Arkansas Senate Bill 18, in essence, pronounces “True Joint Custody” to be the law of the state unless a parent can prove by clear and convincing evidence to the contrary.

Such a law would be an unmitigated disaster for the families of our state. For the last century, the preeminent question to be answered in custody battles has been what is in the best interest of the child? Arkansas Senate Bill 18 seeks to change that question from what is in the best interest of the child, to can mom or dad sling enough mud at one another to overcome an arbitrary standard imposed by some far removed, predominately male Legislature.

The new law asserts that there is a presumption that joint custody is in a child’s best interest. “Clear and convincing evidence” is required to overcome that presumption. When joint custody is in the best interest of the child, it is indeed the preferred outcome. And in fact, current Arkansas law prefers it.

However, while preferred, it is not currently required. So, how is it detrimental to the child for joint custody to be presumed as proposed by this new legislation, rather than decided by the court on a case-by-case basis as is the current law?

First, it removes the recognition of the unique contribution to the child’s life by the primary caregiver. The effect of this bill is the protection of slacker parents by assuring them joint custody as a baseline for litigation while placing a ludicrously high burden to overcome, that of “clear and convincing evidence,” for primary caregivers. The result is to create disadvantages for the primary caretaker by shifting the burden to them to prove that their child is better off remaining with them the majority of the time.

The importance of the primary caretaker role has long been considered a vital factor in a custody determination. Should the parent who, although technically fit with no substance or criminal problems, but has never spent a night alone with the children or changed a single diaper be placed on the same level as the parent who wakes the kids up every morning, takes them to school, attends all the parent teacher conferences and leaves work early when the kids are sick? This bill says yes, they should.

Second, it will unnecessarily increase the cost of litigation. Joint custody works great in cases where parents are able to put aside their own differences and do what is truly best for their children. In these cases, the children will surely thrive from the benefit of having both of their parents equally in their lives.

But what happens when parents aren’t able to put aside the anger or resentment that led to divorce court in the first place? What happens when there is an impasse?

Every tiny dispute that cannot be solved between parties with joint custody must be taken back to the court to be decided by a judge. Under the new proposed standard of “joint custody for all whether you like it or not,” parties will have to shell out thousands of dollars not necessarily to determine what custody arrangement is in the best interest of their particular child, but rather to overcome an arbitrary standard. The price tag to litigate each of those disputes will be unnecessarily high and will disadvantage the lower earning spouse the most.

Third, it bulldozes over decades of precedent and case law for determining the best interests of the child and silences their voice. Under current Arkansas law, divorcing parents are able to make their preferences known and introduce evidence supporting those preferences. A trial judge can determine, on a case-by-case basis, what is in the best interest of each particular child in each particular case.

This new presumption places a much higher burden on a parent to prove the other parent is harmful to the child. In cases where there is not obvious abuse, it takes away the consideration by the judge of what is best for each child in each unique case.

Is the state Legislature really more qualified to decide what is best for the children and families of Arkansas than domestic relations judges? Family law cannot be dictated by hard, fast, black and white rules. Families are organic and unique, made up of different types of people each with distinctive needs and singular problems to solve. This bill tries to take away that individuality and put every family and every problem in one box with one solution.

Children need their day in court to assure that their individual needs and their own best interest are recognized and served – not the best interest of the adults and certainly not the best interest of the state Legislature.

If we remain silent, this dreadful law may pass.

Lance Owens and Haley Smith are partners of OMG Law Firm in Jonesboro, where they primarily practice family law.