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Family courts in the United States have a long history of favoring custody situations with one parent as the primary custodian and the other as the noncustodial parent. The "Tender Years" doctrine played an integral role in establishing this precedent in the 1800's, stating mothers were the preferred custodian for young children. The latter half of the 20th century saw societal norms and gender roles undergo significant changes as more mothers worked outside the home, more children attended daycare, and fathers took a more active role with their children. The tender years doctrine slowly changed into the theory that young children form attachments with only one caregiver and that it was up to the courts to determine which parent this was - another flawed concept known as "monotropy." 

Ultimately, both ideas have been widely disregarded in modern psychology, replaced by the idea that children do best when they have prolonged, meaningful contact with both parents. However, Arkansas and many other states maintained custody laws late into the 20th century that explicitly favored the mother as the primary custodian and did not allow joint custody. The first change didn't come until 1979 when the Arkansas legislature passed Act 278, stating that the award of custody "be made without regard to the sex of the parent" but solely in the "best interests of the children." Despite this change, custody determinations remained one-sided. In 1995, a national analysis of custody determinations showed that custody was awarded to mothers 72% of the time, joint 16%, and fathers 9% (NCHS 1995). The 2013 census data showed showed 81.7% of custodial parents were mothers and only 18.3% were fathers (US Census 2013). While some of this discrepancy is due to mutual preference between the parents, a significant part is also due to old habits of the courts and the influence of outdated beliefs and gender stereotypes.

The state legislature took notice and passed Act 92 in 2003. This included the statement "in making an order for custody, the court may consider awarding joint custody of a child to the parents," essentially telling the courts that joint custody is a viable option. Still, the courts continued to maintain their same practices and resist the changes in American society and science. In 2006, the Arkansas Court of Appeals reaffirmed that joint custody was NOT favored in Arkansas (Bailey v. Bailey, 97 Ark. App. 96), creating case law severely limiting joint custody. In 2013 the Arkansas legislature stepped in again and passed Act 1156, stating "In an action for divorce, an award of joint custody is favored in Arkansas" where joint custody is defined as the "approximate and reasonably equal division of time." Unfortunately, the Arkansas courts interpreted this to mean that joint custody is now allowed, but not necessarily preferred over primary custody. As such, joint custody remained a rarity in many courtrooms. In 2019, Judge Mackie Pierce testified to the state legislature that joint custody was "not the norm" and that although it was "favored and OK to award it, it just doesn't happen that often" (video below). Additionally, the judicial benchbook from the Administrative Office of the Courts maintained that "joint custody is not normally favored unless circumstances clearly warrant such action." 

Partly due to the strong evidence behind joint custody, and partly due to the court's flagrant disobedience of the law, our legislature passed Act 604 in 2021. This established a rebuttable presumption that joint custody is in the best interest of the child. The law makes joint custody a defined starting point and requires clear and convincing evidence for a judge to deviate. Arkansas Advocates for Parental Equality played an integral role in helping pass this legislation, which is currently the strongest joint custody law in the nation. However, with our court's reluctance to accept social science and the law, only time will tell how they will respond. We will remain vigilant and put a spotlight on those who spread misinformation about the law or disregard it in the courtroom.

Judge Pierce
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