do not apply to the issue of venue. Therefore, a plaintiff may move from one Arkansas county to another today and have venue for divorce in the second county today. Bachman v. Bachman, 274 Ark. 23, 621 S.W.2d 701 (1981).
An Arkansas plaintiff may divorce an out of state defendant who has had no contact with Arkansas. However, in such a circumstance, the court only has in rem jurisdiction over the marriage. Because the court’s lack of personal jurisdiction over the defendant, the court cannot apportion marital debt or divide marital property.
3. Grounds Arkansas has only one "no-fault" ground for divorce: 18 months’ separation. A.C.A. § 9-12-301(b)(5). The other grounds require a finding of fault on the part of the defendant which entitles the plaintiff to a divorce. A.C.A. § 9-12-301(b). a. Impotence Impotence must exist at the time of marriage and continue until at least the filing of the complaint. A.C.A. § 9-12- 301(b)(1).
b. Felony Conviction There must be a conviction for a felony or "other infamous crime.” A.C.A. § 9-12-301(b)(2). Felonies are defined in A.C.A. Title 5. There have been no reported Arkansas cases which interpret this ground for divorce.
c. Habitual Drunkenness The defendant must have been addicted to habitual drunkenness for at least one (1) year. A.C.A. § 9-12- 301(b)(3)(A). It is sufficient if the defendant gets drunk "frequently and repeatedly when the opportunity presents itself" or that the defendant lacks the will power to refrain from drinking. O'Kane v. O'Kane, 103 Ark. 382, 147 S.W. 73, (1912).
d. Cruelty The defendant must treat the plaintiff with "such cruel and barbarous treatment as to endanger [the plaintiff's] life." A.C.A. § 9-12-301(b)(3)(B). One single act is sufficient, as in the case of Crabtree v. Crabtree, 154 Ark. 401, 242 S.W. 804 (1922), where the wife slit the husband's throat.
e. General Indignities The "old standby" of divorces in Arkansas is general indignities. They are loosely defined at A.C.A. § 9-12- 301(b)(3)(C) as "such indignities to the person of the other as shall render his or her condition intolerable." A course of offensive conduct is required. Lytle v. Lytle, 266 Ark. 124, 583 S.W.2d 1 (1979). More than one single act is necessary, but an endless number of acts can be held to constitute indignities. A list of indignities is recited by the Arkansas Court of Appeals in Pomraning v. Pomraning, 13 Ark. App. 258, 682 S.W.2d 775 (1985). Personal indignities may consist of rudeness, unmerited reproach, contempt, studied neglect, open insult, and other plain manifestations of settled hate, alienation, or estrangement so habitually pursued as to create that continuously and
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permanently intolerable condition. Id., at 776. (citing Copeland v. Copeland, 2 Ark. App. 55, 616 S.W.2d 773 (1981)). Many lawyers plead general indignities in addition to other grounds, because it is generally proven easily and is usually found less offensive by the opposing party.
f. Adultery Adultery must be committed subsequent to marriage. A.C.A. § 9-12-301(b)(4). To prove adultery, it is not necessary to catch the spouse in the act. Circumstances creating an inference of adultery are sufficient. Gibson v. Gibson, 234 Ark. 954, 356 S.W.2d 728 (1962). However, testimony of the person with whom the adultery was committed is suspect, and a reputation as unchaste is not sufficient proof. Payne v. Payne, 42 Ark. 235 (1883); Poe v. Poe, 93 Ark. 426, 124 S.W. 1029 (1910). Adultery does include marital misconduct on the part of a separated spouse. Milne v. Milne, 266 Ark. 900, 587 S.W.2d. 229 (1979).
g. Eighteen Months’ Separation Parties must be separated for eighteen consecutive months. A.C.A. § 9-12-301(b)(5). Separated includes a requirement that the parties have not engaged in sexual intercourse. Santostefano vs. Santostefano, 712 S.W. 2d 324 (1986) (decided under prior law requiring three years’ separation). In Santostefano, a continuity of separation was found even though the wife had spent four nights at a motel where her husband lived; testimony indicated that the parties stayed in separate rooms and did not have intercourse. Id. at 325. Again, neither party need be determined to be at fault for the separation. Mohr v. Mohr, 214 Ark. 607, 215 S.W.2d 1020 (1948) (decided under a prior three-year separation law). However, the parties must at least be conscious that they are separated. For example, if either is insane or does not understand and realize the fact of separation, this ground does not exist. Bockman v. Bockman, 204 Ark. 891, 165 S.W.2d 256 (1942) (decided under a prior three-year law). In Bockman, the wife expected to move and live with the husband, and the court ruled that this ground was therefore not available to him.
h. Insanity and Separation The parties must be separated for three (3) years because of the incurable insanity of one of them. A.C.A. § 9-12- 301(b)(6)(A). Only specific forms of evidence are admissible to prove insanity. Id. There are very specific rules for service to an insane person. A.C.A. § 9-12-301(b)(6)(C).
i. Nonsupport There must be a legal obligation of support owed by one spouse to the other; an ability to provide that spouse with the common necessaries of life; and willful failure to provide said support. A.C.A. § 9-12-301(b)(7). Oxford v. Oxford, 237 Ark. 384, 373 S.W.2d 707 (1963). For example, just that one spouse works does not show that the other failed to support by their not working.
4. Corroboration A divorce cannot be granted by default judgment. A.C.A. § 9-12-305. Generally, corroborating evidence is required in all divorce cases. A.C.A. § 9-12-306. In uncontested divorces, there must be corroborating evidence of the plaintiff's residence. A.C.A. § 9-12-306(c)(1). In uncontested divorces where the ground for divorce is eighteen months’ separation, there also must be corroborating evidence of the fact and continuity of the separation. Id. In contested divorces, the residence and ground(s) for divorce must be corroborated unless waived in writing by the other spouse. A.C.A. § 9-12-306(b); Gunnell v. Gunnell, 30 Ark. App. 4, 780 S.W.2d 597 (1989).
Corroboration may be submitted in the form of oral testimony or verified affidavit. A.C.A. § 9-12-306(c)(2). However, most judges would prefer that the corroborating testimony be presented in court.
5. Defenses Statutory divorce defenses are found at A.C.A. § 9-12-308. As a practical matter, a defense to divorce can keep a reluctant spouse "married" for another eighteen (18) months, since no grounds must be proved for eighteen (18) months separation; of course, the eighteen (18) months separation must be proven. a. Condonation One party must act in a way that shows forgiveness of the others marital misconduct. The court may rule such conduct condones the grounds for divorce, and thus, those grounds are waived and unusable. Continuing to live together after knowledge of the misconduct is a frequent basis for condonation. Weber v. Weber, 256 Ark. 549,
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508 S.W.2d 725 (1974). In Shirey v, Shirey, 87 Ark. 175, 112 S.W. 369 (1908), the court held that a single act of sexual intercourse was sufficient. However, intercourse need not occur at all. Bush v. Bush, 135 Ark. 512, 205 S.W. 895 (1918).
b. Recrimination Recrimination is the equitable "clean hands" doctrine applied to divorce actions. Narisi v. Narisi, 229 Ark. 1059, 320 S.W.2d 757 (1959). The effect of this doctrine is that since both parties are guilty of wrong-doing, neither can obtain a divorce. However, in Posey v. Posey, 268 Ark. 894, 597 S.W.2d 834 (1980), the Court of Appeals stated that the doctrine of recrimination should only be applied where both parties are equally at fault. See also Weber v. Weber, 256 Ark. 549, 508 S.W.2d 725 (1974). Also, the recrimination doctrine does not apply where eighteen (18) months’ separation is the ground for divorce. A.C.A. § 9-12-301. See Young v. Young, 207 Ark. 36, 178 S.W.2d 994 (1944).
c. Collusion This doctrine prevents parties from collaborating to create grounds divorce. Davis v. Davis, 270 Ark. 180, 603 S.W.2d 900 (1980). Therefore, an admission of the plaintiff's grounds for divorce in the defendant's answer might lead the court to find collusion.
C. Obtaining Relief in the Divorce Action 1. Temporary Relief In addition to the dissolution of the marital relationship, the court may award relief as requested depending on the circumstances.
The circuit court may grant ex parte relief upon proper proof. Since the rules of civil procedure apply in divorce cases, it would seem the appropriate standard would be found in ARCP Rule 65. However, this criterion is not rigidly followed and practice varies by judicial district.
A temporary hearing may be requested in the initial divorce complaint or by contemporaneous motion. The court may set a temporary hearing without waiting for the opposing party to respond to the complaint or the motion; in this sense it is ex parte. However, the hearing itself is not ex parte since notice has been provided to the opposing party and generally each side will appear and offer evidence.
At a temporary hearing the court may make a decision on alimony, custody and visitation, child support, possession of the marital home and other assets, and arrangement for payment of certain joint debts. The supreme court has promulgated an Affidavit of Financial Means, for use in divorce cases involving child support. Normally, the court makes initial support determinations after examining the financial affidavits from both parties. Attorney fees may also be awarded. A.C.A. § 9-12- 309. Courts may, and many do, limit the number of witnesses and place time limits on the parties for presenting evidence.
2. Restraint of Parties Many chancellors have adopted standard standing mutual restraining orders which take effect as to the plaintiff when the case is filed and as to the defendant upon service. When a mutual restraining order is not automatically issued, an application can be made for a restraining order pursuant to ARCP Rule 65. Such a restraining order can be granted ex parte or after a temporary hearing.
A final decree may contain what amounts to a permanent injunction against one or both of the parties to restrain them from certain conduct.
If physical abuse is present, the attorney should consult with the client and consider petitioning for an order of protection in addition to a restraining order. Orders of protection provide significantly more enforcement power and may be brought regardless of any other pending litigation.
3. Child Custody and Visitation The court may determine the custody, visitation, and support of the parties' children, whether born during or before their marriage. A.C.A. § 9-12-312.
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If the child is born before the marriage, the mother has legal custody of the child unless or until a court of competent jurisdiction enters an order placing custody with another person. A.C.A. § 9-10-113. If the child is born during the marriage, the husband is generally presumed to be the father of the child. However, legislation has almost eliminated all vestiges of the common law presumption and evidentiary hurdles known as Lord Mansfield's Rule. While a child born during a marriage is still presumed to be the issue of the husband, either party may challenge that presumption by their own testimony, the testimony of the spouse, and other proof, including blood analysis. A.C.A. §§ 16-43-901, 9-10-108. Further discussion of paternity is found below (see IV).
Arkansas law provides that custody of a child should be awarded to a parent based on the best interest of the child without regard to the sex of the parent. A.C.A. § 9-13-101. This code provision effectively abrogated the common law tender years doctrine which favored the mother in cases where the child was young, and gender-oriented rules favoring fathers for boys and mothers for girls.
Continued contact with both parents is in the child’s best interest and the court should consider which parent would best provide such continued contact A.C.A. § 9-13-101(b)(1).
Domestic abuse against any family member must be a factor in determining best interest of the child, even if the abuse was to the spouse and not specifically to the child or in front of the child. A.C.A. § 9-13-101. In particular, there is a "rebuttable presumption that it is not in the best interest of the child to be placed in the custody of an abusive parent in cases where there is a finding by a preponderance of the evidence that a pattern of abuse has occurred." A.C.A. § 9-15-215.
There are many factors considered by the court in determining the child's best interests: Character This includes general factors about a party's character such as honesty, a caring attitude, a stable work record, and a good reputation. Specific character negatives (or perceived negatives), if they are of sufficient weight, may result in one parent losing custody even if many other positive factors exist. A parent who either abuses alcohol, uses drugs, has a criminal record (of a serious nature), or has been accused of child abuse has an uphill road to gain custody. Remember that character determinations are subjective, and the biases and background of the court are significant factors to weigh in evaluating the strength of a custody case. For example, one judge’s decision was upheld when he changed custody because of the mother's ongoing relationship with a married man. The judge determined such conduct to be immoral and a bad example for her children. Nix v. Nix, 17 Ark. App. 219, 706 S.W. 2d 403 (1986).
Environment The physical surroundings in which a child will be placed also are considered and the court may order home studies of the parties' residences. However, even though the home environment and physical surroundings of one parent may be better than the other parent, this factor is not determinative. Milum v. Milum, 49 Ark. App. 3, 894 S.W.2d 611 (1995). In Milum, the judge was upheld when she gave more weight to the primary caretaker status of the parties rather than their relative material circumstances. In addition to the physical structure of a dwelling, the surrounding neighborhood, and the interior furnishings of a home, the court also will consider the identity of other persons living in the home. The relationship between the parent, the child, and the other persons occupying the home will be subject to scrutiny. The presence of a live-in boyfriend or girlfriend usually is considered a negative factor by the court.
Economics The parties' relative financial conditions are evaluated for ability to meet the child's needs. Although it is within the authority of the court to order child support and or spousal support, as well as apportion debts, one party's financial condition relative to another should not be considered a determining factor.
Child's Preference The older the child, the more weight will be given by the court to their preference for custody. DeCroo v DeCroo, 266 Ark. 275, 583 S.W.2d 80 (1979). Most judges have conceded that a teenager's preference should prevail. However, when children do testify in custody proceedings, many judges prefer for the testimony to be in chambers or in a courtroom cleared of the parents and spectators such that only attorneys are present.
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Maintaining Children Together In cases with two or more children, the court will attempt to keep the children together. Ketron v Agyirre, 15 Ark. App. 325, 692 S.W.2d 261 (1985). However, if it is in the best interest of the children, custody of young siblings may be split even absent exceptional circumstances. Riddle v. Riddle, 28 Ark. App. 344, 775 S.W. 2d 513 (1989). In Riddle, the court upheld the decision dividing custody of half-brothers.
As between a parent and third party, there is a legal preference for the parent "unless the parent is incompetent or unfit." Perkins v. Perkins, 266 Ark. 957, 589 S.W.2d 588, cert. denied, 267 Ark. 112, 589 S.W.2d 29 (1979). However, the preference to keep a child with their biological parent is not an absolute. The overwhelming controlling factor is the best interest of the child. Freshour v. West, 334 Ark. 100, 971 S.W.2d 263 (1998).
In the appropriate case, the court may provide for joint or split custody. Drewry v. Drewry, 3 Ark. App. 97, 622 S.W.2d 206 (1981). However, a joint custody arrangement must be in the child's best interest, or it can be overturned. Hansen v. Hansen, 11 Ark. App. 104, 666 S.W. 2d 726 (1984). Among the factors assessed in upholding joint custody arrangements are: the geographical proximity of the parents, and the emotional attitudes and level of cooperation between them. In addition, the more consistency there is between the two parents regarding the child's environment, friends, school, and discipline, the more likely it will be that the joint custody award will be upheld.
4. Visitation The noncustodial parent is usually awarded reasonable visitation rights with the child. If the parties are particularly amicable, the court may leave it with the parties to work out the details. In most cases, however, courts set out specific visitation rights in the decree. The Domestic Relations System published by the Arkansas Bar Association contains a visitation chart adopted by many courts.
In cases where there has been domestic abuse, it is generally advisable for the victim to seek as much specificity as possible when setting the visitation schedule. The more specific the visitation schedule, the easier it will be to prove contempt against the other parent. Times of pick up and drop off, days of weekend visitation, specific holidays, and specific weeks of summer visitation should be spelled out clearly so that a law enforcement officer could help a person retrieve a child from a parent who refuses to return the child from visitation.
Finally, if domestic abuse was present in the case, the family usually benefits from public exchange of the child for visitation purposes. Arkansas specifically addresses the issue of exchanging visitation on school property in A.C.A. § 9-13-104. The statute allows one parent to drop off the child in the morning and one to pick up in the afternoon. It does not allow exchange of the child with both parents present at the same time. Police stations and courthouses provide the most security but could be frightening to a small child. Fast food restaurants also provide a place for public exchange and might be less intimidating to a child.
When necessary, visitation may be restricted, supervised, or, upon exceptional circumstances, suspended or terminated. Typically, the circumstances include proof of child abuse or threats to remove the child from the state. See Gideon v Gideon, 268 Ark. 873, 596 S.W.2d 367 (1980); Lumpkin v Gregory, 262 Ark. 561, 559 S.W.2d 151 (1977); A.C.A. § 9-13-101 et seq.
5. Alimony Arkansas authorizes an independent action for alimony, or alimony may be ordered in connection with a divorce case where appropriate. A.C.A. §§ 9-12-302; 9-12-312. Some of the factors considered in awarding alimony are: (1) the parties' financial conditions, including the payor's ability to pay and the financial needs and payee's ability to work; (2) the style of living to which the parties are accustomed; and (3) the character of the parties as it bears on the cause of separation. Stevens v. Stevens, 271 Ark. 248, 608 S.W.2d 17 (1980); Sutton v. Sutton, 266 Ark. 451, 587 S.W.2d 67 (1979). (But see, Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982), where marital misconduct was not considered in determining alimony.) In Jones v. Jones, 22 Ark. App. 267, 739 S.W. 2d 171(1987), the court of appeals ruled that the need of the spouse seeking alimony and the ability of the other spouse to pay it are the primary factors to be considered. Fault of either party is not relevant unless it is related to the ability to pay. Murphy v. Murphy, 302 Ark. 157, 787 S.W. 2d 684 (1990); Burns v. Burns, 312 Ark. 61, 847 S.W.2d (1993). Gender is never a consideration in awarding alimony. Unless otherwise ordered by the court or agreed on by the parties, alimony shall automatically cease upon (1) the date of remarriage of the person receiving
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alimony, or (2) the establishment of a relationship producing a child in which a court (a) grants the recipient of alimony child support or (b) orders the recipient of alimony to pay support to another person, whichever is earlier. A.C.A. § 9-12-312(a). See Smith v. Smith, 41 Ark. App. 29, 848 S.W.2d 428 (1993).
A winning combination in obtaining an award of alimony might include the following facts: a relatively long marriage, a spouse who quit working (even better if done at the request of the other spouse), a spouse who became totally dependent economically on the other spouse and lost job skills as a result of the marriage, and a fairly prosperous payor spouse. Even given this perfect fact situation, courts are likely to order only a short-term period of alimony to permit the dependent spouse time for rehabilitation for re-entry into the job market.
6. Property and Debts For most practical purposes, Arkansas is a community property state when it comes to dividing property in a divorce case. A.C.A. § 9-12-315. Under Arkansas law, there are two types of property implicated during a divorce: separate property, which goes to the spouse who owns it, and marital property, which is divided equally between the parties.
“Separate property” includes (1) property owned by one spouse before the marriage, including property acquired by gift, devise, or descent; (2) property acquired in exchange for either of these kinds of property; (3) property acquired by one spouse after a divorce from bed and board; (4) property the parties validly agree to divide; (5) the increase in value of property acquired before marriage or by gift, bequest, devise, or descent, or in exchange therefor; (6) benefits received or to be received from a claim for workers' compensation, personal injury, or Social Security when those benefits are for any degree of permanent disability or future medical expenses; and (7) income from property owned prior to the marriage, or from property acquired by gift, bequest, devise or descent, or in exchange therefor. Note that Social Security Disability Benefits are considered separate property.
All other property is marital property and one-half goes to each party regardless of whose name it is in. However, the trial court may otherwise dispose of marital property if it finds that some other division of the property is equitable taking into account the nine factors listed in A.C.A. § 9-12-315(a)(1)(A). If the court makes any division other than one-half division of marital property or a return of separate property to its owner, the court must state its reasons in the order. A.C.A. § 9-12- 315(a)(1)(B). Note that pension benefits are considered marital property and subject to division by the court. Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984); Brown v. Brown, 38 Ark. App. 99, 828 S.W.2d 629 (1991). However, the pension rights must be vested to be considered marital property. Durham v. Durham, 289 Ark. 3, 708 S.W.2d 618 (1986).
The court has authority to apportion debts made during the marriage but is not required to do so. The court must, however, consider debts in deciding alimony, child support, and possibly property division. Hackett v. Hackett, 278 Ark. 82, 643 S.W.2d 560 (1982), but see the Appendix to Title 9: Guidelines for Child Support Enforcement.
7. Name Change The court may, in any divorce decree, restore to the wife the name she had before the marriage. A.C.A. § 9-12-318.
8. Parenting Classes and Mediation When the parties to a divorce have minor child residing with one (1) or both parents, the court may require the parties to complete at least two (2) hours of classes concerning parenting issues faced by divorced parents, or submit to mediation also focusing on parenting, custody, and visitation issues. A.C.A. § 9-12-322. Each party is responsible for their cost of attending classes or mediation. A.C.A. § 9-12-322(b).
9. Cost and Attorney Fees The court has the power to award costs and reasonable attorney fees in a divorce case, including expert witness fees, and may grant judgment for which garnishment, execution, or other process may issue to recover the amount awarded. A.C.A. § 9-12-309. The court may also award additional attorney's fees for the enforcement of alimony, maintenance, and any other support provided for in the decree. A.C.A. § 9-12-309(b).
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10. Child Support Under Arkansas law, both parents have a duty to support their children. Barnhard v. Barnhard, 252 Ark.167, 477 S.W.2d 845 (1972). The court will order the non-custodial parent to make periodic payments in a specific amount for the child's support. A.C.A. § 9-14-106. However, child support and custody may always be modified by the court. Hitt v. Maynard, 265 Ark. 31, 576 S.W.2d 211 (1979). Child support will be dealt with in more detail below.
11. Settlement Agreements Settlement agreements may be beneficial for several reasons. First, the parties know their situation and desires much better than a judge. Second, the divorce may be finalized more quickly if a settlement has been reached since most courts have some expedited procedure for hearing uncontested matters. Third, the parties can achieve results that would not be possible if the court simply entered a decree, such as the education of a child beyond the age of majority. Armstrong v. Armstrong, 248 Ark 835, 454 S.W.2d 660 (1970). See Arkansas Bar Association, Domestic Relations Handbook, Ch. 9 (1992).
However, the court is not bound by the agreement of the parties and may refuse to approve it. McCue v. McCue, 210 Ark. 826, 197 S.W.2d 938 (1946). If the court does not approve a settlement reached by the parties, the court may not be able to modify the settlement at a later time if the settlement constitutes a separate and independent contract. Armstrong v. Armstrong, 248 Ark. 835, 454 S.W.2d 660 (1970); Bachus v. Bachus, 216 Ark. 802, 227 S.W.2d 439 (1950). But if the agreement has merged with the decree, the court may modify the agreement under the proper circumstances. Seaton v. Seaton, 221 Ark. 778, 255 S.W.2d 954 (1953). One way to ensure that the provisions of a settlement agreement will be subject to later modification may be to enter into a consent decree rather than a separate agreement.
Note that agreements not to pursue support for the child are automatically void as against public policy. Paul M. v. Teresa M., 36 Ark. App. 116, 818 S.W.2d 594 (1991). Agreements to refrain from seeking an increase or decrease in the support obligation are also void as against public policy. Crow v. Crow, 26 Ark. App. 37, 759 S.W.2d 570 (1988).
If the court does approve a settlement, the agreement should be in writing to ensure enforcement. A.C.A. § 9-12-313. If real property is involved in the agreement, the agreement must be filed and recorded with the divorce decree. A.C.A. § 9-12- 316.
Property settlement agreements may be enforced in the same way as court orders, although the court may decline to use its contempt power in some cases. Armstrong v. Armstrong, 248 Ark. 835, 454 S.W.2d 660 (1970). In addition, a party to a separate, independent contract may also have a remedy at law. Seaton v. Seaton, 221 Ark. 778, 255 S.W.2d 954.
12. Post-Decree Relief Relief from a decree can be obtained by a successful appeal or from the granting of a motion filed in accordance with A.R.C.P. Rules 59 or 60. Assuming the decree is satisfactory, efforts to enforce the decree usually take the form of a contempt action. A Motion to Show Cause and an Order are included in the section on forms.
Efforts to modify the decree, such as the custody provisions, generally require proof of a material change in circumstances since entry of the original decree. A.C.A. § 9-12-314; Stamps v. Rawlins. 297 Ark. 370, 761 S.W.2d 933 (1988). As to child support, the legislature has determined, in dollar and percentage amounts, the changes in income sufficient to petition the court for review. A.C.A. § 9-14-107. Note that a change in the noncustodial parent's health insurance status can constitute a material change of circumstance for modifying child support. A.C.A. § 9-14-107(b)(1). Whether the amount of alimony awarded can be modified turns on the nature of the agreement between the parties and how it was presented to the court. Shipley v. Shipley, 305 Ark. 257, 807 S.W.2d 915 (1991).
Should both parties move into another judicial district, A.C.A. § 9-12-320 outlines the procedure for transfer of the case. Six (6) months must pass after entry of the decree before this code provision may be used. If the parties reconcile but do not wish to remarry, the divorce decree may be annulled by the filing of a joint petition with the court which entered the decree. A.C.A. § 9-12-321. However, the court does not have to grant the petition. Dunn v. Dunn, 222 Ark. 85, 257 S.W.2d 283 (1953).
Although technically not post-decree relief, a spouse may sue a former spouse for torts committed during the marriage, even if the same acts served as the basis for the divorce. Cater v. Cater, 311 Ark. 627, 846 S.W.2d 173 (1993).
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______IV ______
Paternity ______
A. Jurisdiction and Venue A paternity issue arising in the context of a pending case can be adjudicated by the circuit judge, and a paternity issue arising in the context of a juvenile proceeding can adjudicated by the juvenile judge. A.C.A. § 9-27-342. Jurisdiction over out-of-state defendants can be obtained in accordance with A.C.A. § 9-14-101. The Uniform Interstate Family Support Act provides other mechanisms for exercising extended personal jurisdiction over non-residents. A.C.A. § 9-17-201.
The action should be filed in the county where the plaintiff resides or in cases involving a juvenile, the county where the juvenile resides. A.C.A. § 9-10-102(c). The Arkansas Rules of Civil Procedure apply to paternity actions. A.C.A. § 9-10-102(a). See A.C.A. § 9-10-102 (amended by Act 539 of 1999) for cases involving transfers of post judgment paternity orders.
Administrative Paternity Testing Orders A.C.A. § 9-10-103 (1997) created a mechanism for the Office of Child Support Enforcement (OCSE) to do Paternity testing in an administrative setting. The statute sets out various guidelines and procedures for OCSE to require parties to submit to paternity testing. Should the testing prove 95% accurate then the OCSE “shall file a complaint for paternity and support in the chancery court” A.C.A. § 9-10-103 (b)(6). The initial cost of the testing is paid by OCSE., A.C.A. § 9-10-103 (b)(4).
There is no statute of limitation for the filing of paternity actions. A.C.A. § 9-10-102 provides a paternity action may be brought at any time. There may be a limitation on the period for which retroactive support may be recovered after paternity is established. Winston v. Robinson, 270 Ark. 996, 606 S.W.2d 757 (1980), but cf. A.C.A. § 9-10-111(a) and Green v. Bell, 308 Ark. 473, 826 S.W.2d 226 (1992).
B. Proper Parties A.C.A. § 9-10-104 itemizes who has standing to file an action to establish paternity. The suit may be brought by the biological mother, putative father, the child (presumably through a guardian or next friend if the child is not an adult), and the Office of Child Support Enforcement (OCSE). A child cannot bring a paternity action against the same defendant after the mother has unsuccessfully done so. Department of Human Services ex rel. Davis v. Seamster, 36 Ark. App. 202, 820 S.W.2d 298 (1991). The Arkansas Court of Appeals has stated that the defendant in a paternity action does not have a right to appointed counsel. Burrell v. Arkansas Department of Human Services, 41 Ark. App. 140, 850 S.W.2d 8 (1993).
C. Proof The plaintiff's burden of proof in a paternity action is preponderance of the evidence. Stewart v. Winfrey, 308 Ark. 277, 824 S.W.2d 373 (1992); Erwin L.D. v. Myla Jean L., 41 Ark. App. 16, 847 S.W.2d 45 (1993). Traditionally, the mother's testimony, admissions of the defendant, and circumstantial evidence, such as gifts or support from the defendant and his other conduct toward the child, are relied upon in deciding paternity. A.C.A. § 9-10-108(b) provides that the appearance of the defendant's name on the child's birth certificate, with his consent or registration with the Putative Father Registry pursuant to A.C.A. § 20- 18-702, constitutes a prima facie case of establishment of paternity, shifting the burden of proof to rebut paternity to the defendant. A.C.A. § 9-10-120 states in part, “A man is presumed to be the father of a child for all intents and purposes if he and the mother execute” an acknowledgment of paternity. Further, A.C.A. § 9-10-120(b)(1) states that said acknowledgment “shall by operation of law constitute a conclusive finding of paternity... and shall be recognized by the court...as creating a parent and child relationship.”
A paternity action is generally decided by the results of scientific tests and analysis. DNA samples are taken from the mother, child, and the putative father, and submitted to experts for analysis. A.C.A. § 9-10-108 outlines the procedures that should be followed for the test analysis to be admissible as evidence in the paternity trial. The test may be ordered upon motion of either party and performed by experts appointed by the court (see Form 23). A denial of scientific testing to an indigent defendant
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because of his inability to pay for the testing may be a denial of due process. Little v. Streater, 452 U.S. 1 (1981). Failure by a party to cooperate can be disclosed to the court (no doubt to constitute a negative inference) and punished by civil contempt. The expert(s) who conducted, supervised, or directed the testing shall prepare a written report, certified by affidavit, as to the results. This report may be introduced as evidence at the trial. Any party wishing to call the expert as a witness must file a motion challenging the report thirty (30) days before trial and post a bond in an amount sufficient to pay the costs of the expert appearing at the trial. Since this process is an intentional short-cut for proving paternity, the courts have required strict adherence to the code provisions. Boyles v. Clements, 302 Ark. 575, 792 S.W.2d 311 (1990); Ross v. Moore, 30 Ark. App. 2007, 785 S.W.2d 243 (1990); Tolhurts v. Reynolds, 21 Ark. App. 94, 729 S.W.2d 25 (1987).
If test results indicate a probability of ninety-five percent (95%) or greater that the defendant is the father of the child in question, and the mother testifies to access during the probable period of conception, a prima facie case of paternity has been made and the burden of proof shifts to the defendant to rebut paternity. A.C.A. § 9-10-108(a)(4). Scientific tests that exclude other persons may also be admissible in the trial. A.C.A. § 9-10-108(a)(7).
D. Available Relief 1. Name Change If paternity is established, the child will obtain a legal father. The mother may secure an amended birth certificate reflecting the father's name from the Arkansas Division of Vital Statistics upon submitting a certified copy of the paternity judgment, completing an additional form prescribed by the Division, and payment of a nominal fee. For children born outside Arkansas, the appropriate state agency must be contacted for information as to how to obtain an amended birth certificate.
2. Child Support and Visitation The court will also order the defendant to pay a sum in child support on a regular periodic basis. The court uses the same guidelines and procedures in determining support as if the child were born of a marriage. A.C.A. § 9-10-109, Paul M. v. Teresa M., 36 Ark. App. 116, 818 S.W.2d 594 (1991). Agreements not to pursue support for the child are void as against public policy. Paul M. v. Teresa M., supra; Erwin L.D. v. Myla Jean L., 41 Ark. App. 16, 847 S.W.2d45 (1992). The defendant will generally be awarded visitation rights with the child. A.C.A. § 9-10-114. However, a non-custodial parent's right to visitation and the custodial parent's right to child support are not dependent upon each other. The custodial parent cannot withhold visitation because the non-custodial parent has failed to make child support payments. Paternal grandparents may also be awarded visitation rights. A.C.A. § 9-13-103, Rudolph v. Floyd, 309 Ark. 514, 832 S.W.2d 219 (1992).
A.C.A. § 9-10-113(a) provides that the mother of a child born out-of-wedlock is the legal custodian of the child unless a court determines otherwise, or the child reaches the age of eighteen (18). The biological father cannot obtain custody until he has formally been adjudicated as the father, fulfilled his duties as a parent regarding support, and demonstrated that it is in the best interest of the child that he be given custody. A.C.A. § 9-10-113(b) and (c), Freshour v. West, 334 Ark. 100, 971 S.W.2d 263 (1998). However, it is at best unclear how this statute and surrounding case law are affected by A.C.A. 9- 10-120 which states in part, “A man is presumed to be the father of a child for all intents and purposes if he and the mother execute” an acknowledgment of paternity. Further, A.C.A. § 9-10-120(b)(1) states that said acknowledgments “shall by operation of law constitute a conclusive finding of paternity...and shall be recognized by the court...as creating a parent and child relationship.” There is no case law on these conflicting statutes and individual judges have come down on both sides of the issue.
3. Lying-In Expenses, Retroactive Support, Fees, and Costs The mother shall recover lying-in expenses if claimed A.C.A. § 9-10-110. The mother may also recover retroactive support in an amount in the discretion of the court, though for how long a period is unclear. A.C.A. § 9-10-109(a); Green v. Bell, 308 Ark. 473, 826 S.W.2d 226 (1992). The mother may also recover court costs and attorney's fees. Id.
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______V ______
Child Support ______
A. Proper Parties and Pleading Requirements Child support should be awarded to the custodial parent as a part of the relief granted in divorce and paternity cases. In addition, the legislature has expressly authorized a cause of action for child support independent of any other action. A.C.A. § 9-14- 105(b). Basically, any person who has obtained physical custody lawfully can file an action. The Office of Child Support Enforcement may file an action when the custodian receives public assistance, A.C.A. §§ 20-76-410 and 20-77-109, or has contracted for child support services. The custodian need not have legal custody of the child to file a petition and does not have to be related to the child.
A parent cannot agree to barter away permanently the child support obligation. Storey v. Ward, 258 Ark. 24, 523 S.W.2d 387 (1975). Agreements to refrain from seeking an increase or decrease in the obligation are void as against public policy. Crow v. Crow, 26 Ark. App. 37, 759 S.W.2d 570 (1988).
A.C.A. § 9-14-205 requires that all cases where the support and care of children are involved include the following in the complaint, responsive pleading, motion to modify, and decree: (1) the addresses of the parties, (2) the name and address of their employers; and (3) their social security numbers.
Before an order is entered, both parties shall notify and update the clerk or clearinghouse when changes occur of all the above information, their telephone number, their driver’s license number, their actual address, or their mailing address. A.C.A. § 9-14- 205(b).
The Affidavit of Financial Means shall be used in all family support matters. The trial court shall require each party to complete and exchange the Affidavit of Financial Means prior to a hearing to establish or modify a support order. The parties should exchange the Affidavit of Financial Means in sufficient time to allow the other party to review it and conduct discovery if necessary.
B. Determination of Support Amount Arkansas law requires that in determining the appropriate amount of child support to be paid by the non-custodial parent, the court must refer to the family support chart adopted by the Arkansas Supreme Court. A.C.A. §§ 9-12-312(a)(2); 9-10-109(a); 9- 14-106(a)(1)(B); In Re: Child Support Enforcement Guidelines, 331 Ark Appx. (Jan. 22, 1998) S.W.2d. Reference to the chart is mandatory and it establishes a rebuttable presumption that the support indicated is proper. Schumacher v. Schumacher, 66 Ark. App. 9, 986 S.W.2d 883 (1999). Deviations from the chart must be justified by written findings as to why the chart amount would be unjust or inappropriate. A.C.A. § 9-14-106(a)(1)(C); Black v. Black, 306 Ark. 209, 812 S.W.2d 480 (1991); Cochran v. Cochran, 309 Ark. 604, 832 S.W.2d 252 (1992). The guidelines for using the chart and factors determining child support are set out in the Arkansas Supreme Court's per curiam opinion. To modify a support order, the moving party must show a material change in circumstances. McKiever v. McKiever, 305 Ark. 321, 808 S.W.2d 328 (1991). In this regard, A.C.A. § 9-14-107 provides that a change of 20% or more than $100 per month in the non-custodial parent's income is sufficient to demonstrate a material change in circumstances. See the link below for the most recent Child Support Guidelines: • arlegalservices.org/node/913/child-support-amounts-and-resources
Child support payments should be made through the clerk's office unless the recipient child is receiving or has received benefits under title IV-D of the Soc. Sec. Act (welfare such as Medicaid or TEA assistance). All such payments must be paid through the Child Support Clearinghouse. The clerk shall assess an annual fee of $36 or $9 per quarter year at the option of the payee. A.C.A. § 9-12-312(e). The clerk or clearinghouse must maintain accurate records of all support payments, A.C.A. § 9-12-312(f). See link below for OCSE Web Pay: ark.org/mycase/. OCSE Web Pay also offers a secure method to submit support payments using a credit card or electronic check.
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C. Enforcement of the Support Order Contempt The traditional method for enforcement of a support order is the contempt action. Basically, the moving party must prove that the opposing party had the capability of paying support and willfully refused to do so. The court may find the offending party guilty of either civil or criminal contempt and order the party incarcerated.
Income Withholding A.C.A. § 9-14-218 directs that all decrees or orders providing for child support include a provision for income withholding equal to the support ordered, plus an additional amount not less than twenty percent (20%) of the ordered amount to apply to any support arrearage. All support orders must provide for immediate income withholding, absent good cause not to do so or the written agreement of the parties incorporated in the order or decree. A.C.A. § 9-14-218(a). There are special provisions for cases involving the Office of Child Support Enforcement, which handles cases brought pursuant to Title IV-D of the Social Security Act. The procedures for implementation of income withholding are set out in A.C.A. §§ 9-14-221 to 229.
Lien on real and personal property. Past due and unpaid child support that was ordered paid through the registry of the court or clearinghouse constitutes a lien on real and personal property owned by the obligated party. A.C.A. §§ 9-14-230 and 231. The property may be foreclosed upon or seized and sold, A.C.A. § 9-14-230(c)(3); A.C.A. § 9-14-231(a)(2).
Other Collection Methods Income withholding may be implemented against unemployment compensation benefits within the framework of A.C.A. § 9-14- 227, and against workers’ compensation benefits, A.C.A. § 11-9-110. A.C.A. § 9-14-239 authorizes suspension of drivers and professional licenses of noncustodial parents who are either delinquent on support or who are subject to a warrant or body attachment in a child support proceeding. The Office of Child Support Enforcement is authorized to notify the appropriate agencies to suspend licenses when the noncustodial parents have failed to work out a payment plan or other arrangements deemed satisfactory by OCSE. There are other collection methods available only to the OCSE, such as interception of state and federal tax refunds.
Limitation on Recovery of Past Due Support A.C.A. §§ 9-12-314 and 9-14-234 provide that past due and unpaid child support ordered paid through the registry of the court or clearinghouse shall constitute final judgments as to amounts unpaid. Private agreements to the contrary cannot be recognized by the court for support payments due after the effective date of the code provisions. Sullivan v. Edens, 304 Ark. 133, 801 S.W.2d 32 (1990). In 1989, the legislature amended A.C.A. § 9-14-236 to extend the limitations period to ten (10) years. In Johnson v. Lilly, 308 Ark. 201, 823 S.W.2d 883 (1992), the court held that the legislature could not revive a cause of action already barred under a previous statute of limitation. A.C.A. § 9-14-236 was amended again in 1991 to provide that the entire child support arrearage back to the initial support order may be recovered. The action may now be brought at any time up to and including five years beyond the date that the child turns 18. If the party leaves Arkansas to avoid paying child support, no statute of limitations applies. However, the rationale of the Johnson case would preclude recovery of sums more than five years past due as of the effective date of the 1989 amendment. Moreover, the child to whom the support was owed is also precluded from recovery of unpaid support by the same rationale, even though the arrearage accrued during the child's minority. Chunn v. D'Agostino, 312 Ark. 141, 847 S.W.2d 699 (1993).
There may also be equitable defenses to recovery, based on the doctrines of waiver and estoppel. Roark v. Roark, 34 Ark. App. 250, 809 S.W.2d 822 (1991); Arkansas Dept. of Human Services v. Cameron, 36 Ark. App. 105, 818 S.W.2d 591 (1991). However, the continuing validity of both these cases may be questioned, see State v. Robinson, 311 Ark. 133, 842 S.W.2d 47 (1993); Burnett v. Burnett, 313 Ark. 599, 855 S.W.2d 952 (1993).
Interstate Enforcement Arkansas has adopted the Uniform Interstate Family Support Act, which prescribes procedures for enforcement of child support orders originating in another state. See A.C.A. §§ 9-17-101 to 9-17-902.
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Termination of Support Obligation The child support obligation terminates when all children for whom the support was ordered die, become emancipated, or reach the age of majority. The court can provide for support of children over 18 who are still in high school until graduation, conditioned on the child remaining in school. The court also can order support continued for a child over 18 who has a handicapping condition affecting their ability to live independently. A.C.A. §§ 9-12-312(a)(5); 9-10-109(a)(1).
If support was initially ordered for two (2) or more children, the support does not decline pro rata as the children reach 18 and the obligor must move the court for a modification. Arkansas Dept. of Human Services v. Porter, 306 Ark. 190, 810 S.W.2d 949 (1991). The custodian is entitled to judgment for all sums due and unpaid under the order until the motion to modify is filed. A.C.A. § 9-14-234; Grable v. Grable, 307 Ark. 410, 821 S.W.2d 16 (1991); Porter, supra.
D. Health Care Coverage Judges have long provided for payment of health and dental expenses as a corollary to child support awards. A.C.A. § 9-14- 502, provides a statutory framework for enforcement of such orders through income withholding. (see also Guide to Employment Law and Regulation 2d s 16:35, Arkansas)
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______VI ______
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and Parental Kidnapping Protection Act (PKPA) ______
Overview In our increasingly mobile society, many children move with their parents from state to state. Unless a child has always resided in Arkansas, jurisdiction in an Arkansas court regarding custody of the child cannot automatically be assumed. The federal Parental Kidnapping Prevention Act (PKPA) and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) must be read together when determining child custody jurisdiction. This section offers an overview of key provisions from the Arkansas UCCJEA and the PKPA.
The UCCJEA was unanimously adopted by the national Conference of Commissioners on Uniform State Laws in July 1997. The American Bar Association House of Delegates approved the Act in February 1998. The Arkansas General Assembly codified and adopted the UCCJEA in 1999. The UCCJEA replaces the Arkansas codification of the UCCJA. The UCCJEA revises child custody jurisdiction in light of federal enactments and inconsistent case law and also provides a remedial process of enforcing interstate child custody and visitation determinations.
A. UCCJEA Purpose The Uniform Child-Custody Jurisdiction and Enforcement Act is codified at A.C.A. §§ 9-19-101 to 9-19-401.
The purpose of the UCCJEA includes: • avoiding jurisdictional competition and conflict with other states in child custody cases • promoting cooperation with courts of other states • discouraging continued controversies in child custody cases • deterring abductions • avoiding re-litigation of decisions from other states • expanding exchange of information between states on custody matters • making the law uniform with other states and federal law
B. UCCJEA Jurisdiction Criteria The UCCJEA covers many possible contingencies addressing whether Arkansas courts can properly exercise jurisdiction over custody issues. Pursuant to the UCCJEA, an Arkansas court can exercise exclusive jurisdiction regarding child-custody determinations if: Arkansas is the "home state" of the child at the time the proceeding is commenced or if Arkansas had been the child's home state within six months before commencement of the custody proceeding, and the child is absent from this state but a parent or person seeking custody of the child continues to live in Arkansas.
A court of another state does not have jurisdiction or a court of the home state of the child has declined to exercise jurisdiction on the grounds that Arkansas is the more appropriate forum; the child and at least one parent or person seeking custody has a significant connection with Arkansas other than mere physical presence; and substantial evidence is available in Arkansas concerning the child's care, protection, training, and personal relationships.
It appears that no other state would have jurisdiction, or another state has declined to exercise jurisdiction on the grounds that Arkansas is the more appropriate forum to determine custody over the child. A.C.A. § 9-19-201(a).
Except as specifically enumerated above, the physical presence of a child in Arkansas is not necessary or sufficient to make a child custody determination. A.C.A. § 9-19-201 (c).
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C. UCCJEA Exclusive and Continuing Jurisdiction The major change between the UCCJA and UCCJEA is the exclusive, continuing jurisdiction of the courts in Arkansas. An Arkansas court issuing a child custody determination has exclusive, continuing jurisdiction over the determination until either of the following two things: • an Arkansas court or a court of another state determines: the child, the child’s parents, and any person seeking custody does not presently reside in Arkansas • an Arkansas court determines: (1) neither the child, nor the child and one parent or person seeking custody has significant connection with Arkansas and (2) substantial evidence is no longer available in Arkansas concerning the child’s care, protection, training, and personal relationship
Note: A.C.A. § 9-19-204 allows Arkansas courts to exercise temporary emergency jurisdiction if a child is present and abandoned in this state, or to protect the child from mistreatment or abuse.
An Arkansas court with jurisdiction to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that Arkansas is an inconvenient forum and that a court of another state is a more appropriate forum. Several factors must be considered such as whether domestic violence has occurred, the parties’ length of time outside of Arkansas, financial circumstances, and the familiarity of the facts and issues pending in litigation. A.C.A. § 9-19-207.
D. UCCJEA Affidavit Requirement in Custody Proceedings Under A.C.A. § 9-19-209(a), every party in a child custody proceeding must attach an affidavit to their first pleading, providing the present address of the children, places they have lived within the last five years, and the names and present addresses of persons with whom the children lived during that period. A.C.A. § 9-13-209(a)(1-3) describes other information that, if applicable to the parties, must be provided. Note that under A.C.A. § 19-13-209(e), if the disclosure of any identifying information would jeopardize the health, safety, or liberty of a party or child, such information must be sealed and cannot be disclosed to the other party or public. However, the court can order the disclosure of such information following a hearing in which the court considers the health, safety, or liberty of the party and or child.
E. UCCJEA Enforcement Under A.C.A. § 9-19-302, an Arkansas court may enforce an order returning a child under Hague Convention on the Civil Aspects of International Child Abduction as if it were a child custody determination.
The Hague Convention on the Civil Aspects of International Child Abduction was created to deter international child abduction. In the United States, the International Child Abduction Remedies Act (see 42 U.S.C.A. § 11603) was enacted by Congress to implement the Convention in this country. The Convention applies to abductions or wrongful retention between party countries that occurred on or after July 1, 1998.
The Hague Convention on the Civil Aspects of International Child Abduction is a private civil legal mechanism available to parents seeking the return of or access to their child. The countries that are parties to the Convention have agreed that, subject to certain limited exceptions and conditions, a child who is a resident of a country (that is a party to the Convention) and who is removed to or retained in another country (that is a party to the Convention) in breach of the left behind parent’s custody rights shall be promptly returned to the child’s place of residence. See 22 C.F.R. 94.1
F. PKPA Purposes Congress enacted the Parental Kidnapping Prevention Act (28 U.S.C.A. § 1738A) in 1980 to force states to confer full faith and credit to custody and visitation decisions made in other states, provided that those decisions were consistent with the PKPA's requirements. The PKPA is intended to: • promote cooperation between state courts regarding custody and visitation issues • promote and expand exchange of information between states and mutual assistance relative to custody matters • facilitate enforcement of decrees • discourage interstate child custody controversies • avoid custody and visitation jurisdictional competition and conflict between states
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• deter abductions • encourage state courts to afford priority to custody determinations • award appropriate costs and expenses to the person entitled to custody or visitation in a contested matter
PKPA § 1738A(c) sets conditions that must be followed for a state court's child custody determination to be considered consistent with the Act. Basically, the decision must be made in the child's "home state" as defined under the PKPA. If neither the deciding state nor any other state can claim to be the child's home state, the court must find that it is in the child's best interest to assume jurisdiction because of significant connections of the child, parents, or a contestant, beyond mere physical presence, and substantial evidence is available in the state regarding relative future care and other relevant concerns. Also, a state's custody decision will be considered consistent with the PKPA if the child is physically present and abandoned, or if an emergency exists because of actual or threatened mistreatment or abuse. A state's custody determination is consistent with the PKPA if no other state would have jurisdiction under any above circumstances, or another state has declined to exercise jurisdiction, finding that the deciding state is more appropriate and that the decision would be in the child's best interests. (See Pub.L. 96-611, § 7 and 8(c))
G. Strategies and Questions 1. Generally When custody or visitation is contested, and the children have lived outside of Arkansas, the attorney should gather detailed information about past and present residency of the children. If a child has resided in Arkansas for the last six consecutive months and there are no previous orders regarding custody entered by another state, then Arkansas is considered the home state of the child. Home state is a term of art used by the UCCJEA and PKPA. See A.C.A. § 9-19-102 (7) and 28 U.S.C.§ 1738A (4). If Arkansas is the home state of the child, and if both of the child's parents reside in Arkansas, then Arkansas courts should have jurisdiction to determine child custody.
2. When to Consider Not Filing If a child has not resided in Arkansas for the last six consecutive months, the immediate filing for divorce and custody in Arkansas creates the risk of a jurisdictional challenge from the other parent regarding custody issues. In other words, if a child custody action is filed before a child has lived in Arkansas for six consecutive months, then a client may risk an increased chance of having to defend or fight for custody in another state. Under the UCCJEA, the six consecutive months of residing in Arkansas must occur before an action seeking custody is filed. A.C.A. § 9-19-201(a)(1).
3. Domestic Abuse Under the repealed UCCJA (Uniform Child Custody Jurisdiction Act), a question existed as to whether filing for a Domestic Abuse Order of Protection that included a request for an award of child custody meet the definition of custody proceeding for the purposes of the PKPA. The UCCJEA definition of "child-custody proceeding" clarifies this question. Under the UCCJEA, child custody proceeding is defined as a proceeding in which legal custody of a child is an issue in proceedings such as divorce, separation, child neglect, dependency proceedings, and protection from domestic violence. A.C.A. § 9-19- 102 (4).
H. Motions to Dismiss A party may seek to dismiss child custody proceedings, using the UCCJEA as a defense. Timing is crucial, and one of the critical factors is where the child was living for the last six consecutive months prior to the initiation of the custody proceedings.
For example, if a client brings you a custody petition filed in another state after the six consecutive months of residency in Arkansas by the child, then the UCCJEA could be used as a defense to dismiss the custody proceeding in the other state unless the court in the other state had issued a previous order consistent with the Act and the other parent retains residency in that state. A Motion to Dismiss (or equivalent) could be filed to the other state's custody petition. The attorney should also file a custody petition in Arkansas claiming Arkansas as the "home state."
The Arkansas petition can be used to support the motion to Dismiss filed in the other state. Pursuant to A.C.A. § 9-19-206, when a court has reason to believe that a simultaneous proceeding is underway in another state, it must examine the parties’ pleadings or direct an inquiry to the state court administrator of the other state. The court shall stay the proceeding until it has communicated
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and exchanged information with the other state so that the issue will be tried in the more appropriate forum. If an Arkansas court learns of proceedings commenced in another state after it assumed jurisdiction, it shall likewise under A.C.A § 9-19-206, inform and communicate with the other court to determine the more appropriate forum.
This manual is a collaboration of the Center for Arkansas Legal Services and Legal Aid of Arkansas, Inc. These nonprofit organizations provide free legal assistance to eligible Arkansans who meet income, asset, and other guidelines. Legal assistance may also include advice and counsel, brief services, or full representation depending on the situation. For more information about civil legal aid in Arkansas, please visit arlegalservices.org. For information specific to Legal Aid of Arkansas, Inc., visit arlegalaid.org. Apply for services online or by calling 1-800-9-LAW-AID (1-800-952-9243).
The information and statements of law in this manual should not be considered legal advice. This manual is provided as a broad guide to help you understand how certain legal matters are handled in general. Courts may interpret the law differently. Always do what the court tells you to do.
Center for Arkansas Legal Services & Legal Aid of Arkansas
Updated November 2017
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