Child Relocation 2023 Comparisons

Arkansas statutes do not specifically articulate the rights of parents concerning their children. Parental rights in Arkansas have been affirmed through case law in appellate decisions. Arkansas appellate courts have confirmed United States Supreme Court precedent holding that the US Constitution protects the fundamental rights of parents to direct and govern the care, custody and control of their children. The law presumes the actions of fit parents concerning their minor children are made in the best interests of the children.

Arkansas law provides that the mother of a child born out of wedlock has custody of her child for the duration of the child’s minority unless a court enters an order placing custody of the child with someone else (Ark. Code Ann. Section 9-10-113).

Fathers have rights equal to mothers with respect to their minor children. In divorce actions, child custody decisions are made without regard to the sex of either parent. Recent statutory developments confirm that joint custody is presumed for both fathers and mothers, and that presumption may be rebutted by a heightened standard of clear and convincing evidence. Unmarried fathers enjoy the same presumptions of custody and access when a judicial action for paternity is commenced.

Non-genetic parents, including step-parents, may have rights of access to a minor child in special circumstances. Arkansas law recognises the in loco parentis doctrine, which focuses on the relationship between the child and the non-genetic person seeking judicial recognition of their rights of custody and access. The judicial inquiry is to determine the bond between the child and the third party or non-genetic parent. Evidence of pre-separation intent or shared agreement to parent the child is an important element for the non-genetic parent to show the court.

Married parents share equal rights and responsibilities to their minor children. Neither parent has an advantage based on their gender. In 2021, the legislature passed a law creating a presumption in favour of joint custody for all child custody orders.

The state is obligated to issue birth certificates to same-sex married parents. Following birth, the non-genetic parent may formally adopt the minor child to fully establish their parental rights and legal interests. Same-sex partners should memorialise in writing their agreement to have children and co-parent.

Adoptions may be granted only after the adoptive parents have complied with rigorous statutory requirements. The prospective adoptive parents and adult household members must all go through extensive state and federal criminal background checks. An extensive home study may be required in certain adoptions. With certain exceptions, a comprehensive report concerning the child’s health, genetic and social history must be generated and filed prior to entry of the adoption decree.

The consent of the non-custodial parent is necessary for the custodial parent to relocate with a minor child. If the non-custodial parent does not consent to the proposed relocation, they must file a formal request for denial of a proposed relocation with the appropriate court having competent jurisdiction. The Arkansas Supreme Court has said that third parties, such as grandparents, are not considered beneficiaries of custody agreements, and therefore cannot contest or object to the relocation of a minor child.

Either parent may initiate a legal proceeding to authorise or deny a proposed relocation. Typically, relocation cases are commenced by the non-custodial parent, who, knowing the other parent is attempting relocation, seeks a change of custody. In other situations, the custodial parent has already relocated, forcing the non-custodial parent to file a contempt application. Relocation proceedings can also be commenced by the custodial parent filing a petition for permission to relocate.

Arkansas law makes no distinction between a parent seeking to relocate to a different state or to another county within the state. While the presumption and factors remain the same for either an international or a domestic relocation, providing continued contact between the child and the non-custodial parent could potentially be more challenging for an international relocation, resulting in greater scrutiny of the proposed relocation by the trial court.

A parent absconds with a child either by taking the child without the consent of the other parent when there is no custody order in place or by violating a custody agreement between the parents. If the latter occurs – a parent leaves the jurisdiction with a child in violation of the terms of a custody agreement and order – the removing parent may be charged with contempt of court. Most custody orders prohibit either parent from taking the child to another state without the consent of the other parent. If found guilty of contempt of court, the parent could be sentenced to a period of up to six months in jail.

If there is no custody order in place, the situation becomes more nuanced, as the absconding parent has not technically violated any court order or law. The left-behind parent may file an emergency custody application if there is a reasonable belief that the child is in danger. The parent may also seek a writ of habeas corpus requiring the return of the child.

If a parent takes a child to another country without the consent of the other parent, a Hague proceeding would need to be commenced. In that situation, the parent should file a petition for the return of the child under the Hague Convention either in the court in the country where the child has been taken, in the court in the country of the child’s habitual residence, or both. It is important to commence these proceedings within one year of the abduction, as it can be more difficult to get a court to return the child after they have become well established in the new jurisdiction.

The United States of America is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. Arkansas has adopted the Uniform Child Custody Jurisdiction and Enforcement Act, which provides for the enforcement and return of the child under the Hague Convention. The United States Department of State, Office of Children’s Issues in the Bureau of Consular Affairs is the Central Authority to carry out the duties of the Hague Convention.

The International Child Abduction Remedies Act (ICARA) is United States federal law implementing the Hague Convention on the Civil Aspects of International Child Abduction. It provides that federal district courts have concurrent jurisdiction with state courts in child abduction cases. A petition or complaint for the return of a child may be filed in an Arkansas circuit court or in the appropriate federal district court.

Once a Hague petition is filed, the court is required to act expeditiously. If a decision has not been made within six weeks of filing, the Central Authority can request a statement asking for the reason for the delay. When deciding the case, a court is empowered to take judicial notice of the law and decisions in the state of the child’s habitual residence.

Arkansas courts have confirmed state policy to rigorously apply and follow the Hague principles of immediate return of the child. Both circuit and appellate courts give careful attention to the treaty’s requirements and its underlying philosophy, and case law reflects that the courts are not easily distracted by attempts of wrongfully retaining parents to make inappropriate child custody or best interests arguments inapplicable in a Hague analysis.

The United States of America is a signatory to the Hague Convention.