Arkansas law favors joint custody of children following a divorce. But if mom and dad cannot cooperate and communicate with each other, a joint custody arrangement will not be tolerated by our courts.
Civility, or a lack thereof – we’re used to hearing about the issue in the political arena. But, as the Arkansas Court of Appeals made clear in Hewett v. Hewett, 2018 Ark. App. 235 (April 4, 2018), it is a vitally important concept in the realm of family law, as well. In the Hewett case, Kelly and Angie Hewett were divorced in 2012, at which time custody of the couple’s five year old son was awarded to Angie. The parties had difficulty communicating after the divorce and continually argued, with each repeatedly taking the other to court. In 2016, reciting a litany of complaints about Angie’s behavior, Kelly filed a motion to modify custody. The circuit court found that there had been a material change of circumstances warranting a change of custody and found that it was in the child’s best interest to award joint custody. Under Arkansans law, joint custody means both parents individually are entitled to an approximate and reasonable equal division of time with the child. Ark. Code Ann. §9-13-101(a)(5).
Angie appealed to the Court of Appeals, which reversed the circuit court’s decision. The appellate court noted that it is a long-standing rule that the primary consideration in child custody cases is the welfare and best interest of the child. It also stated that to change custody, the court must determine that a material change in circumstances has transpired. The court then found that the only circumstances mentioned by the circuit court was the parties inability to get along or communicate civilly with each other. However, the Court of Appeals determined that nothing about the Hewetts’ “bickering and name-calling was new or had significantly worsened.” Citing its holding in Li v. Ding, 2017 Ark. App. 244 (April 19, 2017), the Court of Appeals held that while an award of joint custody is favored in Arkansas, as stated in Ark. Code Ann. §9-13-101(a)(1)(A)(iii), “the mutual ability of the parties to cooperate in reaching shared decisions in matters affecting the child’s welfare is a crucial factor bearing on the propriety of an award of joint custody, and such an award is reversible error when cooperation between the parties is lacking.” Applying this principle to the Hewetts’ case, the Court of Appeals found that the circuit court’s award of joint custody was based on the parents’ inability to cooperate and communicate and, therefore, joint custody was inappropriate. Primary custody was restored to Angie.
We could all stand to see a little more civility in this world. But for divorcing couples seeking joint custody of their children, the Arkansas Court of Appeals has made it clear that this issue could not be more important.