Publisher's Notes. The term “notice” is defined for this title at § 9-14-201(8). The term “income” is defined for this title at § 9-14-201(4)(A). The terms “child support order” and “support order” are defined for this title and the rest of the Code at § 9-14-201(2).

Subtitle 1. General Provisions

Chapter 1 General Provisions

[Reserved.]

Chapter 2 Change of Name

Cross References. Restoration of name on granting of divorce, § 9-12-318.

Effective Dates. Acts 1851, p. 72, § 4: effective on passage.

Acts 1985, No. 542, § 3: Mar. 25, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that some persons under supervision of the Department of Correction, have their names changed to avoid proper documentation of activities and to elude proper supervision and detection by law enforcement; that this places a hardship on the Department and on law enforcement officers in the State; that this Act is designed to prevent name changes of persons under supervision of the Department of Correction and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this Act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1989, No. 52, § 5: Feb. 13, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that the circuit and chancery courts should have the power, upon good cause shown, to alter or change the name of any person, even persons in the custody of the Department of Correction; that this Act grants that power; and that this Act should be given effect immediately in order to grant the courts that power as soon as possible. Therefore, an emergency is hereby declared to exist and this Act being immediately necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019.”

Research References

ALR.

Rights and remedies of parents inter se with respect to the names of their children. 40 A.L.R.5th 697.

Circumstances Justifying Grant or Denial of Petition to Change Transsexual or Transgender Individual's Name. 39 A.L.R.7th Art. 9 (2019).

Am. Jur. 57 Am. Jur. 2d, Name, § 16 et seq.

C.J.S. 65 C.J.S., Names, §§ 21-28.

9-2-101. Name change — Procedure.

  1. Upon the application of any person within the jurisdiction of the court, the circuit court shall have power, upon good reasons shown, to alter or change the name of the person.
  2. When application is made to the court under this section, it shall be by petition in writing embodying the reasons for the application.
    1. When allowed, the petition shall by order of the court be spread upon the record, together with the decree of the court.
    2. An appropriate order, as prescribed in this subsection, may be made by a circuit judge in vacation. This order shall have the same force and effect as if made at term time.

History. Acts 1851, §§ 1, 2, p. 72; C. & M. Dig., §§ 7756, 7757; Pope's Dig., §§ 10123, 10124; Acts 1943, No. 15, § 1; 1985, No. 542, § 1; A.S.A. 1947, §§ 34-801, 34-802; Acts 1989, No. 52, § 1.

Research References

U. Ark. Little Rock L. Rev.

Zakrzewski, Family Law — Petitions to Change a Minor's Surname: Arkansas Supreme Court Adopts “Clearly Erroneous” Standard of Review and Establishes Six-Factor Test (Huffman v. Fisher), 22 U. Ark. Little Rock L. Rev. 613.

Case Notes

In General.

This section is merely in affirmation and in aid of, and supplementary to, the common-law rule that one may ordinarily change his name at will, without any legal proceedings, merely by adopting another name, that the right is not limited by the ordinary rules of minority and that the section only affords another method of doing so. Carroll v. Johnson, 263 Ark. 280, 565 S.W.2d 10 (1978); Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988).

Contest.

Chancery court did not err in allowing mother to change names of children to name of second husband despite petition by first husband objecting to change. Clinton v. Morrow, 220 Ark. 377, 247 S.W.2d 1015 (1952).

A natural father has standing to challenge a proposed change of name of his minor child. Carroll v. Johnson, 263 Ark. 280, 565 S.W.2d 10 (1978).

Restraining order to prevent wife from changing child's name held warranted. Norton v. Norton, 268 Ark. 791, 595 S.W.2d 709 (Ct. App. 1980).

Because a child might encounter difficulties, harassment, or embarrassment from bearing the father's surname (since the father was incarcerated in relation to the mother's death), and because the father had not made any serious attempts at visiting the child, it was in the child's best interests to change the child's surname. Walker v. Burton, 2011 Ark. App. 439, 384 S.W.3d 605 (2011).

Notice.

Where a petition for the name change of minor children is made by one parent, notice must be given to the other parent, for to fail to do so is a violation of the due process clauses of both the state and federal constitutions. Carroll v. Johnson, 263 Ark. 280, 565 S.W.2d 10 (1978).

9-2-102. Name change — Use of new name.

Any person whose name may be so changed by judgment or decree of any of the circuit courts shall afterward be known and designated, sue and be sued, plead and be impleaded, by the name thus conferred, except that records of persons under the jurisdiction and supervision of the Division of Correction shall continue to reflect the name as committed to the division's jurisdiction and supervision by the various circuit courts of the State of Arkansas.

History. Acts 1851, § 3, p. 72; C. & M. Dig., § 7758; Pope's Dig., § 10125; A.S.A. 1947, § 34-803; Acts 1989, No. 52, § 2; 2019, No. 910, § 689.

Amendments. The 2019 amendment substituted “Division of Correction” for “Department of Correction” and “division's” for “department's”.

Chapter 3 Domicile

Effective Dates. Acts 1941, No. 355, § 21: Mar. 26, 1941. Emergency clause provided: “Whereas, the United States Supreme Court has held that the determination of domicile is a matter of fact, since no state has a statute definitely defining domicile, and

“Whereas, the state of Arkansas should have a statute defining domicile because people of wealth are refusing to move into the state without being assured that their domicile would be determined to be in the state of Arkansas, and

“Therefore, an emergency is hereby declared to exist, and this act, being necessary for the immediate preservation of the public peace, health and safety, shall take effect and be in full force from and after its passage and approval.”

Research References

Am. Jur. 25 Am. Jur. 2d, Domicil, § 1 et seq.

C.J.S. 28 C.J.S., Domicile, § 1 et seq.

Case Notes

Applicability.

Chapter inapplicable where party suing for divorce was a resident domiciled in this state when the chapter took effect. Feldman v. Feldman, 205 Ark. 544, 169 S.W.2d 866 (1943).

County Residence.

This chapter does not regulate residence as between two counties in this state. Feldman v. Feldman, 205 Ark. 544, 169 S.W.2d 866 (1943).

9-3-101. Chapter supplemental.

It is the purpose of this chapter to set up a method, in addition to all others now provided by law, for determining the establishment of residence and domicile in Arkansas.

History. Acts 1941, No. 355, § 12; A.S.A. 1947, § 34-1312.

9-3-102. Voting privileges unaffected.

Nothing in this chapter shall be construed to affect or extend the privilege of franchise to vote at any election held within the state because of having been admitted to become a resident domiciled within the state under this chapter.

History. Acts 1941, No. 355, § 6; A.S.A. 1947, § 34-1306.

9-3-103. Jurisdiction of courts.

Exclusive jurisdiction to declare a person a resident domiciled in the State of Arkansas is conferred upon the circuit courts.

History. Acts 1941, No. 355, § 4; A.S.A. 1947, § 34-1304.

9-3-104. Administration by Secretary of State.

The Secretary of State shall be the administrative officer of this chapter.

History. Acts 1941, No. 355, § 2; A.S.A. 1947, § 34-1302.

9-3-105. Rules.

The Secretary of State shall have power to make such rules as may be necessary for properly carrying into execution the various provisions of this chapter.

History. Acts 1941, No. 355, § 3; A.S.A. 1947, § 34-1303; Acts 2019, No. 315, § 701.

Amendments. The 2019 amendment deleted “and regulations” following “Rules” in the section heading and in the text.

9-3-106. Qualifications to become domiciled.

  1. Any person who is a citizen of the United States may become a resident and domiciled in the State of Arkansas.
  2. No person shall be admitted to become a resident domiciled in the State of Arkansas who has not resided in the state for at least thirty (30) days preceding his or her application for admission as a resident domiciled in the State of Arkansas.

History. Acts 1941, No. 355, §§ 1, 5; A.S.A. 1947, §§ 34-1301, 34-1305.

9-3-107. Sex or marital status not a bar.

The right of any citizen of the United States to become a resident domiciled in the State of Arkansas shall not be denied or abridged because of sex or marital status.

History. Acts 1941, No. 355, § 7; A.S.A. 1947, § 34-1307.

9-3-108. [Repealed.]

Publisher's Notes. This section, concerning the effect of marriage to resident, was repealed by Acts 2013, No 1152, § 1. The section was derived from Acts 1941, No. 355, § 8; A.S.A. 1947, § 34-1308.

9-3-109. [Repealed.]

Publisher's Notes. This section, concerning the status of women who lost domicile by marriage, was repealed by Acts 2013, No 1152, § 2. The section was derived from Acts 1941, No. 355, § 9; A.S.A. 1947, § 34-1309.

9-3-110. Declaration of intent — Publication of notice — Exceptions.

  1. Any person desiring to make a declaration of domicile under this chapter shall declare on oath before the clerk of any court authorized under this chapter to have jurisdiction, or the clerk's authorized deputy, in the county in which the person owns real estate and has resided for thirty (30) days after reaching eighteen (18) years of age, that it is his or her bona fide intention to become a resident domiciled in the State of Arkansas and that he or she renounces his or her residence and domicile in the state in which he or she was last domiciled.
      1. The declaration shall set forth the name, date of birth, place of birth, occupation, personal description, name of the state and address of last residence, and the state in which he or she owns real or personal property.
      2. The declaration shall also state the name of his or her spouse, the date of the spouse's birth, the place of their marriage, the name of each child and the date of each child's birth, the name of the state, and the address at the date of the declaration.
      1. The declaration shall have attached a certified copy of the notice published thirty (30) days prior to the declaration renouncing domicile in the states in which he or she owned real or personal property and in which the person formerly resided.
      2. The notice shall have been given by publication in the manner provided for the service of summons by publication or upon absentees by the laws of the state or states in which the notices are published.
    1. No resident domiciled in the State of Arkansas in conformity with the law in force at the date of the declaration who has declared his or her intention to become a resident domiciled in this state shall be required to renew the declaration.
    2. Any person who, on or after March 26, 1941, has become a resident domiciled in this state under the provisions of the common law of the state or of § 9-12-307 shall not be required to make a declaration as provided in this chapter.

History. Acts 1941, No. 355, §§ 10, 12; A.S.A. 1947, §§ 34-1310, 34-1312.

9-3-111. Petition for domicile.

    1. Not less than ninety (90) days nor more than two (2) years after a declaration of intention has been made, the person shall make and file in duplicate a petition in writing.
    2. The petition shall be signed by the applicant in his or her own handwriting and duly verified.
      1. In the petition, the applicant shall state his or her full name, place of residence, street number if possible, occupation, the date and place of birth, the state where he or she last resided, the date and place of his or her first address within this state, and the time when and place and name of the court where he or she declared an intention to become a resident domiciled in the State of Arkansas.
      2. If the applicant is married, he or she shall state the name of his or her spouse and, if possible, the spouse's place of residence at the time of filing the petition.
      3. If the applicant has children, he or she shall state the name, date, and place of birth, and place of residence of each child living at the time of filing the petition.
      1. The petition shall set forth that it is his or her intention to become a resident domiciled in the State of Arkansas, that he or she renounces absolutely domicile in the state in which he or she last resided or was domiciled, and that it is his or her intention to reside permanently in the State of Arkansas.
      2. The petition shall set forth whether he or she has been denied admission as a resident domiciled in the State of Arkansas and, if so, the ground or grounds of the denial, the court in which such decision was rendered, and that the cause for the denial has since been cured or removed and shall set forth every fact material to becoming a resident domiciled in the State of Arkansas and required to be proved upon the final hearing of his or her application.
  1. The petition shall be verified by the affidavits of at least two (2) credible witnesses, who are citizens of the State of Arkansas and who state in their affidavits that they personally know the applicant to have been a resident of the State of Arkansas for a period of at least ninety (90) days continuously next prior to the date of filing of his or her petition and that they each have personal knowledge that the petitioner is a person of good moral character and that he or she is in every way qualified in their opinion to become and to be a resident domiciled in the State of Arkansas.
  2. A petition to become a resident domiciled in the State of Arkansas may be made and filed during term time or in vacation and shall be docketed the same day as filed.
  3. However, in no case shall final action be had upon a petition until at least thirty (30) days have elapsed after its filing and the posting of the notice of the petition as provided for in § 9-3-112.

History. Acts 1941, No. 355, §§ 13, 15; A.S.A. 1947, §§ 34-1313, 34-1314.

9-3-112. Public notice of petition and final hearing.

Immediately after filing of the petition, the clerk of the court shall give notice thereof by posting in a public and conspicuous place in his or her office or in the building in which the clerk's office is situated, under an appropriate heading, the name, residence, the state in which the petitioner formerly resided, the date and place of residence in Arkansas, the tentative date for final hearing of his or her petition, and the names of the witnesses whom the applicant expects to summon in his or her behalf.

History. Acts 1941, No. 355, § 16; A.S.A. 1947, § 34-1315.

9-3-113. Declarations of applicant.

Before he or she is permitted under this chapter to be declared a resident domiciled in the State of Arkansas, the applicant shall declare in open court that he or she is a resident of Arkansas and that Arkansas is his or her domicile, that he or she absolutely and entirely renounces residence and domicile in the state in which he or she formerly resided, and that he or she will support and defend the Constitution and laws of the United States of America and of the State of Arkansas.

History. Acts 1941, No. 355, § 14; A.S.A. 1947, § 34-1317.

9-3-114. Hearings upon petitions — Final orders.

    1. Every final hearing upon a petition to become a resident domiciled in the State of Arkansas shall be held in open court before a judge of this state.
    2. Every final order that may be made upon the petition shall be under the hand of the court and entered in full upon the records of the court.
      1. The clerk of the court, if the applicant requests it, shall issue a subpoena for the witnesses named by the applicant to appear upon the day set for final hearing.
      2. However, if the witnesses cannot be produced upon the final hearing, other witnesses may be summoned.
    1. At the final hearing of the petition, the applicant and witnesses shall be examined under oath in the presence of the court.
  1. The court upon proper finding shall enter a final order that the person applying to be declared a resident domiciled in the State of Arkansas has complied with the provisions of this chapter and is entitled to be declared a resident domiciled in the state, and the court shall order to be issued to the person the form of certificate of residence and domicile as shall be prescribed by the Secretary of State.

History. Acts 1941, No. 355, §§ 4, 16, 17; A.S.A. 1947, §§ 34-1304, 34-1315, 34-1316.

9-3-115. Admission within thirty days of general election prohibited.

No person shall be admitted as a resident domiciled in the State of Arkansas under this chapter, nor shall any certificate of residence and domicile be issued by any court, within thirty (30) days preceding the holding of any general election within the state.

History. Acts 1941, No. 355, § 6; A.S.A. 1947, § 34-1306.

9-3-116. Admission of surviving spouse and minor children.

When any person who has declared his or her intention to become a resident domiciled in the State of Arkansas dies before he or she has received a certificate from the Secretary of State showing him or her to be a resident domiciled in this state, the surviving spouse and minor children of the person, by complying with the other provisions of this chapter, may become residents domiciled in the State of Arkansas without making any declaration of intention.

History. Acts 1941, No. 355, § 11; A.S.A. 1947, § 34-1311.

9-3-117. Duties of clerks of court.

    1. It shall be the duty of the clerk of the court exercising jurisdiction in matters of residence and domicile to send to the Secretary of State at Little Rock, within thirty (30) days after the issuance of a certificate of residence and domicile in the State of Arkansas, a duplicate of the certificate, and to make and keep on file in his or her office a stub for each certificate so issued by him or her.
    2. On the certificate shall be entered a memorandum of all the essential facts set forth in the certificate.
    1. It shall also be the duty of the clerk of the court to report to the Secretary of State, within thirty (30) days after the final hearing and decision of the court, the name of every person who was denied residence and domicile under the provisions of this chapter.
    2. The clerk shall furnish to the Secretary of State duplicates of all petitions within thirty (30) days after the filing of the petitions and certified copies of other proceedings and orders instituted in or issued out of the court affecting or relating to residence and domicile as provided for under this chapter, as may be required from time to time by the Secretary of State.

History. Acts 1941, No. 355, § 18; A.S.A. 1947, § 34-1318.

9-3-118. Clerk's fees — Deposits for witness expenses.

    1. The clerk of the court exercising jurisdiction in matters provided for under this chapter shall charge, collect, and account for the following fees in each proceeding:
      1. For receiving and filing a declaration of intention and issuing a duplicate, five dollars ($5.00);
      2. For making, filing, and docketing the petition of a person petitioning for admission under this chapter as a resident domiciled in the State of Arkansas and for the final hearing, twenty-five dollars ($25.00); and
      3. For entering the final order and issuing certificate of residence and domicile thereunder, if granted, twenty-five dollars ($25.00).
    2. The fees collected by the clerk of the court in the residence and domicile proceeding shall be paid into the county general fund.
    1. In addition to the fees required by this section and upon the filing of the petition to become a resident domiciled in the State of Arkansas, the petitioner shall deposit with, and pay to, the clerk of the court a sum of money sufficient to cover the expenses of subpoenaing and paying the legal fees of any witnesses for whom he or she may request a subpoena.
    2. Upon the final discharge of the witnesses, the witnesses shall receive, if they demand from the clerk, the customary and usual fees from the moneys that the petitioner shall have paid to the clerk for such purposes. The residue, if any, shall be returned by the clerk to the petitioner.

History. Acts 1941, No. 355, § 19; A.S.A. 1947, § 34-1319.

9-3-119. Cancellation of certificate — Renunciation of residence and domicile.

    1. It shall be the duty of the prosecuting attorney of a county, upon affidavit showing good cause, to institute proceedings in any court having jurisdiction under this chapter for the purpose of setting aside and cancelling any certificate issued under this chapter on the ground of fraud or on the ground that the certificate was illegally procured.
      1. In any such proceeding, the party holding the certificate alleged to have been fraudulently or illegally procured shall have sixty (60) days' personal notice in which to make answer to the petition of the State of Arkansas.
      2. If the holder of the certificate is absent from the state or from the district in which he or she last had residence, the notice shall be given by publication in the manner provided for the service of summons by publication or upon absentees by the laws of the state.
    2. If any person who secures a certificate of residence and domicile under the provisions of this chapter shall, within two (2) years after the issuance of the certificate, cease to reside in the state more than thirty (30) days in any one (1) year, it shall be considered prima facie evidence of a lack of intention on the part of the person to become a permanent resident of the state at the time of the filing of the application for a certificate of residence and domicile and, in the absence of contrary evidence, it shall be sufficient evidence, in the proper proceeding, to authorize the cancellation of his or her certificate of residence and domicile as fraudulent.
    1. Not less than two (2) years after a certificate of residence and domicile has been issued under this chapter, the person to whom the certificate has been issued may file a petition signed in duplicate in his or her own handwriting, duly verified, which shall state his or her full name, his or her place of residence with the street number, if possible, his or her occupation, his or her date and place of birth, the state in which he or she intends to reside, the date and place of his or her first address within this state, the time when and place and name of the court where he or she declared his or her intention to become a resident domiciled in the State of Arkansas, and the name of the court where he or she received his or her certificate of residence and domicile. If married, he or she shall state the name of his or her spouse, his or her place of residence at the time of filing this petition, and if he or she has children, the name, date, and place of birth, and place of residence of each child living at the time of filing this petition.
    2. The petition shall set forth that he or she renounces absolutely his or her residence and domicile in the State of Arkansas and that it is his or her intention to reside permanently in a state other than Arkansas.
    1. Whenever a certificate of residence and domicile is set aside or cancelled as provided in this section, the court in which the judgment or decree is rendered shall make an order cancelling the certificate and shall order a certified copy of the judgment sent to the Secretary of State.
      1. If the certificate was not originally issued by the court making the order, the court shall direct the clerk of the court to transmit a copy of the order and judgment to the court out of which the certificate of residence and domicile was originally issued.
      2. It shall be the duty of the clerk of the court receiving the certified copy of the order and judgment of the court to enter the certified copy of the order and judgment of record and to cancel the original certificate of residence and domicile upon the records and to notify the Secretary of State of the cancellation.

History. Acts 1941, No. 355, § 20; A.S.A. 1947, § 34-1320.

9-3-120. Certified copies of papers, etc., as evidence.

Certified copies of all papers, documents, certificates, and records required to be used, filed, recorded, or kept under any and all of the provisions of this chapter shall be admitted in evidence equally with the originals in any and all proceedings under this chapter and in all cases in which the originals might be admissible as evidence.

History. Acts 1941, No. 355, § 3; A.S.A. 1947, § 34-1303.

Chapter 4 Arkansas Domestic Peace Act

9-4-101. Title.

This chapter shall be known and may be cited as the “Arkansas Domestic Peace Act”.

History. Acts 2003, No. 1276, § 1.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Family Law, Domestic Peace Act, 26 U. Ark. Little Rock L. Rev. 415.

9-4-102. Definitions.

As used in this chapter:

  1. “Advocate” means an employee, supervisor, or administrator of a shelter;
  2. “Commission” means the Arkansas Child Abuse/Rape/Domestic Violence Commission;
  3. “Domestic abuse” means:
    1. Physical harm, bodily injury, or assault between family or household members;
    2. The infliction of fear of imminent physical harm, bodily injury, or assault between family or household members; or
    3. Any sexual conduct between family or household members, whether minors or adults, that constitutes a crime under the laws of this state;
  4. “Family or household members” means:
    1. Spouses;
    2. Former spouses;
    3. Parents;
    4. Children;
    5. Persons related by blood within the fourth degree of consanguinity;
    6. Persons who presently cohabit or in the past cohabited together; and
    7. Persons who presently have a child in common;
  5. “Shelter” means any entity that:
    1. Provides services including food, housing, advice, counseling, and assistance to victims of domestic abuse and their minor dependent children in this state; and
    2. Meets the program, fiscal, and training requirements of this chapter;
  6. “Victim” means any individual who:
    1. Is eighteen (18) years of age or older, is a minor who has his or her disabilities removed, or is a married individual under eighteen (18) years of age;
    2. Is the victim of domestic abuse; and
    3. Seeks services at a shelter; and
  7. “Volunteer” means any person who donates his or her time to provide services to victims at a shelter.

History. Acts 2003, No. 1276, § 1.

9-4-103. Duties of the Arkansas Child Abuse/Rape/Domestic Violence Commission.

  1. Regarding the administration of the Domestic Peace Fund and an entity receiving funding under this chapter, the Arkansas Child Abuse/Rape/Domestic Violence Commission or its designee, to the extent funding is appropriated and available, shall:
    1. Annually evaluate each shelter for compliance with the program, fiscal, and training requirements under this chapter;
    2. Promulgate rules, procedures, and forms for the evaluation of each shelter;
    3. Adopt a uniform system of recordkeeping to ensure the proper handling of funds by shelters;
    4. Provide training and technical assistance to shelters to ensure minimum standards of service delivery;
    5. Serve as a clearinghouse for information relating to domestic abuse; and
    6. Provide educational programs on domestic abuse for the benefit of the general public, victims, specific groups of persons, and other persons as needed.
    1. The commission may enter into contracts with any entity to fulfill its duties under this chapter.
    2. The entity must meet the following requirements:
      1. The entity is organized as a statewide nonprofit corporation that provides services, community education, and technical assistance to domestic violence shelters in the state; and
      2. The entity is affiliated with one (1) or more of the following:
        1. The National Coalition Against Domestic Violence;
        2. The National Network to End Domestic Violence; or
        3. The Battered Women's Justice Project.

History. Acts 2003, No. 1276, § 1; 2019, No. 315, § 702.

Amendments. The 2019 amendment deleted “regulations” following “rules” in (a)(2).

Cross References. Domestic Peace Fund, § 19-6-491.

9-4-104. Receipt of money.

Under this chapter and in the administration of the Domestic Peace Fund, the Arkansas Child Abuse/Rape/Domestic Violence Commission shall not accept money or other assistance from the federal government or any other entity or person if the acceptance would obligate the State of Arkansas except to the extent that money is available in the fund.

History. Acts 2003, No. 1276, § 1.

Cross References. Domestic Peace Fund, § 19-6-491.

9-4-105. Disbursement of funds.

  1. The Arkansas Child Abuse/Rape/Domestic Violence Commission may disburse money appropriated from the Domestic Peace Fund exclusively for the following purposes:
    1. To satisfy contractual obligations made to perform its duties under this section;
    2. To make grants to shelters that meet the requirements of this section; and
    3. To compensate the commission or its designee for administration costs associated with the performance of duties under this chapter.
  2. The commission shall collect a one-percent-fee not to exceed seven thousand five hundred dollars ($7,500) annually from the fund for administrative and operational costs incurred under this chapter.

History. Acts 2003, No. 1276, § 1.

9-4-106. Program requirements.

Every shelter shall:

  1. Develop and implement a written nondiscrimination policy to provide services without regard to race, religion, color, age, marital status, national origin, ancestry, or sexual preference;
  2. Provide a facility that is open, accessible, and staffed by an advocate or a volunteer each day of the calendar year and twenty-four (24) hours each day;
  3. Provide emergency housing and related supportive services in a safe, protective environment for victims of domestic abuse and their children;
    1. Provide a crisis telephone hotline that is answered by an advocate or a volunteer who meets the training requirements under this chapter each day of the calendar year and twenty-four (24) hours each day.
    2. The crisis telephone hotline shall not be answered by an answering machine, answering service, or mobile telephone;
    1. Require all advocates and volunteers who provide direct services to victims to sign a written confidentiality agreement that prohibits the release of the following:
      1. The names or other personal and identifying information about the victims who are served at the shelter; and
      2. The names or other personal and identifying information about the family or household members of the victims who are served at the shelter.
    2. The confidentiality agreement shall not apply to advocates who testify in court.
    3. The confidentiality agreement shall not prevent disclosure from federal grant review, audit, or reporting;
  4. Develop and implement a written plan for outreach efforts to aid victims of domestic violence;
  5. Provide peer support groups for victims;
  6. Provide assistance and court advocacy for victims seeking orders of protection; and
  7. Provide training and educational information on domestic violence for professionals, community organizations, and interested individuals.

History. Acts 2003, No. 1276, § 1.

Case Notes

Construction.

Subdivision (1) of this section is unrelated to nondiscrimination laws and obligations and does not create protected classifications or prohibit discrimination on some basis. Rather, in its respective context, the provision asks domestic-abuse shelters to develop their own nondiscrimination policies. Protect Fayetteville v. City of Fayetteville, 2017 Ark. 49, 510 S.W.3d 258 (2017).

9-4-107. Fiscal requirements.

Every shelter shall:

  1. Incorporate in this state as a private nonprofit corporation that is exempt from taxation under Section 501(c)(3) of the Internal Revenue Code, 26 U.S.C. § 501(c)(3), and that has the primary purpose of providing services to victims of domestic abuse or domestic violence;
  2. Be governed by a board of directors;
  3. Develop and implement written personnel policies that state the shelter's employment practices;
  4. Develop and implement written procedures that conform with the uniform system of recordkeeping developed by the Arkansas Child Abuse/Rape/Domestic Violence Commission or its designee to ensure proper handling of funds; and
  5. Provide the commission or its designee with statistical data that states the following:
    1. The type of services provided by the shelter; and
    2. The number of victims and children served each year.

History. Acts 2003, No. 1276, § 1.

9-4-108. Training requirements.

Every shelter shall:

    1. Require each member of its board of directors to attend an orientation approved by the Arkansas Child Abuse/Rape/Domestic Violence Commission or its designee within six (6) months after joining the board of directors.
    2. The orientation shall include an explanation of the dynamics of domestic violence and the role of a board member;
    1. Require each advocate who provides direct services to victims to attend fifteen (15) hours of initial staff training approved by the commission or its designee.
    2. Initial staff training shall include the following topics of instruction:
      1. Crisis intervention;
      2. Case management;
      3. Safety planning;
      4. Individual or group facilitation; and
      5. Proper procedure for answering the crisis telephone hotline;
    1. Require each advocate who provides direct services to victims to attend ten (10) hours of continuing education annually that is approved by the commission or its designee.
    2. Continuing education shall include the following topics of instruction:
      1. Crisis intervention;
      2. Case management;
      3. Safety planning;
      4. Individual or group facilitation; and
      5. The proper procedure for answering the crisis telephone hotline; and
    1. Require volunteers who provide direct services to victims to attend ten (10) hours of initial training approved by the commission or its designee.
    2. Initial staff training shall include the following topics of instruction:
      1. Crisis intervention;
      2. Case management;
      3. Safety planning;
      4. Individual or group victim service session facilitation; and
      5. The proper procedure for answering the crisis telephone hotline.

History. Acts 2003, No. 1276, § 1.

9-4-109. Right of entry.

The Arkansas Child Abuse/Rape/Domestic Violence Commission or its designee may enter and inspect the premises of a shelter to perform an annual evaluation or to otherwise determine compliance with this chapter.

History. Acts 2003, No. 1276, § 1.

9-4-110. Reports.

The Arkansas Child Abuse/Rape/Domestic Violence Commission or its designee shall provide an annual report by October 1 of each year to the Chair of the Senate Interim Committee on Children and Youth and the Chair of the House Committee on Aging, Children and Youth, Legislative and Military Affairs containing the following information:

  1. The incidence of domestic violence in this state based on information obtained from shelters under this chapter;
  2. A description of shelters that meet the requirements of and receive funding from the commission or its designee under this chapter; and
  3. The number of persons assisted by the shelters that receive funding from the commission or its designee under this chapter.

History. Acts 2003, No. 1276, § 1.

9-4-111. Disclosure of information.

Information received by the Arkansas Child Abuse/Rape/Domestic Violence Commission, its employees, or its designees through files, reports, evaluations, inspections, or otherwise shall be confidential information and shall not be disclosed publicly in a manner as to identify individuals or facilities.

History. Acts 2003, No. 1276, § 1.

9-4-112. Immunity from civil liability.

The Arkansas Child Abuse/Rape/Domestic Violence Commission, its employees, and its designees shall be immune from civil liability for performing their duties under this chapter.

History. Acts 2003, No. 1276, § 1.

Chapter 5 Arkansas Child Safety Center Act

9-5-101. Title.

This chapter shall be known and may be cited as the “Arkansas Child Safety Center Act”.

History. Acts 2007, No. 703, § 5.

9-5-102. Statewide purpose.

The statewide purpose of this chapter is to establish a program that provides a comprehensive, multidisciplinary, nonprofit, and coordinated response to the investigation of sexual abuse of children and serious physical abuse of children in a child-focused and child-friendly facility known as a “child safety center”.

History. Acts 2007, No. 703, § 5.

9-5-103. Definitions.

As used in this chapter:

    1. “Child safety center” means a not-for-profit child-friendly facility that provides a location for forensic interviews and forensic medical examinations and ensures access for specialized mental health services during the course of a child maltreatment investigation.
    2. A “child safety center” is commonly known as a child advocacy center; and
  1. “Commission” means the Arkansas Child Abuse/Rape/Domestic Violence Commission.

History. Acts 2007, No. 703, § 5; 2013, No. 568, § 1.

Amendments. The 2013 amendment redesignated former (1) as (1)(A); substituted “ensures access for specialized mental health services” for “forensic mental health examinations” in (1)(A); and added (1)(B).

9-5-104. Duties of the Arkansas Child Abuse/Rape/Domestic Violence Commission.

  1. Regarding the administration of the Arkansas Children's Advocacy Center Fund and an entity receiving funding under this chapter, the Arkansas Child Abuse/Rape/Domestic Violence Commission or its designee, to the extent funding is appropriated and available, shall:
    1. Annually evaluate each child safety center for compliance with the program, fiscal, and training requirements under this chapter;
    2. Promulgate rules and procedures to implement this chapter and the forms for the evaluation of each child safety center;
    3. Adopt a uniform system of recordkeeping and reporting to ensure the proper handling of funds by child safety centers and to ensure uniformity and accountability by child safety centers; and
    4. Provide training and technical assistance to child safety centers to ensure best practice standards for forensic interviews and forensic medical examinations.
  2. The commission may enter into contracts with any entity to fulfill its duties under this chapter.

History. Acts 2007, No. 703, § 5.

9-5-105. Receipt of money.

Under this chapter and in the administration of the Arkansas Children's Advocacy Center Fund, the Arkansas Child Abuse/Rape/Domestic Violence Commission shall not accept money or other assistance from the federal government or any other entity or individual if the acceptance would obligate the State of Arkansas except to the extent that money is available in the fund.

History. Acts 2007, No. 703, § 5.

9-5-106. Disbursement of funds.

  1. The Arkansas Child Abuse/Rape/Domestic Violence Commission may disburse money appropriated from the Arkansas Children's Advocacy Center Fund exclusively for the following purposes:
    1. To satisfy contractual obligations made to perform its duties under this section;
    2. To make grants to child safety centers that meet the requirements of this section; and
    3. To compensate the commission or its designee for administration costs associated with the performance of duties under this chapter.
    1. The commission may disburse funds, to the extent appropriated and available, from the Arkansas Children's Advocacy Center Fund to a qualified medical entity or a qualified mental health entity for education, peer review, and consultation to medical service examiners and mental health service examiners qualified under this section for children interviewed and examined at the child safety centers.
    2. A medical entity selected shall have physicians who:
      1. Have:
        1. Subspecialty training in pediatric medicine, emergency medicine, pediatric gynecology, family practice, or obstetrics and gynecology; and
        2. Specialized training in the evaluation of child sexual abuse cases;
      2. Provide initial evaluations of allegedly abused and assaulted children and adolescents, perform second opinion examinations for less experienced examiners, and review photographs and videotapes for other examiners;
      3. Hold a teaching position or a faculty position at a college of medicine and provide training and workshops on child sexual abuse-related issues;
      4. Hold membership in professional organizations on child abuse-related and neglect-related issues;
      5. Work for or are affiliated with a regional center for the medical evaluation of allegedly sexually abused children; and
      6. Regularly testify in cases of alleged child sexual abuse.
    3. A mental health entity shall have professionals who:
      1. Are licensed mental health professionals;
      2. Have:
        1. Specialized training in assessment and treatment of children and families; and
        2. Specialized training in trauma and child abuse;
      3. Provide assessment and treatment of allegedly abused children and adolescents;
      4. Provide consultation and training for other providers and multidisciplinary teams;
      5. Hold a teaching or faculty position;
      6. Hold membership in professional organizations on child abuse-related and neglect-related issues;
      7. Work for or are affiliated with a regional center for the medical evaluation of allegedly sexually abused children; and
      8. Regularly testify in cases of alleged child sexual abuse.

History. Acts 2007, No. 703, § 5.

9-5-107. Program requirements.

Each child safety center shall:

  1. Provide a comfortable, private, child-friendly setting that is both physically and psychologically safe for diverse populations of children and their families;
  2. Be a part of a multidisciplinary team;
  3. Have a nonprofit entity responsible for program, fiscal operations established, and implement best administrative practices;
  4. Promote policies, practices, and procedures that are culturally competent;
  5. Promote forensic interviews that are:
    1. Legally sound;
    2. Of a neutral, fact-finding nature; and
    3. Coordinated to avoid duplicative interviewing;
  6. Provide or provide access to, or both, specialized medical evaluations and treatment services to all child safety center clients;
  7. Provide team discussion and information-sharing regarding the investigation, case, and status needed on a routine basis by the child and family; and
  8. Develop and implement a system for monitoring case progress and tracking case outcomes.

History. Acts 2007, No. 703, § 5.

9-5-108. Access to specialized medical examinations and psychological examinations.

  1. The child safety centers shall provide or provide access to specialized medical examinations and psychological examinations for their clients, to the extent funding is appropriated and available.
  2. Medical providers operating under this chapter shall be capable of performing:
    1. A complete medical history;
    2. An evaluation of a child or an adolescent for evidence of sexual abuse or sexual assault including photo documentation of examination findings for recognition of genital and anal findings that are clearly normal or normal variants and common patterns of healed injuries;
    3. Collection of forensic evidence;
    4. Evaluation for sexually transmitted diseases, pregnancy, and other related sexual abuse and assault;
    5. Performance of tests and treatment as appropriate; and
    6. Testimony in court as to the findings.

History. Acts 2007, No. 703, § 5.

9-5-109. Eligibility for contracts.

  1. A public entity or a nonprofit entity is eligible for a contract under § 9-5-107 if the entity:
    1. Has a signed memorandum of understanding as provided by § 9-5-110;
    2. Operates under the authority of a governing board;
    3. Participates on a multidisciplinary team of persons involved in the investigation or prosecution of child abuse cases;
    4. Has developed a method of statistical information gathering on children receiving services through the child safety center and shares the statistical information with the statewide organization, the Department of Human Services, and the Attorney General upon request;
    5. Has a volunteer program;
    6. Employs an executive director who is answerable to the board of directors of the public or nonprofit entity and who is not the exclusive salaried employee of any public agency partner;
    7. Provides for ongoing training for child safety center staff to provide best practices in forensic interviewing and medical and mental examinations to children who are examined at child safety centers; and
    8. Operates under a working protocol that includes, at a minimum, a statement of:
      1. The child safety center's mission;
      2. Each agency's role and commitment to the child safety center;
      3. The type of cases to be handled by the child safety center;
      4. The child safety center's procedures for conducting case reviews and forensic interviews and for ensuring access to specialized medical services and mental health services; and
      5. The child safety center's policies regarding confidentiality and conflict resolution.
    1. The Arkansas Child Abuse/Rape/Domestic Violence Commission may waive the requirements specified in subsection (a) of this section if the commission determines that the waiver will not adversely affect the child safety center's ability to carry out its duties under this chapter.
    2. Any waiver that is granted under subdivision (b)(1) of this section shall be identified in the written contract with the child safety center.
  2. Funds shall be withheld from an established child safety center that no longer meets the standards for funding.

History. Acts 2007, No. 703, § 5.

9-5-110. Interagency memorandum of understanding.

  1. Before a child safety center may be established under this chapter, a memorandum of understanding regarding the agreement on the levels of participation of each entity shall be executed among:
    1. The Division of Children and Family Services of the Department of Human Services;
    2. The Crimes Against Children Division of the Division of Arkansas State Police;
    3. Representatives of county and municipal law enforcement agencies that investigate child abuse in the area to be served by the child safety center; and
    4. The prosecuting attorney.
  2. A memorandum of understanding executed under this section shall include the agreement on the levels of each entity's participation and cooperation in:
    1. Developing a cooperative, multidisciplinary-team approach to investigations of child abuse;
    2. Reducing, to the greatest extent possible, the number of interviews required of a victim of child abuse with the goal of minimizing the negative impact of the investigation on the child; and
    3. Developing, maintaining, and supporting, through the child safety center, an environment that emphasizes the best interests of children and that provides best practices in child abuse investigations.
  3. A memorandum of understanding executed under this section may include the agreement of one (1) or more participating entities to provide office space and administrative services necessary for the child safety center's operation.
  4. A memorandum of understanding executed under this section shall include the following provisions that:
    1. When available and appropriate during the course of a child maltreatment investigation on reports of alleged sexual abuse, and when appropriate, alleged severe physical abuse, the child safety center shall be utilized for forensic interviews and forensic medical examinations and will ensure access for specialized mental health services; and
    2. The person who conducts the forensic interview shall be:
      1. Adequately trained in interviewing child victims; and
      2. Prepared to testify in any administrative or judicial proceeding regarding the forensic interview.

History. Acts 2007, No. 703, § 5; 2011, No. 783, § 1; 2013, No. 568, § 2.

Amendments. The 2011 amendment added (d).

The 2013 amendment substituted “will ensure access for specialized mental health services” for “forensic mental health examinations” in (d)(1).

9-5-111. Fiscal requirements.

Every child safety center shall:

  1. Incorporate in this state as a private nonprofit corporation that is exempt from taxation under Section 501(c)(3) of the Internal Revenue Code of 1986, 26 U.S.C. § 501(c)(3), as it existed on January 1, 2007, and that has the primary purpose of providing services to child victims of child abuse;
  2. Be governed by a board of directors;
  3. Develop and implement written personnel policies that state the child safety center's employment practices;
  4. Develop and implement written procedures that conform with the uniform system of recordkeeping developed by the Arkansas Child Abuse/Rape/Domestic Violence Commission or its designee to ensure proper handling of funds; and
  5. Provide the commission or its designee with statistical data that states the following:
    1. The type of investigative services and the number of children served by each type of investigative service provided by the child safety centers;
    2. The number, race, age, and gender of the children served each year; and
    3. The outcomes of services to children provided by the child safety centers, including without limitation:
      1. The number of founded maltreatment reports; and
      2. The number of unfounded maltreatment reports and the ratio between founded and unfounded reports for each year.

History. Acts 2007, No. 703, § 5.

9-5-112. Right of entry.

The Arkansas Child Abuse/Rape/Domestic Violence Commission or its designee may enter the premises of a child safety center at any time to ensure compliance with this chapter and the rules promulgated by the commission under this chapter.

History. Acts 2007, No. 703, § 5.

9-5-113. Reports.

The Arkansas Child Abuse/Rape/Domestic Violence Commission or its designee shall provide an annual report by March 1 of each year to the Chair of the Senate Interim Committee on Children and Youth and the Chair of the House Committee on Aging, Children and Youth, Legislative and Military Affairs containing the following information:

  1. The incidence of child abuse in this state based on information obtained from child safety centers under this chapter;
  2. A description of child safety centers that meet the requirements of and receive funding from the commission or its designee under this chapter;
  3. The number of children receiving investigative services by the child safety centers that receive funding from the commission or its designee under this chapter; and
  4. Outcome data provided by the child safety centers.

History. Acts 2007, No. 703, § 5.

9-5-114. Admissibility of statements by an alleged child victim.

Nothing in this chapter precludes the admissibility of statements by an alleged child victim outside the scope of the forensic interview conducted at a child safety center, provided that sufficient safeguards are present to satisfy the admissibility requirements set forth in the Arkansas Rules of Evidence, relevant case law, and constitutional requirements.

History. Acts 2007, No. 703, § 5.

9-5-115. Immunity from civil liability.

The Arkansas Child Abuse/Rape/Domestic Violence Commission and its employees in their official capacities shall be immune from civil liability for performing their duties under this chapter.

History. Acts 2007, No. 703, §§ 5, 18.

Chapter 6 Arkansas Domestic Violence Shelter Act

Effective Dates. Acts 2019, No. 910, § 6346(b): July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act revises the duties of certain state entities; that this act establishes new departments of the state; that these revisions impact the expenses and operations of state government; and that the sections of this act other than the two uncodified sections of this act preceding the emergency clause titled ‘Funding and classification of cabinet-level department secretaries’ and ‘Transformation and Efficiencies Act transition team’ should become effective at the beginning of the fiscal year to allow for implementation of the new provisions at the beginning of the fiscal year. Therefore, an emergency is declared to exist, and Sections 1 through 6343 of this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019.”

9-6-101. Title.

This chapter shall be known and may be cited as the “Arkansas Domestic Violence Shelter Act”.

History. Acts 2017, No. 583, § 1.

Research References

ALR.

Legal Protection Against Domestic Violence in Same-Sex Relationships, 19 A.L.R.7th Art. 1 (2018).

9-6-102. Definitions.

As used in this chapter:

  1. “Advocate” means an employee, supervisor, or administrator of a shelter;
  2. “Dating relationship” means a romantic or intimate social relationship between two (2) individuals that is not a casual relationship or an ordinary fraternization in a business or social context and that is determined by examining the following factors:
    1. The length of the relationship;
    2. The nature of the relationship; and
    3. The frequency of interaction between the two (2) individuals involved in the relationship;
  3. “Domestic abuse” means:
    1. Physical harm, bodily injury, or assault against an individual in a dating relationship by the other individual in the dating relationship or against a member of a family or household by another member of the family or household;
    2. Mental harm caused by the infliction of fear of imminent physical harm, bodily injury, or assault against an individual in a dating relationship by the other individual in the dating relationship or against a member of a family or household by another member of the family or household; or
    3. Sexual conduct between family or household members or between individuals in a dating relationship, whether minors or adults, that constitutes a crime under the laws of this state;
  4. “Family or household member” means a:
    1. Spouse;
    2. Former spouse;
    3. Parent;
    4. Child;
    5. Person related to another family or household member by blood;
    6. Person who cohabits with another family or household member or who cohabited in the past with another family or household member; and
    7. Person who shares one (1) or more children in common with another person;
  5. “Shelter” means an entity that:
    1. Provides services, including food, housing, advice, counseling, and assistance to victims of domestic abuse and their minor dependent children in this state; and
    2. Meets the program, fiscal, and training requirements of this chapter;
  6. “Statewide domestic violence entity” means an entity that:
    1. Provides all the required core and continuing education for statewide domestic violence shelters and programs;
    2. Is governed by a board of directors that is made up of a majority of publicly funded statewide domestic violence shelter program directors;
    3. Functions as the clearinghouse of domestic violence statistical data for Arkansas; and
    4. Exclusively services domestic violence programs; and
  7. “Volunteer” means a person who donates his or her time to provide services to victims at a shelter.

History. Acts 2017, No. 583, § 1.

9-6-103. Establishment — Purpose and criteria.

  1. The Department of Finance and Administration shall establish the Arkansas Domestic Violence Shelter Grant Program to assist in the funding of domestic violence shelters in Arkansas.
  2. The purpose and criteria of the program is to:
    1. Annually evaluate each shelter receiving funds under this chapter for compliance with the program, fiscal, and training requirements under this chapter;
    2. Promulgate rules for the evaluation of each shelter receiving funds under this chapter;
    3. Adopt a uniform system of recordkeeping to ensure the proper handling of funds by a shelter receiving funds under this chapter;
    4. Provide training and technical assistance to shelters receiving funds under this chapter to ensure minimum standards of service delivery;
    5. Serve as a clearinghouse for information relating to domestic abuse; and
    6. Provide educational programs on domestic abuse for the benefit of the general public, victims, specific groups of persons, and other persons as needed.
  3. The department shall establish rules to implement this chapter.

History. Acts 2017, No. 583, § 1.

9-6-104. Receipt of money.

Except to the extent that moneys are available in the Domestic Violence Shelter Fund, a statewide domestic violence entity that receives a grant under this chapter shall not accept money or other assistance from the United States Government or any other entity or person if the acceptance would obligate the State of Arkansas.

History. Acts 2017, No. 583, § 1.

9-6-105. Determination of grant awards.

  1. The Department of Finance and Administration shall:
    1. Establish the criteria for grant applications and awards in accordance with § 9-6-103(b);
    2. Review and grant or deny all or part of a grant application submitted under this chapter in accordance with § 9-6-103(b); and
    3. Retain oversight of all grant expenditures under this chapter.
  2. A statewide domestic violence entity that is awarded a grant under this chapter shall use the moneys that the statewide domestic violence entity receives to distribute funds to shelters that meet the requirements of this chapter.

History. Acts 2017, No. 583, § 1.

9-6-106. Operational requirements of shelters receiving domestic violence shelter funds.

A statewide domestic violence entity that receives a grant under this chapter shall distribute funds to a shelter if the shelter:

  1. Develops and implements a written nondiscrimination policy to provide services without regard to race, religion, color, age, marital status, national origin, ancestry, or sexual orientation;
  2. Provides a facility that is open, accessible, and staffed by an advocate or a volunteer each day of the calendar year and twenty-four (24) hours each day;
  3. Provides emergency housing and related supportive services in a safe and protective environment for victims of domestic abuse and their children;
    1. Provides a crisis telephone hotline that is answered by an advocate or a volunteer who meets the training requirements under this chapter each day of the calendar year and twenty-four (24) hours each day.
    2. The crisis telephone hotline required under subdivision (4)(A) of this section shall not be answered by an answering machine, answering service, or mobile telephone voicemail;
    1. Requires all advocates and volunteers who provide direct services to victims to sign a written confidentiality agreement that prohibits the release of:
      1. The name or other personal and identifying information about a victim served at the shelter; and
      2. The name or other personal and identifying information about a family or household member of a victim served at the shelter.
    2. The confidentiality agreement required under subdivision (5)(A) of this section does not:
      1. Apply to an advocate who testifies in court under a lawfully issued witness subpoena; or
      2. Prevent disclosure for federal grant review, audit, or reporting;
  4. Develops and implements a written plan for outreach efforts to aid victims of domestic violence;
  5. Provides peer support groups for victims;
  6. Provides assistance and court advocacy for victims seeking orders of protection; and
  7. Provides training and educational information on domestic violence for professionals, community organizations, and interested individuals.

History. Acts 2017, No. 583, § 1.

9-6-107. Fiscal requirements.

A statewide domestic violence entity that receives a grant under this chapter shall distribute funds to a shelter if the shelter:

  1. Incorporates in this state as a private nonprofit corporation that is exempt from taxation under the Internal Revenue Code, 26 U.S.C. § 501(c)(3), and that has the primary purpose of providing services to victims of domestic abuse or domestic violence;
  2. Is governed by a board of directors;
  3. Develops and implements written personnel policies that state the shelter's employment practices;
  4. Develops and implements written procedures that conform with the uniform system of recordkeeping developed by the Department of Finance and Administration or its designee to ensure proper handling of funds; and
  5. Provides the department or its designee with statistical data that states the following:
    1. The type of services provided by the shelter; and
    2. The number of victims and children served each year.

History. Acts 2017, No. 583, § 1.

9-6-108. Training requirements.

A statewide domestic violence entity that receives a grant under this chapter shall distribute funds to a shelter if the shelter:

    1. Requires each member of its board of directors to attend an orientation that is administered by a statewide domestic violence entity and approved by the Department of Finance and Administration or its designee within six (6) months after joining the board of directors.
    2. The orientation required under subdivision (1)(A) of this section shall include an explanation of the dynamics of domestic violence and the role of a board member;
    1. Requires each advocate and volunteer who provides direct services to victims to attend fifteen (15) hours of initial staff training approved by the department or its designee.
    2. The initial staff training required under subdivision (2)(A) of this section shall include without limitation the following topics of instruction:
      1. Crisis intervention;
      2. Case management;
      3. Safety planning;
      4. Individual or group facilitation; and
      5. Proper procedure for answering the crisis telephone hotline; and
    1. Requires each advocate who provides direct services to victims to attend ten (10) hours of continuing education annually that is approved by the department or its designee.
    2. The continuing education required under subdivision (3)(A) of this section shall include without limitation the following topics of instruction:
      1. Crisis intervention;
      2. Case management;
      3. Safety planning;
      4. Individual or group facilitation; and
      5. The proper procedure for answering the crisis telephone hotline.

History. Acts 2017, No. 583, § 1.

9-6-109. Right of entry.

A statewide domestic violence entity that receives a grant under this chapter shall have the right to enter and inspect the premises of a shelter receiving funds under this chapter and perform an annual evaluation or otherwise determine compliance with this chapter.

History. Acts 2017, No. 583, § 1.

9-6-110. Reports.

The Secretary of the Department of Finance and Administration or his or her designee shall provide an annual report by October 1 of each year to the Chair of the Senate Interim Committee on Children and Youth and the Chair of the House Committee on Aging, Children and Youth, Legislative and Military Affairs containing the following information:

  1. The incidence of domestic violence in this state based on information obtained from shelters that receive funds under this chapter;
  2. A description of shelters that meet the requirements of and receive funds under this chapter; and
  3. The number of persons assisted by the shelters that receive funds under this chapter.

History. Acts 2017, No. 583, § 1; 2019, No. 910, § 3371.

Amendments. The 2019 amendment substituted “Secretary of the Department of Finance and Administration” for “Director of the Department of Finance and Administration” in the introductory language.

9-6-111. Disclosure of information.

Information from files, reports, evaluations, inspections, or other sources that is received by the Department of Finance and Administration and its employees and designees or by a statewide domestic violence entity that receives funds under this chapter and its employees and designees is confidential and shall not be disclosed publicly in a manner that identifies an individual or facility.

History. Acts 2017, No. 583, § 1.

9-6-112. Privileged communications made by victim of domestic violence — Definitions.

  1. As used in this section:
    1. “Advocate for victims of domestic violence” means an employee, supervisor, administrator, or volunteer of a shelter or center for victims of domestic violence authorized and regulated under this chapter;
    2. “Communication” means verbal, written, or electronic communications of any kind;
    3. “Deviate sexual activity” means the same as defined in § 5-14-101;
    4. “Domestic violence” means:
      1. Physical harm, bodily harm causing injury, or an assault against a person caused by:
        1. A family or household member; or
        2. Another person with whom a person is in a dating relationship;
      2. Mental or emotional harm to a person caused by:
        1. A family or household member; or
        2. Another person with whom a person is in a dating relationship; or
      3. Sexual abuse against a person by another person;
    5. “Mentally defective” means the same as defined in § 5-14-101;
    6. “Mentally incapacitated” means the same as defined in § 5-14-101;
    7. “Physically helpless” means the same as defined in § 5-14-101;
    8. “Sexual abuse” means:
      1. Sexual intercourse, deviate sexual activity, or sexual contact by means of forcible compulsion; or
      2. Sexual intercourse, deviate sexual activity, or sexual contact with a person who is:
        1. Physically helpless;
        2. Mentally incapacitated;
        3. Mentally defective; or
        4. Less than sixteen (16) years of age, if the age of the other person committing the sexual intercourse, deviate sexual activity, or sexual contact is twenty (20) years of age or older;
    9. “Sexual contact” means the same as defined in § 5-14-101;
    10. “Sexual intercourse” means the same as defined in § 5-14-101;
    11. “Shelter or center for victims of domestic violence” means a domestic violence shelter that is authorized and regulated under this chapter; and
    12. “Victim of domestic violence” means a person who has been subjected to domestic violence by another person and who has sought out an advocate for victims of domestic violence or a shelter or center for victims of domestic violence.
    1. Except as provided under subsection (e) of this section, communication between a victim of domestic violence and an advocate for victims of domestic violence is privileged and shall not be disclosed by the advocate for victims of domestic violence without the consent of the victim of domestic violence.
    2. A victim of domestic violence or an advocate for victims of domestic violence may not be compelled to disclose the contents of any communication made to the advocate for victims of domestic violence by the victim of domestic violence.
  2. The privilege under this section only applies when the communication was made to the advocate for victims of domestic violence while the victim of domestic violence was seeking or in the course of advocacy, help, refuge, treatment, housing, support, therapy, legal advice, counseling, medical advice, or any other assistance related to the domestic violence to which the victim of domestic violence was subjected.
  3. The privilege under this section may be claimed by:
    1. The victim of domestic violence, his or her attorney, or his or her parent or guardian if the victim of domestic violence is less than eighteen (18) years of age; and
    2. An advocate for victims of domestic violence on behalf of the victim of domestic violence.
  4. A communication privileged under this section may be disclosed if:
    1. The communication is made to another person employed by or volunteering at a shelter or center for victims of domestic violence and the disclosure is for the purposes of furthering the advocacy process; or
    2. A court compels disclosure after an in-camera hearing when the probative value of the evidence outweighs the effect on:
      1. The victim of domestic violence;
      2. The treatment relationship between the victim of domestic violence and the advocate for victims of domestic violence; and
      3. Treatment services provided by a shelter or center for victims of domestic violence.
  5. The privilege under this section is waived if:
    1. The advocate for victims of domestic violence was a witness or a party to the incident that prompted the providing of assistance by the advocate for victims of domestic violence and the communication is required by law enforcement to investigate the incident;
    2. The communication reveals the intended commission of a crime or harmful act and the disclosure is determined to be necessary by the advocate for victims of domestic violence to protect any person from a clear, imminent risk of serious mental or physical harm or injury or to forestall a serious threat to the public safety; or
    3. The victim of domestic violence waives the privilege created under this section by voluntarily disclosing or consenting to disclosure of any significant part of the privileged communication.
  6. A claim of privilege under this section is not defeated by a disclosure that was erroneously, unlawfully, or improperly compelled or made without opportunity to claim the privilege.

History. Acts 2019, No. 499, § 1.

Chapter 7

[Reserved.]

Subtitle 2. Domestic Relations

Chapter 8 General Provisions

Subchapter 1 — Court-Ordered Investigations or Studies

A.C.R.C. Notes. Due to the enactment of subchapter 2 by Acts 2007, No. 621, the existing provisions of this chapter have been redesignated as subchapter 1.

9-8-101. Definitions.

As used in this subchapter:

  1. “Child” means a person under eighteen (18) years of age;
  2. “Division” means the Division of Children and Family Services of the Department of Human Services;
  3. “Investigation” means the process of obtaining a home study, home report, home assessment, home evaluation, or marital study;
  4. “Licensed social worker” means a social worker authorized to perform home studies or supervised visits under the Social Work Licensing Act, § 17-103-101 et seq.;
  5. “Rules” means rules promulgated by the division for the purpose of implementing this subchapter pursuant to the Arkansas Administrative Procedure Act, § 25-15-201 et seq.;
  6. “Study” means home study, home report, home assessment, home evaluation, or marital study; and
  7. “Supervision” means periodic visitation to the home or school or other places for monitoring or observation to determine a child's situation or condition or to regulate or facilitate visitation and may include court appearances to provide testimony on the visitation.

History. Acts 1991, No. 1081, § 1; 2001, No. 1420, § 1; 2019, No. 315, § 703.

Publisher's Notes. Former § 9-8-101, concerning the fee for court-ordered investigations, etc., of children not being provided public services, was repealed by Acts 1991, No. 1081, § 1. The former section was derived from Acts 1987, No. 978, §§ 1-3. For current law, see § 9-8-102.

Amendments. The 2019 amendment substituted “rules” for “regulations” twice in (5).

9-8-102. Investigation, study, or supervision involving children — Court order — Fee.

    1. If a court of the State of Arkansas requests or orders a licensed social worker of the court's choice to perform any investigation, study, or supervision involving the custody, placement, adoption, or other pertinent matter with regard to a child or children, the licensed social worker selected by the court may charge a fee that shall not exceed the fair market value of the investigation, study, or supervision.
      1. The Division of Children and Family Services of the Department of Human Services shall not be ordered by any court, except the juvenile division of circuit court, to conduct an investigation, study, or supervision unless the court has first determined the responsible party to be indigent.
      2. The investigation, study, or supervision is to take place within the State of Arkansas.
  1. When the court requests or orders a licensed social worker to perform an investigation, study, or supervision, the court shall specify the party or parties responsible for payment of the fee and may grant a reasonable period of time for payment.
  2. If payment is not made within the established time frame as set forth in the court order or as prescribed by rules, the obligation shall be considered a delinquent debt, as defined by rule, and the licensed social worker may recover the fee as provided by law for the recovery of a debt.

History. Acts 1991, No. 1081, § 2; 1995, No. 1283, § 1; 2001, No. 1420, § 2; 2003, No. 338, § 1; 2019, No. 315, § 704.

Amendments. The 2019 amendment substituted “rules” for “regulations” and “rule” for “regulation” in (c).

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Family Law, Home Study, 26 U. Ark. Little Rock L. Rev. 408.

Subchapter 2 — Arkansas Subsidized Guardianship Act

Effective Dates. Acts 2015, No. 1038, § 9: Apr. 4, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that federal law requires that the Department of Human Services amend the law addressed in this bill; that state law needs to comply with federal law; and that this act is necessary to avoid a violation of federal law. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

9-8-201. Title — Purpose.

  1. This subchapter shall be known and may be cited as the “Arkansas Subsidized Guardianship Act”.
  2. The purpose of this subchapter is to create the framework for subsidized guardianships in the event that funding becomes available for such a program.

History. Acts 2007, No. 621, § 1.

9-8-202. Administration, funding, and limitations.

  1. Contingent upon adequate funding, appropriation, and position authorization, both programmatic and administrative, the Department of Human Services shall establish and administer a program of subsidized guardianship.
  2. Guardianship subsidies and services for children under this program shall be provided out of funds appropriated to the department or made available to it from other sources and shall be subject to any restrictions as outlined in the funds appropriated or made available to the department.

History. Acts 2007, No. 621, § 1.

9-8-203. Promulgation of rules.

  1. The Department of Human Services shall promulgate rules to implement this program.
  2. The department shall promulgate rules that include eligibility requirements in accordance with any requirements from the funding stream.

History. Acts 2007, No. 621, § 1; 2019, No. 315, § 705.

Amendments. The 2019 amendment substituted “rules” for “regulations” in the section heading; and deleted “and regulations” following “rules” in (a) and (b).

9-8-204. Eligibility.

  1. A child is eligible for a guardianship subsidy if the Department of Human Services determines the following:
    1. The child has been removed from the custody of his or her parent or parents as a result of a judicial determination to the effect that continuation in the custody of the parent or parents would be contrary to the welfare of the child;
    2. The department is responsible for the placement and care of the child;
    3. Being returned home or being adopted is not an appropriate permanency option for the child;
    4. Permanent placement with a guardian is in the best interest of the child;
    5. The child demonstrates a strong attachment to the prospective guardian, and the guardian has a strong commitment to caring permanently for the child;
    6. With respect to a child who has attained fourteen (14) years of age, the child has been consulted regarding the guardianship;
      1. The necessary degree of relationship exists between the prospective guardian and the child.
      2. For the purposes of determining eligibility for a guardianship subsidy, the necessary degree of relationship is satisfied by a relative or fictive kin as defined in § 9-28-108;
    7. The child is eligible for Title IV-E foster care maintenance payments, or the department determines that adequate funding is available for the guardianship subsidy for a child who is not Title IV-E eligible;
    8. The home of the prospective guardian complies with any applicable rules promulgated by the:
      1. Child Welfare Agency Review Board for foster home licensure; and
      2. Department for foster home approval; and
    9. While in the custody of the department, the child resided in the home of the prospective relative guardian for at least six (6) consecutive months after the prospective guardian's home was opened as a foster home.
  2. A child who was previously determined by the department to be eligible for an initial guardianship subsidy under subsection (a) of this section may receive a subsequent guardianship subsidy when:
    1. A guardianship subsidy agreement under subsection (a) of this section was signed by the department and the initial relative guardian;
    2. The relative guardian has died or is incapacitated after the effective date of the guardianship subsidy agreement;
    3. A successor guardian is named in the guardianship assistance agreement or an amendment to the agreement;
    4. The department determines the successor guardian meets the necessary degree of relationship between the successor guardian and the child and the safety requirements in state and federal rules and regulations and department policy; and
    5. A new guardianship subsidy agreement is signed by the successor guardian and the department before the entry of a successor guardianship.

History. Acts 2007, No. 621, § 1; 2009, No. 325, § 1; 2011, No. 592, § 1; 2015, No. 1038, § 1; 2019, No. 968, § 1.

Amendments. The 2009 amendment added (a)(10) and made related changes.

The 2011 amendment deleted the (a) designation from the introductory paragraph; and deleted (b); deleted (7) and (9) and redesignated the remaining subdivisions accordingly; deleted “If permitted or required by the funding stream” at the beginning of present (7); rewrote (8)(B); and added (9) and (10).

The 2015 amendment designated the existing language as (a); and added (b).

The 2019 amendment added the (a)(7)(A) designation; added (a)(7)(B); and deleted the (8)(A) and (B) designations.

U.S. Code. Title IV-E, referred to in this section, refers to Title IV-E of the Social Security Act, which is codified as 42 U.S.C. § 670 et seq.

9-8-205. Guardianship subsidy agreement.

  1. A written guardianship subsidy agreement must be entered before the guardianship is established.
  2. The guardianship subsidy agreement shall become effective upon entry of the order granting guardianship.
  3. No guardianship subsidy may be made for any child who has attained eighteen (18) years of age unless permitted by the funding stream.

History. Acts 2007, No. 621, § 1; 2013, No. 577, § 1.

Amendments. The 2013 amendment deleted former (c) and redesignated former (d) as (c).

9-8-206. Subsidy amount.

  1. The amount of the guardianship subsidy shall be determined through agreement between the guardian and the Department of Human Services but cannot exceed the current foster care board rate.
  2. The amount of the guardianship subsidy shall be based on consideration of the circumstances and needs of the guardian and the child as well as the availability of other resources to meet the child's needs.

History. Acts 2007, No. 621, § 1.

9-8-207. Records confidential.

  1. All subsidized guardianship records personally identifying a juvenile shall be confidential and shall not be released or otherwise made available except to the following persons or entities and to the extent permitted by federal law:
    1. The guardian;
    2. The attorney for the guardian;
    3. The child;
    4. The attorney ad litem for the child;
    5. For purposes of review or audit by the appropriate federal or state agency;
    6. A grand jury or court upon a finding that information in the record is necessary for the determination of an issue before the grand jury or court;
      1. Individual federal and state representatives and senators in their official capacity and their staff members with no redisclosure of information.
      2. No disclosure of any information that identifies by name or address any recipient of a subsidy or service shall be made to any committee or legislative body; and
    7. The administration of any federal program or federally assisted program that provides assistance, in cash or in kind, or services directly to individuals on the basis of need.
    1. Any person or agency to whom disclosure is made shall not disclose to any other person any personally identifying information obtained pursuant to this section.
    2. Nothing in this subsection shall prevent subsequent disclosure by the guardian or the child.
    3. Any person disclosing information in violation of this subsection shall be guilty of a Class C misdemeanor.

History. Acts 2007, No. 621, § 1.

Subchapter 3 — Restrictions on Unmarried Adults as Adoptive or Foster Parents

[Repealed.]

9-8-301 — 9-8-306. [Repealed.]

Publisher's Notes. This subchapter, concerning restrictions on unmarried adults as adoptive or foster parents, was repealed by Acts 2013, No. 1152, § 3. The subchapter was derived from the following sources:

9-8-301. Init. Meas. 2008, No. 1, § 5.

9-8-302. Init. Meas. 2008, No. 1, § 4.

9-8-303. Init. Meas. 2008, No. 1, § 3.

9-8-304. Init. Meas. 2008, No. 1, § 1.

9-8-305. Init. Meas. 2008, No. 1, § 2.

9-8-306. Init. Meas. 2008, No. 1, § 6.

Chapter 9 Adoption

Research References

ALR.

Marital status or relationship of prospective adopting parents. 2 A.L.R.4th 555; 42 A.L.R.4th 776.

Criminal liability of one arranging for adoption of child through other than licensed child placement agency (“baby broker acts”). 3 A.L.R.4th 468.

Change in record of birthplace of adopted child. 14 A.L.R.4th 739.

Race as factor in adoption proceedings. 34 A.L.R.4th 167.

Natural parent's parental rights as affected by consent to child's adoption by other natural parent. 37 A.L.R.4th 724.

Spouse of adopting parent: consent to adoption. 38 A.L.R.4th 768.

Sexual relationship between parties as affecting right to adopt. 42 A.L.R.4th 776.

Validity of agreement to pay expenses of birth on condition that natural parents consent to adoption of child. 43 A.L.R.4th 935.

Parties in adoption proceedings. 48 A.L.R.4th 860.

Adoption as precluding testamentary gift under natural relative's will. 71 A.L.R.4th 374.

Post-adoption visitation by natural parents. 78 A.L.R.4th 218.

Liability of public or private agency or its employees to prospective adoptive parents in contract or tort for failure to complete arrangement for adoption. 8 A.L.R.5th 860.

Validity of natural parent's “blanket” consent to adoption which fails to identify adoptive parents. 15 A.L.R.5th 1.

Attorney malpractice in connection with services related to adoption of a child. 18 A.L.R.5th 892.

Adopted child as within class in testamentary gift. 36 A.L.R.5th 395.

Adopted child as within class in deed or inter vivos trust instrument. 37 A.L.R.5th 237.

Rights of an unwed father to obstruct adoption of his child by withholding consent. 61 A.L.R.5th 151.

“Wrongful adoption” causes of action against adoption agencies where children have or develop mental or physical problems which are misrepresented or not disclosed to adoptive parents. 74 A.L.R.5th 1.

Determination of status of surrogate parents as legal or natural parents in contested surrogacy births. 77 A.L.R.5th 567.

Adoption of Child by Same-Sex Partners. 61 A.L.R.6th 1.

Am. Jur. 2 Am. Jur. 2d, Adoption, § 1 et seq.

Ark. L. Rev.

Note, How a State's Interests in a Child's Welfare Are Frustrated by Indiscriminate Application of the Final Judgment Rule: Arkansas Department of Human Services v. Lopez, 44 Ark. L. Rev. 895.

C.J.S. 2 C.J.S., Adoption, § 1 et seq.

U. Ark. Little Rock L.J.

Parness, Prospective Fathers and Their Unborn Children, 13 U. Ark. Little Rock L.J. 165.

Subchapter 1 — General Provisions

Cross References. Child welfare agency licensing, § 9-28-401 et seq.

Interstate compact on placement of children, § 9-29-201 et seq.

Effective Dates. Acts 1997, No. 216, § 5: Feb. 19, 1997. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the United States Congress has amended the laws pertaining to adoption and out-of-home placement of children; that failure to amend State law to mirror those federal laws will jeopardize the federal funding necessary for the State to accomplish adoptions and out-of-home placement; that this act provides for the necessary amendments to State law. Therefore an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

9-9-101. Surrender of custody of minor by hospital or birthing center.

  1. After a consent to adoption under § 9-9-208 or a relinquishment of parental rights under § 9-9-220 is executed with regard to a minor in the physical custody of a hospital or birthing center within the State of Arkansas, the biological mother of a minor child may authorize the release of the child from the hospital or birthing center to the petitioner for adoption, the guardian of the minor child, the child placement agency licensed under the Child Welfare Agency Licensing Act, § 9-28-401 et seq., the Division of Children and Family Services of the Department of Human Services, or the attorney acting on behalf of any of the foregoing entities.
    1. A hospital or birthing center release form under this section must:
      1. Be executed in writing;
      2. Be witnessed by two (2) credible adults;
      3. Authorize the petitioner for adoption, the guardian of the minor child, the licensed child placement agency, the division, or the attorney acting on the behalf of any of the foregoing entities to obtain any medical treatment, including circumcision of a male child, reasonably necessary for the care of the minor and to authorize any physician or medical services provider to furnish additional services deemed reasonable and necessary; and
      4. Be verified before a person authorized to take oaths.
    2. If a hospital or birthing center surrenders custody of a minor child to the petitioner for adoption, the guardian of the minor child, a licensed child placement agency, the division, or the attorney acting on behalf of any of the foregoing entities, the hospital or birthing center releasing the minor shall not be liable to any person because of its acts if the hospital or birthing center has complied with this section.
    1. A hospital or birthing center shall comply with the terms of a release executed under this section without requiring a court order.
    2. Once the hospital or birthing center release form described in subsection (b) of this section is presented to the hospital or birthing center, the hospital or birthing center shall discharge the minor child to the petitioner for adoption, the guardian of the minor child, a licensed child placement agency, the division, or the attorney acting on the behalf of any of the foregoing entities after the hospital or birthing center is presented photo identification of the receiving party.

History. Acts 1971, No. 169, § 1; A.S.A. 1947, § 56-125; Acts 1987, No. 1060, § 8; 2001, No. 1737, § 1.

Research References

Ark. L. Rev.

Morrison & Sievers, Adoption Law in Arkansas, 53 Ark. L. Rev. 1.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Family Law, 24 U. Ark. Little Rock L. Rev. 483.

9-9-102. Preference to relative caregivers for a child in foster care — Religious preference — Removal of barriers to inter-ethnic adoption.

  1. In all custodial placements by the Department of Human Services in foster care or adoption, the court shall give preferential consideration to an adult relative over a nonrelated caregiver, provided that the relative caregiver meets all relevant child protection standards and it is in the best interest of the child to be placed with the relative caregiver.
  2. If the genetic parent or parents of the child express a preference for placing the child in a foster home or an adoptive home of the same or a similar religious background to that of the genetic parent or parents, the court shall place the child with a family that meets the genetic parent's religious preference, or if a family is not available, to a family of a different religious background that is knowledgeable and appreciative of the child's religious background.
  3. The court shall not deny a petition for adoption on the basis of race, color, or national origin of the adoptive parent or the child involved.

History. Acts 1987, No. 857, § 1; 1995, No. 956, § 1; 1997, No. 216, § 1; 2011, No. 591, § 2.

Amendments. The 2011 amendment, in (a), substituted “adoption, the court shall give” for “investigations conducted by the department pursuant to court order under § 9-9-212” and deleted “shall be given” following “consideration”; deleted former (b); and redesignated the remaining subsections accordingly.

Research References

Ark. L. Rev.

Chiles, A Hand to Rock the Cradle: Transracial Adoption, the Multiethnic Placement Act, and a Proposal for the Arkansas General Assembly, 49 Ark. L. Rev. 501.

Case Notes

Preferential Consideration to Relative.

Appellants claimed error in the trial court's finding that it was in the child's best interests that he be adopted by appellees, and appellants pointed to subsection (a) of this section for preferential consideration purposes; however, keeping in mind the standard of review, the court affirmed the trial court's best interest finding because it was not clearly contrary to the preponderance of the evidence, and the trial court was faced with choosing between two suitable adoptive homes. Wilson v. Golen, 2013 Ark. App. 267, 427 S.W.3d 723 (2013).

9-9-103. Adoption home studies affidavit.

  1. Upon the request of any interested party, agency, or the court, the petitioner in any adoption proceeding shall file with the court an affidavit stating the number of adoption home studies conducted on the petitioner's home prior to the filing of the petition.
  2. A copy of each adoption home study performed shall be attached to the affidavit.

History. Acts 1993, No. 598, § 1.

9-9-104. Adoption information collection.

  1. The General Assembly finds that:
    1. There is a need for more information on adoptions that occur in Arkansas;
    2. No governmental agency has the responsibility for gathering information on Arkansas adoptions; and
    3. Without adequate data, the General Assembly cannot make informed decisions regarding changes that may need to be made to adoption laws.
  2. The Office of Chief Counsel of the Department of Human Services shall prepare an adoption information sheet and shall distribute the information sheet to each of the circuit clerks in the state for distribution to each petitioner seeking to file an adoption pleading in the state.
  3. Before the entry of an interlocutory or final decree of adoption, the petitioner shall complete the adoption information sheet and return it to the clerk.
  4. The clerk shall mail the completed form to the Office of Chief Counsel of the Department of Human Services.
  5. The adoption information sheet shall include without limitation:
    1. The age of the minor to be adopted;
    2. The state in which the minor was born;
    3. The state in which the minor resided before the adoption;
    4. The state of residence of the birth mother;
    5. The age of each adoptive parent;
    6. The state in which each adoptive parent resides;
    7. Whether the adoption placement was made by a licensed Arkansas adoption agency and, if so, the name of the agency;
    8. Whether the adoption placement was made by:
      1. A private physician;
      2. A private attorney; or
      3. An out-of-state entity or individual;
    9. Whether the adoptive parents are married or single;
    10. Whether the adoptive parent is a stepparent or second-parent adoptive parent;
    11. Whether the adoptive parent is a family member of the minor child; and
    12. An approximate amount for costs paid by the petitioner in the adoption.
  6. Personally identifiable information regarding the child to be adopted or regarding an adoptive parent shall not be requested or gathered on the adoption information sheet.

History. Acts 2009, No. 1399, § 1.

9-9-105. Employee leave for adoption — Definition.

  1. As used in this section, “employer” means public and private employers, including state departments, agencies, and political subdivisions.
    1. An employer that permits paternity leave or maternity leave for a biological parent after the birth of a child shall permit paternity or maternity leave for an adoptive parent upon placement of an adoptive child in the adoptive parent's home if requested by the adoptive parent.
    2. If the employer has established a policy that provides leave time for a biological parent after the birth of a child, the same policy shall apply to an adoptive parent upon placement of an adoptive child in the adoptive parent's home.
    3. A request for additional leave due to the placement and adoption of an ill child or a child with a disability shall be considered by the employer on the same basis as comparable cases of complications accompanying the birth of a child to an employee or employee's spouse.
  2. Any other benefit provided by an employer, such as job guarantee or pay guarantee, shall be available to both biological parents and adoptive parents equally.
  3. An employer shall not penalize an employee for exercising his or her rights under this section.
  4. This section does not apply to an adoption:
    1. By the spouse of a custodial parent;
    2. Of a person over eighteen (18) years of age; or
    3. Of a foster child by the child's foster parents.

History. Acts 2011, No. 1235, § 2.

Subchapter 2 — Revised Uniform Adoption Act

Publisher's Notes. For comments regarding the Uniform Adoption Act, see Commentaries Volume B.

Cross References. Grandparent's visitation rights, § 9-13-103.

Effective Dates. Acts 1979, No. 599, § 6: Mar. 28, 1979. Emergency clause provided: “It is hereby found and determined by the General Assembly that technical and clerical errors were made in the 1977 Uniform Adoption Act and that it is immediately necessary to remedy such errors. Therefore, an emergency is hereby declared to exist and this Act being immediately necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1986 (2nd Ex. Sess.), No. 23, § 5: May 19, 1986. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that the repeal of Section 17 of Act 735 of 1977, formerly compiled as Arkansas Statute 56-217, was an error and that this Act is immediately necessary to insure that adoption proceedings and adoption records are confidential. Therefore, an emergency is hereby declared to exist and this Act being immediately necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1995, No. 1284, § 6: became law without Governor's signature. Noted Apr. 14, 1995. Emergency clause provided: “It is hereby found and determined by the General Assembly that the provisions of this act are of critical importance to adoption proceedings in the state of Arkansas. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1997, No. 1106, § 5: Apr. 3, 1997. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that national fingerprint-based criminal record checks are not necessary if a prospective adoptive parent has resided in their state of residence for six years. Additional national fingerprint-based criminal record checks are not needed with international adoptions as they are already part of INS regulations. Therefore an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 1997, No. 1227, § 19: Apr. 7, 1997. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that there is an important public interest in providing quality representation to juveniles and parents in dependency-neglect proceedings, pursuant to Ark. Code Ann. 9-27-316. It is further determined that children are the state's most treasured future resource and recent studies indicate that children and their parents have not always received quality representation and sometimes have gone without representation in dependency-neglect proceedings in the past because the counties of Arkansas have been unable to provide adequate representation due to lack of funding and uniform application of the law. To insure the best interests of Arkansas' children in achieving a safe and permanent home, to comply with federal law mandating appointment of guardians ad litem in dependency-neglect cases, and to prevent the loss of federal funding, a statewide system for quality dependency-neglect representation must be established. Therefore an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2003, No. 650, § 9: Mar. 25, 2003. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that federal law only allows the Federal Bureau of Investigation to release criminal history records to certain entities, which does not include private entities as currently permitted under state law. The Department of Arkansas State Police entered into an agreement with the Federal Bureau of Investigation regarding federal fingerprint-based criminal record checks, which permits disclosure only as allowed by federal law, with a grace period from the Federal Bureau of Investigation to correct state law no later than May 1, 2003. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2009, No. 230, § 3: Feb. 25, 2009: Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that it is in the best interest of a child to be determined to be legally free for adoption without undue delay. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2013, No. 282, § 17: Mar. 6, 2013. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a one-year period; that the effectiveness of this act as soon as possible is essential to the operation of the judiciary and the administration of justice; and that this act is immediately necessary because the delay in the effective date of this act could cause irreparable harm upon the proper administration of essential governmental programs. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2015, No. 861, § 9: Mar. 31, 2015. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that an audit by the Federal Bureau of Investigation found that the Department of Human Services is out of compliance with federal law regarding the confidentiality of criminal background checks; and that this act is immediately necessary because the public health and safety are at risk so long as the department remains out of compliance with federal law because of the threat of easy access to confidential records of criminal background checks. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2019, No. 945, § 11: July 1, 2019. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that some juveniles in Arkansas may be unaware of their rights under the Arkansas Juvenile Code of 1989, § 9-27-301 et seq., the Child Maltreatment Act, § 12-18-101 et seq., and other applicable law; that some individuals and entities that are responsible for the welfare of a juvenile may be unaware of the rights of the juvenile under the Arkansas Juvenile Code of 1989, § 9-27-301 et seq., the Child Maltreatment Act, § 12-18-101 et seq., and other applicable law; that the creation of the Child Welfare Ombudsman Division within the Arkansas Child Abuse/Rape/Domestic Violence Commission will help increase awareness of a juvenile's legal rights; that independent oversight of the child welfare system in Arkansas is more than likely to result in recommendations that will further improve the procedures and operations of the child welfare system; and that this act is necessary for the preservation of the public peace, health, and safety. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2019.”

Research References

Ark. L. Notes.

Sampson, Coats, & Barger, Arkansas' Putative Father Registry and Related Adoption Code Provisions: Inadequate Protection for Thwarted Putative Fathers, 1997 Ark. L. Notes 49.

Ark. L. Rev.

Brummer and Looney, Grandparent Rights in Custody, Adoption, and Visitation Cases, 39 Ark. L. Rev. 259.

Case Note, Cox v. Whitten: Limiting the Inheritance Rights of Adopted Adults, etc., 40 Ark. L. Rev. 627.

Leflar, Conflict of Laws: Arkansas, 1983-87, 41 Ark. L. Rev. 63.

Note, Strict Construction, Jurisdictional Requirements and the Arkansas Adoption Code: Martin v. Martin and a Missed Chance for Clarity, 49 Ark. L. Rev. 123.

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Family Law, 1 U. Ark. Little Rock L.J. 200.

Derden, Note: Family Law — Adoption — Revised Uniform Adoption Act, 2 U. Ark. Little Rock L.J. 135.

Brantley and Effland, Inheritance, The Share of the Surviving Spouse, and Wills: Arkansas Law and the Uniform Probate Code Compared, 3 U. Ark. Little Rock L.J. 361.

Arkansas Law Survey, Waddell, Family Law, 7 U. Ark. Little Rock L.J. 229.

Arkansas Law Survey, Morgan, Family Law, 8 U. Ark. Little Rock L.J. 169.

Legislative Survey, Family Law, 8 U. Ark. Little Rock L.J. 577.

Arkansas Law Survey, Irving, Family Law, 9 U. Ark. Little Rock L.J. 173.

Survey—Family Law, 14 U. Ark. Little Rock L.J. 799.

Fifteenth Annual Survey of Arkansas Law, 15 U. Ark. Little Rock L.J. 427.

Case Notes

In General.

Law in effect at time of adoption governs in determining validity of adoption. Dean v. Brown, 216 Ark. 761, 227 S.W.2d 623 (1950).

Construction.

Statutory provisions involving the adoption of minors are strictly construed and applied. Dale v. Franklin, 22 Ark. App. 98, 733 S.W.2d 747 (1987).

Agreements to Adopt.

An oral agreement to adopt a child did not prevent the person making the agreement from disposing by will of all his property to other persons than the child agreed to be adopted. Minetree v. Minetree, 181 Ark. 111, 26 S.W.2d 101 (1930) (decision under prior law).

To prove a contract to adopt a person, the burden of proof rests with the person claiming the benefit of an alleged contract for adoption, to establish it by clear, cogent, and convincing evidence. Thomas v. Costello, 226 Ark. 669, 292 S.W.2d 267 (1956) (decision under prior law).

Grandparents.

Where grandparents intervened in an adoption proceeding to show the best interests of their grandchildren, but did not seek to adopt them, it could not be argued that the adoption statutes deprived them of their rights to the grandchildren without showing a compelling state interest or deprived them of due process. Cox v. Stayton, 273 Ark. 298, 619 S.W.2d 617 (1981).

Joinder of State Agency.

There is nothing in Ark. R. Civ. P. 19 or this subchapter which compels the joinder of the Division of Social Services (abolished — see § 25-10-101 et seq.) in all adoption proceedings. Cox v. Stayton, 273 Ark. 298, 619 S.W.2d 617 (1981).

Rehabilitative Services.

Any claim of a right to receive rehabilitative services must be made in the juvenile court dependency-neglect proceedings and not later in the probate court on a petition for adoption of the neglected children, since this subchapter makes no provision for rehabilitative services. Cox v. Stayton, 273 Ark. 298, 619 S.W.2d 617 (1981).

Residency Requirement.

Probate courts are not empowered to grant an adoption when neither the adopting parents nor the child sought to be adopted are residents of Arkansas. In re Pollock, 293 Ark. 195, 736 S.W.2d 6 (1987).

Cited: Poe v. Case, 263 Ark. 488, 565 S.W.2d 612 (1978); Watkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78 (Ct. App. 1980); Temple v. Tucker, 277 Ark. 81, 639 S.W.2d 357 (1982); Webb v. Harvell, 563 F. Supp. 172 (W.D. Ark. 1983); Woodson v. Kilcrease, 7 Ark. App. 252, 648 S.W.2d 72 (1983); In re Proposed Local Rules, 284 Ark. 133, 682 S.W.2d 452 (1984); Summers v. Mylan, 287 Ark. 150, 697 S.W.2d 91 (1985).

9-9-201. Short title.

This subchapter may be cited as the “Revised Uniform Adoption Act”.

History. Acts 1977, No. 735, § 1; A.S.A. 1947, § 56-201.

Research References

Ark. L. Rev.

Carroll, Uniform Laws in Arkansas, 52 Ark. L. Rev. 313.

Morrison & Sievers, Adoption Law in Arkansas, 53 Ark. L. Rev. 1.

Case Notes

Cited: In re Parsons, 302 Ark. 427, 791 S.W.2d 681 (1990); In re J.L.T., 31 Ark. App. 85, 788 S.W.2d 494 (1990); Sides v. Beene, 327 Ark. 401, 938 S.W.2d 840 (1997).

9-9-202. Definitions.

As used in this subchapter, unless the context otherwise requires:

  1. “Child” means a son or daughter, whether by birth or by adoption;
  2. “Court” means all probate divisions of circuit courts in this state, or the juvenile divisions of circuit courts when exercising jurisdiction over adoption cases pursuant to §§ 9-27-301 — 9-27-339, 9-27-340 [repealed], and 9-27-341 — 9-27-345 and, when the context requires, means the court of any other state empowered to grant petitions for adoption;
  3. “Minor” means an individual under the age of eighteen (18) years;
  4. “Adult” means any individual who is not a minor;
  5. “Agency” means any person certified, licensed, or otherwise specially empowered by law or rule to place minors for adoption;
  6. “Person” means an individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other legal entity;
  7. “Abandonment” means the failure of the parent to provide reasonable support and to maintain regular contact with the child through statement or contact, when the failure is accompanied by an intention on the part of the parent to permit the condition to continue for an indefinite period in the future, and failure to support or maintain regular contact with the child without just cause for a period of one (1) year shall constitute a rebuttable presumption of abandonment;
  8. “Neglect” means the failure or refusal, including acts or omissions, of a person legally responsible for the care and maintenance of a child:
    1. To prevent the abuse of the child when the person legally responsible knows or has reasonable cause to know the child is or has been abused; or
    2. To provide the necessary food, clothing, shelter, and education required by law, or medical treatment necessary for the child's well-being, which causes or threatens to cause the significant impairment of the child's physical, mental, or emotional health, except when the failure or refusal is caused primarily by the financial inability of the person legally responsible and no services for relief have been offered or rejected, or when the child is being furnished with treatment by spiritual means alone through prayer, in accordance with the tenets and practices of a recognized religious denomination by a duly accredited practitioner thereof in lieu of medical treatment;
  9. “Refusal to consent” means the unreasonable refusal to consent by a parent not having custody of a child to the termination of parental rights contrary to the best interest of the child;
  10. “Abuse” means any injury, sexual abuse, or sexual exploitation inflicted by a person upon a child other than by accidental means, or an injury which is at variance with the history given of it.

History. Acts 1977, No. 735, § 2; 1985, No. 879, § 1; A.S.A. 1947, § 56-202; Acts 1993, No. 758, § 2.

Case Notes

Abandonment.

Record supported the circuit court's holding that a natural father's consent to the adoption of his minor child was not required under § 9-9-207 because he had failed significantly, without justifiable cause, to support the child for a period of one year, and therefore had abandoned her. Vick v. Cecil (In re A.M.C.), 368 Ark. 369, 246 S.W.3d 426 (2007).

Abuse.

Trial court did not err in allowing a stepfather to adopt a biological father's daughter without the biological father's consent because it was undisputed that the biological father had pled guilty to three counts of raping a minor, including the rape of his daughter. Gordon v. Draper, 2013 Ark. App. 352, 428 S.W.3d 543 (2013).

Cited: King v. Lybrand, 329 Ark. 163, 946 S.W.2d 946 (1997); In re SCD, 358 Ark. 51, 186 S.W.3d 225 (2004); Scudder v. Ramsey, 2013 Ark. 115, 426 S.W.3d 427 (2013); Ducharme v. Gregory, 2014 Ark. App. 268, 435 S.W.3d 14 (2014).

9-9-203. Who may be adopted.

Any individual may be adopted.

History. Acts 1977, No. 735, § 3; A.S.A. 1947, § 56-203.

9-9-204. Who may adopt.

The following individuals may adopt:

  1. A husband and wife together although one (1) or both are minors;
  2. An unmarried adult;
  3. The unmarried father or mother of the individual to be adopted;
  4. A married individual without the other spouse joining as a petitioner, if the individual to be adopted is not his or her spouse; and if:
    1. The other spouse is a parent of the individual to be adopted and consents to the adoption;
    2. The petitioner and the other spouse are legally separated; or
    3. The failure of the other spouse to join in the petition or to consent to the adoption is excused by the court by reason of prolonged unexplained absence, unavailability, incapacity, or circumstances constituting an unreasonable withholding of consent.

History. Acts 1977, No. 735, § 4; 1979, No. 599, § 1; A.S.A. 1947, § 56-204.

Research References

ALR.

Adoption of Child by Same-Sex Partners. 61 A.L.R.6th 1.

Case Notes

Adoption by Unmarried Father.

Trial court erred in its interpretation of this section because a child's biological father could adopt the child, despite the fact that the father was unmarried. Also, the trial court's policy concern that the adoption would relieve the mother, who had consented to the adoption, of her obligation to financially support the child was a matter that was more appropriately addressed by the legislature. King v. Ochoa, 373 Ark. 600, 285 S.W.3d 602 (2008).

Adoption by Unmarried Mother.

Circuit court did not err in denying the adoption petition, because it was the mother's burden to present credible evidence to convince the circuit judge that adoption was in the best interest of the child, and considering the circuit court's determination that the effect of § 9-9-215 was speculative and that the mother's allegations against the father could be afforded no weight, she failed to meet this burden. There was no corroborating testimony or evidence as to the mother's allegations regarding the father's use of alcohol and drugs or the father's abuse of his children, other than what the mother told her mother. In re Adoption of M.K.C., 2009 Ark. 114, 313 S.W.3d 513 (2009).

Standing to Adopt.

Section 9-9-210(a)(3) provides that a petition for adoption shall state “the date the petitioner acquired custody of the minor and of placement of the minor and the name of the person placing the minor; and a statement as to how petitioner acquired custody of the minor.” That language, having to do with the contents of the petition, does not mean that a person who does not have custody and with whom the child has not been “placed” has no standing; standing to adopt is conferred by this section, and this section does not exclude persons who have served as foster parents of the minor to be adopted. Patterson v. Robbins, 295 Ark. 511, 749 S.W.2d 330 (1988).

Case law and this section, recognizing the right of foster parents to adopt a foster child, was not superseded by the juvenile code. Schubert v. Ark. Dep't of Human Servs., 2010 Ark. App. 113 (2010).

Cited: Irvan v. Kizer, 286 Ark. 105, 689 S.W.2d 548 (1985); In re Perkins/Pollnow, 300 Ark. 390, 779 S.W.2d 531 (1989).

9-9-205. Jurisdiction — Venue — Inconvenient forum — Disclosure of name.

  1. Jurisdiction of adoption of minors:
    1. The state shall possess jurisdiction over the adoption of a minor if the person seeking to adopt the child, or the child, is a resident of this state.
    2. For purposes of this subchapter:
      1. A child under the age of six (6) months shall be considered a resident of this state if the:
        1. Child's birth mother resided in Arkansas for more than four (4) months immediately preceding the birth of the child;
        2. Child was born in this state or in any border city that adjoins the Arkansas state line or is separated only by a navigable river from an Arkansas city that adjoins the Arkansas state line; and
        3. Child remains in this state until the interlocutory decree has been entered, or in the case of a nonresident adoptive family, upon the receipt of approval pursuant to the Interstate Compact on the Placement of Children, § 9-29-201 et seq., the child and the prospective adoptive parents may go back to their state of residence and subsequently may return to Arkansas for a hearing on the petition for adoption;
      2. A child over the age of six (6) months shall be considered a resident of this state if the child:
        1. Has resided in this state for a period of six (6) months;
        2. Currently resides in Arkansas; and
        3. Is present in this state at the time the petition for adoption is filed and heard by a court having appropriate jurisdiction; and
      3. A person seeking to adopt is a resident of this state if the person:
        1. Occupies a dwelling within the state;
        2. Has a present intent to remain within the state for a period of time; and
        3. Manifests the genuineness of that intent by establishing an ongoing physical presence within the state together with indications that the person's presence within the state is something other than merely transitory in nature.
      1. If the juvenile is the subject matter of an open case filed under the Arkansas Juvenile Code of 1989, § 9-27-301 et seq., the adoption petition shall be filed in that case.
      2. The circuit court shall retain jurisdiction to issue orders of adoption, interlocutory or final, when a juvenile is placed outside the State of Arkansas.
    3. A petition for adoption may not be asserted in a guardianship proceeding, but a separate action shall be filed, and the clerk shall assign a new case number and charge a filing fee unless the filing fee is waived under Rule 72 of the Arkansas Rules of Civil Procedure.
  2. Jurisdiction of adoption of adults: Physical presence of the petitioner or petitioners or the individual to be adopted shall be sufficient to confer subject matter jurisdiction.
  3. Venue:
    1. Proceedings for adoption must be brought in the county in which, at the time of filing or granting the petition, the petitioner or petitioners, or the individual to be adopted resides or is in military service or in which the agency having the care, custody, or control of the minor is located.
    2. If the court finds in the interest of substantial justice that the matter should be heard in another forum, the court may transfer, stay, or dismiss the proceedings in whole or in part on any conditions that are just.
  4. The caption of a petition for adoption shall be styled substantially “In the matter of the Adoption…” The person to be adopted shall be designated in the caption under the name by which he or she is to be known if the petition is granted.
  5. If the child is placed for adoption, any name by which the child was previously known may be disclosed in the petition, the notice of hearing, or in the decree of adoption.
  6. In the event the child dies during the time that the child is placed in the home of an adoptive parent or parents for the purpose of adoption, the court has the authority to enter a final decree of adoption after the child's death upon the request of the adoptive parent.

History. Acts 1977, No. 735, § 5; A.S.A. 1947, § 56-205; Acts 1991, No. 658, § 1; 2001, No. 383, § 1; 2001, No. 1029, § 1; 2003, No. 650, §§ 1, 8; 2007, No. 539, §§ 1, 2; 2013, No. 282, § 1.

Publisher's Notes. Acts 1991, No. 658, § 2 provided that the 1991 amendment to this section shall not apply retrospectively but only to adoption petitions filed after July 15, 1991.

Amendments. The 2007 amendment, in (e), deleted “by an agency” following “for adoption” and substituted “may” for “shall not”; and added (f).

The 2013 amendment added (a)(4).

Cross References. Jurisdiction of courts, § 28-65-107.

Research References

Ark. L. Rev.

Case Note, In re Adoption of Pollock: Arkansas Probate Court Jurisdiction — A Question of Policy, 41 Ark. L. Rev. 677.

U. Ark. Little Rock L.J.

Survey — Family Law, 11 U. Ark. Little Rock L.J. 215.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Family Law, Uniform Adoption Act, 26 U. Ark. Little Rock L. Rev. 408.

Case Notes

Jurisdiction.

The General Assembly, in enacting subsection (a) of this section, has assured this state has a genuine interest or contact with at least one of the parties (adoptive parents, adopted child, or local agency that has care and control of the child) involved before an adoption matter is filed or granted within its borders. Restricting the state's jurisdiction to such instances, the General Assembly has placed our courts in a position to better ensure that the adopted child's best interests are achieved. In re Pollock, 293 Ark. 195, 736 S.W.2d 6 (1987).

Failure to comply strictly with the Adoption Code denies the probate court jurisdiction, and unless all jurisdictional requirements appear in the record, the resulting decree will be void on collateral attack. Swaffar v. Swaffar, 309 Ark. 73, 827 S.W.2d 140 (1992).

Granting of mother's, brother's, and wife's petition for adoption was inappropriate as Arkansas did not have jurisdiction; the brother and his wife were not residents of Arkansas and the child was not a resident of the state, only the child's guardian was. Roberts v. Westover, 368 Ark. 288, 245 S.W.3d 119 (2006).

Arkansas court would have no jurisdiction over an adoption proceeding when neither the child, nor the guardians who sought to adopt the child were residents of Arkansas. Newkirk v. Burton, 2015 Ark. App. 627, 475 S.W.3d 573 (2015).

Residence.

The jurisdiction of the probate court to grant a petition for the adoption of an infant did not depend on evidence that the residence of the father was unknown nor on the recital thereof in the record. Taylor v. Collins, 172 Ark. 541, 289 S.W. 466 (1927) (decision under prior law).

Probate court, which had jurisdiction to enter original order of adoption, had a right to correct the order originally made so as to show jurisdictional fact of residence. Newell v. Black, 201 Ark. 937, 147 S.W.2d 991 (1941) (decision under prior law).

Adoption order was fatally defective where neither the petition nor the order recited that the prospective adoptive parent nor the minors sought to be adopted were residents of the county. Ozment v. Mann, 235 Ark. 901, 363 S.W.2d 129 (1962) (decision under prior law).

This section poses no permanent residency or domicile requirement. In re Adoption of Samant, 333 Ark. 471, 970 S.W.2d 249 (1998).

9-9-206. Persons required to consent to adoption — Consideration for relinquishing minor for adoption.

  1. Unless consent is not required under § 9-9-207, a petition to adopt a minor may be granted only if written consent to a particular adoption has been executed by:
    1. The mother of the minor;
    2. The father of the minor if:
      1. The father was married to the mother at the time the minor was conceived or at any time thereafter;
      2. The minor is his child by adoption;
      3. He has physical custody of the minor at the time the petition is filed;
      4. He has a written order granting him legal custody of the minor at the time the petition for adoption is filed;
      5. A court has adjudicated him to be the legal father prior to the time the petition for adoption is filed;
      6. He proves a significant custodial, personal, or financial relationship existed with the minor before the petition for adoption is filed; or
      7. He has acknowledged paternity under § 9-10-120(a);
    3. Any person lawfully entitled to custody of the minor or empowered to consent;
    4. The court having jurisdiction to determine custody of the minor, if the legal guardian or custodian of the person of the minor is not empowered to consent to the adoption;
    5. The minor, if more than twelve (12) years of age, unless the court in the best interest of the minor dispenses with the minor's consent; and
    6. The spouse of the minor to be adopted.
  2. A petition to adopt an adult may be granted only if written consent to adoption has been executed by the adult and the adult's spouse.
  3. Under no circumstances may a parent or guardian of a minor receive a fee, compensation, or any other thing of value as a consideration for the relinquishment of a minor for adoption. However, incidental costs for prenatal, delivery, and postnatal care may be assessed, including reasonable housing costs, food, clothing, general maintenance, and medical expenses, if they are reimbursements for expenses incurred or fees for services rendered. Any parent or guardian who unlawfully accepts compensation or any other thing of value as a consideration for the relinquishment of a minor shall be guilty of a Class C felony.

History. Acts 1977, No. 735, § 6; 1979, No. 599, § 2; 1985, No. 467, § 1; A.S.A. 1947, § 56-206; Acts 2005, No. 437, § 1; 2007, No. 539, § 3; 2011, No. 607, § 1; 2013, No. 1054, § 1.

Amendments. The 2011 amendment substituted “twelve (12)” for “ten (10)” in (a)(5).

The 2013 amendment added designations (a)(2)(A) through (a)(2)(F); and added (a)(2)(G).

Research References

Ark. L. Rev.

Recent Developments, Domestic Relations — Adoption, 57 Ark. L. Rev. 697.

Note, The Confusion and Clarification of Arkansas's Adoption Consent Law: In re the Adoption of SCD, a Minor, and the Arkansas General Assembly's Response, 58 Ark. L. Rev. 735.

Tiffany N. Godwin, Comment: Does Father Know Best? Arkansas's Approach to the “Thwarted” Putative Father, 67 Ark. L. Rev. 989 (2014).

Lacey Johnson, Comment: Low-Income Fathers, Adoption, and the Biology Plus Test for Paternal Rights, 70 Ark. L. Rev. 1113 (2018).

U. Ark. Little Rock L.J.

Shively, Survey of Family Law, 3 U. Ark. Little Rock L.J. 223.

Survey — Family Law, 10 U. Ark. Little Rock L.J. 207.

Survey — Family Law, 11 U. Ark. Little Rock L.J. 215.

U. Ark. Little Rock L. Rev.

Note: Family Law — Putative Fathers and the Presumption of Legitimacy — Adams and the Forbidden Fruit: Clashes Between the Presumption of Legitimacy and the Rights of Putative Fathers in Arkansas, 25 U. Ark. Little Rock L. Rev. 369.

Case Notes

Constitutionality.

A putative father had no standing to question the constitutionality of this section, since it was not applied to him in a discriminatory manner. Wineman v. Brewer, 280 Ark. 527, 660 S.W.2d 655 (1983).

In General.

Consent can be given either by (1) any person lawfully entitled to custody of the minor or (2) any person lawfully empowered to consent to his adoption; that person clearly need not be both lawfully entitled to custody and lawfully empowered to consent. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979).

Trial court dismissed an adoption petition filed by mother and prospective adoptive parents due to a lack of consent by biological father after the trial court learned that the father had registered as the baby's father under the Arkansas Putative Father Registry and had legitimated the baby as provided in subdivision (a)(2) of this section. Taylor v. Finck, 363 Ark. 183, 211 S.W.3d 532 (2005).

Construction.

Statutory provisions involving the adoption of minors are strictly construed and applied. Bemis v. Hare, 19 Ark. App. 198, 718 S.W.2d 481 (1986).

Applicability.

Subdivision (a)(5) of this section did not apply to termination of parental rights proceedings in dependency-neglect cases, because the statute required a minor of a certain age to consent to a particular adoption, and it was therefore utilized only where the circuit court was considering a specific petition for the adoption of a child; a consent to adoption was not a necessary element of proof when a court was considering the termination of parental rights. Childress v. Ark. Dep't of Human Servs., 2009 Ark. App. 322, 307 S.W.3d 50 (2009).

It was not erroneous for a trial court to terminate a mother's parental rights to the mother's children without obtaining the children's consent, under subdivision (a)(5) of this section, to the children's adoption because (1) the issue was first raised on appeal, and (2) the statute did not apply to termination proceedings in dependency-neglect cases. Brabon v. Ark. Dep't of Human Servs., 2012 Ark. App. 2, 388 S.W.3d 69 (2012).

This section, which provides that a petition to adopt a minor over the age of 12 can be granted only if written consent to a particular adoption has been executed by the minor, unless the court in the best interest of the minor dispenses with the minor's consent, does not apply to termination of parental rights proceedings; it is used only when considering a particular petition to adopt a child—not when considering the likelihood of adoption. Hernandez v. Ark. Dep't of Human Servs., 2019 Ark. App. 449, 588 S.W.3d 102 (2019).

Grandparents.

Custodial grandparents were not required to consent to the adoption of the grandchildren, but were permitted to intervene in the adoption proceedings for the limited purpose of offering evidence on the best interests of the grandchildren. Quarles v. French, 272 Ark. 51, 611 S.W.2d 757 (1981).

Where the biological mother gave consent to the adoptive mother to adopt her daughter, consent was not required by the maternal grandparents before the adoption could proceed. Henry v. Buchanan, 364 Ark. 485, 221 S.W.3d 346 (2006).

Although the grandmother had established in loco parentis status in order to intervene in the adoption proceeding, her consent was not required for the adoption where the biological father was unknown, and the biological mother voluntarily terminated her rights to the child by properly executed relinquishment-and-termination-with-power-to-consent documents, entered an appearance, and waived all notice of summons with respect to the proceedings. Navarrete v. Creech, 2016 Ark. App. 414, 501 S.W.3d 871 (2016).

Guardians.

Circuit court properly dismissed a petition for adoption filed by a maternal grandmother and a step-grandfather because the petition did not include background checks by the Federal Bureau of Investigation, the children's birth certificates, and the consent of the Department of Human Services, as the legal guardian of the children. Mode v. Ark. Dep't of Human Servs., 2015 Ark. App. 69 (2015).

Legal Custodian.

Court properly denied appellants' petition for adoption because the state, the child's legal custodian, did not consent; additionally, the child had to repeat a grade while residing with appellants, and the child's personality, behavior, and performance at school improved following her removal from appellants' home. The court found that the adoptive parent placed and would place an emphasis on meeting the child's educational needs, that she was devoted to the child, and that she had a loving and appropriate home. Cowan v. Ark. Dep't of Human Servs., 2012 Ark. App. 576, 424 S.W.3d 318 (2012).

Failure of paternal uncle and aunt to request consent of the Department of Human Services in their petition for adoption or obtain consent or waiver from the department was a fatal error. In re Adoption of K.M., 2015 Ark. App. 448, 469 S.W.3d 388 (2015).

Minors.

A consenting minor's age may vary from ten up to 18 and the trial judge has the authority to attach more weight to the decision of a minor almost of full age than to that of a ten-year-old. Brown v. Meekins, 282 Ark. 186, 666 S.W.2d 710 (1984).

Consent of minor held unnecessary. Brown v. Meekins, 282 Ark. 186, 666 S.W.2d 710 (1984).

Absence of the consent of a minor whose consent is required is not a mere technicality, in that public policy clearly favors the consent of the person to be adopted, and the consent of the one to be adopted, as required by statute, must not be presumed. Swaffar v. Swaffar, 309 Ark. 73, 827 S.W.2d 140 (1992).

Termination of a mother's parental rights was in the best interest of the children because the mother was unable to provide a safe and suitable home for the children, she failed to comply with the case plan, and she had not visited the children since May 2012. The mother had a long history of alcohol abuse, and she was likely to continue in an abusive relationship; moreover, the fact that two of the children might not have been adopted was merely one factor that was considered, and the fact that one child might not have consented to adoption was not a necessary element of proof in a termination case. Mitchell v. Ark. Dep't of Human Servs., 2013 Ark. App. 715, 430 S.W.3d 851 (2013).

Parents.

—In General.

In order to grant an adoption contrary to the wishes of a natural parent, the conditions prescribed by statute must be clearly proven and the statute construed in favor of the natural parent. Irvan v. Kizer, 286 Ark. 105, 689 S.W.2d 548 (1985).

Consent of parent held necessary. Dale v. Franklin, 22 Ark. App. 98, 733 S.W.2d 747 (1987).

—Efforts Thwarted.

Trial court erred in granting a petition for adoption and in holding that the putative father's consent was not required because the birth mother clearly thwarted the father's efforts to comply with subdivision (a)(2) of this section; the father not only filed with the putative-father registries in four states but also filed paternity actions in both Texas and Arkansas. In re Baby Boy B., 2012 Ark. 92, 394 S.W.3d 837 (2012).

Because the adoptive parents did not address the ground set forth in subdivision (a)(2)(F) of this section for requiring a father's consent to adopt, the Court of Appeals affirmed the circuit court's finding that the father's efforts were enough to establish a significant custodial, personal, or financial relationship in light of the mother's thwarting his efforts, and thus that the father's consent was required. Daily v. Stanley, 2019 Ark. App. 126, 573 S.W.3d 7 (2019).

Circuit court did not err in denying the adoptive parents' motion for reconsideration of its ruling that a father's consent to adoption was required; the circuit court specifically found that the father registered himself on the putative father registry, he was never informed of the whereabouts of the child or allowed contact with the child, and the father had a job, car, place to live, and insurance available for the child as well as a plan in place for support of the child. Daily v. Stanley, 2019 Ark. App. 126, 573 S.W.3d 7 (2019).

—Father.

The courts may grant a petition for adoption regardless of the arbitrary dissent by a natural father. Watkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78 (Ct. App. 1980).

Unmarried father lacking any substantial relationship with his child is not entitled to notice of the child's adoption proceeding under either the due process clause or the equal protection clause of U.S. Const. Amend. 14. In re S.J.B., 294 Ark. 598, 745 S.W.2d 606 (1988); In re J.L.T., 31 Ark. App. 85, 788 S.W.2d 494 (1990).

As one means of protecting the right of natural parents with respect to the care, custody, management and companionship of their minor children a natural father who has legitimated a child has the privilege of consenting to an adoption, unless it is found that his consent is excused. In re B.A.B., 40 Ark. App. 86, 842 S.W.2d 68 (1992).

Although the natural father had filed an answer to a petition for adoption of the child by a stepfather and had declined to offer his consent to the adoption, where he did not appear at the hearing and had not himself pursued an appeal of the probate judge's decision granting the adoption, the natural father did not have standing on appeal to question the probate judge's decision on the issue. In re B.A.B., 40 Ark. App. 86, 842 S.W.2d 68 (1992).

In vacating an adoption decree, the trial court never made a determination of whether the natural father qualified as a father whose consent was required under subdivision (a)(2) of this section, so the matter was remanded to the trial court for an analysis of the evidence on that issue. Britton v. Gault, 80 Ark. App. 311, 94 S.W.3d 926 (2003).

Where a DNA test showed the putative father was the child's biological father but he did not timely register with the putative-father registry, his consent to the adoption was not required because he had not “otherwise legitimated” the child; the father had taken no significant steps to prepare for having the baby with him if he was awarded custody. Escobedo v. Nickita, 365 Ark. 548, 231 S.W.3d 601 (2006).

Adoption decree in favor of the mother and the adoptive father was proper because the biological father voluntarily, willfully, arbitrarily, and without adequate excuse failed to pay child support in excess of one year as set forth under § 9-9-207(a)(2). Therefore, his consent to the adoption was unnecessary, per subdivision (a)(2) of this section. Powell v. Lane, 375 Ark. 178, 289 S.W.3d 440 (2008).

Trial court erred in granting a petition for adoption and in holding that the putative father's consent was not required because the birth mother clearly thwarted the father's efforts to comply with subdivision (a)(2) of this section; the father not only filed with the putative-father registries in four states but also filed paternity actions in both Texas and Arkansas. In re Baby Boy B., 2012 Ark. 92, 394 S.W.3d 837 (2012).

Trial court did not clearly err in finding that the father's consent was not required under this section, as the father did little besides registering as a putative father and filing a paternity action before, during, or after the one-month period after he leaned of the mother's pregnancy. T.R. v. L.H., 2015 Ark. App. 483 (2015).

Biological father's consent to the adoption was not required because the father did not fall into any of the categories set forth in subdivision (a)(2). Lagios v. Goldman, 2016 Ark. 59, 483 S.W.3d 810, cert. denied, — U.S. —, 137 S. Ct. 77, 196 L. Ed. 2d 35 (2016).

Adoptive parents did not fail to comply with § 9-9-210(a)(8) because the biological father's consent to the adoption was not required, and consent to this adoption was not required of any other person. Lagios v. Goldman, 2016 Ark. 59, 483 S.W.3d 810, cert. denied, — U.S. —, 137 S. Ct. 77, 196 L. Ed. 2d 35 (2016).

Appellant had not shown he was a “father” within the purview of subdivision (a)(2) of this section, and thus he was not required to consent to the child's adoption; there had been no action to rebut the presumption that the mother's husband was the father before the child was adopted, and the husband consented to the adoption. Chatley v. Key (In re Adoption of Z.K.), 2018 Ark. App. 533, 565 S.W.3d 524 (2018).

—Mother.

Trial court without jurisdiction in adoption to proceed without the mother's consent. Roberts v. Swim, 268 Ark. 917, 597 S.W.2d 840 (Ct. App. 1980).

Refusal to Consent.

Before an order of adoption can be held binding against a nonconsenting parent, the court rendering it must have jurisdiction of both the subject matter and the person, and the record must show upon its face that the case is one where the court has authority to act. Hughnes v. Cain, 210 Ark. 476, 196 S.W.2d 758 (1946) (decision under prior law).

Because father legitimated the child by filing with the putative father registry, initiating a petition to determine paternity, and taking other actions to establish his parentage, the trial court correctly ruled that the father's consent was required before the adoption could occur; because the father did not consent to the adoption, the trial court correctly denied the adoptive parents' petition for adoption. In re SCD, 358 Ark. 51, 186 S.W.3d 225 (2004).

Where the adoptive parent left the child who suffered from an incurable skin condition alone in a motor home unattended by an adult, the trial court did not err in finding that the guardian was not unreasonably withholding her consent to the adoption of the child under subdivision (a)(3) of this section. The trial court focused on the special medical needs of the child, including her epidermolysis bullosa condition, seizures, and episodes of holding her breath and passing out. Tom v. Cox, 101 Ark. App. 388, 278 S.W.3d 110 (2008).

Evidence did not support a finding that the Arkansas Department of Human Services (DHS) unreasonably withheld its consent to appellants' adoption of a child under subdivision (a)(3) of this section; appellants' adult son lived in their home and an uncle lived in substandard housing on the property without DHS's knowledge while appellants were foster parents. Lewis v. Ark. Dep't of Human Servs., 2012 Ark. App. 347 (2012).

Validity of Consent.

Consent found to be valid. Martin v. Ford, 224 Ark. 993, 277 S.W.2d 842 (1955) (decision under prior law).

Substantial compliance with statutory requirements found for consent to adoption. A & B v. C & D, 239 Ark. 406, 390 S.W.2d 116, cert. denied, 382 U.S. 926, 86 S. Ct. 314, 15 L. Ed. 2d 340 (1965) (decision under prior law).

Cited: Watkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78 (Ct. App. 1980); Tisdale v. Seavey, 286 Ark. 222, 691 S.W.2d 144 (1985); In re Glover, 288 Ark. 59, 702 S.W.2d 12 (1986); Belcher v. Bowling, 22 Ark. App. 248, 738 S.W.2d 804 (1987); Manuel v. McCorkle, 24 Ark. App. 92, 749 S.W.2d 341 (1988); In re Reeves, 309 Ark. 385, 831 S.W.2d 607 (1992).

9-9-207. Persons as to whom consent not required.

  1. Consent to adoption is not required of:
    1. a parent who has deserted a child without affording means of identification or who has abandoned a child;
    2. a parent of a child in the custody of another, if the parent for a period of at least one (1) year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree;
    3. the father of a minor if the father's consent is not required by § 9-9-206(a)(2);
    4. a parent who has relinquished his or her right to consent under § 9-9-220;
    5. a parent whose parental rights have been terminated by order of court under § 9-9-220 or § 9-27-341;
    6. a parent judicially declared incompetent or mentally defective if the court dispenses with the parent's consent;
    7. any parent of the individual to be adopted, if the individual is an adult;
    8. any legal guardian or lawful custodian of the individual to be adopted, other than a parent, who has failed to respond in writing to a request for consent for a period of sixty (60) days or who, after examination of his or her written reasons for withholding consent, is found by the court to be withholding his or her consent unreasonably;
    9. the spouse of the individual to be adopted, if the failure of the spouse to consent to the adoption is excused by the court by reason of prolonged unexplained absence, unavailability, incapacity, or circumstances constituting an unreasonable withholding of consent;
    10. a putative father of a minor who signed an acknowledgement of paternity but who failed to establish a significant custodial, personal, or financial relationship with the juvenile prior to the time the petition for adoption is filed; or
    11. a putative father of a minor who is listed on the Putative Father Registry but who failed to establish a significant custodial, personal, or financial relationship with the juvenile prior to the time the petition for adoption is filed.
  2. Except as provided in §§ 9-9-212 and 9-9-224, notice of a hearing on a petition for adoption need not be given to a person whose consent is not required or to a person whose consent or relinquishment has been filed with the petition.

History. Acts 1977, No. 735, § 7; 1977 (1st Ex. Sess.), No. 22, §§ 1, 2; A.S.A. 1947, § 56-207; Acts 1989, No. 496, § 8; 2003, No. 650, § 2; 2005, No. 437, § 2.

Amendments. The 2005 amendment added (a)(10) and (a)(11) and made related changes.

Research References

ALR.

Requirements and Effects of Putative Father Registries. 28 A.L.R.6th 349.

Ark. L. Notes.

Sampson, Coats, & Barger, Arkansas' Putative Father Registry and Related Adoption Code Provisions: Inadequate Protection for Thwarted Putative Fathers, 1997 Ark. L. Notes 49.

Ark. L. Rev.

Note, The Confusion and Clarification of Arkansas's Adoption Consent Law: In re the Adoption of SCD, a Minor, and the Arkansas General Assembly's Response, 58 Ark. L. Rev. 735.

Tiffany N. Godwin, Comment: Does Father Know Best? Arkansas's Approach to the “Thwarted” Putative Father, 67 Ark. L. Rev. 989 (2014).

U. Ark. Little Rock L.J.

Shively, Survey of Family Law, 3 U. Ark. Little Rock L.J. 223.

Survey — Family Law, 10 U. Ark. Little Rock L.J. 207.

Survey — Family Law, 11 U. Ark. Little Rock L.J. 215.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Family Law, Uniform Adoption Act, 26 U. Ark. Little Rock L. Rev. 408.

Case Notes

Constitutionality.

A putative father had no standing to question the constitutionality of this section, since it was not applied to him in a discriminatory manner. Wineman v. Brewer, 280 Ark. 527, 660 S.W.2d 655 (1983).

Subdivision (a)(11) of this section was not applied to the father in a discriminatory manner because he never registered with the Arkansas Putative Father Registry; hence, he lacked standing to challenge the constitutionality of the statute. Racine v. Nelson, 2011 Ark. 50, 378 S.W.3d 93 (2011).

Construction.

This section should be strictly construed and applied. Roberts v. Swim, 268 Ark. 917, 597 S.W.2d 840 (Ct. App. 1980); Dodson v. Donaldson, 10 Ark. App. 64, 661 S.W.2d 425 (1983); Brown v. Johnson, 10 Ark. App. 110, 661 S.W.2d 443 (1983); Bemis v. Hare, 19 Ark. App. 198, 718 S.W.2d 481 (1986).

Under subdivision (a)(2) of this section, “failed significantly” does not mean “failed totally.” It only means that the failure must be significant, as contrasted with an insignificant failure. Racine v. Nelson, 2011 Ark. 50, 378 S.W.3d 93 (2011).

Phrase “failed significantly” in subdivision (a)(2) of this section does not mean “failed totally.” It denotes a failure that is meaningful or important. Fox v. Nagle, 2011 Ark. App. 178, 381 S.W.3d 900 (2011).

Abandonment.

Abandonment of child by father held not to have been established. Woodson v. Lee, 221 Ark. 517, 254 S.W.2d 326 (1953); Walthall v. Hime, 236 Ark. 689, 368 S.W.2d 77 (1963) (preceding cases decided under prior law); Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979).

Father's indifference to his children's welfare was tantamount to voluntary abandonment, so that his consent was not needed to the children's adoption by his former wife's second husband. Zgleszewski v. Zgleszewski, 260 Ark. 629, 542 S.W.2d 765 (1976) (decision under prior law).

Abandonment, in the sense of the adoption statutes, means conduct which evinces a settled purpose to forego all parental duties. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979).

Where the natural mother and her new husband proved by clear and convincing evidence that the natural father failed significantly and without justifiable cause to provide for the care and support of the child, the natural father's consent to the adoption was not required. Bemis v. Hare, 19 Ark. App. 198, 718 S.W.2d 481 (1986).

Where the father was not precluded from making his support payments, there was no evidence that the father was financially unable to meet his obligation, and the record clearly reflected that the father voluntarily chose not to pay the support, the father's action in failing to pay support was an arbitrary act without just cause or adequate excuse, whether or not the mother interfered with his ability to observe visitation with the child. Bemis v. Hare, 19 Ark. App. 198, 718 S.W.2d 481 (1986).

Consent for adoption was not required where father's denial of paternity, when child support was sought in prior years, could be considered abandonment. King v. Lybrand, 329 Ark. 163, 946 S.W.2d 946 (1997).

Record supported the circuit court's holding that the natural father's consent to the adoption of his minor child was not required under this section because he had failed significantly, without justifiable cause, to support the child for a period of one year, and therefore had abandoned her per § 9-9-202. Vick v. Cecil (In re A.M.C.), 368 Ark. 369, 246 S.W.3d 426 (2007).

Best Interest of Child.

The fact that, under certain circumstances, the father's consent is necessary, does not require that the adoption be granted. The court must find that the adoption is in the best interest of the child. McKee v. Bates, 10 Ark. App. 51, 661 S.W.2d 415 (1983); Shemley v. Montezuma, 12 Ark. App. 337, 676 S.W.2d 759 (1984).

The mere fact that a parent has forfeited his right to have his consent to an adoption required does not mean that the adoption must be granted. The court must further find from clear and convincing evidence that the adoption is in the best interest of the child. Waldrip v. Davis, 40 Ark. App. 25, 842 S.W.2d 49 (1992).

Where the court's finding was that step-parent adoption was not in children's best interest, the adoption was properly denied. Waldrip v. Davis, 40 Ark. App. 25, 842 S.W.2d 49 (1992).

A probate court may grant a petition for adoption if it determines at the conclusion of a hearing that the required consents have been obtained or excused and that the adoption is in the best interest of the child or individual to be adopted. In re B.A.B., 40 Ark. App. 86, 842 S.W.2d 68 (1992).

In adoption proceedings in which the circuit court determined that the natural father's consent was not necessary, the court's findings to support the determination that allowing a minor child's stepfather to adopt her and severing the child's relationship with her natural father served the child's best interests were not clearly against the preponderance of the evidence since (1) the child had a good relationship with her stepfather, (2) prior to seeing the child in 2005, the natural father had not seen her since 2002, had a number of felony convictions, had missed child support payments, was unemployed, and lived with his mother, and (3) the natural mother and stepfather were morally fit to have the custody of the child, were physically and financially able to furnish suitable support, nurture, and education for the child, and wanted to establish a parent-child relationship with the child. Vick v. Cecil (In re A.M.C.), 368 Ark. 369, 246 S.W.3d 426 (2007).

Appellants argued that the order was clearly erroneous because they proved that the mother's consent to the adoption was not required, but the merits of this argument did not need to be reached because the trial court did not make any findings on this issue and such findings were not necessary based on the conclusion that the adoption was not in the child's best interest; furthermore, as appellants made no request for findings, they waived their right under the rule. Hollis v. Hollis, 2015 Ark. App. 441, 468 S.W.3d 316 (2015).

If a trial court finds that an adoption is not in the best interest of a child, it is of no significance whether consent to adoption is required. If a trial court determines that consent to an adoption is not required, there can be no adoption if the trial court also finds that adoption is not in the best interest of the child, and thus the trial court in this case did not err as a matter of law in not addressing both parts of the two-part adoption analysis. Hollis v. Hollis, 2015 Ark. App. 441, 468 S.W.3d 316 (2015).

Adoption of a child over the objection of the child's parent, who was incarcerated, was appropriate because the circuit court did not err in finding that adoption by the child's successor guardians was in the child's best interest as the parent was essentially asking to place desire by the parent and the parent's family for a relationship with the child over the child's need for a stable and permanent home. Newkirk v. Hankins, 2016 Ark. App. 186, 486 S.W.3d 827 (2016).

Circuit court's best-interest determination was not clearly against the preponderance of the evidence where the adopting parents were the only family the child had known, and the child had no real relationship with either the mother or other members of the mother's family. In re Adoption of J.N., 2018 Ark. App. 467, 560 S.W.3d 806 (2018).

Trial court did not clearly err by finding that the child's mother and stepfather failed to meet their burden of showing that adoption of the child by the stepfather was in the child's best interests because there was a significant bond between the child and his paternal extended family, the father testified that as soon as he was released from jail he would be involved in the child's life, the parents were extremely young when the child was born, and the father was only 21 years at the time of the hearing. Ballard v. Howard, 2018 Ark. App. 479, 560 S.W.3d 800 (2018).

Consent Not Required.

Finding that the father's consent was unnecessary because he failed to significantly and without justifiable cause communicate with his children for more than one year was not clearly erroneous; there was evidence that the father did not make significant efforts to see his children, he admitted that he gave up seeing his children in 2012 and that his visits were sporadic, and the trial court found that the mother had not unreasonably prevented contact with the children. Sanders v. Savage, 2015 Ark. App. 461, 468 S.W.3d 795 (2015).

Because the father did not establish the necessary relationship with the child prior to the time the petition for adoption was filed, his consent was not required under this section. T.R. v. L.H., 2015 Ark. App. 483 (2015).

Biological father's consent to the adoption was not required because the father did not fall into any of the categories set forth in § 9-9-206(a)(2). Lagios v. Goldman, 2016 Ark. 59, 483 S.W.3d 810, cert. denied, — U.S. —, 137 S. Ct. 77, 196 L. Ed. 2d 35 (2016).

Granting the petition for adoption of a stepson without consent was affirmed because the consent of one acting in loco parentis is not required under this section. Martini v. Price, 2016 Ark. 472, 507 S.W.3d 486 (2016).

Adoption of a child over the objection of the child's parent, who was incarcerated, was appropriate because the circuit court did not err in finding that the parent's consent to the adoption was not necessary, as the parent failed to support the child without a justifiable excuse. The successor guardians' failure to forward the parent's letters to the child had nothing to do with the parent's failure to support the child. Newkirk v. Hankins, 2016 Ark. App. 186, 486 S.W.3d 827 (2016).

Consent Required.

Despite the claim that the father had not seen the child for over one year, the father's consent was required for the stepfather to adopt the child, where the father claimed that the mother would not let the father see the child because the father had not been paying child support and the father's family testified the mother changed her phone number without telling them. Havard v. Clark, 2011 Ark. App. 86 (2011).

Court properly denied appellants' petition for adoption because the state, the child's legal guardian, did not consent; additionally, the child had to repeat a grade while residing with appellants, and the child's personality, behavior, and performance at school improved following her removal from appellants' home. The court found that the adoptive parent placed and would place an emphasis on meeting the child's educational needs, that she was devoted to the child, and that she had a loving and appropriate home. Cowan v. Ark. Dep't of Human Servs., 2012 Ark. App. 576, 424 S.W.3d 318 (2012).

Circuit court clearly erred in finding that a biological father's consent was not required for the adoption of his daughter where orders of protection concerning the mother effectively barred him from having contact with the child, he did not know where the child was located until the mother filed for divorce, and once the divorce decree was entered, he exercised visitation rights to the fullest extent allowed. Martini v. Price, 2016 Ark. 472, 507 S.W.3d 486 (2016).

Mother did not lose her right to consent to the adoption, because the mother had significant contacts with the child and had paid support. Hill v. Powell, 2016 Ark. App. 123 (2016).

Stepmother's petition to adopt stepchildren without the consent of the children's mother was properly denied because it was not clear error to find the children's father unjustifiably blocked the mother's communication and visitation with the children, such that the mother had justifiable cause for not visiting and communicating. Hrdlicka v. Hrdlicka (In re Adoption of P.H.), 2020 Ark. App. 178, 598 S.W.3d 846 (2020).

Custody of Another.

Adopting couple held to have custody of child lawfully, despite lack of valid court order awarding custody. Dangelo v. Neil, 10 Ark. App. 119, 661 S.W.2d 448 (1983).

Evidence.

Evidence held insufficient to support trial court's granting the petition to adopt. Dale v. Franklin, 22 Ark. App. 98, 733 S.W.2d 747 (1987).

Failure to Communicate or Support.

In an appeal from a circuit court's determination that a stepfather could adopt his stepchild without the consent of the child's biological father, the father's claim that his lack of support and contact with his child was justified based upon medical problems and drug abuse failed because, even after the adoption petition was filed, the father made no attempt to see his child, and by that time, the father had ceased using illegal drugs. Roberts v. Brown, 103 Ark. App. 1, 285 S.W.3d 716 (2008).

Adoption decree in favor of the mother and the adoptive father was appropriate because the biological father voluntarily, willfully, arbitrarily, and without adequate excuse failed to pay child support in excess of one year as set forth under subdivision (a)(2) of this section. Therefore, his consent to the adoption was unnecessary. Powell v. Lane, 375 Ark. 178, 289 S.W.3d 440 (2008).

Trial court properly granted a mother's petition for adoption of the parties' biological child because the father's consent was not required under subdivision (a)(2) of this section due to the fact that he failed, without justifiable cause, to establish communication or financial support to the child; a $750 check was the only form of financial assistance given to the mother for the child throughout the child's life. Racine v. Nelson, 2011 Ark. 50, 378 S.W.3d 93 (2011).

Trial court erred under subdivision (a)(2) of this section in determining that a father's consent was not required to the adoption of his child by the child's stepfather because the father did not fail significantly without justifiable cause to communicate with the child; over the course of the statutory one-year period, the father saw the child on numerous occasions. The father took the child to a family reunion and a family birthday party. Fox v. Nagle, 2011 Ark. App. 178, 381 S.W.3d 900 (2011).

One-year period set out in subdivision (a)(2) of this section may be any one-year period, not merely the one-year period preceding the filing of the adoption petition. Fox v. Nagle, 2011 Ark. App. 178, 381 S.W.3d 900 (2011).

Because a father failed to provide child support for only nine months, his consent was required for adoption of the child under subdivision (a)(2) of this section. Havard v. Clark, 2011 Ark. App. 734 (2011).

Trial court did not err under subdivision (a)(2) of this section in granting the adoption of a child without the mother's consent because the mother failed significantly without justifiable cause to support the child for one year; she had not paid any support in several years. She made no effort to contribute to the child's support even after she obtained a job. Lucas v. Jones, 2012 Ark. 365, 423 S.W.3d 580 (2012).

It is not required that a parent fail “totally” in their obligations in order to fail “significantly” within the meaning of subdivision (a)(2) of this section. It only means that the failure must be significant, as contrasted with an insignificant failure. Lucas v. Jones, 2012 Ark. 365, 423 S.W.3d 580 (2012).

Trial court did not err under subdivision (a)(2) of this section in allowing a stepfather to adopt a biological father's daughter without the biological father's consent because the father had no contact with the daughter for 19 months; the father's reliance on his imprisonment to justify his failure to communicate with the daughter was misplaced. Gordon v. Draper, 2013 Ark. App. 352, 428 S.W.3d 543 (2013).

Court is unwilling to hold, for purposes of this section, that when a parent cannot have visitation with her children due to a court order, that gives the parent justifiable cause to make no effort in continuing a relationship with the children. Rodgers v. Rodgers, 2017 Ark. 182, 519 S.W.3d 324 (2017).

Circuit court erred by finding that the biological father's failure to support the child for seven years was justifiable; his imprisonment did not toll his responsibilities to support the child, he participated in a work-release program earning money yet paid no support, and neither the child support office nor the child's mother prevented him from paying support. Thus, the circuit court erred in finding that the biological father's consent to adoption was required. Johnson v. Beatty (In re Adoption of T.A.D.), 2019 Ark. App. 510, 588 S.W.3d 858 (2019).

Circuit court erred in finding that a father's consent to the adoption of his child was not required because the court clearly erred in finding that the father failed significantly and without justifiable cause to communicate with and to provide care and support for the child. The child's mother barred the father's visitations without a court order for a period of time, and the gaps in the father's child support payments did not constitute a significant failure to provide support for the child for one year and his arrears were now paid in full. Raiteri v. Nowak (In re B.R.), 2020 Ark. App. 115 (2020).

—In General.

“Failed significantly” in this section does not mean failed totally but the failure must be a significant one as contrasted with an insignificant one; it denotes a failure that is meaningful or important. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979); Watkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78 (Ct. App. 1980); Taylor v. Hill, 10 Ark. App. 45, 661 S.W.2d 412 (1983); Dangelo v. Neil, 10 Ark. App. 119, 661 S.W.2d 448 (1983).

In order to adopt a child without the necessity of parental consent, the conduct of a parent who has failed significantly without justifiable cause to communicate with his child or to provide for the care and support of his child as required by law or judicial decree, must be willful in the sense of being voluntary and intentional; it must appear that the parent acted arbitrarily and without just cause or adequate excuse. Roberts v. Swim, 268 Ark. 917, 597 S.W.2d 840 (Ct. App. 1980); Watkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78 (Ct. App. 1980).

Parent's consent held unnecessary due to significant, unjustifiable failure to communicate with or support child. Henson v. Money, 273 Ark. 203, 617 S.W.2d 367 (1981); Loveless v. May, 278 Ark. 127, 644 S.W.2d 261 (1983); Dodson v. Donaldson, 10 Ark. App. 64, 661 S.W.2d 425 (1983); Brown v. Johnson, 10 Ark. App. 110, 661 S.W.2d 443 (1983); Dangelo v. Neil, 10 Ark. App. 119, 661 S.W.2d 448 (1983); In re Titsworth, 11 Ark. App. 197, 669 S.W.2d 8 (1984); In re K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993).

Justifiable cause means that the significant failure must be willful in the sense of being voluntary and intentional; it must appear that the parent acted arbitrarily and without just cause or adequate excuse. Taylor v. Hill, 10 Ark. App. 45, 661 S.W.2d 412 (1983).

Consent of the natural father to adoption of his children by their natural mother and her second husband held not to be waived. Tisdale v. Seavey, 286 Ark. 222, 691 S.W.2d 144 (1985).

The term “failed significantly without justifiable cause” does not mean that the parent must have failed totally but denotes a failure that is meaningful, important, and willful. Manuel v. McCorkle, 24 Ark. App. 92, 749 S.W.2d 341 (1988).

Father's failure to communicate with his child was unjustified in spite of his claim that the lack of contact was not meaningful because of the child's young age and that he failed to visit because the mother and her new husband did not permit visitation; evidence showed that the father placed only 6 short telephone calls to the mother over a period of more than a year, and while he claimed to have written one letter to the mother it was never received; moreover the mother and her new husband asserted that they did not prevent visitation. Vier v. Vier, 62 Ark. App. 89, 968 S.W.2d 657 (1998).

The natural father's consent was not required where (1) the father admitted that he had no physical contact with the child for more than two years and that he did not pay court-ordered child support for almost two years, (2) he did not attempt to utilize the help of a court to enforce his visitation rights until approximately two and a half years after he learned of the first entry of adoption, and (3) he attempted to justify his failure to pay the court-ordered child support on financial trouble, including a bankruptcy, and credit-card debt. Reid v. Frazee, 72 Ark. App. 474, 41 S.W.3d 397 (2001).

Where father had not communicated with his children for over 12 years, the failure to communicate was not justifiable because sexual abuse allegations against the father did not prevent him from making phone calls or writing letters; thus, the step-father did not need the father's consent to adopt. McClelland v. Murray, 92 Ark. App. 301, 213 S.W.3d 33 (2005).

Trial court erred in granting a petition by step-mother to adopt her step-daughter without the mother's consent as the step-mother and father refused the mother's requests for contact with the child and the mother's gifts for the child; thus, there was not clear and convincing evidence that the mother's failure to provide for the care and support was “without justification.” Neel v. Harrison, 93 Ark. App. 424, 220 S.W.3d 251 (2005).

Under this section, it is a parent's failure to communicate with the child, not a failure to have visitation, that allows adoption to proceed without consent, as was properly permitted here; the trial court only terminated the mother's visitation, but did not issue a no-contact order, she gave no justifiable cause for failing to have any contact with her children, and once she was drug free, she further failed to petition for review of the temporary order that had suspended visitation. Rodgers v. Rodgers, 2017 Ark. 182, 519 S.W.3d 324 (2017).

“Failed significantly”, as used in subdivision (a)(2), certainly does not mean “failed totally”. It means only that the failure to communicate with the child or to provide for the care and support of the child must be significant, as contrasted with an insignificant failure. Swaite v. Steele (In re Adoption of JS and DS), 2018 Ark. App. 595, 566 S.W.3d 517 (2018).

—Sufficient Communication.

Parent held to have failed to significantly communicate with child. Brown v. Fleming, 266 Ark. 814, 586 S.W.2d 8 (Ct. App. 1979); Belcher v. Bowling, 22 Ark. App. 248, 738 S.W.2d 804 (1987).

Evidence supported finding that parent had not failed significantly to communicate with child. Taylor v. Hill, 10 Ark. App. 45, 661 S.W.2d 412 (1983); In re Glover, 288 Ark. 59, 702 S.W.2d 12 (1986).

A letter written by the biological mother to the appointed friend of the court, requesting visitation of her children, and a progress report sent from the custodial parents to her concerning the children did not qualify as communication with the children. In re K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993).

Natural mother's consent to stepmother's adoption was required where mother's efforts to communicate with children had been frustrated by father changing his telephone and pager numbers and not furnishing them to mother and otherwise refusing to facilitate her contact with the children. Cassat v. Hennis, 74 Ark. App. 226, 45 S.W.3d 866 (2001).

Mother's consent to adoption was not required based on her failure to communicate with the child; the mother had four visits and perhaps a few phone calls with the child in the nearly three years since guardianship was granted, and she was employed and had a vehicle for at least two years before the adoption proceedings. “Failed significantly” does not mean “failed totally”. In re Adoption of J.N., 2018 Ark. App. 467, 560 S.W.3d 806 (2018).

Trial court did not err in ruling that a father's consent to a stepparent adoption was not required, because (1) it was undisputed the father had not had contact with the child for over a year, and (2) the court permissibly found no justifiable cause for the failure to communicate. Holmes v. Wilhelm, 2019 Ark. App. 120, 572 S.W.3d 873 (2019).

Appellant's petition for adoption was improperly denied on the grounds that the consent of the father was required because the incarcerated father failed to communicate with his child for a period of one year as he had no proof that he communicated with the child during 2014 or 2016; between 2015 and 2018, the father made one phone call to the telephone number associated with appellant and the child's mother; and his communications were with appellant and the child's mother, never with the child. Holloway v. Carter, 2019 Ark. App. 330, 579 S.W.3d 188 (2019).

Appellant's petition for adoption was improperly denied on the grounds that the consent of the father was required because the incarcerated father did not have justifiable cause for failing to communicate with his child; an isolated incident that occurred in 2018 could not justify his failure to communicate with the child in 2014, 2015, 2016, and 2017, and visitations with the child at the penitentiary were sporadic and were all initiated by either the child's mother or the father's wife. Holloway v. Carter, 2019 Ark. App. 330, 579 S.W.3d 188 (2019).

—Support.

The parent must furnish the support and maintenance himself and the duty is a personal one, and he may not rely upon assurance that someone else is properly supporting and maintaining the child to avoid the impact of subdivision (a)(2) of this section. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979).

Evidence was insufficient to prove that father had unjustifiably failed to support child. Chrisos v. Egleston, 7 Ark. App. 82, 644 S.W.2d 326 (1983).

Evidence held to support finding that natural parent had not failed significantly and without justifiable cause to contribute to child's support. Taylor v. Hill, 10 Ark. App. 45, 661 S.W.2d 412 (1983); In re Glover, 288 Ark. 59, 702 S.W.2d 12 (1986).

A parent has the obligation to support a minor child, and no request for support is necessary. Dangelo v. Neil, 10 Ark. App. 119, 661 S.W.2d 448 (1983).

Evidence sufficient to support finding that parent failed to support child. Belcher v. Bowling, 22 Ark. App. 248, 738 S.W.2d 804 (1987).

Although no order had been entered requiring child support, the trial court did not err in finding that the mother's consent to adoption was not required where for more than one year she had failed to provide any care or support for the child despite being employed, and the father testified that the mother had never offered support and that he had never declined such support. Sharp v. Pike, 2015 Ark. App. 670, 476 S.W.3d 217 (2015).

Circuit court did not clearly err in finding that a mother's consent was not required for the father's wife to adopt the child where the mother had failed to support the child for three years, the circuit court discredited the mother's testimony that she had no knowledge of a child-support order, and her gifts to the child did not constitute any meaningful support. Childress v. Braden, 2017 Ark. App. 569, 532 S.W.3d 130 (2017).

Circuit court properly found that a father significantly and without justifiable cause failed to pay court-ordered child support for at least one year and, accordingly, that his consent to adoption of his minor children was unnecessary, even though the father was imprisoned for approximately 21 months. Evidence that on two or three occasions the father used food stamps to purchase food that he gave to the adoptive parents did not constitute support of the children in any meaningful degree. Swaite v. Steele (In re Adoption of JS and DS), 2018 Ark. App. 595, 566 S.W.3d 517 (2018).

—Time Period.

The one-year period specified in this section need not be the year immediately preceding the judgment of adoption, since it means any one-year period. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979); In re K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993).

Resumption of payment of support for a brief period, after the required period of one year, is not sufficient to bar an adoption without the consent of the delinquent father by starting a new one-year period of nonsupport under the statute. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979).

The filing of a petition for adoption establishes the cutoff date for dispensing with the natural parent's consent where the parent has failed to communicate with the child and provide support for one year. Dixon v. Dixon, 286 Ark. 128, 689 S.W.2d 556 (1985); In re K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993).

One-year period, after which a parent may lose his right to consent to his child's adoption if he does not communicate with or support his child, must accrue before the adoption petition is filed. Dale v. Franklin, 22 Ark. App. 98, 733 S.W.2d 747 (1987).

The party seeking to adopt a child without the consent of a natural parent must prove by clear and convincing evidence that the failure to support the child not only continued for at least one year but also that it was willful, intentional, and without justifiable cause. Because one should not be permitted to assert a right until the facts on which it is predicated have accrued, the one-year period after which the parent may lose his right to consent to the adoption must accrue before the petition for adoption is filed. Manuel v. McCorkle, 24 Ark. App. 92, 749 S.W.2d 341 (1988); In re Milam, 27 Ark. App. 100, 766 S.W.2d 944 (1989).

There was no error in the application of this state's law pertaining to the one-year period specified in this section, to circumstances occurring prior to the transfer of jurisdiction to the state, from a state where the time period was two years, instead of one year. In re K.F.H., 311 Ark. 416, 844 S.W.2d 343 (1993).

Although the Supreme Court of Arkansas has held previously that the one-year period referenced in this section can be any one-year period and is not required to be the one-year period immediately preceding the filing of the adoption petition, the Supreme Court believes that circuit courts should consider the parent's conduct, particularly in the period before the filing of the petition, in determining whether the parent's consent to an adoption should be required. Martini v. Price, 2016 Ark. 472, 507 S.W.3d 486 (2016).

Guardian.

The law does not require a written request for consent of legal guardian. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979).

Jurisdiction.

Father argued that the petition for adoption was defective because it was filed before the right to adoption without the father's consent had accrued; the petition for adoption was filed in January 2014, and he claimed to have seen his children in January or February 2013, but this argument was without merit because the one-year period could be any one-year period, and based on the facts, the father's argument that the circuit court lacked jurisdiction was without merit. Sanders v. Savage, 2015 Ark. App. 461, 468 S.W.3d 795 (2015).

Notice.

Under this subchapter, if consent to the adoption has been given, notice to the consenting party is not required, nor is any further participation required of them; consequently, where mother consented to adoption, she was not entitled to subsequent service of process preceding the adoption nor was a guardian ad litem required to be appointed to represent her. Temple v. Tucker, 277 Ark. 81, 639 S.W.2d 357 (1982).

Unmarried father lacking any substantial relationship with his child is not entitled to notice of the child's adoption proceeding under either the due process clause or the equal protection clause of U.S. Const. Amend. 14. In re S.J.B., 294 Ark. 598, 745 S.W.2d 606 (1988); In re J.L.T., 31 Ark. App. 85, 788 S.W.2d 494 (1990).

Where the maternal grandparents' daughter was alive and had given consent to the adoption of her child, no consent was required by the maternal grandparents nor was notice required to be given to them before the adoption could proceed. Henry v. Buchanan, 364 Ark. 485, 221 S.W.3d 346 (2006).

Proof.

In an adoption proceeding contested by a natural parent the facts justifying the adoption must be established by clear and convincing evidence. Harper v. Caskin, 265 Ark. 558, 580 S.W.2d 176 (1979); McKee v. Bates, 10 Ark. App. 51, 661 S.W.2d 415 (1983).

Party seeking to adopt must prove by clear and convincing evidence that the nonconsenting parent has failed significantly without justifiable cause either to communicate with or to provide for the care and support of the child for the statutory period. Chrisos v. Egleston, 7 Ark. App. 82, 644 S.W.2d 326 (1983); Taylor v. Hill, 10 Ark. App. 45, 661 S.W.2d 412 (1983); Dodson v. Donaldson, 10 Ark. App. 64, 661 S.W.2d 425 (1983); Brown v. Johnson, 10 Ark. App. 110, 661 S.W.2d 443 (1983); Dangelo v. Neil, 10 Ark. App. 119, 661 S.W.2d 448 (1983); In re Titsworth, 11 Ark. App. 197, 669 S.W.2d 8 (1984).

When proving that a natural parent's consent is not required, the parties seeking to adopt bear the heavy burden of proving by clear and convincing evidence facts which justify dispensing with the required consent of the natural parents. In re Glover, 288 Ark. 59, 702 S.W.2d 12 (1986).

The party seeking to adopt a child without the consent of a natural parent must prove by clear and convincing evidence that the parent has failed significantly or without justifiable cause to communicate with the child or to provide for the care and support of the child as required by law or judicial decree. Bemis v. Hare, 19 Ark. App. 198, 718 S.W.2d 481 (1986).

Heavy burden is upon party seeking to adopt a child without consent of a natural parent to prove the failure to communicate or the failure to support by clear and convincing evidence. Dale v. Franklin, 22 Ark. App. 98, 733 S.W.2d 747 (1987); In re B.A.B., 40 Ark. App. 86, 842 S.W.2d 68 (1992).

In vacating an adoption decree, the trial court never made a determination of whether the natural father qualified as a father whose consent was required under § 9-9-206(a)(2), so the matter was remanded to the trial court for an analysis of the evidence on that issue; the father's consent was not required under subdivision (a)(3) of this section if it was determined that it was not required under § 9-9-206(a)(2). Britton v. Gault, 80 Ark. App. 311, 94 S.W.3d 926 (2003).

In granting a petition for a mother's husband to adopt the parties' child, a trial court did not err in finding that the father's consent was not necessary under subdivision (a)(2) of this section because, by the father's own testimony, he had not seen his child in over two years; he made no child support payments after being released from prison until he received the adoption petition. Courtney v. Ward, 2012 Ark. App. 148, 391 S.W.3d 686 (2012).

Unreasonable Withholding of Consent.

The courts may grant a petition for adoption to petitioners regardless of the arbitrary dissent by a natural father. Watkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78 (Ct. App. 1980).

Although a father had failed significantly for a period of one year to support his child without justifiable cause, that fact did not preclude him from objecting to a proposed adoption or from being fully heard in the matter, rather it meant that he could not defeat the adoption by simply withholding his consent. Watkins v. Dudgeon, 270 Ark. 516, 606 S.W.2d 78 (Ct. App. 1980).

This section gives the probate court authority to decide the issue raised by the foster parents whether the Department of Human Services, as legal guardian of the minor, has unreasonably withheld its consent to adopt. The foster parents' rights in that respect are not subject exclusively to the department's policies, the Arkansas Administrative Procedure Act (§ 25-15-201 et seq.), and circuit court review. Patterson v. Robbins, 295 Ark. 511, 749 S.W.2d 330 (1988).

Where the adoptive parent left the child who suffered from an incurable skin condition alone in a motor home unattended by an adult, the trial court did not err in finding that the guardian was not unreasonably withholding her consent to the adoption of the child under subdivision (a)(8) of this section. The trial court focused on the special medical needs of the child, including her epidermolysis bullosa condition, seizures, and episodes of holding her breath and passing out. Tom v. Cox, 101 Ark. App. 388, 278 S.W.3d 110 (2008).

Order granting foster parents' petition for adoption of a child and dismissing a maternal grandmother's petition for guardianship was proper; in finding that the Arkansas Department of Human Services had unreasonably withheld its consent to the adoption under subdivision (a)(8) of this section, the trial court did not err by giving effect to the statutory preference for adoption. Davis-Lewallen v. Clegg, 2010 Ark. App. 627, 378 S.W.3d 185 (2010).

Evidence did not support a finding that the Arkansas Department of Human Services (DHS) unreasonably withheld its consent to appellants' adoption of a child under subdivision (a)(8) of this section; appellants' adult son lived in their home and an uncle lived in substandard housing on the property without DHS's knowledge while appellants were foster parents. Lewis v. Ark. Dep't of Human Servs., 2012 Ark. App. 347 (2012).

Trial court's decision that the father unreasonably withheld consent and that it was in the child's best interest to be adopted by the adoptive parents was not against the preponderance of the evidence, which included evidence that the father was marginally self-sufficient while the adoptive parents had stable employment and housing. T.R. v. L.H., 2015 Ark. App. 483 (2015).

In an adoption proceeding following termination of parental rights, the granting of the foster parents' adoption petition was affirmed, as (1) the circuit court's decision that the Department of Human Services (DHS) unreasonably withheld consent to the adoption by preferring that the child be adopted by relatives was not clearly erroneous, (2) DHS's withholding of consent was not based on maltreatment allegations, and even if it was, the trial court was entitled to judge the credibility and seriousness of those allegations, and (3) DHS did not review all evidence relevant to the child's best interest before deciding to withhold consent. Canerday-Banks v. Barton, 2018 Ark. App. 523 (2018).

Appellate court will apply the clearly-erroneous standard to questions of whether consent to adoption was unreasonably withheld. Canerday-Banks v. Barton, 2018 Ark. App. 523 (2018).

Cited: In re Reeves, 309 Ark. 385, 831 S.W.2d 607 (1992); In re D.J.M., 39 Ark. App. 116, 839 S.W.2d 535 (1992); Reid v. Frazee, 61 Ark. App. 216, 966 S.W.2d 272 (1998); In re SCD, 358 Ark. 51, 186 S.W.3d 225 (2004); Marshall v. Rubright, 2017 Ark. App. 548 (2017).

9-9-208. How consent is executed.

  1. The required consent to adoption shall be executed at any time after the birth of the child and in the manner following:
    1. If by the individual to be adopted, in the presence of the court;
    2. If by an agency, by the executive head or other authorized representative, in the presence of a person authorized to take acknowledgments;
    3. If by any other person, in the presence of the court or in the presence of a person authorized to take acknowledgments;
    4. If by a court, by appropriate order or certificate.
  2. A consent which does not name or otherwise identify the adopting parent is valid if the consent contains a statement by the person whose consent it is that the person consenting voluntarily executed the consent irrespective of disclosure of the name or other identification of the adopting parent.
  3. If the parent is a minor, the writing shall be signed by a court-ordered guardian ad litem, who has been appointed by a judge of a court of record in this state to appear on behalf of the minor parent for the purpose of executing consent. The signing shall be made in the presence of an authorized representative of the Arkansas licensed placement agency taking custody of the child, or in the presence of a notary public, or in the presence and with the approval of a judge of a court of record of this state or any other state in which the minor was present at the time it was signed.

History. Acts 1977, No. 735, § 8; A.S.A. 1947, § 56-208; Acts 1991, No. 774, § 1.

Research References

U. Ark. Little Rock L.J.

Survey — Family Law, 11 U. Ark. Little Rock L.J. 215.

Survey — Family Law, 13 U. Ark. Little Rock L.J. 369.

Case Notes

Construction.

This section and § 9-9-220 are mutually exclusive, in that they address separate methods by which a child may be adopted and provide different means by which the relinquishment of consent or direct consent may be withdrawn. In re Parsons, 302 Ark. 427, 791 S.W.2d 681 (1990).

This section and § 9-9-209 are mutually exclusive from § 9-9-220 in obtaining the relinquishment of consent or consent to an adoption, and either one or the other should be employed based on the applicable circumstances of the adoption; and the use of both relinquishment of parental rights and consent provisions in the affidavit and consent of natural mother document was in contravention of these sections. In re Parsons, 302 Ark. 427, 791 S.W.2d 681 (1990).

Where both relinquishment of parental rights and consent provisions were contained in the same document purporting to sanction the adoption of a minor child and the trial court included the ten day right to withdraw provision in its decree of adoption, the document was, in the main, a relinquishment of parental rights as embodied in § 9-9-220, and natural mother's revocation of her relinquishment five days after she signed the affidavit was effective. In re Parsons, 302 Ark. 427, 791 S.W.2d 681 (1990).

Local rule imposed by chancellor blending the different statutory consent requirements of this section and § 9-9-220 was inappropriate. In re Parsons, 302 Ark. 427, 791 S.W.2d 681 (1990).

Visitation Agreement.

An agreement to provide for visitation rights for a member of the natural parent's family as a basis for natural father's consent to an adoption in the absence of statute is against public policy and void and unenforceable. Poe v. Case, 263 Ark. 488, 565 S.W.2d 612 (1978).

Cited: Brown v. Meekins, 282 Ark. 186, 666 S.W.2d 710 (1984).

9-9-209. Withdrawal of consent.

  1. A consent to adoption cannot be withdrawn after the entry of a decree of adoption.
    1. A consent to adopt may be withdrawn within ten (10) calendar days, or, if a waiver of the ten-day period is elected under subdivision (b)(3) of this section, five (5) calendar days after it is signed or the child is born, whichever is later, by filing an affidavit with the probate division clerk of the circuit court in the county designated by the consent as the county in which the guardianship petition will be filed, if there is a guardianship, or where the petition for adoption will be filed, if there is no guardianship. If the ten-day period, or, if a waiver of the ten-day period is elected under subdivision (b)(3) of this section, the five-day period ends on a weekend or a legal holiday, the person may file the affidavit the next working day. No fee shall be charged for the filing of the affidavit. The court may waive the ten-day period for filing a withdrawal of consent for agencies as defined by § 9-9-202(5), minors over ten (10) years of age who consented to the adoption, or biological parents if a stepparent is adopting.
    2. The consent shall state that the person has the right of withdrawal of consent and shall provide the address of the probate division clerk of the circuit court of the county in which the guardianship will be filed, if there is a guardianship, or where the petition for adoption will be filed, if there is no guardianship.
    3. The consent shall state that the person may waive the ten-day period for the withdrawal of consent for an adoption and elect to limit the maximum time for the withdrawal of consent for an adoption to five (5) days.

History. Acts 1977, No. 735, § 9; A.S.A. 1947, § 56-209; Acts 1991, No. 774, § 2; 1995, No. 1284, § 1; 2003, No. 1185, § 7; 2005, No. 437, § 3; 2009, No. 230, § 1.

Amendments. The 2005 amendment, in the last sentence of (b)(1), inserted “court may waive the” and “minors over ten (10) years of age who consented to the adoption, or biological parents if a step-parent is adopting” and substituted “consent for” for “consent shall not apply to”.

The 2009 amendment, in (b), in (b)(3) inserted “or, if a waiver of the ten-day period is elected under subdivision (b)(3) of this section, five (5) calendar days” and “or, if a waiver of the ten-day period is elected under subdivision (b)(3) of this section, the five-day period”, inserted “division” in (b)(2), and added (b)(3).

Research References

U. Ark. Little Rock L.J.

Arkansas Law Survey, Waddell, Family Law, 7 U. Ark. Little Rock L.J. 229.

Survey — Family Law, 11 U. Ark. Little Rock L.J. 215.

Survey, Family Law, 13 U. Ark. Little Rock L.J. 369.

Case Notes

Construction.

Section 9-9-208 and this section are mutually exclusive from § 9-9-220 in obtaining the relinquishment of consent or consent to an adoption, and either one or the other should be employed based on the applicable circumstances of the adoption; and the use of both relinquishment of parental rights and consent provisions in the affidavit and consent of natural mother document was in contravention of these sections. In re Parsons, 302 Ark. 427, 791 S.W.2d 681 (1990).

Final Decree.

A natural parent may not withdraw his consent to adoption after entry of an order which by its terms does not require a subsequent hearing, except upon proof of fraud, duress, or intimidation. McCluskey v. Kerlen, 278 Ark. 338, 645 S.W.2d 948 (1983); In re Dailey, 20 Ark. App. 180, 726 S.W.2d 292 (1987); Dale v. Franklin, 22 Ark. App. 98, 733 S.W.2d 747 (1987).

Interlocutory Order.

Consent held not revocable after entry of interlocutory order of adoption. A. v. B., 217 Ark. 844, 233 S.W.2d 629 (1950); Bradford v. Fitzgerald, 252 Ark. 655, 480 S.W.2d 336 (1972) (preceding cases decided under prior law); McCluskey v. Kerlen, 278 Ark. 338, 645 S.W.2d 948 (1983).

Although a mother can revoke her consent for adoption before an interlocutory order, her revocation afterwards and before the final decree is controlled by surrounding circumstances. Martin v. Ford, 224 Ark. 993, 277 S.W.2d 842 (1955) (decision under prior law).

A natural mother can withdraw her consent to the adoption of her child after an interlocutory decree has been entered but before a final decree has been entered only upon a proper showing of fraud, duress, or intimidation. Pierce v. Pierce, 279 Ark. 62, 648 S.W.2d 487 (1983).

Waiting Period.

It was not clearly erroneous to dismiss the paternal relatives' adoption petition for lack of a sufficient consent by the Department of Human Services (DHS); the consent, which DHS executed the day before the adoption hearing, did not satisfy the required waiting period and DHS did not seek to waive the waiting period. Canerday-Banks v. Barton, 2018 Ark. App. 523 (2018).

Clear language of subdivision (b)(3) of this section indicates that a consenting party may elect to waive the 10-day waiting period in favor of a 5-day period but not less. Canerday-Banks v. Barton, 2018 Ark. App. 523 (2018).

Withdrawal Prior to Filing.

This section is silent as to whether consent can be withdrawn prior to the filing of adoption petition. Under this section, consent to adopt cannot be withdrawn after the entry of the final order; prior to entry of adoption decree, consent can be withdrawn if it is found to be in the best interest of the child and court orders withdrawal of consent. Dale v. Franklin, 22 Ark. App. 98, 733 S.W.2d 747 (1987).

Cited: Summers v. Mylan, 287 Ark. 150, 697 S.W.2d 91 (1985).

9-9-210. Petition for adoption.

  1. A petition for adoption signed and verified by the petitioner shall be filed with the clerk of the court, and state:
    1. The date and place of birth of the individual to be adopted, if known;
    2. The name to be used for the individual to be adopted;
    3. The date the petitioner:
      1. Acquired custody of the minor and of placement of the minor and the name of the person placing the minor; and a statement as to how the petitioner acquired custody of the minor; or
      2. Was selected to adopt the minor by the child placement agency licensed by the Child Welfare Agency Review Board;
    4. The full name, age, place, and duration of residence of the petitioner;
    5. The marital status of the petitioner, including the date and place of marriage, if married;
    6. That the petitioner has facilities and resources, including those available under a subsidy agreement, suitable to provide for the nurture and care of the minor to be adopted and that it is the desire of the petitioner to establish the relationship of parent and child with the individual to be adopted;
    7. A description and estimate of value of any property of the individual to be adopted;
    8. The name of any person whose consent to the adoption is required, but who has not consented, and facts or circumstances which excuse the lack of his or her normally required consent, to the adoption; and
    9. In cases involving a child born to a mother unmarried at the time of the child's birth, a statement that an inquiry has been made to the Putative Father Registry and either:
      1. No information has been filed in regard to the child born to this mother; or
      2. Information is contained in the registry.
  2. A certified copy of the birth certificate or verfication of birth record of the individual to be adopted, if available, and the required consents and relinquishments shall be filed with the clerk.

History. Acts 1977, No. 735, § 10; A.S.A. 1947, § 56-210; Acts 1989, No. 496, § 6; 2011, No. 607, § 2.

Amendments. The 2011 amendment subdivided (a)(3) and added the (a)(3)(A) designation and (a)(3)(B).

Research References

Ark. L. Notes.

Sampson, Coats, & Barger, Arkansas' Putative Father Registry and Related Adoption Code Provisions: Inadequate Protection for Thwarted Putative Fathers, 1997 Ark. L. Notes 49.

Case Notes

Standing to Adopt.

Subdivision (a)(3) of this section provides that a petition for adoption shall state “the date the petitioner acquired custody of the minor and of placement of the minor and the name of the person placing the minor; and a statement as to how petitioner acquired custody of the minor.” That language, having to do with the contents of the petition, does not mean that a person who does not have custody and with whom the child has not been “placed” has no standing; standing to adopt is conferred by § 9-9-204, and that statute does not exclude persons who have served as foster parents of the minor to be adopted. Patterson v. Robbins, 295 Ark. 511, 749 S.W.2d 330 (1988).

Substantial Compliance.

A petition for the adoption of a child held a sufficient compliance. Taylor v. Collins, 172 Ark. 541, 289 S.W. 466 (1927) (decision under prior law); Ark. Dep't of Human Servs. v. Couch, 38 Ark. App. 165, 832 S.W.2d 265 (1992).

A petition for adoption is valid where there is substantial compliance with the statutory requirements; strict compliance is not required. Reid v. Frazee, 72 Ark. App. 474, 41 S.W.3d 397 (2001).

Adoptive parents did not fail to comply with subdivision (a)(8) of this section because the biological father's consent to the adoption was not required, and consent to this adoption was not required of any other person. Lagios v. Goldman, 2016 Ark. 59, 483 S.W.3d 810, cert. denied, — U.S. —, 137 S. Ct. 77, 196 L. Ed. 2d 35 (2016).

Adoptive parents did not fail to comply with subdivision (a)(9) of this section because the need for an inquiry into the Putative Father Registry had already been obviated when the petition for adoption was filed, and DNA testing had already established who the child's biological father was. Lagios v. Goldman, 2016 Ark. 59, 483 S.W.3d 810, cert. denied, — U.S. —, 137 S. Ct. 77, 196 L. Ed. 2d 35 (2016).

Failure of an adoption petition to include all of the information required by the statute did not deprive the circuit court of jurisdiction because all of the information was made part of the record before the adoption decree was entered. Lagios v. Goldman, 2016 Ark. 59, 483 S.W.3d 810, cert. denied, — U.S. —, 137 S. Ct. 77, 196 L. Ed. 2d 35 (2016).

Cited: In re Reeves, 309 Ark. 385, 831 S.W.2d 607 (1992).

9-9-211. Report of petitioner's expenditures.

  1. Except as specified in subsection (b) of this section, the petitioner, in any proceeding for the adoption of a minor, shall file, before the petition is heard, a full accounting report in a manner acceptable to the court of all disbursements of anything of value made or agreed to be made by or on behalf of the petitioner in connection with the adoption. The petitioner shall file a sworn affidavit showing any expenses incurred in connection with:
    1. The birth of the minor;
    2. Placement of the minor with petitioner;
    3. Medical or hospital care received by the mother or by the minor during the mother's prenatal care and confinement;
    4. Services relating to the adoption or to the placement of the minor for adoption which were received by or on behalf of the petitioner, either natural parent of the minor, or any other person; and
    5. Fees charged by all attorneys involved in the adoption, including those fees charged by out-of-state attorneys.
  2. This section does not apply to an adoption by a stepparent whose spouse is a natural or adoptive parent of the child, or to an adoption where the person to be adopted is an adult, or where the petitioner and the minor are related to each other in the second degree.
  3. The petitioner shall file a signed, sworn affidavit verifying that all expenses as required by this section have been truthfully listed and shall be informed by the court as to the consequences of knowingly making false material statements.

History. Acts 1977, No. 735, § 11; 1985, No. 107, § 1; A.S.A. 1947, § 56-211.

Case Notes

Compliance.

Adoptive parents substantially complied with this section by filing their affidavit of expenses two business days after the first adoption hearing because the biological father failed to establish that this section sets forth a jurisdictional requirement subject to strict compliance. Lagios v. Goldman, 2016 Ark. 59, 483 S.W.3d 810, cert. denied, — U.S. —, 137 S. Ct. 77, 196 L. Ed. 2d 35 (2016).

9-9-212. Hearing on petition — Requirements.

    1. Before any hearing on a petition, the period in which the relinquishment may be withdrawn under § 9-9-220 or in which consent may be withdrawn under § 9-9-209, whichever is applicable, must have expired.
    2. No orders of adoption, interlocutory or final, may be entered prior to the period for withdrawal.
    3. After the filing of a petition to adopt a minor, the court shall fix a time and place for hearing the petition.
    4. At least twenty (20) days before the date of hearing, notice of the filing of the petition and of the time and place of hearing shall be given by the petitioner to:
      1. Any agency or person whose consent to the adoption is required by this subchapter but who has not consented;
      2. A person whose consent is dispensed with upon any ground mentioned in § 9-9-207(a)(1), (2), (6), (8), and (9); and
      3. Any putative father who has signed an acknowledgement of paternity or has registered with the state's Putative Father Registry.
      1. When the petitioner alleges that any person entitled to notice cannot be located, the court shall appoint an attorney ad litem who shall make a reasonable effort to locate and serve notice upon the person entitled to notice; and upon failing to so serve actual notice, the attorney ad litem shall publish a notice of the hearing directed to the person entitled to notice in a newspaper having general circulation in the county one (1) time a week for four (4) weeks, the last publication being at least seven (7) days prior to the hearing.
      2. Before the hearing, the attorney ad litem shall file a proof of publication and an affidavit reciting the efforts made to locate and serve actual notice upon the person entitled to notice.
      1. Before placement of the child in the home of the petitioner, a home study shall be conducted by any child welfare agency licensed under the Child Welfare Agency Licensing Act, § 9-28-401 et seq., or any licensed certified social worker.
      2. Home studies on non-Arkansas residents may also be conducted by a person or agency in the same state as the person wishing to adopt as long as the person or agency is authorized under the law of that state to conduct home studies for adoptive purposes.
    1. The Department of Human Services shall not be ordered by any court to conduct an adoptive home study, unless:
        1. The court has first determined the responsible party to be indigent; or
        2. The child to be adopted is the subject of an open dependency-neglect case and the goal of the case is adoption; and
      1. The person to be studied lives in the State of Arkansas.
    2. All home studies shall be prepared and submitted in conformity with the rules promulgated pursuant to the Child Welfare Agency Licensing Act, § 9-28-401 et seq.
      1. The home study shall address whether the adoptive home is a suitable home and shall include a recommendation as to the approval of the petitioner as an adoptive parent.
      2. A written report of the home study shall be filed with the court before the petition is heard.
      3. The home study shall contain an evaluation of the prospective adoption with a recommendation as to the granting of the petition for adoption and any other information the court requires regarding the petitioner or minor.
      1. The home study shall include a state-of-residence criminal background check, if available, and a national fingerprint-based criminal background check performed by the Federal Bureau of Investigation in compliance with federal law and regulation on the adoptive parents and all household members eighteen and one-half (18½) years of age and older, excluding children in foster care.
      2. If a prospective adoptive parent has lived in a state for at least six (6) years immediately prior to adoption, then only a state-of-residence criminal background check shall be required.
      3. If the Department of Human Services has responsibility for placement and care of the child to be adopted, the home study shall include a national fingerprint-based criminal background check performed by the Federal Bureau of Investigation in compliance with federal law and regulation on the prospective adoptive parents and all household members eighteen and one-half (18½) years of age or older, excluding children in foster care.
      4. Upon request by the Department of Human Services, local law enforcement shall provide the Department of Human Services with local criminal background information on the prospective adoptive parents and all household members eighteen and one-half (18½) years of age and older who have applied to be an adoptive family.
    3. A Child Maltreatment Central Registry check shall be required for all household members age fourteen (14) and older, excluding children in foster care, as a part of the home study, if such a registry is available in their state of residence.
    4. Additional national fingerprint-based criminal background checks performed by the Federal Bureau of Investigation are not required for international adoptions as they are already a part of the requirements for adoption of the United States Citizenship and Immigration Services.
    5. Each prospective adoptive parent shall be responsible for payment of the costs of the criminal background checks, both the in-state check and the Federal Bureau of Investigation check if applicable, and shall be required to cooperate with the requirements of the Division of Arkansas State Police and the Child Maltreatment Central Registry, if available, with regard to the criminal and central registry background checks, including, but not limited to, signing a release of information.
      1. Upon completion of the criminal record checks, the Division of Arkansas State Police shall forward all information obtained to either the Department of Human Services, if it is conducting the home study, or to the court in which the adoption petition will be filed.
      2. The Division of Arkansas State Police shall forward all information obtained from the national fingerprint-based criminal background checks performed by the Federal Bureau of Investigation to either the Department of Human Services, if it is doing the home study, or to the court in which the adoption petition will be filed.
      3. The circuit clerk of the county where the petition for adoption has been or will be filed shall:
        1. Keep a record of the national fingerprint-based criminal background checks performed by the Federal Bureau of Investigation for the court;
        2. Permit only the court and the employees of the clerk's office with an official reason to view the information in the national fingerprint-based criminal background check;
        3. Not permit anyone to obtain a copy of the national fingerprint-based criminal background check; and
        4. Permit a person specifically ordered by the court to view the information in the national fingerprint-based criminal background check.
        1. The Department of Human Services shall share the information obtained from the criminal records check and the national fingerprint-based criminal background checks only with employees of the Department of Human Services who have an official business reason to see the information.
        2. Unless specifically ordered to do so by the court, the Department of Human Services shall not share the information obtained from the criminal records check and the national fingerprint-based criminal background checks with persons not employed by the Department of Human Services.
    1. Unless directed by the court, a home study is not required in cases in which the person to be adopted is an adult. The court may also waive the requirement for a home study when a stepparent is the petitioner or the petitioner and the minor are related to each other in the second degree.
    2. The home study shall not be waived when the case is a fast-track adoption of a Garrett's Law baby under § 9-9-702.
    1. After the filing of a petition to adopt an adult, the court by order shall direct that a copy of the petition and a notice of the time and place of the hearing be given to any person whose consent to the adoption is required but who has not consented.
    2. The court may order a home study to assist it in determining whether the adoption is in the best interest of the persons involved.
    3. The Department of Human Services shall not be ordered by any court to conduct a home study unless:
        1. The court has first determined the responsible party to be indigent; or
        2. The person to be adopted is the subject of an open dependency-neglect case and the goal of the case is adoption; and
      1. The person to be studied lives in the State of Arkansas.
    4. All home studies shall be prepared and submitted in conformity with the rules promulgated pursuant to the Child Welfare Agency Licensing Act, § 9-28-401 et seq.
    1. Notice shall be given in the manner appropriate under rules of civil procedure for the service of process in a civil action in this state or in any manner the court by order directs.
    2. Proof of the giving of the notice shall be filed with the court before the petition is heard.
    3. Where consent is not required, notice may be by certified mail with return receipt requested.
  1. When one (1) parent of a child or children is deceased, and the parent-child relationship has not been eliminated at the time of death, and adoption proceedings are instituted subsequent to such decease, the parents of the deceased parent shall be notified under the procedures prescribed in this subchapter of such adoption proceedings, except when the surviving parent-child relationship has been terminated pursuant to § 9-27-341.
      1. Except as provided under subdivision (g)(2) of this section, before placement for adoption, the licensed adoption agency or, when an agency is not involved, the person, entity, or organization handling the adoption shall compile and provide to the prospective adoptive parents a detailed, written health history and genetic and social history of the child that excludes information that would identify birth parents or members of a birth parent's family.
      2. The detailed, written health history and genetic and social history shall be set forth in a document that is separate from any document containing information identifying the birth parents or members of a birth parent's family.
      3. The detailed, written health history and genetic and social history shall be clearly identified and shall be filed with the clerk before the entry of the adoption decree.
      4. Upon order of the court for good cause shown, the clerk may tender to a person identified by the court a copy of the detailed, written health history and genetic and social history.
    1. Unless directed by the court, a detailed, written health history and genetic and social history of the child is not required if:
      1. The person to be adopted is an adult;
      2. The petitioner is a stepparent; or
      3. The petitioner and the child to be adopted are related to each other within the second degree of consanguinity.

History. Acts 1977, No. 735, § 12; 1979, No. 599, §§ 3, 4; 1983, No. 324, § 1; 1985, No. 445, §§ 1, 2; A.S.A. 1947, § 56-212; Acts 1991, No. 774, § 3; 1991, No. 1214, § 1; 1993, No. 1204, § 1; 1995, No. 1067, § 1; 1997, No. 1106, § 1; 2003, No. 650, § 3; 2005, No. 437, § 4; 2005, No. 1689, § 1; 2007, No. 539, § 4; 2009, No. 724, § 1; 2011, No. 1235, § 1; 2013, No. 471, § 1; 2015, No. 547, § 1; 2015, No. 861, § 1; 2019, No. 315, §§ 706, 707.

Amendments. The 2005 amendment by No. 437 inserted “surviving” following “except when the” in (f).

The 2005 amendment by No. 1689 redesignated former (g)(1)-(4) as present (g)(1)(A)-(D); added “Except as provided under subdivision (g)(2) of this section” in (g)(1)(A); and added (g)(2).

The 2007 amendment added (b)(5)(C) and (D); and inserted “Department of” in (b)(8) and (b)(9)(B).

The 2009 amendment rewrote (b)(2), (b)(5)(A), and (b)(5)(C); substituted “eighteen (18)” for “sixteen (16)” in (b)(5)(A), (b)(5)(C), and (b)(5)(D); inserted “excluding children in foster care” in (b)(6); inserted “performed by the Federal Bureau of Investigation in compliance with federal law and regulation” in (b)(5)(A) and (b)(5)(C); inserted “performed by the Federal Bureau of Investigation” in (b)(7), (b)(9)(B), and (b)(9)(C); deleted “except the juvenile division of circuit court” following “any court” in (d)(3); inserted “both the in-state check and the Federal Bureau of Investigation check if applicable” in (b)(8); inserted (c)(2) and (d)(3)(A)(ii) and redesignated subdivisions accordingly; and made related and minor stylistic changes.

The 2011 amendment inserted (a)(4)(C).

The 2013 amendment substituted “fourteen (14)” for “ten (10)” in (b)(6).

The 2015 amendment by No. 547 substituted “eighteen and one-half (18 ½)” for “eighteen (18)” throughout (b)(5).

The 2015 amendment by No. 861 deleted “to the agency, to the licensed certified social worker” following “home study” in (b)(9)(A); inserted the (b)(9)(C)(i) designation; and added (b)(9)(C)(ii) through (b)(9)(C)(iv) and (b)(9)(D).

The 2019 amendment substituted “rules” for “regulations” in (b)(3) and (d)(4).

Cross References. Child Maltreatment Central Registry, § 12-18-901 et seq.

Preference for relative and consideration of religion, § 9-9-102.

Research References

Ark. L. Rev.

Tiffany N. Godwin, Comment: Does Father Know Best? Arkansas's Approach to the “Thwarted” Putative Father, 67 Ark. L. Rev. 989 (2014).

U. Ark. Little Rock L.J.

Legislation of the 1983 General Assembly, Family Law, 6 U. Ark. Little Rock L.J. 624.

Legislative Survey, Family Law, 16 U. Ark. Little Rock L.J. 131.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Family Law, Uniform Adoption Act, 26 U. Ark. Little Rock L. Rev. 408.

Case Notes

Grandparents.

This section does not grant to grandparents a right to intervene or a right to be heard in adoption proceedings. Tompkins v. Tompkins, 341 Ark. 949, 20 S.W.3d 385 (2000).

Paternal grandparents did not have the right to be heard in an adoption proceeding by the natural mother's new husband as (1) they never had custody of the child at issue, and the natural mother had retained custody at all times, and (2) their visitation with the child was the result of a mutual agreement, rather than pursuant to a court order. Tompkins v. Tompkins, 341 Ark. 949, 20 S.W.3d 385 (2000).

Where the biological mother gave consent to the adoptive mother to adopt her daughter, neither consent nor notice to the maternal grandparents was required before the adoption could proceed. Henry v. Buchanan, 364 Ark. 485, 221 S.W.3d 346 (2006).

Home Study.

For purposes of this section, appellants claimed that the failure to file a home study for the adoption of the child was jurisdictional and required reversal; however, under § 28-1-104(5), the trial court had jurisdiction to determine the child's adoption and any error in relying on appellees’ home study had to be raised in the trial court. The issue was not preserved for review, as appellees' home study was admitted without objection and appellants did not raise their argument below and it was not considered by the trial court. Wilson v. Golen, 2013 Ark. App. 267, 427 S.W.3d 723 (2013).

Adoptive parents substantially complied with this section because a home study was conducted in a timely manner; there was a guardianship in place, the home study was conducted before the adoption was granted, and the home study was filed with the circuit court. Lagios v. Goldman, 2016 Ark. 59, 483 S.W.3d 810, cert. denied, — U.S. —, 137 S. Ct. 77, 196 L. Ed. 2d 35 (2016).

Notice.

Party having prior custody of child was entitled to notice and was a necessary party. Siebert v. Benson, 243 Ark. 843, 422 S.W.2d 683 (1968) (decision under prior law).

Under this subchapter, if consent to the adoption has been given, notice to the consenting party is not required, nor is any further participation required of them. Temple v. Tucker, 277 Ark. 81, 639 S.W.2d 357 (1982).

Alleged father of child was not entitled to notice of adoption proceeding under this section, where he was not registered in the state putative father registry, even though he had established a substantial relationship with the child. In re Reeves, 309 Ark. 385, 831 S.W.2d 607 (1992).

A decree of adoption would be reversed and remanded for a hearing to determine whether the natural father's consent to adoption was required where he did not receive notice of the petition to adopt and an attorney ad litem was not appointed to represent his right to receive notice. Reid v. Frazee, 61 Ark. App. 216, 966 S.W.2d 272 (1998).

The maternal grandmother was not entitled to visitation with two children adopted by the natural father's new wife under § 9-9-215(a)(1), because she was barred from filing her custody/visitation action by the one-year statute of limitations found in § 9-9-216(b) as she clearly was challenging the effect of the adoption decree by claiming visitation rights. A contrary result was not required by the fact that the grandmother was not given notice of the adoption proceeding as required by subsection (f) of this section because the Revised Uniform Adoption Act in effect at the time of the adoption proceedings did not provide for grandparent visitation rights. Tate v. Bennett, 341 Ark. 829, 20 S.W.3d 370 (2000).

Failure to give a natural parent the notice of an adoption proceeding required by this section violated due process and entitled the parent to have the subsequently entered decree set aside. Mayberry v. Flowers, 347 Ark. 476, 65 S.W.3d 418 (2002).

Where the putative father and the child's mother had a brief romantic relationship, he did not know the mother was pregnant and did not see or talk to her after the encounter, and at the time an adoption petition was filed he had not registered with the putative-father registry, the putative father was not statutorily entitled to notice of the adoption proceeding. Escobedo v. Nickita, 365 Ark. 548, 231 S.W.3d 601 (2006).

In an adoption case, where the putative father was served with a summons, petition for adoption, notice of hearing, and notice of deposition on December 14, 2004, and the hearing was held on December 20, 2004, the notice given the father satisfied the requirements of due process. Escobedo v. Nickita, 365 Ark. 548, 231 S.W.3d 601 (2006).

Adoptive parents' failure to strictly comply with subsection (f) did not deprive the circuit court of jurisdiction because notice requirements had to do with jurisdiction of the person, not subject-matter jurisdiction. Lagios v. Goldman, 2016 Ark. 59, 483 S.W.3d 810, cert. denied, — U.S. —, 137 S. Ct. 77, 196 L. Ed. 2d 35 (2016).

Biological father's appeal of an adoption decree was not dismissed, because (1) as the father's Ark. R. Civ. P. 60(a) motion to vacate was filed more than 10 days after entry of the decree, the “deemed-denied” prong of Ark. R. App. P. Civ. 4 did not apply, and Ark. R. Civ. P. 60 had no such prong, and (2) it was unnecessary to decide if a trial court now lacked jurisdiction due to expiration of the 90-day period in Ark. R. Civ. P. 60(a), as the father argued the decree was void due to the father's prior adjudication as the child's father and lack of notice of or consent to the adoption. Miller v. Moore, 2017 Ark. App. 619, 535 S.W.3d 651 (2017).

Validity of Marriage.

Only argument advanced by the biological father in an adoption case was that the mother's second marriage was void because he and the mother were still validly married and the biological father was collaterally estopped from asserting that argument. The biological father failed to overcome the presumption of the validity of the marriage between the mother and the adoptive father and it followed that he failed to prove that the adoptive father was not the child's stepparent at the time of the adoption and that a home study was required under subdivision (b)(1)(A) of this section. Powell v. Lane, 375 Ark. 178, 289 S.W.3d 440 (2008).

Waiting Period.

It was not clearly erroneous to dismiss the paternal relatives' adoption petition for lack of a sufficient consent by the Department of Human Services (DHS); the consent, which DHS executed the day before the adoption hearing, did not satisfy the required waiting period and DHS did not seek to waive the waiting period. Canerday-Banks v. Barton, 2018 Ark. App. 523 (2018).

Waiver of Investigation.

Although the trial court did not expressly waive the investigation pursuant to subsection (c) of this section, the trial court did not err when it found that it was in the child's best interests to remain with the adoptive parents where it focused on the stability she had with the adoptive parents, especially as the adoptive parents were her grandparents and she had been in their custody for the majority of the past three years. Shorter v. Reeves, 72 Ark. App. 71, 32 S.W.3d 758 (2000).

Cited: Cox v. Stayton, 273 Ark. 298, 619 S.W.2d 617 (1981); In re J.L.T., 31 Ark. App. 85, 788 S.W.2d 494 (1990).

9-9-213. Required residence of minor.

  1. A final decree of adoption shall not be issued and an interlocutory decree of adoption does not become final until the minor to be adopted, other than a stepchild of the petitioner, has lived in the home for at least six (6) months after placement by an agency or for at least six (6) months after the petition for adoption is filed.
  2. Residence in the home is not required for a minor to be adopted if the minor is in the custody of the Department of Human Services, and the minor must reside outside of the home to receive medically necessary health care.

History. Acts 1977, No. 735, § 13; A.S.A. 1947, § 56-213; Acts 1999, No. 518, § 1; 2011, No. 607, § 3; 2013, No. 471, § 2.

Amendments. The 2011 amendment added the (a) designation and (b).

The 2013 amendment deleted designations (b)(1) and (b)(2); and substituted “and the minor” for “The minor” in present (b).

Case Notes

Temporary Order.

Adoption decree by temporary order continued without any final decree of adoption having been issued was accepted as effecting a legal adoption under Arkansas law. Dunn v. Richardson, 336 F. Supp. 649 (W.D. Ark. 1972) (decision under prior law).

Cited: Irvan v. Kizer, 286 Ark. 105, 689 S.W.2d 548 (1985); In re Perkins/Pollnow, 300 Ark. 390, 779 S.W.2d 531 (1989); In re Milam, 27 Ark. App. 100, 766 S.W.2d 944 (1989); Mayberry v. Flowers, 69 Ark. App. 307, 12 S.W.3d 652 (2000).

9-9-214. Appearance — Continuance — Disposition of petition.

  1. The petitioner and the individual to be adopted shall appear at the hearing on the petition, unless the presence of either is excused by the court for good cause shown.
  2. The court may continue the hearing from time to time to permit further observation, investigation, or consideration of any facts or circumstances affecting the granting of the petition.
  3. If at the conclusion of the hearing the court determines that the required consents have been obtained or excused and the required period for the withdrawal of consent and withdrawal of relinquishment have passed and that the adoption is in the best interest of the individual to be adopted, it may (1) issue a final decree of adoption; or (2) issue an interlocutory decree of adoption which by its own terms automatically becomes a final decree of adoption on a day therein specified, which day shall not be less than six (6) months nor more than one (1) year from the date of issuance of the decree, unless sooner vacated by the court for good cause shown.
  4. If the requirements for a decree under subsection (c) of this section have not been met, the court shall dismiss the petition and the child shall be returned to the person or entity having custody of the child prior to the filing of the petition.

History. Acts 1977, No. 735, § 14; A.S.A. 1947, § 56-214; Acts 1991, No. 774, § 4.

Research References

Ark. L. Rev.

Note, Strict Construction, Jurisdictional Requirements and the Arkansas Adoption Code: Martin v. Martin and a Missed Chance for Clarity, 49 Ark. L. Rev. 123.

Case Notes

Appellate Brief.

In an adoption proceeding following termination of parental rights, the Court of Appeals granted appellee foster parent's motion to strike the appellate brief of the Department of Human Services where DHS had not appealed or cross-appealed but argued in favor of the appellant relatives in its brief. Canerday-Banks v. Barton, 2018 Ark. App. 523 (2018).

Best Interest of Child.

Facts did not necessarily show adoption to be in the child's best interest. Dixon v. Dixon, 286 Ark. 128, 689 S.W.2d 556 (1985).

While keeping siblings together is a commendable goal and an important consideration as a general rule, it is but one factor that must be taken into account when determining the best interest of the child. Ark. Dep't of Human Servs. v. Couch, 38 Ark. App. 165, 832 S.W.2d 265 (1992).

Putative father's failure to formally establish paternity was not a major factor to be considered regarding the best interest of the child. In re B.L.S, 50 Ark. App. 155, 901 S.W.2d 38 (1995).

That attempted adoptive mother was on Social Security disability and drawing welfare benefits will not provide a basis for a change in custody. In re B.L.S, 50 Ark. App. 155, 901 S.W.2d 38 (1995).

Trial court did not err under subsection (d) of this section in dismissing appellants' petition for adoption of a child for whom they had been foster parents because their adult son lived in their home and an uncle lived in substandard housing on the property without the knowledge of the Arkansas Department of Human Services. Lewis v. Ark. Dep't of Human Servs., 2012 Ark. App. 347 (2012).

If a trial court finds that an adoption is not in the best interest of a child, it is of no significance whether consent to adoption is required. If a trial court determines that consent to an adoption is not required, there can be no adoption if the trial court also finds that adoption is not in the best interest of the child, and thus the trial court in this case did not err as a matter of law in not addressing both parts of the two-part adoption analysis. Hollis v. Hollis, 2015 Ark. App. 441, 468 S.W.3d 316 (2015).

Trial court's finding that adoption was not in the child's best interest was not clearly erroneous; the mother's failure to provide care and support for the child was due in part to her financial problems, which she was curing, when the mother visited the child, he was happy, and the mother had made significant strides to improve her lifestyle and relationships. Hollis v. Hollis, 2015 Ark. App. 441, 468 S.W.3d 316 (2015).

Effective Date of Order.

Adoption decree is effective as of the date of the interlocutory order unless set aside for good reason at final hearing. A. v. B., 217 Ark. 844, 233 S.W.2d 629 (1950) (decision under prior law).

Adoptive parent did not timely move to vacate temporary order of adoption. Toai Cong Pham v. Hanh My Truong, 291 Ark. 442, 725 S.W.2d 569 (1987).

Petition Denied.

Because the paternal grandmother only challenged the trial court's finding that the mother did not lose her right to consent to the adoption pursuant to § 9-9-207(a)(2), as the mother had significant contacts with the child and had paid support, but not the trial court's finding that granting the grandmother's petition for adoption was not in the child's best interest, the appellate court was left with an unchallenged basis for affirming the denial of the petition. Hill v. Powell, 2016 Ark. App. 123 (2016).

Petition Dismissed.

Circuit court properly dismissed a petition for adoption filed by a maternal grandmother and a step-grandfather because the petition did not include background checks by the Federal Bureau of Investigation, the children's birth certificates, and the consent of the Department of Human Services, as the legal guardian of the children. Mode v. Ark. Dep't of Human Servs., 2015 Ark. App. 69 (2015).

It was not clearly erroneous to dismiss the paternal relatives' adoption petition for lack of a sufficient consent by the Department of Human Services (DHS); the consent, which DHS executed the day before the adoption hearing, did not satisfy the required waiting period and DHS did not seek to waive the waiting period. Canerday-Banks v. Barton, 2018 Ark. App. 523 (2018).

Petition Granted.

A probate court may grant a petition for adoption if it determines at the conclusion of a hearing that the required consents have been obtained or excused and the adoption is in the best interest of the child or individual to be adopted. Bemis v. Hare, 19 Ark. App. 198, 718 S.W.2d 481 (1986).

In an adoption proceeding following termination of parental rights, the granting of the foster parents' adoption petition was affirmed, as (1) the circuit court's decision that the Department of Human Services (DHS) unreasonably withheld consent to the adoption by preferring that the child be adopted by relatives was not clearly erroneous, (2) DHS's withholding of consent was not based on maltreatment allegations, and even if it was, the trial court was entitled to judge the credibility and seriousness of those allegations, and (3) DHS did not review all evidence relevant to the child's best interest before deciding to withhold consent. Canerday-Banks v. Barton, 2018 Ark. App. 523 (2018).

Presence of Adopted Person.

Where the final decree of adoption recited “that all proper persons are before the court,” it must be assumed the finding means that the children were present at the hearing. Brown v. Fleming, 266 Ark. 814, 586 S.W.2d 8 (Ct. App. 1979).

Where the record was silent as to whether the child sought to be adopted was present at hearing, the court would indulge in the presumption that the court below had jurisdiction and acted correctly. Loveless v. May, 278 Ark. 127, 644 S.W.2d 261 (1983).

Standard of Review.

Supreme Court reviews probate proceedings de novo and will not reverse a probate court's decision regarding the best interest of a child to be adopted unless it is clearly against the preponderance of the evidence, giving due regard to the opportunity and superior position of the trial court to judge the credibility of witnesses. Personal observations of the court are entitled to even more weight in cases involving the welfare of a young child. In re Perkins/Pollnow, 300 Ark. 390, 779 S.W.2d 531 (1989); In re B.A.B., 40 Ark. App. 86, 842 S.W.2d 68 (1992).

Standing in Loco Parentis.

Subsection (a) of this section is mandatory and jurisdictional and could not be complied with unless persons standing in loco parentis to child were given notice of guardianship and adoption proceedings. Nelson v. Shelly, 268 Ark. 760, 600 S.W.2d 411 (Ct. App. 1980).

Subsequent Hearing.

After the natural father brought to the court's attention that the child at issue, who was seven years of age at the beginning of this process, was past the age of ten years at the time the trial was held, the probate judge properly scheduled a subsequent hearing at which he questioned the child and ascertained the child's consent to be adopted. Reid v. Frazee, 72 Ark. App. 474, 41 S.W.3d 397 (2001).

Circuit court did not abuse its broad discretion in holding a subsequent hearing so the adoptive parents could introduce the home study into evidence because the issue presented in the case was so grave and of such importance that it would constitute an injustice not to allow the record to be completed; the circuit court had broad discretion to reopen the case for further proof after both sides had rested, particularly to ascertain the truth of the matter to be determined on a material issue. Lagios v. Goldman, 2016 Ark. 59, 483 S.W.3d 810, cert. denied, — U.S. —, 137 S. Ct. 77, 196 L. Ed. 2d 35 (2016).

Cited: In re Parsons, 302 Ark. 427, 791 S.W.2d 681 (1990); Mayberry v. Flowers, 69 Ark. App. 307, 12 S.W.3d 652 (2000).

9-9-215. Effect of decree of adoption.

  1. A final decree of adoption and an interlocutory decree of adoption which has become final, whether issued by a court of this state or of any other place, have the following effect as to matters within the jurisdiction or before a court of this state:
    1. Except with respect to a spouse of the petitioner and relatives of the spouse, to relieve the biological parents of the adopted individual of all parental rights and responsibilities, and to terminate all legal relationships between the adopted individual and his or her biological relatives, including his or her biological parents, so that the adopted individual thereafter is a stranger to his or her former relatives for all purposes. This includes inheritance and the interpretation or construction of documents, statutes, and instruments, whether executed before or after the adoption is decreed, which do not expressly include the individual by name or by some designation not based on a parent and child or blood relationship. However, in cases where a biological or adoptive parent dies before a petition for adoption has been filed by a step-parent of the minor to be adopted the court may grant visitation rights to the parents of the deceased biological or adoptive parent of the child if such parents of the deceased biological or adoptive parent had a close relationship with the child prior to the filing of a petition for step-parent adoption, and if such visitation rights are in the best interests of the child. The foregoing provision shall not apply to the parents of a deceased putative father who has not legally established his paternity prior to the filing of a petition for adoption by a step-parent. For the purposes of this section, “step-parent” means an individual who is the spouse or surviving spouse of the biological or adoptive parent of a child but who is not a biological or adoptive parent of the child.
    2. To create the relationship of parent and child between petitioner and the adopted individual, as if the adopted individual were a legitimate blood descendant of the petitioner, for all purposes including inheritance and applicability of statutes, documents, and instruments, whether executed before or after the adoption is decreed, which do not expressly exclude an adopted individual from their operation or effect.
  2. An interlocutory decree of adoption, while it is in force, has the same legal effect as a final decree of adoption. If an interlocutory decree of adoption is vacated, it shall be as though void from its issuance, and the rights, liabilities, and status of all affected persons which have not become vested shall be governed accordingly.
  3. Sibling visitation shall not terminate if the adopted child was in the custody of the Department of Human Services and had a sibling who was not adopted by the same family and before adoption the circuit court in the juvenile dependency-neglect or families-in-need-of-services case has determined that it is in the best interests of the siblings to visit and has ordered visitation between the siblings to occur after the adoption.

History. Acts 1977, No. 735, § 15; 1983, No. 324, § 2; 1985, No. 403, § 2; A.S.A. 1947, § 56-215; Acts 1995, No. 889, § 1; 2005, No. 437, §§ 5, 6; 2011, No. 607, § 4.

Amendments. The 2005 amendment substituted “biological” for “natural” throughout (a)(1); and added (c).

The 2011 amendment, in (c), substituted “visit” for “continue visitation” and “occur” for “continue”.

Research References

U. Ark. Little Rock L.J.

Legislation of the 1983 General Assembly, Family Law, 6 U. Ark. Little Rock L.J. 624.

Arkansas Law Survey, Saunders, Torts, 7 U. Ark. Little Rock L.J. 259.

Survey — Family Law, 10 U. Ark. Little Rock L.J. 577.

Case Notes

Applicability.

The law in effect at the time of an ancestor's death controls the issue of inheritance, not the law in effect at the time of adoption; this section applies where the death occurs after this section's 1977 enactment, even if the adoption occurred before 1977. Wheeler v. Myers, 330 Ark. 728, 956 S.W.2d 863 (1997).

Because adoption, inheritance laws were not intended to modify the established meaning of terms used in deeds, a trial court did not err in refusing to consider § 56-109 (repealed) when determining whether or not an adopted child was entitled to a remainder interest in a deed that used the word “heirs.” Brown v. Johnson, 81 Ark. App. 60, 97 S.W.3d 924 (2003).

Disinterment.

Appellate court overruled appellants' assertion that the adoptive father's permission was not needed to disinter the decedent's remains, because either the adoptive father's consent was necessary or in cases where there was disagreement, the matter must be submitted for a judicial decision, when for all intents and purposes, the adoptive father was the decedent's legitimate blood descendent. Tozer v. Warden, 101 Ark. App. 396, 278 S.W.3d 134 (2008).

Exclusions Permitted.

Even though this section treats adopted persons as blood descendants for “all purposes,” it nevertheless allows documents or instruments to expressly exclude an adopted individual from their operation. Sides v. Beene, 327 Ark. 401, 938 S.W.2d 840 (1997).

Finality of Decree.

Adoptive parent who did not timely appeal a temporary order of adoption did not, under Ark. R. Civ. P. 41, have an absolute right to dismiss his petition for adoption anytime prior to the entry of a final order of adoption. Toai Cong Pham v. Hanh My Truong, 291 Ark. 442, 725 S.W.2d 569 (1987).

Once an interlocutory decree of adoption is entered, it is construed as a final decree if no subsequent hearing is required by the terms of that decree; and the natural parent cannot withdraw consent after entry of the decree unless fraud, duress, or intimidation is shown. In re Milam, 27 Ark. App. 100, 766 S.W.2d 944 (1989).

Subsection (b) of this section provides, in the last sentence, that an interlocutory decree can be set aside. Dougan v. Gray, 318 Ark. 6, 884 S.W.2d 239 (1994).

Inheritance.

Child adopted after execution of will stood in the position of a natural born child born subsequently to the execution of the will, and inherited accordingly. Grimes v. Jones, 193 Ark. 858, 103 S.W.2d 359 (1937) (decision under prior law).

Where adoption was void, adopted child could not inherit real estate but was entitled to inherit personal property. Dean v. Brown, 216 Ark. 761, 227 S.W.2d 623 (1950) (decision under prior law).

Adopted son was heir of first adoptive father even though he was adopted by others prior to death of first adoptive father. Hawkins v. Hawkins, 218 Ark. 423, 236 S.W.2d 733 (1951) (decision under prior law).

Adopted son held not “heir of the body” of deceased foster parent. Davis v. Davis, 219 Ark. 623, 243 S.W.2d 739 (1951) (decision under prior law).

Children adopted by decedent shortly before his death were entitled to inherit from him even though the final decree was not entered during his lifetime. Williams v. Nash, 247 Ark. 135, 445 S.W.2d 69 (1969) (decision under prior law).

A final decree of adoption must be entered in this state if an adopted child is to inherit at all from his adoptive parents, as inheritance under the “virtual adoption” theory is unknown to the law of this jurisdiction. Wilks v. Langley, 248 Ark. 227, 451 S.W.2d 209 (1970) (decision under prior law).

The law in effect at the time of the death of the adopted child is controlling on matters of inheritance; thus, under this section, the heirs of the adoptive parents inherit to the exclusion of the blood relatives. In re Estate of Caisson, 289 Ark. 216, 710 S.W.2d 211 (1986).

Petition Denied.

Circuit court did not err in denying the adoption petition because it was the mother's burden to present credible evidence to convince the circuit judge that adoption was in the best interest of the child, and considering the circuit court's determination that the effect of this section was speculative and that the mother's allegations against the father could be afforded no weight, she failed to meet this burden. There was no corroborating testimony or evidence as to the mother's allegations regarding the father's use of alcohol and drugs or the father's abuse of his children, other than what the mother told her mother. In re Adoption of M.K.C., 2009 Ark. 114, 313 S.W.3d 513 (2009).

Termination of Legal Relationships.

Trial court erred in holding that before appellant's adoption of his wife's adopted child could go forward, appellant was required to either obtain the consent of the child's biological father or produce an order demonstrating that the biological father's parental rights had been terminated because by operation of law, the former adoption decree forever severed and held for naught the biological father's rights, responsibilities, and legal relationship with the child. In re Adoption of H.L.M., 99 Ark. App. 115, 257 S.W.3d 587 (2007).

Arkansas Supreme Court has interpreted the statute as an expression of public policy favoring a complete severance of the relationship between an adopted child and his or her biological family in order to further the best interest of the child. In re Adoption of H.L.M., 99 Ark. App. 115, 257 S.W.3d 587 (2007).

—In General.

An adoption not only terminates all legal relationships between the adopted individual and his natural parents and legally makes him a stranger to them, it also commands that all courts recognize that principle in construing all statutes. Webb v. Harvell, 563 F. Supp. 172 (W.D. Ark. 1983).

Section 9-27-341(c)(1) and subdivision (a)(1) of this section point to a public policy which, in determining what is in the child's best interest, favors a complete severing of the ties between a child and its biological family when he is placed for adoption. Suster v. Ark. Dep't of Human Servs., 314 Ark. 92, 858 S.W.2d 122 (1993); Vice v. Andrews, 328 Ark. 573, 945 S.W.2d 914 (1997).

—Grandparents.

Decree of adoption would terminate the relational status between adopted grandchildren and their grandparents. Quarles v. French, 272 Ark. 51, 611 S.W.2d 757 (1981).

Paternal grandparents of adopted child were not entitled to obtain visitation privileges since this section terminates all legal relationships so that the adopted infant is for all legal purposes a stranger to his former relatives; it is unquestionably within the province of the legislature to decide that the reasons favoring the solidarity of the adoptive family outweigh those favoring the grandparents and other blood kin who are related to the child through its deceased parent. Wilson v. Wallace, 274 Ark. 48, 622 S.W.2d 164 (1981); Woodson v. Kilcrease, 7 Ark. App. 252, 648 S.W.2d 72 (1983).

When the public policy favoring maintenance of grandparental ties collides with the stronger public policy to strengthen the relationships within adoptive families, the former must give way to the latter. Woodson v. Kilcrease, 7 Ark. App. 252, 648 S.W.2d 72 (1983).

A grandmother's visitation and custody rights were derivative of her daughter's parental rights, and, as a result, were terminated when her daughter's parental rights were terminated. Suster v. Ark. Dep't of Human Servs., 314 Ark. 92, 858 S.W.2d 122 (1993).

The biological father's consent to an adoption terminated any rights of visitation that his mother might claim. Vice v. Andrews, 328 Ark. 573, 945 S.W.2d 914 (1997).

The maternal grandmother was not entitled to visitation with two children adopted by the natural father's new wife under subsection (a)(1) of this section, because she was barred from filing her custody/visitation action by the one-year statute of limitations found in § 9-9-216(b) as she clearly was challenging the effect of the adoption decree by claiming visitation rights. A contrary result was not required by the fact that the grandmother was not given notice of the adoption proceeding as required by § 9-9-212(f) because the Revised Uniform Adoption Act in effect at the time of the adoption proceedings did not provide for grandparent visitation rights. Tate v. Bennett, 341 Ark. 829, 20 S.W.3d 370 (2000).

Mother's adoption by adoptive parents severed a grandmother's relationship with the mother (her daughter), and therefore, the grandmother was no longer a grandparent entitled to visitation under § 9-13-103(b)(2) with the mother's child. The circuit court erred by continuing to recognize the grandmother's visitation rights following the adoption. Scudder v. Ramsey, 2013 Ark. 115, 426 S.W.3d 427 (2013).

In a case in which the circuit court erroneously decided to forego a relative-placement option with the grandparents in favor of terminating the mother's parental rights, the Department of Human Services erred in saying that the grandparents could later become an adoptive placement for the children if they were able to meet all the necessary child protection standards and successfully petition to adopt the children because the grandparents were not parties to the termination of parental rights case and would not have standing to intervene as a matter of right in a subsequent adoption proceeding should the termination be affirmed; and, if the children were not placed with the grandparents now, it was unlikely the court would allow them to adopt the children later. Clark v. Ark. Dep't of Human Servs., 2019 Ark. App. 223, 575 S.W.3d 578 (2019).

Wrongful Death Action.

The omission of any provision for an adoptive parent's death does not show a legislative intent to deny an adopted child the right to assert a cause of action for the death of the adoptive parent. Moon Distribs., Inc. v. White, 245 Ark. 627, 434 S.W.2d 56 (1968) (decision under prior law).

Where the decedent's natural-born child had been adopted, the child was no longer the child of the decedent and was not one of the beneficiaries authorized to recover for the wrongful death of the decedent. Webb v. Harvell, 563 F. Supp. 172 (W.D. Ark. 1983).

Cited: Irvan v. Kizer, 286 Ark. 105, 689 S.W.2d 548 (1985); In re Perkins/Pollnow, 300 Ark. 390, 779 S.W.2d 531 (1989); J.M.E. v. Valley View Agri Sys., 2016 Ark. App. 531, 505 S.W.3d 211 (2016).

9-9-216. Appeal from and validation of adoption decree.

  1. An appeal from any final order or decree rendered under this subchapter may be taken in the manner and time provided for appeal from a judgment in a civil action.
  2. Subject to the disposition of an appeal, upon the expiration of one (1) year after an adoption decree is issued, the decree cannot be questioned by any person including the petitioner, in any manner upon any ground, including fraud, misrepresentation, failure to give any required notice, or lack of jurisdiction of the parties or of the subject matter unless, in the case of the adoption of a minor, the petitioner has not taken custody of the minor or, in the case of the adoption of an adult, the adult had no knowledge of the decree within the one-year period.

History. Acts 1977, No. 735, § 16; A.S.A. 1947, § 56-216.

Publisher's Notes. The Arkansas Supreme Court, in its per curiam order of November 22, 1982 (277 Ark. 520), observed that some confusion exists among members of the bar as to the date of the final order for the purpose of appeal. The court stated:

“In order to put an end to the confusion, we shall prospectively construe any decree of adoption to be a final decree, no matter whether it is interlocutory or final, if no subsequent hearing is required by the terms of that decree.”

Research References

Ark. L. Rev.

Case Note, In re Adoption of Pollock: Arkansas Probate Court Jurisdiction — A Question of Policy, 41 Ark. L. Rev. 677.

Case Notes

Construction.

The one-year statute of limitations in subsection (b) of this section provides a special procedure which cannot be annulled by Ark. R. Civ. P. 41(a) or the savings statute, § 16-56-126, which allows an action dismissed without prejudice to be refiled within one year of the dismissal. In re Martindale, 327 Ark. 685, 940 S.W.2d 491 (1997).

This section provides a maximum one-year time limit after which any action to set aside an adoption order is barred, but does not affect the 90-day limit set forth in Ark. R. Civ. P. Rule 60(a) and only serves to limit the time in which a probate court could act to set aside an order pursuant to Ark. R. Civ. P. Rule 60(c). Mayberry v. Flowers, 69 Ark. App. 307, 12 S.W.3d 652 (2000).

Adoption After Termination of Parental Rights.

Ark. Sup. Ct. & Ct. App. R. 6-9 did not govern a post-termination adoption appeal, even though it originated from a dependency-neglect case, because the types of orders enumerated in the rule do not contemplate adoption proceedings, and this section mandates that adoption appeals may be taken in the manner and time provided for appeal from a judgment in a civil action. Canerday-Banks v. Barton, 2018 Ark. App. 523 (2018).

Collateral Attack.

In a collateral attack on a foreign adoption former section setting the time upon which an adoption becomes final did not apply; where the parent was not given notice of the adoption proceeding, the section did not begin to run until the parent discovered the identity of the adopting parties. Olney v. Gordon, 240 Ark. 807, 402 S.W.2d 651 (1966) (decision under prior law).

A petition to determine heirship filed by deceased's collateral heirs was a collateral attack on the order of adoption, which was not subject to collateral attack. Williams v. Nash, 247 Ark. 135, 445 S.W.2d 69 (1969) (decision under prior law).

Probate court, in adoption proceedings, had no authority to grant visitation rights to grandmother and hence visitation portion of the adoption decree in excess of the court's authority or subject matter jurisdiction was void and subject to collateral attack. Poe v. Case, 263 Ark. 488, 565 S.W.2d 612 (1978) (decision under prior law).

Finality of Decree.

Any decree of adoption is a final decree, no matter whether it is interlocutory or final, if no subsequent hearing is required by the terms of that decree. In re Adoption Orders, 277 Ark. 520, 642 S.W.2d 573 (1982).

Adoptive parent who did not timely appeal a temporary order of adoption did not, under Ark. R. Civ. P. 41, have an absolute right to dismiss his petition for adoption anytime prior to the entry of a final order of adoption. Toai Cong Pham v. Hanh My Truong, 291 Ark. 442, 725 S.W.2d 569 (1987).

Fraud.

Where an order for the adoption of a minor child was entered in due form, the person adopting the child and all others claiming as his heirs were estopped to question the validity of the proceedings on the ground of fraud in its procurement, not found on the face of the record. Avery v. Avery, 160 Ark. 375, 255 S.W. 18 (1923) (decision under prior law).

Where a mother of minor children alleged that she consented to adoption of her children by her former husband's second wife due to fraud, duress, and intimidation, the trial court had jurisdiction to hear her petition to set aside the interlocutory adoption decree pursuant to this section; the 90-day limitation in Ark. R. Civ. P. 60 was inapplicable based on the finding of fraud. Smith v. Smith, 2012 Ark. App. 6 (2012).

Limitation of Actions.

Former section barred plaintiff's petition to vacate a final order of adoption of his former wife's natural child on procedural grounds brought four years after the issuance of the final order. Cottrell v. Cottrell, 258 Ark. 116, 522 S.W.2d 433 (1975) (decision under prior law).

Where a petition challenging an adoption was filed before this subchapter became effective, the trial court erred in applying the one-year statute of limitations under this section to the action rather than the two-year limitation under former section. Allton v. Sumter, 274 Ark. 448, 625 S.W.2d 502 (1981).

Where natural father was given no notice of the pending adoption, it would be a denial of due process to hold that the adoption decree was protected from challenge after one year from its issuance. McKinney v. Ivey, 287 Ark. 300, 698 S.W.2d 506 (1985).

The maternal grandmother was not entitled to visitation with two children adopted by the natural father's new wife under § 9-9-215(a)(1), because she was barred from filing her custody/visitation action by the one-year statute of limitations found in subsection (b) of this section as she clearly was challenging the effect of the adoption decree by claiming visitation rights. Tate v. Bennett, 341 Ark. 829, 20 S.W.3d 370 (2000).

It was error for the trial court to deny a motion to dismiss a petition for adoption without a hearing on the merits, notwithstanding that the motion was filed more than one year after the grant of a temporary order of adoption, since there was a question of fact as to whether the petitioner had taken custody of the child. Coker v. Child Support Enforcement Unit, 69 Ark. App. 293, 12 S.W.3d 669 (2000).

Failure to give a natural parent the required notice of an adoption proceeding in which the parent's parental rights were terminated allowed the parent to have the decree set aside after the expiration of the limitations period in subsection (b) of this section, even though the parent gained actual knowledge of the termination, albeit after the fact, before expiration of the limitations period. Mayberry v. Flowers, 347 Ark. 476, 65 S.W.3d 418 (2002).

Trial court correctly focused on whether an adoptive father had taken custody of the children and found that, in addition to physical custody being with the adoptive father and biological mother, the adoptive father also assumed parental duties; thus, the biological father's petition to set aside the adoption decree, which was filed more than one year after the decree was entered, was time-barred under subsection (b) of this section. Carr v. Millar, 86 Ark. App. 292, 184 S.W.3d 470 (2004).

Trial court did not err in finding that a mother's petition to set aside the interlocutory adoption decree with respect to her minor children was not barred by the one-year limitation period in this section, as the action was commenced within that time period; once the action was commenced, the limitation period was tolled. Smith v. Smith, 2012 Ark. App. 6 (2012).

Notice.

Circuit court erred in granting the grandparents' motion to dismiss the biological parents' motion to set aside an adoption decree where there was no evidence that the parents received any notice of the adoption proceedings before the entry of the decree, and a dependency-neglect proceeding merely provided notice that the parents needed to comply with the case plan to regain custody of their daughter. Clark v. Clark, 2017 Ark. App. 612, 535 S.W.3d 282 (2017).

Res Judicata.

In the father's second appeal seeking to set aside the adoption, it was clear that res judicata was applicable where: (1) the judgment entered by the trial court and subsequently affirmed by the appellate court finding no fraud and applying former statute of limitations was a final judgment on the merits; (2) there was no dispute that the circuit court had jurisdiction over the petition to annul the adoption; (3) the suit was fully contested and resulted in a final judgment that was appealed to the appellate court; (4) both suits involved the same issue, namely the annulment of the adoption decree; (5) both suits involved the exact same parties; and (6) there could have been no doubt that the father had every opportunity to challenge the adoption based on the mental-defect claim in the father's first petition to annul the adoption. McAdams v. McAdams, 357 Ark. 591, 184 S.W.3d 24 (2004).

Standing to Appeal.

State agency did not have the exclusive right to file an action for annulment of adoption proceeding, but the mother had an equal right to file suit. Gillen v. Edge, 214 Ark. 776, 217 S.W.2d 926 (1949) (decision under prior law).

An outsider or stranger could not maintain a petition to annul an order of adoption, but where petitioners occupied loco parentis relationship to the children, they could maintain the petition. Cotten v. Hamblin, 234 Ark. 109, 350 S.W.2d 612 (1961) (decision under prior law).

Petitioner had no standing to set aside the adoption decree and was procedurally barred from proceeding where he waited more than four years to file his motion to set aside the decree. Summers v. Griffith, 317 Ark. 404, 878 S.W.2d 401 (1994), cert. denied, 514 U.S. 1065, 115 S. Ct. 1696, 131 L. Ed. 2d 559 (1995).

Cited: Martin v. Martin, 316 Ark. 765, 875 S.W.2d 819 (1994).

9-9-217. Confidentiality of hearings and records.

  1. Notwithstanding any other law concerning public hearings and records:
      1. All hearings held in proceedings under this subchapter shall be held in closed court without admittance of any person other than essential officers of the court, the parties, their witnesses, counsel, persons who have not previously consented to the adoption but are required to consent, and representatives of the agencies present to perform their official duties.
        1. A member of the General Assembly may attend an adoption hearing related to a juvenile case that is held under the Arkansas Juvenile Code of 1989, § 9-27-301 et seq., unless the court excludes the member of the General Assembly based on the:
          1. Best interest of the child; or
          2. Court's authority under the Arkansas Rules of Civil Procedure or the Arkansas Rules of Evidence.
        2. Except as otherwise provided by law, a member of the General Assembly who attends a hearing in accordance with subdivision (a)(1)(B)(i) of this section shall not redisclose information obtained during his or her attendance at the hearing.
          1. A Child Welfare Ombudsman may attend an adoption hearing related to a juvenile case under the Arkansas Juvenile Code of 1989, § 9-27-301 et seq.
          2. However, a court may exclude the Child Welfare Ombudsman from an adoption hearing if:
            1. It is in the best interest of the child; or
            2. The reason for the exclusion is based on the authority of the court under the Arkansas Rules of Civil Procedure or the Arkansas Rules of Evidence.
        1. Unless otherwise allowed by law, the Child Welfare Ombudsman shall not disclose information that he or she obtains through his or her attendance at an adoption hearing held under this subchapter; and
      1. Adoption records shall be closed, confidential, and sealed unless authority to open them is provided by law or by order of the court for good cause shown.
        1. When an adoption is filed or heard pursuant to the Arkansas Juvenile Code of 1989, § 9-27-301 et seq., any portion of the court file relating to the adoption shall be maintained separately from the file of other pending juvenile matters concerning the juvenile who is the subject of the adoption or the family of the juvenile.
        2. Once final disposition is made in the adoption proceedings, the adoption file shall be transferred from the clerk who is the custodian of juvenile records to the clerk who is the custodian of records.
        3. The entry of the adoption decree will be entered by the clerk in the book containing adoption records.
        4. The clerk shall assign the file a docket number, shall prepare an application for a new birth record as provided in this section, and shall maintain the file as if the case had originated as an adoption case.
        5. No filing fee shall be assessed by the clerk upon the transfer and creation of the new adoption file.
        6. Any adoption record shall be handled as provided in this section.
        1. In the event an adoption record is randomly selected to be audited for determination of compliance with requirements found in federal laws pertaining to periodic and dispositional review of foster care cases, the Administrator of Adoptions of the Department of Human Services is authorized to open the file notwithstanding any section in this subchapter prohibiting disclosure of adoption records.
        2. It shall be the responsibility of the administrator to procure and provide from this file all records pertinent to the federal requirements under review.
        3. The remainder of the record shall remain sealed. Such portions of the record that may be removed shall be returned to the sealed file upon completion of the federal audit.
        4. No one shall be permitted to review the removed portion of the record except in an official capacity, and, except for uses required by the federal audit in compliance with state laws and rules and federal statutes and regulations, such a person shall be bound to keep the contents of such records confidential.
        1. In the event the department has the opportunity to enhance its federal funding by a review of its adoptions records, then the administrator is authorized to open such files notwithstanding any section in this subchapter.
        2. It shall be the responsibility of the administrator to procure and provide from this file all records pertinent to the review.
        3. The remainder of the record shall remain sealed.
        4. The portion of the record that may be removed shall be returned to the sealed file upon completion of the review.
        5. No one shall be permitted to review the removed portion of the record except in an official capacity, and, except for uses required to provide for the enhancement of possible federal funding in compliance with state laws and rules and federal statutes and regulations, such a person shall be bound to keep the contents of such records confidential.
        1. In the event that an adoptive family contacts the department and indicates a desire for the placement of a subsequent child and no more than five (5) years have lapsed since the adoption file has been sealed, the department is authorized to unseal the adoption file notwithstanding any section in this subchapter.
        2. It shall be the responsibility of the administrator to remove the home study from the file and make a copy of the home study.
        3. The remainder of the file shall remain sealed.
        4. The administrator shall return the home study to the file, which shall then be resealed.
        5. The department shall be permitted to use a copy of the original home study.
        6. The adoptive family shall be permitted to use a copy of the original home study with a petition to adopt a subsequent child from the department if the original home study is accompanied by an update.
  2. The provisions of this section shall not prohibit the disclosure of information pursuant to § 9-9-501 et seq.
  3. All papers and records pertaining to adoptions prior to May 19, 1986, are declared to be confidential and shall be subject to disclosure only pursuant to this section.
    1. All records of any adoption finalized in this state shall be maintained for ninety-nine (99) years by the agency, person, entity, or organization that handled the adoption.
    2. If the agency, person, entity, or organization that handled the adoption ceases to function, all adoption records shall be transferred to the department or another licensed agency within this state with notice to the department.

History. Acts 1986 (2nd Ex. Sess.), No. 23, §§ 2, 3; A.S.A. 1947, §§ 56-223, 56-224; Acts 1993, No. 758, § 3; 1999, No. 945, §§ 1, 2; 2003, No. 650, § 4; 2003, No. 1166, § 1; 2005, No. 1685, § 2; 2019, No. 315, §§ 708, 709; 2019, No. 329, § 2; 2019, No. 945, § 2.

A.C.R.C. Notes. Acts 2019, No. 329, § 1, provided: “Legislative intent.

The General Assembly recognizes:

“(1) That it is the duty of the General Assembly to initiate intelligent legislative reform that benefits the citizens of Arkansas;

“(2) That many families in Arkansas are involved in child welfare cases with the Department of Human Services;

“(3) That these families sometimes turn to members of the General Assembly for assistance when their families are negatively affected by certain limitations in the child welfare process;

“(4) That it is important to preserve a family unit when possible;

“(5) That the General Assembly's ability to initiate legislative reform with regard to child welfare is impeded by the nontransparent nature of child welfare proceedings, closed juvenile hearings, and other protections that prevent the General Assembly from adequately observing and reviewing the child welfare process; and

“(6) That in order to intelligently initiate reform, the General Assembly requires an expansion of its ability to observe and review all aspects of the child welfare process”.

Acts 2019, No. 945, § 1, provided: “Legislative intent. It is the intent of the General Assembly to create a Child Welfare Ombudsman Division within the Arkansas Child Abuse/Rape/Domestic Violence Commission to provide for independent oversight of the child welfare system in Arkansas”.

Publisher's Notes. Acts 1986 (2nd Ex. Sess.), No. 23, § 1, provided, in part, that the repeal, by Acts 1985, No. 957, of Acts 1977, No. 735, § 17, as amended by Acts 1985, Nos. 423 and 673, was an obvious error causing confusion as to the confidentiality of adoption proceedings and records, and further provided that it was the purpose of Acts 1986 (2nd Ex. Sess.), No. 23, to reenact the provisions of Acts 1977, No. 735, § 17, as amended by Acts 1985, Nos. 423 and 673, with the addition of a provision to recognize disclosures of adoption information pursuant to Acts 1985, No. 957.

Amendments. The 2005 amendment added (a)(2)(E).

The 2019 amendment by No. 315 inserted “laws and rules” in (a)(2)(C)(iv) and (a)(2)(D)(v).

The 2019 amendment by No. 329 added the (a)(1)(A) designation; and added (a)(1)(B).

The 2019 amendment by No. 945 added the (a)(1)(A) designation; and added (a)(1)(B) (now (a)(1)(C)).

Cross References. Voluntary Adoption Registry, § 9-9-501 et seq.

Research References

ALR.

Restricting access to judicial records of concluded adoption proceedings. 103 A.L.R.5th 255.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Family Law, Uniform Adoption Act, 26 U. Ark. Little Rock L. Rev. 408.

Case Notes

Appeals.

Although this subchapter does not govern appeals of adoption cases, the court has closed records in adoption cases following the spirit of this section. In re K.F.H., 310 Ark. 53, 834 S.W.2d 647 (1992).

Cited: Ark. Dep't of Human Servs. v. Hardy, 316 Ark. 119, 871 S.W.2d 352 (1994); Ark. Best Corp. v. General Elec. Capital Corp., 317 Ark. 238, 878 S.W.2d 708 (1994); Dougan v. Gray, 318 Ark. 6, 884 S.W.2d 239 (1994).

9-9-218. Recognition of foreign decrees affecting adoption.

A decree of court terminating the relationship of parent and child or establishing the relationship by adoption issued pursuant to due process of law by a court of any other jurisdiction within or without the United States shall be recognized in this state. The rights and obligations of the parties as to matters within the jurisdiction of this state shall be determined as though the decree were issued by a court of this state.

History. Acts 1977, No. 735, § 18; A.S.A. 1947, § 56-218.

9-9-219. Application for new birth record.

Upon entry of a final decree of adoption or an interlocutory decree of adoption that does not require a subsequent hearing, the clerk of the court shall prepare an application for a birth record in the new name of the adopted individual and forward the application to the appropriate vital statistics office of the place, if known, where the adopted individual was born and forward a copy of the decree to the Division of Vital Records for statistical purposes. The division may issue a birth certificate for any child born in a place whose law does not provide for the issuance of a substituted certificate.

History. Acts 1977, No. 735, § 19; A.S.A. 1947, § 56-219; Acts 2007, No. 539, § 5.

Amendments. The 2007 amendment substituted “Upon entry of a final decree of adoption or an interlocutory decree of adoption that does not require a subsequent hearing” for “Within thirty (30) days after an adoption decree becomes final”, deleted “Department of Health” preceding “Division of Vital”, inserted “of the Division of Health of the Department of Health and Human Services”, and made a minor punctuation change.

9-9-220. Relinquishment and termination of parent and child relationship.

  1. With the exception of the duty to pay child support, the rights of a parent with reference to a child, including parental right to control the child or to withhold consent to an adoption, may be relinquished and the relationship of parent and child terminated in or prior to an adoption proceeding as provided in this section. The duty of a parent to pay child support shall continue until an interlocutory decree of adoption is entered.
  2. All rights of a parent with reference to a child, including the right to receive notice of a hearing on a petition for adoption, may be relinquished and the relationship of parent and child terminated by a writing, signed by an adult parent, subject to the court's approval.
      1. The relinquishment may be withdrawn within ten (10) calendar days, or, if a waiver of the ten-day period is elected under subdivision (b)(3) of this section, five (5) calendar days after it is signed or the child is born, whichever is later.
        1. Notice of withdrawal shall be given by filing an affidavit with the probate division clerk of the circuit court in the county designated by the writing as the county in which the guardianship petition will be filed if there is a guardianship, or where the petition for adoption will be filed, if there is no guardianship. If the ten-day period, or, if a waiver of the ten-day period is elected under subdivision (b)(3) of this section, the five-day period ends on a weekend or legal holiday, the person may file the affidavit the next working day.
        2. No fee shall be charged for the filing of the affidavit.
      2. The relinquishment shall state that the parent has this right of withdrawal and shall provide the address of the probate division clerk of the circuit court in which the guardianship will be filed if there is a guardianship, or where the petition for adoption will be filed if there is no guardianship; or
    1. In any other situation, if notice of the adoption proceeding has been given to the parent and the court finds, after considering the circumstances of the relinquishment and the continued custody by the petitioner, that the best interest of the child requires the granting of the adoption.
    2. The relinquishment shall state that the person may waive the ten-day period for the withdrawal of relinquishment for an adoption and to elect to limit the maximum time for the withdrawal of relinquishment for an adoption to five (5) days.
  3. In addition to any other proceeding provided by law, the relationship of parent and child may be terminated by a court order issued under this subchapter on any ground provided by other law for termination of the relationship, or on the following grounds:
    1. Abandonment as defined in § 9-9-202(7).
    2. Neglect or abuse, when the court finds the causes are irremediable or will not be remedied by the parent.
      1. If the parents have failed to make reasonable efforts to remedy the causes and such failure has occurred for twelve (12) months, such failure shall raise the rebuttable presumption that the causes will not be remedied.
      2. If the parents have attempted to remedy the causes but have failed to do so within twelve (12) months, and the court finds there is no reasonable likelihood the causes will be remedied by the eighteenth month, the failures shall raise the rebuttable presumption that the causes will not be remedied.
    3. That in the case of a parent not having custody of a child, his or her consent is being unreasonably withheld contrary to the best interest of the child.
  4. For the purpose of proceeding under this subchapter, a decree terminating all rights of a parent with reference to a child or the relationship of parent and child issued by a court of competent jurisdiction in this or any other state dispenses with the consent to adoption proceedings of a parent whose rights or parent and child relationship are terminated by the decree and with any required notice of an adoption proceeding other than as provided in this section.
  5. A petition for termination of the relationships of parent and child made in connection with an adoption proceeding may be made by:
    1. Either parent if termination of the relationship is sought with respect to the other parent;
    2. The petitioner for adoption, the guardian of the person, the legal custodian of the child, or the individual standing in parental relationship to the child or the attorney ad litem for the child;
    3. An agency; or
    4. Any other person having a legitimate interest in the matter.
    1. The petition shall be filed and service obtained according to the Arkansas Rules of Civil Procedure.
    2. Before the petition is heard, notice of the hearing and the opportunity to be heard shall be given the parents of the child, the guardian of the child, the person having legal custody of the child, a person appointed to represent any party in this proceeding, and any person granted rights of care, control, or visitation by a court of competent jurisdiction.
  6. Notwithstanding the provisions of subsection (b) of this section, a relinquishment of parental rights with respect to a child executed under this section may be withdrawn by the parent, and a decree of a court terminating the parent-child relationship under this section may be vacated by the court upon motion of the parent if the child is not on placement for adoption and the person having custody of the child consents in writing to the withdrawal or vacation of the decree.

If the parent is a minor, the writing shall be signed by a guardian ad litem who is appointed to appear on behalf of the minor parent for the purpose of executing such a writing. The signing shall occur in the presence of a representative of an agency taking custody of the child, or in the presence of a notary public, whether the agency is within or without the state, or in the presence and with the approval of a judge of a court of record of this state or any other state in which the minor was present at the time it was signed. The relinquishment shall be executed in the same manner as for a consent to adopt under § 9-9-208.

History. Acts 1977, No. 735, § 20; 1985, No. 879, §§ 2-4; A.S.A. 1947, § 56-220; Acts 1991, No. 774, § 5; 1991, No. 1214, § 2; 1995, No. 1184, § 22; 1995, No. 1284, § 2; 1995, No. 1335, § 6; 1997, No. 1227, § 15; 1999, No. 518, § 2; 1999, No. 945, § 3; 2001, No. 1779, § 1; 2003, No. 1185, § 8; 2003, No. 1743, § 1; 2009, No. 219, § 1; 2009, No. 230, § 2.

Amendments. The 2009 amendment by No. 219 rewrote (c)(1).

The 2009 amendment by No. 230, in (b), inserted “or, if a waiver of the ten-day period is elected under § 9-9-220(b)(3), five (5) calendar days” in (b)(1)(A), inserted “division” in (b)(1)(A)(i) and (b)(1)(B), inserted “or, if a waiver of the ten-day period is elected under subdivision (b)(3) of this section, the five-day period” in (b)(1)(A)(i), inserted (b)(3), and made related changes.

Research References

ALR.

Parents' mental illness or mental deficiency as ground for termination of parental rights — Issues concerning guardian ad litem and counsel. 118 A.L.R.5th 561.

Parents' mental illness or mental deficiency as ground for termination of parental rights — Applicability of Americans With Disabilities Act. 119 A.L.R.5th 351.

Parents' mental illness or mental deficiency as ground for termination of parental rights — Evidentiary issues. 122 A.L.R.5th 385.

Parents' Physical Illness or Physical Deficiency as Ground for Termination of Parental Rights — Applicability of Americans with Disabilities Act, 27 A.L.R.7th Art. 1 (2018).

U. Ark. Little Rock L.J.

Survey — Family Law, 11 U. Ark. Little Rock L.J. 215.

Survey, Family Law, 13 U. Ark. Little Rock L.J. 369.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Family Law, 24 U. Ark. Little Rock L. Rev. 483.

Annual Survey of Caselaw, Family Law, 26 U. Ark. Little Rock L. Rev. 913.

Case Notes

In General.

The natural relationship between parent and child is subject to absolute severance in an adoption proceeding; however, the courts are inclined to favor the maintaining of the natural relationship when the adoption is sought without the consent of a parent and against his or her protest. Lindsey v. Ketchum, 10 Ark. App. 128, 661 S.W.2d 453 (1983).

Construction.

Section 9-9-208 and this section are mutually exclusive, in that they address separate methods by which a child may be adopted and provide different means by which the relinquishment of consent or direct consent may be withdrawn. In re Parsons, 302 Ark. 427, 791 S.W.2d 681 (1990).

Sections 9-9-208 and 9-9-209 are mutually exclusive from this section in obtaining the relinquishment of consent or consent to an adoption, and either one or the other should be employed based on the applicable circumstances of the adoption; and the use of both relinquishment of parental rights and consent provisions in the affidavit and consent of natural mother document was in contravention of these sections. In re Parsons, 302 Ark. 427, 791 S.W.2d 681 (1990).

Local rule imposed by chancellor blending the different statutory consent requirements of § 9-9-208 and this section was inappropriate. In re Parsons, 302 Ark. 427, 791 S.W.2d 681 (1990).

Former subdivisions of this section were not effective on the date that the father's child support order was entered and, therefore, the statute was not applicable to the father's case; the legislature intended for those non-custodial parents whose child support orders were entered after August 13, 2001, to be affected, such that the statute was meant to apply prospectively from August 31, 2001, not retroactively to May 31, 2001, the date the divorce decree was entered. Stroud v. Cagle, 87 Ark. App. 95, 189 S.W.3d 76 (2004) (decision under prior law).

Appellate Review.

Couple challenged the denial of a petition for adoption, arguing that the circuit court erred in permitting the birth mother to withdraw her relinquishment of her rights outside the time permitted by the statute, but the merits could not be decided because the couple failed to challenge the finding that adoption was not in the child's best interests. Clark v. Hall (In re I.C.), 2014 Ark. App. 513 (2014).

Custody.

It was not unconscionable for the trial court to consider a putative father as “a parent not having custody” within the meaning of subdivision (c)(3) of this section, despite the putative father's contention that he should not be considered as a noncustodial parent because he surrendered his child pursuant to a court order rather than voluntarily. Wineman v. Brewer, 280 Ark. 527, 660 S.W.2d 655 (1983).

Trial court did not err in terminating a father's parental rights to his child after his wife gave the baby up for adoption because the father did not have custody within the meaning of subdivision (c)(3) of this section, due to his frequently living with his parents rather than his wife and his failure to support or even see the baby. D.L.R. v. N.K., 2012 Ark. App. 316, 416 S.W.3d 274 (2012).

Imprisonment.

Father was not unfit simply because he was incarcerated, and there was no evidence that he posed a risk to his son, rather, evidence showed that he purchased clothing for his son before he was born and had consistently sought contact with his son even while incarcerated, which were actions consistent with a parent who was making a good-faith effort to discharge his parental duties; there were no facts showing that the child would suffer any untoward effect by allowing him to establish a relationship with his father, and there was no evidence showing that the child would be adversely affected by knowledge of or association with his father, thus, the trial court's order granting the guardian's adoption petition and terminating the father's rights was reversed. Henderson v. Callis, 97 Ark. App. 163, 245 S.W.3d 174 (2006).

Jurisdiction.

In a proceeding seeking to set aside a prior divorce decree adjudicating a purported father the legal parent of a minor child, a trial court lacked authority to terminate the father's parental rights because the action did not concern adoption. Hudson v. Kyle, 352 Ark. 346, 101 S.W.3d 202 (2003).

Revocation.

Even in the case of a final adoption decree, consent to adopt may be withdrawn upon a proper showing of fraud, duress or intimidation. Dale v. Franklin, 22 Ark. App. 98, 733 S.W.2d 747 (1987).

Where both relinquishment of parental rights and consent provisions were contained in the same document purporting to sanction the adoption of a minor child and the trial court included the ten day right to withdraw provision in its decree of adoption, the document was, in the main, a relinquishment of parental rights as embodied in this section and natural mother's revocation of her relinquishment five days after she signed the affidavit was effective. In re Parsons, 302 Ark. 427, 791 S.W.2d 681 (1990).

Circuit court clearly erred in failing to set aside an adoption decree; although the face of the relinquishment affidavit attached to the adoption petition reflected that the biological mother may well have signed it, the text messages and testimony showed that the mother believed that the document gave a friend the temporary ability to care for the child, that she wanted to proceed with an adoption, if at all, with the misunderstanding that the friend would adopt the child and she would share custody, and that she had never met nor communicated with the adoptive couple. Thompson v. Brunck, 2018 Ark. App. 198, 545 S.W.3d 830 (2018).

Termination by Court Order.

This section does not require a separate petition for termination of parental rights but allows the parental relationship to be terminated by a court order in connection with an adoption proceeding if the requisite grounds are satisfied. Wineman v. Brewer, 280 Ark. 527, 660 S.W.2d 655 (1983).

While the primary consideration in adoption proceeding is the welfare of the child, this does not mean that courts can sever the parental rights of nonconsenting parents and order adoption merely because the adoptive parents might be able to provide a better home. Lindsey v. Ketchum, 10 Ark. App. 128, 661 S.W.2d 453 (1983).

While the primary consideration is the welfare of the child, the court cannot sever the parental rights of nonconsenting parents and order adoption merely because the adoptive parents might be able to provide a better home. In re Milam, 27 Ark. App. 100, 766 S.W.2d 944 (1989).

Parent’s consent to the adoption of the parent’s child was not required because for years the child suffered irremediable abuse and neglect at the hands of the parent, who was addicted to alcohol, and the adoption of the child was in the child’s best interest. Ducharme v. Gregory, 2014 Ark. App. 268, 435 S.W.3d 14 (2014).

Unreasonable Withholding of Consent.

Evidence sufficient to find that parent unreasonably withheld consent to child's adoption. Lindsey v. Ketchum, 10 Ark. App. 128, 661 S.W.2d 453 (1983); In re Titsworth, 11 Ark. App. 197, 669 S.W.2d 8 (1984).

Psychological studies of the natural father and evidence of his antisocial behavior prior to the birth of his child were admissible in determining whether he unreasonably withheld his consent to adoption contrary to the best interests of the child. In re K.M.C., 333 Ark. 95, 62 Ark. App. 95, 969 S.W.2d 197 (1998).

Record contained no showing that a father unreasonably withheld his consent to an adoption by a guardian where the father had no obligation to consent merely because he was incarcerated or because the guardian did not want to communicate or have the child exposed to him; further, even if the father had consented to the guardianship, he would not have forfeited his parental rights in so doing and, thus, the trial court's order granting the guardian's adoption petition and terminating the father's rights was reversed. Henderson v. Callis, 97 Ark. App. 163, 245 S.W.3d 174 (2006).

Trial court's decision that the father unreasonably withheld consent and that it was in the child's best interest to be adopted by the adoptive parents was not against the preponderance of the evidence, which included evidence that the father was marginally self-sufficient while the adoptive parents had stable employment and housing. T.R. v. L.H., 2015 Ark. App. 483 (2015).

Bifurcation of proceedings under a stepmother's adoption petition into a hearing on whether the consent of the children's mother to the adoption was necessary and a hearing on whether the adoption was in the children's best interest did not deny the stepmother due process because (1) the stepmother did not object to the procedure, (2) once it was determined that the mother's consent was required, a best interest finding was unnecessary, and (3) the stepmother did not preserve the issue of whether the mother was unjustifiably withholding her consent, as the adoption petition only alleged the mother's consent was not required. Hrdlicka v. Hrdlicka (In re Adoption of P.H.), 2020 Ark. App. 178, 598 S.W.3d 846 (2020).

Cited: Temple v. Tucker, 277 Ark. 81, 639 S.W.2d 357 (1982); Loveless v. May, 278 Ark. 127, 644 S.W.2d 261 (1983); Lindsey v. Ketchum, 10 Ark. App. 128, 661 S.W.2d 453 (1983); In re Proposed Local Rules, 284 Ark. 133, 682 S.W.2d 452 (1984); Corley v. Ark. Dep't of Human Servs., 46 Ark. App. 265, 878 S.W.2d 430 (1994); Vice v. Andrews, 328 Ark. 573, 945 S.W.2d 914 (1997); Batiste v. Ark. Dep't of Human Servs., 361 Ark. 46, 204 S.W.3d 521 (2005); Marshall v. Rubright, 2017 Ark. App. 548 (2017).

9-9-221. Uniformity of interpretation.

This subchapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.

History. Acts 1977, No. 735, § 21; A.S.A. 1947, § 56-221.

Research References

U. Ark. Little Rock L.J.

Arkansas Law Survey, Waddell, Family Law, 7 U. Ark. Little Rock L.J. 229.

9-9-222. Repeal and effective date.

  1. The following acts and laws and parts of laws in conflict herewith are repealed as of the effective date of this subchapter:
    1. Acts 1947, No. 369;
    2. Acts 1953, No. 254;
    3. Acts 1953, No. 265;
    4. Acts 1969, No. 303, § 17.
  2. Any adoption or termination proceedings pending on the effective date of this subchapter are not affected thereby.

History. Acts 1977, No. 735, § 22.

Publisher's Notes. Acts 1977, No. 735 was signed by the Governor on March 24, 1977, and took effect on July 6, 1977.

9-9-223. Termination of rights of nonparental relatives.

Except as provided in this subchapter with regard to parental rights, any rights to a child which a nonparental relative may derive through a parent or by court order may, if the best interests of the child so require, be terminated in connection with a proceeding for adoption or for termination of parental rights.

History. Acts 1985, No. 879, § 5; A.S.A. 1947, § 56-222.

9-9-224. Child born to unmarried mother.

In all cases involving a child born to a mother unmarried at the time of the child's birth, the following procedure shall apply:

  1. Upon filing of the petition for adoption and prior to the entry of a decree for adoption a certified statement shall be obtained from the Putative Father Registry stating:
    1. The information contained in the registry in regard to the child who is the subject of the adoption; or
    2. That no information is contained in the registry at the time the petition for adoption was filed.
  2. When information concerning the child is contained in the registry at the time of the filing of the petition for adoption, notice of the adoption proceedings shall be served on the registrant unless waived by the registrant in writing signed before a notary public. All confidential information regarding the adoptive parents and the child to be adopted shall be removed from the notice prior to being served to the registrant. Service of notice under this section shall be given in accordance with the Arkansas Rules of Civil Procedure, except that notice by publication shall not be required.
  3. Upon receipt of notice, the registrant, if he wishes to appear and be heard, shall file a responsive pleading within the time limits set in the Arkansas Rules of Civil Procedure.

History. Acts 1989, No. 496, § 7; 1999, No. 1229, § 1.

Cross References. Putative Father Registry, § 20-18-701 et seq.

Research References

Ark. L. Notes.

Sampson, Coats, & Barger, Arkansas' Putative Father Registry and Related Adoption Code Provisions: Inadequate Protection for Thwarted Putative Fathers, 1997 Ark. L. Notes 49.

Ark. L. Rev.

Tiffany N. Godwin, Comment: Does Father Know Best? Arkansas's Approach to the “Thwarted” Putative Father, 67 Ark. L. Rev. 989 (2014).

Case Notes

Grandparents.

This section does not require that notice be given to the maternal grandparents of a child where the biological mother has consented to the adoption, and nothing in this statute applies to grandparents. Henry v. Buchanan, 364 Ark. 485, 221 S.W.3d 346 (2006).

Putative Fathers.

Where the putative father and the child's mother had a brief romantic relationship, he did not know the mother was pregnant and did not see or talk to her after the encounter, and at the time an adoption petition was filed he had not registered with the putative-father registry, the putative father was not statutorily entitled to notice of the adoption proceeding. Escobedo v. Nickita, 365 Ark. 548, 231 S.W.3d 601 (2006).

Cited: In re Reeves, 309 Ark. 385, 831 S.W.2d 607 (1992).

Subchapter 3 — Children in Public Custody — Consent to Adoption

Preambles. Acts 1977, No. 195 contained a preamble which read:

“Whereas, Section 12 of Act 215 of 1911 set out a procedure whereby a guardian with power to consent to adoption may consent to the legal adoption of a child in the State of Arkansas; and

“Whereas, Section 20 of Act 369 of 1947 authorized the Public Welfare Department to be appointed guardian of a child with power to consent to adoption in accordance with the procedures outlined in Section 12 of Act 21 of 1911; and

“Whereas, Act 451 of 1975 repealed Section 12 of Act 215 of 1911 and did not reenact Section 12 of Act 215 of 1911 into the new Juvenile Code of 1975 because the guardianship procedures were no longer a function of the Juvenile Court but a function of the Probate Court; and

“Whereas, the legislature had no intention of repealing the procedure that had been authorized in Arkansas under Section 12 of Act 215 of 1911; and

“Whereas, it is the intention of the legislature that the procedure for the appointment of a guardian with power to consent to adoption continue in this State;

“Now therefore … .”

9-9-301. Adoptions under prior law validated.

All adoptions that have been granted by the probate courts of this state under authority of Acts 1947, No. 369, § 7 [repealed], when the guardian appointed was appointed under the guardianship procedures outlined under Acts 1911, No. 215, § 12 [repealed] and Acts 1947, No. 369, § 20 [repealed], are confirmed and made valid.

History. Acts 1977, No. 195, § 4; A.S.A. 1947, § 56-129.

Research References

Ark. L. Rev.

Morrison & Sievers, Adoption Law in Arkansas, 53 Ark. L. Rev. 1.

9-9-302. [Repealed.]

Publisher's Notes. This section, concerning the authority to serve as guardian, was repealed by Acts 1989, No. 273, § 47. The section was derived from Acts 1977, No. 195, § 1; A.S.A. 1947, § 56-126; Acts 1987, No. 778, § 1.

9-9-303. [Repealed.]

Publisher's Notes. This section, concerning administrative reviewers of petitions for appointment of guardian, was repealed by Acts 2013, No. 1152, § 4. The section was derived from Acts 1977, No. 195, § 2; 1985, No. 322, § 1; 1985, No. 424, § 1; A.S.A. 1947, § 56-127; Acts 1987, No. 778, § 2; 1989, No. 273, § 47.

9-9-304. [Repealed.]

Publisher's Notes. This section, concerning the requirement of court findings, was repealed by Acts 1989, No. 273, § 47. The section was derived from Acts 1977, No. 195, § 3; 1980 (1st Ex. Sess.), No. 66, § 1; A.S.A. 1947, § 56-128.

Subchapter 4 — Arkansas Subsidized Adoption Act

Preambles. Acts 1979, No. 1109 contained a preamble which read:

“Whereas, there are increasing numbers of children with special needs who are available for adoption but for whom Arkansas Social Services is unable to find adoptive homes because the children have physical, mental or emotional handicaps, or are children of minority groups, or older children, or are sibling groups that entail considerable expense on the part of adopting couples that adopting couples are unable to assume; and,

“Whereas, many children remain in institutional care or foster care at great cost to the state and at great human cost to the children because of the financial inability of adopting parents to adopt said children; and,

“Whereas, in recognition of the special problems of children, a subsidy program of adoption has been developed in many states in a way to qualify families assuming permanent responsibility for these special children;

“Now therefore … .”

Effective Dates. Acts 1985, No. 482, § 2: Mar. 21, 1985. Emergency clause provided: “It is hereby found and determined by the General Assembly that changes in the circumstances affecting the adoptive parents who are eligible for subsidies under the provisions of Act 1109 of 1979 often necessitate adjustments in the amount of the subsidies approved in the final decree of adoption; and that the immediate passage of this Act is necessary to establish procedures for changing the amount of such subsidies in an expeditious manner to serve the needs of the adoptive parents and the child involved. Therefore, an emergency is hereby declared to exist and this Act, being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

9-9-401. Title.

This subchapter shall be known and may be cited as the “Arkansas Subsidized Adoption Act” and includes only state-funded adoptions.

History. Acts 1979, No. 1109, § 8; A.S.A. 1947, § 56-137; Acts 1999, No. 945, § 4.

Research References

Ark. L. Rev.

Morrison & Sievers, Adoption Law in Arkansas, 53 Ark. L. Rev. 1.

Case Notes

Cited: Batiste v. Ark. Dep't of Human Servs., 361 Ark. 46, 204 S.W.3d 521 (2005).

9-9-402. Definitions.

As used in this subchapter:

  1. “Child” means a minor as defined by Arkansas law; and
  2. “Special needs” means a child who is not likely to be adopted by reason of one (1) or more of the following conditions:
    1. The child has special needs for medical or rehabilitative care;
    2. Age;
    3. A racial or ethnic factor;
    4. A sibling relationship; or
    5. A child who is at high risk for developing a serious physical, mental, developmental, or emotional condition if documentation of the risk is provided by a medical professional specializing in the area of the condition for which the child is considered at risk.

History. Acts 1979, No. 1109, § 2; A.S.A. 1947, § 56-131; Acts 1999, No. 945, § 5; 2005, No. 437, § 7.

Amendments. The 2005 amendment rewrote this section.

9-9-403. Purpose.

The purpose of this subchapter is to supplement the Arkansas adoption statutes by making possible through public financial subsidy the most appropriate adoption of each child certified by the Department of Human Services as requiring a subsidy to assure adoption.

History. Acts 1979, No. 1109, § 1; A.S.A. 1947, § 56-130.

Case Notes

Cited: Batiste v. Ark. Dep't of Human Servs., 361 Ark. 46, 204 S.W.3d 521 (2005).

9-9-404. Administration — Funding.

  1. The Department of Human Services shall establish and administer an ongoing program of subsidized adoption by persons who are determined by the department to be eligible to adopt under this subchapter.
  2. Subsidies and services for children under this program shall be provided out of funds appropriated to the department for the maintenance of children in foster care or made available to it from other sources.

History. Acts 1979, No. 1109, § 3; A.S.A. 1947, § 56-132; Acts 2005, No. 437, § 8; 2011, No. 607, § 5.

Amendments. The 2005 amendment substituted “as determined by the department using a means-based test” for “the child or children specified under § 9-9-402” in (a).

The 2011 amendment deleted “and who are financially unable to otherwise adopt as determined by the department using a means-based test” at the end of (a).

Case Notes

State Custody.

Administrative law judge erred in finding that children were not in the state's custody for adoption subsidy purposes because, although the children were in their aunt's physical custody, the state maintained a supervisory role over the children through the context of the protective-services case that remained open on the children until their parents' rights were terminated. Batiste v. Ark. Dep't of Human Servs., 361 Ark. 46, 204 S.W.3d 521 (2005).

9-9-405. Promulgation of rules.

  1. The Department of Human Services shall adopt rules consistent with this subchapter.
  2. The department shall adopt rules to ensure that post-adoptive services are provided to adoptive parents who seek the assistance of the department to prevent the adoption from being disrupted.

History. Acts 1979, No. 1109, § 7; A.S.A. 1947, § 56-136; Acts 2015, No. 1018, § 1.

Amendments. The 2015 amendment substituted “rules” for “regulations” in the section heading; designated the existing language as (a); substituted “shall adopt rules” for “may promulgate regulations” in (a); and added (b).

9-9-406. Records confidential.

All records regarding subsidized adoption shall be confidential and may be opened for inspection only under the provisions of § 9-9-217.

History. Acts 1979, No. 1109, § 4; 1981, No. 858, § 1; A.S.A. 1947, § 56-133.

9-9-407. Eligibility.

  1. A family is initially eligible for a subsidy for purposes of adoption if:
      1. No other potential adoptive family has been identified and is willing and able to adopt the child without the use of a subsidy.
      2. In the case of a child who has established significant emotional ties with prospective adoptive parents while in their care as a foster child, the Department of Human Services may certify the child as eligible for a subsidy without searching for families willing to take the child without a subsidy.
      3. In the case of a child who will be adopted by members of his or her biological family, the department may certify the child as eligible for a subsidy without searching for families willing to take the child without a subsidy;
    1. The department has determined the family to be eligible;
    2. The child is in the custody of the department; and
    3. The child has been determined by the department to have special needs.
  2. A child who is a resident of Arkansas when eligibility for a subsidy is certified shall remain eligible and receive a subsidy, if necessary for adoption, regardless of the domicile or residence of the adopting parents at the time of application for adoption, placement, legal decree of adoption, or thereafter.
  3. A family is eligible for a legal subsidy for purposes of adoption if:
    1. The child is in the custody of the department; or
      1. The child was in the custody of the department;
      2. Legal custody was transferred to a relative or other person; and
      3. The juvenile division case remains open pending the child obtaining permanency.

History. Acts 1979, No. 1109, § 4; 1981, No. 858, § 1; A.S.A. 1947, § 56-133; Acts 1999, No. 518, § 3; 2005, No. 437, § 9; 2011, No. 607, § 6.

Amendments. The 2005 amendment rewrote (a); added present (b) and (d); and redesignated former (b) as present (c).

The 2011 amendment inserted “has been identified and” in (a)(1)(A); deleted “pursuant to a means-based test” at the end of (a)(2); and deleted (b) and redesignated the remaining subsections accordingly.

9-9-408. Subsidy agreement required — Commencement of subsidy.

  1. When parents are found and approved for adoption of a child certified as eligible for a subsidy and before the final decree of adoption is issued, there must be a written agreement between the family entering into the subsidized adoption and the Department of Human Services.
    1. Adoption subsidies, the amount of which in individual cases shall be determined through agreement between the adoptive parents and the department but shall be no more than the current foster care board rate, may commence with the adoption placement or at the appropriate time after the adoption decree and may vary with the circumstances of the adopting parents and the needs of the child as well as the availability of other resources to meet the child's needs.
      1. In the case of the special needs child whose eligibility is based on a high risk for development of a serious physical, mental, developmental, or emotional condition, the adoption subsidy agreement shall not provide for an adoption subsidy until the child actually develops the condition.
      2. A subsidy payment shall not be made until adequate documentation is submitted by the adoptive parents to the department showing that the child has now developed the condition.
      3. Upon acceptance by the department that the child has developed the condition, the adoption subsidy shall be retroactive to the date the adoptive parents submitted adequate documentation that the child developed the condition.
    1. When a child is determined to have a causative preexisting condition which was not identified or known prior to the final decree of adoption and which has resulted in a severe medical or psychiatric condition that requires extensive treatment, hospitalization, or institutionalization, an adoption subsidy may be approved.
    2. Upon the approval of the subsidy, the adoptive parents shall also be entitled to receive retroactive subsidy payments for the two (2) months prior to the date such subsidy was approved.
    3. This subsection will apply only to adoptive placements made on or after April 28, 1979.

History. Acts 1979, No. 1109, § 5; 1985, No. 482, § 1; A.S.A. 1947, § 56-134; Acts 1993, No. 800, § 1; 2005, No. 437, § 9[10]; 2011, No. 607, § 7.

Amendments. The 2005 amendment redesignated former (b) as present (b)(1); inserted “but shall be no more than the current foster care board rate” in (b)(1); and added (b)(2) and (b)(3).

The 2011 amendment deleted (b)(2) and redesignated (b)(3) as (b)(2).

9-9-409. Subsidy amounts.

  1. The amount of the subsidy may be readjusted periodically with the concurrence of the adopting parents, which may be specified in the adoption subsidy agreement, depending upon a change in circumstances.
  2. The subsidy may be for special services not covered by any other available resource, which include health or education services. To ensure the services remain appropriate, the services will be reviewed periodically.
  3. The amount of the time-limited or long-term subsidy may in no case exceed that which would be allowable from time to time for the child under foster family care or, in the case of a special service, the reasonable fee for the service rendered.

History. Acts 1979, No. 1109, § 5; 1985, No. 482, § 1; A.S.A. 1947, § 56-134; Acts 1999, No. 945, § 6.

9-9-410. Subsidy agreements — Duration.

    1. The subsidy agreement shall be binding and constitute an obligation against the State of Arkansas until the adopted child reaches the age of eighteen (18) years or the benefits available to him or her under the subsidy agreement are provided by other state or federal programs or the adoptive parents no longer qualify for a subsidy under the current rules for subsidized adoptions.
      1. The adoptive parents shall immediately notify the Department of Human Services when the adopted child is no longer under the care of the adoptive parents.
      2. The department shall review the adoption subsidy agreement and determine if the adoption subsidy shall be terminated when the adoptive parent is no longer legally responsible for providing care and support for the adopted child.
  1. If funding for the subsidized program is discontinued, all contracts that have been executed under this section and §§ 9-9-408 and 9-9-411 shall continue to be honored and shall be a valid claim against the State of Arkansas in keeping with the original subsidy agreement as long as eligibility for the subsidy continues under § 9-9-411.
  2. The subsidy agreement may be extended until the age of twenty-one (21) years if the child has a documented disability or condition that prevents the child from existing independently from the adoptive family. To be eligible for the extended subsidy, the family of the child must have applied for supplemental security income benefits prior to the child's turning eighteen (18) years and have been denied.

History. Acts 1979, No. 1109, § 4; 1981, No. 858, § 1; A.S.A. 1947, § 56-133; Acts 1999, No. 945, § 7; 2015, No. 1018, § 2.

Amendments. The 2015 amendment redesignated (a) as (a)(1); deleted “and regulations” following “current rules” in (a)(1); and added (a)(2).

9-9-411. Subsidy agreements — Renewal, termination, or modification.

      1. When subsidies are for more than one (1) year, the adoptive parents shall present an annual sworn certification that the adopted child remains under their care and that the condition that caused the child to be certified continues to exist.
      2. An adoptive parent commits the offense of providing a false statement if the adoptive parent certifies that the adopted child remains under the adoptive parent's care knowing the certification to be false.
      3. Providing a false statement under this subsection is a Class A misdemeanor.
    1. The subsidy agreement may be continued in accordance with the terms by entering into a new agreement each year but only as long as the adopted child is the legal dependent of the adoptive parents and the child's condition continues, except that, in the absence of other appropriate resources provided by law and in accordance with Arkansas rules, it may not be continued after the adopted child reaches majority.
  1. Termination or modification of the subsidy agreement may be requested by the adoptive parents at any time.

History. Acts 1979, No. 1109, § 4; 1981, No. 858, § 1; A.S.A. 1947, § 56-133; Acts 2015, No. 1018, § 3; 2019, No. 315, § 710.

Amendments. The 2015 amendment redesignated (a)(1) as (a)(1)(A); and added (a)(1)(B) and (C).

The 2019 amendment substituted “rules” for “regulations” in (a)(2).

9-9-412. Appeals.

Any subsidy decision by the Department of Human Services which the placement agency or the adoptive parents deem adverse to the child shall be reviewable according to the provisions of § 20-76-408.

History. Acts 1979, No. 1109, § 6; A.S.A. 1947, § 56-135.

Case Notes

Cited: Batiste v. Ark. Dep't of Human Servs., 361 Ark. 46, 204 S.W.3d 521 (2005).

Subchapter 5 — Voluntary Adoption Registry

Effective Dates. Acts 2003, No. 650, § 9: Mar. 25, 2003. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that federal law only allows the Federal Bureau of Investigation to release criminal history records to certain entities, which does not include private entities as currently permitted under state law. The Department of Arkansas State Police entered into an agreement with the Federal Bureau of Investigation regarding federal fingerprint-based criminal record checks, which permits disclosure only as allowed by federal law, with a grace period from the Federal Bureau of Investigation to correct state law no later than May 1, 2003. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

9-9-501. Definitions.

As used in this subchapter:

  1. “Administrator” means the person charged with maintenance and supervision of a registry and may include the administrator's agents, employees, and designees;
  2. “Adoptee” means a person who has been legally adopted in this state;
  3. “Adoption” means the judicial act of creating the relationship of parent and child when it did not exist previously;
  4. “Adoptive parent” means an adult who has become a parent of a child through the legal process of adoption;
  5. “Adult” means a person eighteen (18) or more years of age;
  6. “Agency” means any public or voluntary organization licensed or approved pursuant to the laws of any jurisdiction within the United States to place children for adoption;
  7. “Birth parent” means:
    1. The man or woman deemed or adjudicated under laws of a jurisdiction of the United States to be the father or mother of genetic origin of a child; or
      1. A putative father of a child if his name appears on the original sealed birth certificate of the child or if he has been alleged by the birth mother to be and has in writing acknowledged being the child's biological father.
      2. A putative father who has denied or refused to admit paternity shall be deemed not to be a birth parent in the absence of an adjudication under the laws of a jurisdiction of the United States that he is the biological father of the child;
  8. “Genetic and social history” means a comprehensive report, when obtainable, on the birth parents, siblings of the birth parents, if any, other children of either birth parent, if any, and any parents of the birth parents, that shall contain the following information:
    1. Medical history;
    2. Health status;
    3. Cause of and age at death;
    4. Height, weight, eye color, and hair color;
    5. When appropriate, levels of educational and professional achievement;
    6. Ethnic origins; and
    7. Religion, if any;
  9. “Health history” means a comprehensive report of the child's health status at the time of placement for adoption and medical history, including neonatal, psychological, physiological, and medical care history;
  10. “Mutual consent voluntary adoption registry” or “registry” means a place provided for in this subchapter where eligible persons may indicate their willingness to have their identity and whereabouts disclosed to each other under conditions specified in this subchapter; and
  11. “Putative father” means any man not deemed or adjudicated under the laws of the jurisdiction of the United States to be the father of genetic origin of a child who claims or is alleged to be the father of genetic origin of the child.

History. Acts 1985, No. 957, § 1; A.S.A. 1947, § 56-138; Acts 1987, No. 1060, § 1; 2003, No. 650, § 5.

Research References

Ark. L. Rev.

Morrison & Sievers, Adoption Law in Arkansas, 53 Ark. L. Rev. 1.

U. Ark. Little Rock L. Rev.

Note: Family Law—Putative Fathers and the Presumption of Legitimacy—Adams and the Forbidden Fruit: Clashes Between the Presumption of Legitimacy and the Rights of Putative Fathers in Arkansas, 25 U. Ark. Little Rock L. Rev. 369.

Survey of Legislation, 2003 Arkansas General Assembly, Family Law, Uniform Adoption Act, 26 U. Ark. Little Rock L. Rev. 408.

Case Notes

Cited: In re J.L.T., 31 Ark. App. 85, 788 S.W.2d 494 (1990).

9-9-502. Penalty.

    1. No person, agency, entity, or organization of any kind, including, but not limited to, any officer or employee of this state and any employee, officer, or judge of any court of this state shall disclose any confidential information relating to any adoption, except as provided by statute or pursuant to a court order.
    2. Any employer who knowingly or negligently allows any employee to disclose information in violation of this subchapter shall be subject to the penalties provided in subsection (b) of this section, together with the employee who made any disclosure prohibited by this subchapter.
  1. Any person, agency, entity, or organization of any kind that discloses information in violation of this subchapter shall be guilty of a Class A misdemeanor.

History. Acts 1985, No. 957, § 3; A.S.A. 1947, § 56-140; Acts 1987, No. 1060, § 2.

Cross References. Sentence to imprisonment, § 5-4-401.

9-9-503. Registry — Establishment and maintenance.

    1. A mutual consent voluntary adoption registry may be established and maintained by any licensed voluntary agency involved in an adoption.
    2. Persons eligible to receive identifying information shall work through the agency involved in the adoption. If that agency has merged or ceased operations, a successor agency may assume possession of the files for the purpose of establishing, maintaining, and operating the mutual consent voluntary adoption registry concerning those adoptions.
    3. Any licensed voluntary agency may delegate or otherwise contract with another licensed voluntary agency with expertise in post-legal adoption services to establish, maintain, and operate the registry for the delegating agency.
    4. If any agency ceasing to operate does not transfer adoption records to another licensed agency, it shall provide all records required to be maintained by law to the Department of Human Services.
  1. The department shall establish and maintain a mutual consent voluntary adoption registry for all adoptions arranged by the department or may contract out the function of establishing and maintaining the registry to a licensed voluntary agency with expertise in providing postlegal adoption services, in which case the agency shall establish and maintain the registry that would otherwise be operated by the department.
  2. The department shall keep records of every adult adoptee and birth parent reunited through the use of the mutual consent voluntary adoption registry.

History. Acts 1985, No. 957, § 6; A.S.A. 1947, § 56-143; Acts 1987, No. 1060, § 4; 2001, No. 409, § 2.

9-9-504. Registry — Operation.

    1. The adult adoptee and each birth parent and each individual related within the second degree whose identity is to be disclosed may voluntarily place his or her name in the appropriate registry by submitting a notarized affidavit stating his or her name, address, and telephone number and his or her willingness to be identified solely to the other relevant persons who register.
    2. No registration shall be accepted until the prospective registrant submits satisfactory proof of his or her identity in accord with rules specified in § 9-9-508.
    3. The failure to file a notarized affidavit with the registry for any reason, except death, shall preclude the disclosure of identifying information to those persons who do register.
      1. Upon registering, the registrant shall participate in not less than one (1) hour of counseling with a social worker employed by the entity that operates the registry. If a birth parent or adult adoptee is domiciled outside the state, he or she shall obtain counseling from a social worker employed by a licensed agency in that other state selected by the entity that operates the registry.
      2. If a birth parent or adult adoptee is domiciled outside the state, he or she shall obtain counseling from a social worker employed by a licensed agency in that other state selected by the entity that operates the registry.
    1. When an eligible person registers concerning an adoption that was arranged through an agency that has not merged or otherwise ceased operations, and that same agency is not operating the registry, the entity operating the registry shall notify, by certified mail within ten (10) business days after the date of registration, the agency that handled the adoption.
  1. In any case in which the identity of the birth father was unknown to the birth mother, or in which the administrator learns that one (1) or both birth parents are deceased, this information shall be shared with the adult adoptee. In those cases, the adoptee shall not be able to obtain identifying information through the registry, and he or she shall be told of his or her right to pursue whatever right otherwise exists by law to petition a court to release the identifying information.
  2. The following shall be matching and disclosure procedures:
    1. Each mutual consent voluntary adoption registry shall be operated under the direction of an administrator;
    2. The administrator shall be bound by the confidentiality requirements of this subchapter and shall be permitted reasonable access to the registry for the purposes set forth in this subchapter and for such purposes as may be necessary for the proper administration of the registry;
    3. A person eligible to register may request the administrator to disclose identifying information by filing an affidavit that sets forth the following:
      1. The current name and address of the affiant;
      2. Any previous name by which the affiant was known;
      3. The original and adopted names, if known, of the adopted child;
      4. The place and date of birth of the adopted child; and
        1. The name and address of the adoption agency or other entity, organization, or person placing the adopted child, if known.
        2. The affiant shall notify the registry of any change in name or location which occurs subsequent to his or her filing the affidavit.
        3. The registry shall have no duty to search for the affiant who fails to register his or her most recent address;
      1. The administrator of the mutual consent voluntary adoption registry shall process each affidavit in an attempt to match the adult adoptee and the birth parents or individuals related within the second degree.
      2. The processing shall include research from agency records, when available, and when agency records are not available, research from court records to determine conclusively whether the affiants match;
    4. The administrator shall determine that there is a match when the adult adoptee and a birth parent or individual related within the second degree have filed affidavits with the mutual consent voluntary adoption registry and have each received the counseling required in subsection (b) of this section; and
      1. An agency receiving an assignment of a match under the provisions of this subchapter shall directly or by contract with a licensed adoption agency in this state notify all registrants through a direct and confidential contact.
      2. The contact shall be made by an employee or agent of the agency receiving the assignment.
      3. The employee or agent shall be a trained social worker who has expertise in postlegal adoption services.
    1. Any affidavits filed and other information collected shall be retained for ninety-nine (99) years following the date of registration.
    2. Any qualified person may choose to remove his or her name from the registry at any time by filing a notarized affidavit with the registry.
    1. A mutual consent voluntary adoption registry shall obtain only information necessary for identifying registrants.
    2. In no event shall the registry obtain information of any kind pertaining to the adoptive parents or any siblings to the adult adoptee who are children of the adoptive parents.
  3. All costs for establishing and maintaining a mutual consent voluntary adoption registry shall be obtained through users' fees charged to all persons who register.
  4. Beginning January 1, 2002, the Department of Human Services shall place the affidavit form for placement on the mutual consent voluntary adoption registry on the department’s website.

History. Acts 1985, No. 957, § 7; A.S.A. 1947, § 56-144; Acts 1987, No. 1060, §§ 5, 6; 2001, No. 409, § 1; 2003, No. 650, § 6; 2011, No. 793, § 1.

Amendments. The 2011 amendment subdivided (d)(3)(E) as (d)(3)(E)(i) through (iii); and deleted former (d)(3)(E)(ii) and (iii).

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Family Law, Uniform Adoption Act, 26 U. Ark. Little Rock L. Rev. 408.

9-9-505. Compilation of nonidentifying history.

  1. Prior to placement for adoption, the licensed adoption agency or, when an agency is not involved, the person, entity, or organization handling the adoption shall compile and provide to the prospective adoptive parents a detailed, written health history and genetic and social history of the child that excludes information that would identify birth parents or members of a birth parent's family and that shall be set forth in a document that is separate from any document containing such identifying information.
  2. Records containing the nonidentifying information and that are set forth on a document that is separate from any document containing identifying data:
      1. Shall be retained by the agency or, when no agency is involved, by the person, entity, or organization handling the adoption, for ninety-nine (99) years.
        1. If the agency or person, entity, or organization who handled the adoption ceases to function, that agency or intermediary shall transfer records containing the nonidentifying information on the adoptee to the Department of Human Services.
        2. However, a licensed agency ceasing operation may transfer the records to another licensed agency within this state, but only if the agency transferring the records gives notice of the transfer to the department; and
    1. Shall be available upon request throughout the time specified in subdivision (b)(1) of this section, together with any additional nonidentifying information that may have been added on health or on genetic and social history, but which excludes information identifying any birth parent or member of a birth parent's family or the adoptee or any adoptive parent of the adoptee, to the following persons only:
      1. The adoptive parents of the child or, in the event of death of the adoptive parents, the child's guardian;
      2. The adoptee;
      3. In the event of the death of the adoptee, the adoptee's children, the adoptee's widow or widower, or the guardian of any child of the adoptee;
      4. The birth parent of the adoptee; and
      5. Any child welfare agency having custody of the adoptee.
  3. The actual and reasonable cost of providing nonidentifying health history and genetic and social history shall be paid by the person requesting the information.

History. Acts 1985, No. 957, § 8; A.S.A. 1947, § 56-145; Acts 1987, No. 1060, § 7; 2003, No. 650, § 7.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Family Law, Uniform Adoption Act, 26 U. Ark. Little Rock L. Rev. 408.

9-9-506. Disclosure of information.

  1. Notwithstanding any other provision of law, the information acquired by any registry shall not be disclosed under any sunshine or freedom of information legislation, rules, or practice.
  2. Notwithstanding any other provision of law, no person, group of persons, or entity, including any agency, may file a class action to force the registry to disclose identifying information.
  3. In exceptional circumstances, specified papers and records pertaining to particular adoptions may be inspected by the adoptee, the adoptive parents, and the birth parents if the court granting the adoption finds by clear and convincing evidence that good cause exists for the inspection.

History. Acts 1985, No. 957, § 4; A.S.A. 1947, § 56-141.

9-9-507. Maintenance of records.

All records of any adoption finalized in this state shall be maintained for ninety-nine (99) years by the agency, entity, organization, or person arranging the adoption.

History. Acts 1985, No. 957, § 2; A.S.A. 1947, § 56-139.

9-9-508. Rules.

The Department of Human Services shall issue such rules as are necessary for implementing this subchapter.

History. Acts 1985, No. 957, § 5; A.S.A. 1947, § 56-142; Acts 1987, No. 1060, § 3; 2019, No. 315, § 711.

Amendments. The 2019 amendment deleted “and regulations” following “Rules” in the section heading and in the text.

Subchapter 6 — Legal Representation

Cross References. Attorneys at law, § 16-22-101 et seq.

9-9-601. The Governor's Pro Bono Adoption Service Award.

  1. The Governor shall award the Governor's Pro Bono Adoption Service Award by proclamation in recognition of the efforts and sacrifice of those attorneys who provide adoption services on a volunteer basis.
  2. Those receiving the Governor's Pro Bono Adoption Service Award shall be selected from a list of names that may be submitted annually to the Governor by judges, attorneys, the Department of Human Services, and other related organizations, agencies, and professional associations.

History. Acts 2001, No. 1273, § 1.

Subchapter 7 — The Streamline Adoption Act

9-9-701. Streamlined adoptions by the Department of Human Services.

    1. A family who adopts a child from the Department of Human Services shall be eligible for the streamlined adoption process if the family chooses to adopt another child from the department and the department selects the family to be the adoptive parents of a child in the custody of the department.
    2. The adoptive family is not eligible for the streamlined adoption process if more than five (5) years have passed since the adoptive family finalized the adoption of a child placed by the department in the adoptive home.
  1. Upon contact by the adoptive family, the department shall:
      1. Obtain a copy of the original home study completed on the adoptive family.
      2. If needed, the department shall unseal the adoption file from the previous adoption pursuant to § 9-9-217(a) in order to obtain a copy of the original home study on the adoptive family; and
    1. Complete an update to the original home study within forty-five (45) business days from contact by the adoptive family.
  2. The adoptive family shall be required to obtain updated criminal background checks and central registry checks as outlined in this chapter.
  3. The department shall not require the adoptive family to attend training.
  4. The department shall place the adoptive family in the pool of waiting adoptive families eligible to adopt a child from the department upon:
    1. Completion of the updated home study that is favorable; and
    2. Receipt of the:
      1. Criminal background check; and
      2. Central registry check.
    1. A family who has a foster child in its home who was placed by the department shall be eligible for the streamlined adoption process if the department selects the foster family to be the adoptive family of the foster child.
    2. Upon selection, the department shall complete the adoptive home study within forty-five (45) business days.
    3. The department shall not require the foster family to attend training.

History. Acts 2005, No. 1685, § 1; 2007, No. 539, § 6.

Amendments. The 2007 amendment added “and the department selects the family to be the adoptive parents of a child in the custody of the department” at the end of (a)(1); deleted former (b) and redesignated the remaining subsections accordingly; deleted “and if one (1) year has passed since placement of a child in the adoptive home” in present (b); and, in (f)(1), substituted “foster family” for “family's parents” and “family” for “parents.”

9-9-702. Fast-tracked adoption of Garrett's Law babies — Definition.

  1. As used in this section, “newborn” means an infant who is thirty (30) days of age or younger.
  2. If a report of neglect under § 12-18-103(14)(B) is made to the Child Abuse Hotline, the mother has the option to place the newborn for:
    1. Adoption through a licensed child placement agency as defined in § 9-28-402(7); or
    2. A private adoption with a person licensed to practice medicine or law.
  3. If a newborn is taken into the custody of the Department of Human Services as the result of a call to the hotline of neglect under § 12-18-103(14)(B), the mother has the option to place the newborn for:
    1. Adoption through a licensed child placement agency under § 9-28-402(7); or
    2. A private adoption with a person licensed to practice medicine or law.
      1. If the proposed adoptive family has not completed the adoptive home study process, including the required criminal background check, the newborn shall be placed in a foster home that is licensed and approved under the Child Welfare Agency Licensing Act, § 9-28-401 et seq., or in the custody of the department.
      2. The newborn shall remain in a licensed or approved foster home or in the custody of the department until the required home study and criminal background checks are completed on the proposed adoptive parents.
    1. If the newborn is in the custody of the department, an order transferring custody to the proposed adoptive parents is required before the newborn is placed in the home of the proposed adoptive parents.
    2. If the newborn is in the custody of the department, any petition for adoption shall be filed in the open dependency-neglect case.
    3. The adoption shall be granted only if the proposed adoptive placement is in the best interests of the newborn.
      1. If the mother wishes for a relative to adopt her newborn, the newborn shall be placed in a foster home that is licensed and approved under the Child Welfare Agency Licensing Act, § 9-28-401 et seq., or in the custody of the department unless the relative has a completed approved adoptive home study at the time placement is needed.
      2. If a home study has not been completed on the relative, an adoptive home study shall be completed on the proposed relative if the proposed relative is an appropriate placement for the newborn.
      3. The home study on the relative cannot be waived.
    1. The adoption by a relative of the newborn shall be denied unless:
      1. The proposed relative adoptive parents have an approved adoptive home study or the department approves the proposed relative adoptive parents to adopt under state law on adoption, child welfare agency licensing law and rules, and department policy and procedures;
      2. The court determines the proposed relative adoptive parents have the capacity and willingness to abide by orders regarding care, supervision, and custody so that child protection will not be an issue if the adoption is granted; and
      3. The court enters an order describing the level of contact, if any, which is permitted to occur between the birth parent and the proposed relative adoptive parents and the consequences for violation of the order of contact under § 5-26-502.
  4. The department shall remain involved in each placement that is made under this section to monitor whether the mother withdraws her consent to the adoption.
  5. If the mother withdraws her consent to the adoption, the department shall initiate an action to ensure the protection of the child, including without limitation taking the child into custody if custody is warranted to protect the health and safety of the child.

History. Acts 2007, No. 381, § 1; 2009, No. 474, § 1; 2009, No. 758, § 8; 2019, No. 315, § 712.

Amendments. The 2009 amendment by No. 474 inserted (a), (d), and (e), redesignated the remaining subsections accordingly, and made minor stylistic changes.

The 2009 amendment by No. 758 substituted “§ 12-18-103(13)(B)” for “§ 12-12-503(12)(B)” in the introductory language of (b) and (c).

The 2019 amendment substituted “rules” for “regulations” in (e)(2)(A).

Subchapter 8 — Adoption Records

9-9-801. Definitions.

As used in this subchapter:

  1. “Adoption file” means a file maintained by the Department of Health that contains an original birth certificate and adoption decree of an adoptee;
  2. “Genetic and social history” has the same meaning as provided under § 9-9-501; and
  3. “Requester” means a person twenty-one (21) years of age or older who requests an adoption file under § 9-9-803 and is:
    1. The adoptee to whom the adoption file requested pertains; or
    2. The child, surviving spouse, or guardian of any child of a deceased adoptee to whom the adoption file requested pertains.

History. Acts 2017, No. 519, § 1.

9-9-802. Birth parent redaction request and contact preference forms.

      1. The Department of Health shall create and make available on its website:
        1. A form that a birth parent may use to have his or her name redacted from the copy of an adoption file that a requester receives under § 9-9-803; and
        2. A form that a birth parent may use to specify if a requester may contact the birth parent and the preferred manner by which a requester may contact the birth parent.
      2. The department shall make hard copies of the forms required under subdivision (a)(1)(A) of this section available to the public.
    1. The form required under subdivision (a)(1)(A)(i) of this section shall include the following:
      1. Information about the procedures and requirements for a birth parent to have the form:
        1. Placed in the adoption file of the birth parent's offspring so that the birth parent's name is redacted from the copy of the adoption file that a requester receives under § 9-9-803; and
        2. Removed from the adoption file of the birth parent's offspring so that the birth parent's name is included in the copy of the adoption file that a requester receives under § 9-9-803;
      2. The information needed by the department to identify the adoption file of the adoptee named on a form submitted under subdivisions (a)(2)(A)(i) and (ii) of this section;
      3. An attestation by the birth parent that he or she is the birth parent of the adoptee named on the form submitted under subdivisions (a)(2)(A)(i) and (ii) of this section; and
      4. Any other information required by the department.
    2. The form required under subdivision (a)(1)(A)(ii) of this section shall include the following:
      1. Information about the procedures and requirements for a birth parent to have the form:
        1. Placed in the adoption file of the birth parent's offspring; and
        2. Removed from the adoption file of the birth parent's offspring and replaced with an updated form;
      2. A section in which a birth parent may indicate whether a requester may:
        1. Directly contact the birth parent;
        2. Contact the birth parent through an intermediary specified by the birth parent; or
        3. Not contact the birth parent directly or through an intermediary;
      3. The information needed by the department to identify the adoption file of the adoptee named on the form submitted under subdivisions (a)(3)(A)(i) and (ii) of this section;
      4. Notification that a form submitted under subdivisions (a)(3)(A)(i) and (ii) of this section is advisory and unenforceable;
      5. An attestation by the birth parent that he or she is the birth parent of the adoptee named on a form submitted under subdivisions (a)(3)(A)(i) and (ii) of this section; and
      6. Any other information required by the department.
  1. The department shall accept a form submitted under this section if:
    1. The form is notarized;
    2. The birth parent submits satisfactory proof of his or her identity as determined by the rules of the department;
      1. The birth parent completes, corrects, or expands his or her genetic or social history.
      2. A completed, corrected, or expanded genetic or social history under subdivision (b)(3)(A) of this section is required if the birth parent's genetic or social history:
        1. Was not previously compiled; or
        2. Was compiled but needs to be corrected or expanded; and
    3. A completed form submitted under this section at least substantially complies with the requirements of this section.
  2. The department shall not accept a form provided under this section that is completed and submitted by a birth parent for another birth parent.
  3. The department shall place a form submitted under this section in the adoption file of the adoptee named on the form if:
    1. The requirements of subsection (b) of this section are substantially met; and
    2. The adoption file concerns the adoptee named on the form.
    1. Upon accepting a form submitted under subdivision (a)(2)(A)(ii) of this section, the department shall remove a form submitted under subdivision (a)(2)(A)(i) of this section from the adoption file of the adoptee named on the form.
    2. Upon accepting an updated form submitted under subdivision (a)(3)(A)(ii) of this section, the department shall remove a form submitted under subdivision (a)(3)(A)(i) of this section from the adoption file and place the updated form in the adoption file.
  4. The department shall maintain an electronic copy and destroy the hard copy of a form removed from an adoption file under subsection (e) of this section.

History. Acts 2017, No. 519, § 1.

9-9-803. Access to adoption file.

  1. Beginning August 1, 2018, a requester may submit a written request for a copy of an adoption file from the Department of Health.
    1. A request submitted under this section shall include the requester's address and notarized signature and satisfactory proof of the requester's identity as determined by the department.
    2. If the requester is the child, widow or widower, or guardian of any child of the deceased adoptee to whom the adoption file pertains, the requester shall also provide notarized documentation evidencing the requester's relationship to the adoptee.
    1. Upon receipt of a request made under subsection (a) of this section, the department shall mail the adoption file to the requester at the address provided in the request.
    2. If an adoption file contains a form submitted under § 9-9-802(a)(2)(A)(i), the department shall redact the birth parent's name from the copy of the adoption file before it is mailed to the requester.
    3. If a form under § 9-9-802(a)(2)(A)(ii) is submitted after a copy of the adoption file is mailed to the requester, the department shall mail the requester another copy of the adoption file with the birth parent's name included in the adoption file within thirty (30) days of the date the form was removed.
    4. Before mailing a requester an adoption file under subdivision (c)(1) of this section, the department shall mark the certified copy of the original birth certificate contained in the adoption file as “not intended for official use” or similar.
  2. The department shall mail a requester an adoption file by certified mail, return receipt requested.
    1. If an adoption file contains a form submitted under § 9-9-802(a)(3)(A)(i) and (ii), the department shall include the form in the adoption file mailed to a requester.
    2. A form included in the adoption file under this subsection shall be redacted in accordance with subdivision (c)(2) of this section.
    1. The department may charge a requester a fee of one hundred dollars ($100) for the department's provision of the adoption file requested.
    2. The department may change the amount of the fee charged to a requester under subdivision (f)(1) of this section in accordance with the department's rules.

History. Acts 2017, No. 519, § 1.

9-9-804. Immunity.

An officer or employee of the Department of Health who releases any information contained in an adoption file or provides a copy of an adoption file to a requester is not criminally liable or civilly liable in damages to any person for injury, death, or loss allegedly arising from the release of the information or copy if the officer or employee releases the information or copy in accordance with § 9-9-803.

History. Acts 2017, No. 519, § 1.

Chapter 10 Paternity

Subchapter 1 — General Provisions

Preambles. Acts 1983, No. 437 contained a preamble which read:

“Whereas, it has been brought to the attention of the Arkansas General Assembly that Section 1 of Act 473 of 1981 (Ark. Stat. 34-705.1) erroneously refers to spouses in a proceeding brought pursuant to the Bastardy Statutes, causing uncertainty in said statutes;

“Now therefore … .”

Cross References. Competent witnesses, § 16-43-901.

Effective Dates. Acts 1875 (Adj. Sess.), No. 24, § 12: effective on passage.

Acts 1879, No. 72, § 5: effective on passage.

Acts 1927, No. 111, § 2: effective on passage.

Acts 1955, No. 127, § 4: Mar. 2, 1955. Emergency clause provided: “It is hereby determined by the General Assembly that the courts of this State are called upon to render decisions in matters involving the paternity of children and that the immediate passage of this Act is necessary to provide the courts with a means of expediting such cases. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1955, No. 374, § 4: Mar. 24, 1955. Emergency clause provided: “It has been found and is declared by the General Assembly of the State of Arkansas that the laws of this State relating to bastardy proceedings are not in conformity with the modern court procedure of this State; that as a result, general confusion exists in the courts of this State; that this Act seeks to modernize these bastardy laws to conform to present court procedure. Therefore, an emergency is declared to exist, and this Act being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from the date of its approval.”

Acts 1983, No. 177, § 2: Feb. 15, 1983. Emergency clause provided: “It is hereby found and determined by the Seventy-Fourth General Assembly that the present Arkansas law governing non-support is constitutionally suspect on equal protection grounds; that there is an immediate need to remedy this law by legislative action. Therefore, an emergency is hereby declared to exist and this Act being necessary for the public peace, health and safety shall be full force and effect from and after its passage and approval.”

Acts 1985, No. 988, § 6: Aug. 1, 1985.

Acts 1987, No. 599, § 4: Apr. 4, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that there is an urgent need for clarification as to what fees are permitted to be charged for support collection throughout the state. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1989, No. 948, § 10: Mar. 27, 1989, except §§ 1, 2, and 5 effective Oct. 1, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that it is in the best interest of the people of the State of Arkansas that child support be collected in the most expedient manner for all children of this state; that new federal requirements of the Title IV-D program operated by the Department of Human Services should be extended to all litigants of this state enforcing collection of child support; and that the smooth transition from current requirements to those of this act require some provisions to become effective immediately upon passage and other effective at a later date. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval with sections 1, 2 and 5 of this act to become effective October 1, 1989.”

Acts 1991, No. 986, § 5: Apr. 8, 1991. Emergency clause provided: “It is hereby found and determined by the Seventy-Eighth General Assembly that it is in the best interest of the people of the State of Arkansas that paternity of the children be established in the most expedient manner for all children of this state; and the smooth transition from current requirements of those of this act require the provisions to become effective immediately upon passage. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1991, No. 1095, § 9: July 1, 1991. Emergency clause provided: “It is hereby found and determined by the Seventy-Eighth General Assembly of the State of Arkansas that the effectiveness of this act on July 1, 1991, is essential to the operation of the child support collection system in this state and that in the event of an extension of the Regular Session, the delay in the effective date of this act beyond July 1, 1991, could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 1991.”

Acts 1993, No. 396, § 7: Mar. 9, 1993. Emergency clause provided: “It is hereby found and determined by the General Assembly that it is in the best interests of the people of the State of Arkansas that child support be collected and enforced in the most expedient manner for all children of this state; that a smooth transition from current requirements to those of this Act requires that the provisions become effective immediately. Therefore, an emergency is hereby declared to exist and this Act being necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1995, No. 1091, § 7: Apr. 10, 1995. Emergency clause provided: “It is hereby found and determined by the Eightieth General Assembly that Arkansas law governing voluntary paternity acknowledgments does not conform with current federal requirements set forth in Title IV-D of the Social Security Act; that failure to immediately remedy the law by legislative action will place Title IV-D and Aid to Families With Dependent Children funding in jeopardy. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 2013, No. 210, § 3: Mar. 1, 2013. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that pregnancy from rape against women occurs; that women who get pregnant as a result of rape and decide to carry their pregnancy to term should not have a lifetime tethered to their rapists due to custody issues; and that this act is immediately necessary to eliminate the possibility that a rapist convicted in a court of law can have custody rights to any child conceived and born from such a rape. Therefore, an emergency is declared to exist, and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Research References

ALR.

Right of indigent defendant in paternity suit to have assistance of counsel at state expense. 4 A.L.R.4th 363.

Statute limiting time for commencement of action as violating child's constitutional rights. 16 A.L.R.4th 926.

Illegitimate child's right to maintain action to determine paternity. 19 A.L.R.4th 1082.

Human Leukocyte Antigen (HLA) tissue typing tests: admissibility, weight, and sufficiency in paternity cases. 37 A.L.R.4th 167.

Admissibility and weight of blood-grouping tests in disputed paternity cases. 43 A.L.R.4th 579.

Right to jury trial in paternity proceedings. 51 A.L.R.4th 565.

Necessity or propriety of appointment of independent guardian for child who is subject of paternity proceeding. 70 A.L.R.4th 1033.

Validity and construction of surrogate parenting agreement. 77 A.L.R.4th 70.

Admissibility of DNA identification evidence. 84 A.L.R.4th 313.

Parental rights of man who is not biological or adoptive father of child but was husband or cohabitant of mother when child was conceived or born. 84 A.L.R.4th 655.

Admissibility or compellability of blood test to establish testee's nonpaternity for purpose of challenging testee's parental rights. 87 A.L.R.4th 572.

Rights of an unwed father to obstruct adoption of his child by withholding consent. 61 A.L.R.5th 151.

Authentication of blood sample taken from human body for purposes other than determining blood alcohol content. 77 A.L.R.5th 201.

Am. Jur. 41 Am. Jur. 2d, Illegitimate Children, § 8 et seq.

Ark. L. Rev.

Some Problems of Courts for Children in Arkansas, 9 Ark. L. Rev. 23.

Bastardy, 9 Ark. L. Rev. 391.

Legitimacy and Paternity, 14 Ark. L. Rev. 55.

Fuqua, Comments: Bastardy Law in Arkansas — The Need for Revision, 33 Ark. L. Rev. 178.

Note, How a State's Interests in a Child's Welfare Are Frustrated by Indiscriminate Application of the Final Judgment Rule: Arkansas Department of Human Services v. Lopez, 44 Ark. L. Rev. 895.

C.J.S. 14 C.J.S., Children Out-of-Wedlock, § 71 et seq.

U. Ark. Little Rock L.J.

Sullivan, The Need for a Business or Payroll Records Affidavit for Use in Child Support Matters, 11 U. Ark. Little Rock L.J. 651.

Parness, Prospective Fathers and Their Unborn Children, 13 U. Ark. Little Rock L.J. 165.

9-10-101. [Repealed.]

Publisher's Notes. This section, concerning jurisdiction and judges of chancery courts, was repealed by Acts 2003, No. 1185, § 9. The section was derived from Acts 1875 (Adj. Sess.), No. 24, § 1, p. 25; C. & M. Dig., § 772; Pope's Dig., § 928; A.S.A. 1947, § 34-701; Acts 1989, No. 725, § 3.

9-10-102. Actions governed by Arkansas Rules of Civil Procedure — Limitations periods — Venue — Summons — Transfer between local jurisdictions.

  1. An action to establish the paternity of a child or children shall be commenced and proceed under the Arkansas Rules of Civil Procedure applicable in circuit court, as amended from time to time by the Supreme Court.
  2. Actions brought in the State of Arkansas to establish paternity may be brought at any time. Any action brought prior to August 1, 1985, but dismissed because of a statute of limitations in effect prior to that date, may be brought for any person for whom paternity has not yet been established.
  3. Venue of paternity actions shall be in the county in which the plaintiff resides or, in cases involving a juvenile, in the county in which the juvenile resides.
  4. Summons may be issued in any county of this state in which the defendant may be found.
    1. Upon a default by the defendant, the court shall grant a finding of paternity and shall establish a child support order based on an application in accordance with the Arkansas Rules of Civil Procedure and the family support chart.
    2. The court's granting of a default paternity judgment shall be based on the presumed mother's affidavit of facts in which the presumed mother names the defendant as the father of her child and states the defendant's access during the probable period of conception.
      1. The court where the final decree of paternity is rendered shall retain jurisdiction of all matters following the entry of the decree.
        1. If more than six (6) months subsequent to the final adjudication, however, each of the parties to the action has established a residence in a county of another judicial district within the state, one (1) or both of the parties may petition the court that entered the final adjudication to request that the case be transferred to another county.
        2. The case shall not be transferred absent a showing that the best interest of the parties justifies the transfer.
        3. If a justification for transfer of the case has been made, there shall be an initial presumption for transfer of the case to the county of residence of the physical custodian of the child.
    1. If the court that entered the final adjudication agrees to transfer the case to another judicial district, upon proper motion and affidavit and notice and payment of a refiling fee, the court shall enter an order transferring the case and the refiling fee and charging the clerk of the court to transmit forthwith certified copies of all records pertaining to the case to the clerk of the court in the county where the case is being transferred.
    2. An affidavit shall accompany the motion to transfer and recite that the parent or parents, the physical custodian, and the Office of Child Support Enforcement of the Revenue Division of the Department of Finance and Administration, as appropriate, have been notified in writing that a request has been made to transfer the case.
    3. Notification pursuant to this section must inform each recipient that any objection must be filed within twenty (20) days from the date of receipt of the affidavit and motion for transfer.
    4. The clerk receiving a transferred case shall within fourteen (14) days of receipt set up a case file, docket the case, and afford the case full faith and credit as if the case had originated in that judicial district.

History. Acts 1875 (Adj. Sess.), No. 24, § 2, p. 25; 1879, No. 72, § 1, p. 95; C. & M. Dig., § 773; Pope's Dig., § 929; Acts 1955, No. 127, § 2; 1983, No. 595, § 1; 1985, No. 988, § 1; A.S.A. 1947, §§ 34-702, 34-705.2; Acts 1989, No. 725, § 1; 1995, No. 1184, § 42; 1997, No. 1296, § 3; 1999, No. 539, § 2; 2003, No. 1185, § 10.

Research References

U. Ark. Little Rock L.J.

Legislative Survey, Family Law, 4 U. Ark. Little Rock L.J. 595.

Survey — Family Law, 11 U. Ark. Little Rock L.J. 215.

U. Ark. Little Rock L. Rev.

Note: Family Law—Putative Fathers and the Presumption of Legitimacy—Adams and the Forbidden Fruit: Clashes Between the Presumption of Legitimacy and the Rights of Putative Fathers in Arkansas, 25 U. Ark. Little Rock L. Rev. 369.

Case Notes

Constitutionality.

This section is constitutional. Dobson v. State, 69 Ark. 376, 63 S.W. 796 (1901).

Purpose.

Indemnity and protection of the counties against the burden of supporting the illegitimate child, and not the punishment of the father, are the objects contemplated by the statute. Chambers v. State, 45 Ark. 56 (1885).

Child Support.

By common law the mother and not the father of an illegitimate child is bound to support him, but this section confers on the mother of the child the right to compel the father to contribute to its support; and a promise on the father's part to contribute to the child's support is a valid legal liability and is enforceable against him or, after his death, against his estate. Davis' Estate v. Herrington, 53 Ark. 5, 13 S.W. 215 (1890).

In an action to enforce an unwritten promise to support and for annual payments, the recovery is limited to the last three years. Davis' Estate v. Herrington, 53 Ark. 5, 13 S.W. 215 (1890) (decision prior to 1985 amendment).

The mother may enforce an implied obligation of father to support illegitimate child. Scott v. State, 173 Ark. 625, 292 S.W. 979 (1927).

Dismissal.

Because a dismissal with prejudice is void in a paternity action, such a ruling does not bar future proceedings. State Office of Child Support Enforcement v. Flowers, 57 Ark. App. 223, 944 S.W.2d 558 (1997).

Jury Trial.

Since a paternity proceeding was essentially an action at law for the recovery of money, the appellant was entitled to a jury trial on the issues of fact. Waddell v. State, 235 Ark. 293, 357 S.W.2d 651 (1962).

Nature of Action.

Although a paternity proceeding is in the name of the state, it is of a civil nature. Chambers v. State, 45 Ark. 56 (1885); Pearce v. State, 55 Ark. 387, 18 S.W. 380 (1892); Wimberly v. State, 90 Ark. 514, 119 S.W. 668 (1909); Belford v. State, 96 Ark. 274, 131 S.W. 953 (1910); State ex rel. Woolems v. Davis, 178 Ark. 692, 11 S.W.2d 479 (1928); Swaim v. State, 184 Ark. 1107, 44 S.W.2d 1098 (1932).

Res Judicata.

Decision in an annulment proceeding brought on the ground of false representation as to paternity of child is not res judicata in either a paternity or heirship action, as child is not a party privy to the annulment proceeding. Shatford v. Shatford, 214 Ark. 612, 217 S.W.2d 917 (1949).

Venue.

In a proceeding to determine the custody of a child after his mother died, venue was not proper in the county in which the father resided; instead, venue was proper in the county in which the child had resided with his mother and in which he was cared for after her death by his grandparents. Overton v. Jones, 74 Ark. App. 122, 45 S.W.3d 427 (2001).

Trial court erred in granting mother's motion to transfer a custody action because there was evidence that the father never established a residence outside of the first county, as contemplated by subdivision (f)(1)(B)(i) of this section. Stephens v. Miller, 91 Ark. App. 253, 209 S.W.3d 452 (2005).

Cited: George v. George, 247 Ark. 17, 444 S.W.2d 62 (1969); Roque v. Frederick, 272 Ark. 392, 614 S.W.2d 667 (1981); Fuller v. Robinson, 279 Ark. 252, 650 S.W.2d 585 (1983); Chandler v. Baker, 16 Ark. App. 253, 700 S.W.2d 378 (1985); State Office of Child Support Enforcement v. Harnage, 322 Ark. 461, 910 S.W.2d 207 (1995).

9-10-103. Temporary orders — Administrative orders for paternity testing.

  1. If the child is not born when the accused appears before the circuit court, the court may hear evidence and may make temporary orders and findings pending the birth of the child.
      1. If the parentage of a child has not been established, the Office of Child Support Enforcement of the Revenue Division of the Department of Finance and Administration shall send a notice to the putative father, or mother, as appropriate, that he or she is a biological parent of the child.
      2. The notice shall inform the parties that the putative father and the mother of the child may sign an affidavit acknowledging paternity and that any party may request that scientifically accepted paternity testing be conducted to assist in determining the identities of the child's parents.
      1. In all cases brought pursuant to Title IV-D of the Social Security Act, 42 U.S.C. § 651 et seq., upon sworn statement of the mother, putative father, or the office alleging paternity, the office shall issue an administrative order for paternity testing that requires the mother, putative father, and minor child to submit themselves for paternity testing.
      2. The office shall cause a copy of the administrative order for paternity testing to be served on the mother and putative father.
      3. Paternity testing accomplished pursuant to an administrative order shall be conducted pursuant to the guidelines and procedures set out in § 9-10-108.
      4. Any party to an administrative order for paternity testing may object to the administrative order within twenty (20) days after receiving the order and request an administrative hearing to determine if paternity testing under the administrative order should be conducted by the office.
    1. The request for paternity testing shall be accompanied by:
      1. An affidavit alleging paternity, and setting forth facts establishing a reasonable possibility of the requisite sexual contact between the mother and putative father; or
      2. An affidavit denying paternity and setting forth facts establishing a reasonable possibility of the nonexistence of sexual contact between the mother and putative father.
      1. The office shall initially pay the costs of administrative paternity testing, but those costs shall be assessed against the putative father if paternity is established or against the applicant for services if the putative father is excluded as the biological father.
      2. Recovery by the office through all available processes shall be initiated, including income withholding, when appropriate.
    2. Any party who objects to the results of such paternity testing may request additional testing upon proper notice and advance payment for retesting, and the office shall assist the contestant in obtaining such additional testing as may be requested.
    3. If the results of paternity testing establish a ninety-five percent (95%) or more probability of inclusion that the putative father is the biological father of the child, the office may file a complaint for paternity and child support in the circuit court.
  2. Any paternity testing results obtained pursuant to an administrative order for paternity testing shall be admissible into evidence in any circuit court for the purpose of adjudicating paternity, as provided by § 9-10-108.
  3. If the results of paternity testing exclude an alleged parent from being the biological parent of the child, the office shall issue an administrative determination that declares that the excluded person is not a parent of the child.
  4. If the mother should die before the final order, the action may be revived in the name of the child, and the mother's testimony at the temporary hearing may be introduced in the final hearing.
  5. Upon motion by a party, the court shall issue a temporary child support order in accordance with this chapter, the guidelines for child support, and the family support chart, when paternity is disputed and a judicial or administrative determination of paternity is pending, if there is clear and convincing genetic evidence of paternity.

History. Acts 1875 (Adj. Sess.), No. 24, § 4, p. 25; 1879, No. 72, § 2, p. 95; C. & M. Dig., § 775; Pope's Dig., § 931; Acts 1955, No. 374, § 1; A.S.A. 1947, § 34-704; Acts 1997, No. 1296, § 4; 2001, No. 1248, §§ 1-3; 2003, No. 1185, § 11.

Case Notes

Applicability.

This section applies to paternity tests ordered by the Office of Child Support Enforcement and not to tests ordered by the court; § 9-10-108 specifically deals with court-ordered paternity tests and, more importantly, while some language in this section incorporates the procedures of § 9-10-108, there is no language in § 9-10-108 incorporating the protections of this section. State Office of Child Support Enforcement v. Morgan, 364 Ark. 358, 219 S.W.3d 175 (2005).

Cited: Dozier v. Veasley, 272 Ark. 210, 613 S.W.2d 93 (1981).

9-10-104. Suit to determine paternity of child born outside of marriage.

Petitions for paternity establishment may be filed by:

  1. A biological mother;
  2. A putative father;
  3. A person for whom paternity is not presumed or established by court order, including a parent or grandparent of a deceased putative father; or
  4. The Office of Child Support Enforcement of the Revenue Division of the Department of Finance and Administration.

History. Acts 1981, No. 664, §§ 1, 2; A.S.A. 1947, §§ 34-716, 34-717; Acts 1989, No. 725, § 4; 1995, No. 1184, § 1; 2009, No. 1312, § 1.

Amendments. The 2009 amendment inserted “including a parent or grandparent of a deceased putative father” in (3).

Research References

Ark. L. Notes.

Flaccus, A Grab Bag of Recent Arkansas Cases, 1999 Ark. L. Notes 25.

Ark. L. Rev.

Brittany Horn, Case Note: Who's Your Daddy? State v. Perry and Its Impact on Paternity and the Rights of Adjudicated Fathers in Arkansas, 66 Ark. L. Rev. 1059 (2013).

U. Ark. Little Rock L.J.

Legislative Survey, Family Law, 4 U. Ark. Little Rock L.J. 595.

Fifteenth Annual Survey of Arkansas Law, 15 U. Ark. Little Rock L.J. 427.

U. Ark. Little Rock L. Rev.

Annual Survey of Caselaw, Family Law, 24 U. Ark. Little Rock L. Rev. 1021.

Note: Family Law—Putative Fathers and the Presumption of Legitimacy—Adams and the Forbidden Fruit: Clashes Between the Presumption of Legitimacy and the Rights of Putative Fathers in Arkansas, 25 U. Ark. Little Rock L. Rev. 369.

Case Notes

In General.

It is not against the public policy of this state to allow a third party to attempt to illegitimize a child which was conceived, but not born during marriage. Willmon v. Hunter, 297 Ark. 358, 761 S.W.2d 924 (1988).

Burden of Proof.

In a paternity proceeding brought against a living putative father, even in the absence of blood testing, the mother's burden of proof is a mere preponderance of the evidence, as the proceeding is civil in nature. Erwin L.D. v. Myla Jean L., 41 Ark. App. 16, 847 S.W.2d 45 (1993).

Defenses.

A mother's agreement or assurances that she would not pursue a paternity action to request support cannot validly be interposed by a putative father as a defense. Erwin L.D. v. Myla Jean L., 41 Ark. App. 16, 847 S.W.2d 45 (1993).

Misrepresentation concerning the use of contraceptives is not a defense to paternity; to permit this defense would result in the denial of support to innocent children whom the law was designed to protect. Erwin L.D. v. Myla Jean L., 41 Ark. App. 16, 847 S.W.2d 45 (1993).

Adult child's complaint against her alleged father's estate to establish paternity under this section was barred by res judicata based on her mother's action brought under former § 34-702 in 1980, although the child did not seek child support, and the prior action was dismissed for the mother's failure to appear at a hearing. Mathis v. Estate of McSpadden, 2012 Ark. App. 599 (2012).

Presumptions.

Neither Lord Mansfield's Rule, which provides that the declarations of a father or mother cannot be admitted to illegitimize the issue born after marriage, nor the presumption of legitimacy of children born during the wedlock of two persons, apply where the child is born out of wedlock. Dunn v. Davis, 291 Ark. 492, 725 S.W.2d 853 (1987).

Presumption of legitimacy of a child conceived, but not born, during marriage, is rebuttable. Willmon v. Hunter, 297 Ark. 358, 761 S.W.2d 924 (1988).

Chancellor did not err in ordering a paternity test pursuant to this section, as public policy does not forbid the rebuttal of the presumption of legitimacy by paternity testing. Golden v. Golden, 57 Ark. App. 143, 942 S.W.2d 282 (1997).

Requirement that an action be filed and a condition satisfied within 180 days did not violate a purported beneficiary's federal constitutional equal protection rights or due process rights because she had no right to bring a paternity action on her own behalf since she was a person for whom paternity was presumed. The purported beneficiary was seeking to recover as a pretermitted heir. Bell v. McDonald, 2014 Ark. 75, 432 S.W.3d 18 (2014).

Procedure.

Trial court erred in dismissing a paternity complaint on the basis of collateral estoppel or res judicata when the alleged biological father of the child was not a party, and was not in privy to a party, in an earlier divorce decree proclaiming the mother's husband to be the father of the child, and the matter of paternity had not been fully or fairly litigated in the earlier divorce action. State Office of Child Support Enforcement v. Willis, 347 Ark. 6, 59 S.W.3d 438 (2001).

Standing.

A child conceived and born of a marriage, and thus presumed to be the child of the marital partners, has no standing to bring a paternity action. Hall v. Freeman, 327 Ark. 148, 936 S.W.2d 761 (1997).

The presumption of legitimacy of a child born during marriage is the presumption to which reference is made in subdivision (3) of this section; the General Assembly has seen fit to preserve it as a bar to an action by a child born during a marriage. Hall v. Freeman, 327 Ark. 148, 936 S.W.2d 761 (1997).

Because the legislature was presumed to have known of prior Supreme Court decisions when it amended this section, a putative father had standing to bring an action to determine the paternity of a child born to a woman married to another. R.N. v. J.M., 347 Ark. 203, 61 S.W.3d 149 (2001).

Father who moved to annul a 1966 adoption, on grounds the father was fraudulently induced into believing the child was the father's biological child, was adjudicated to be the biological father in the adoption decree and did not fit within the statutorily-defined group of individuals upon whom standing was conferred to challenge paternity; thus, the trial court properly denied the father's request for paternity testing. McAdams v. McAdams, 353 Ark. 494, 109 S.W.3d 649 (2003).

Father's argument that custodian of the child did not have standing to bring a paternity action was irrelevant as the plaintiff listed in all the pleadings was the Office of Child Support Enforcement (OCSE), and the OCSE had the authority under this section to bring a paternity action. Watt v. Office of Child Support Enforcement, 364 Ark. 236, 217 S.W.3d 785 (2005).

Cited: Roque v. Frederick, 272 Ark. 392, 614 S.W.2d 667 (1981); Fuller v. Robinson, 279 Ark. 252, 650 S.W.2d 585 (1983); In re S.J.B., 294 Ark. 598, 745 S.W.2d 606 (1988); Department of Human Servs. ex rel. Davis v. Seamster, 36 Ark. App. 202, 820 S.W.2d 298 (1991); State Office of Child Support Enforcement v. Harnage, 322 Ark. 461, 910 S.W.2d 207 (1995).

9-10-105. Trial by court.

When the case is ready for trial, if the accused denies being the father of the child, the circuit court shall hear the evidence and decide the case.

History. Acts 1875 (Adj. Sess.), No. 24, § 5, p. 25; 1879, No. 72, § 3, p. 95; C. & M. Dig., § 776; Pope's Dig., § 932; Acts 1955, No. 374, § 2; A.S.A. 1947, § 34-705; Acts 2003, No. 1185, § 12.

Research References

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Family Law, 1 U. Ark. Little Rock L.J. 200.

Case Notes

Child Support.

A putative father in a paternity case adjudged to pay less than the statutory minimum for the child's support was held not entitled to attack the validity of the paternity statute on the ground that it does not provide for a jury to fix the amount paid. Swaim v. State, 184 Ark. 1107, 44 S.W.2d 1098 (1932).

Jury Trial.

Since a paternity proceeding was essentially an action at law for the recovery of money, the appellant was entitled to a jury trial on the issues of fact. Waddell v. State, 235 Ark. 293, 357 S.W.2d 651 (1962).

9-10-106. [Repealed.]

Publisher's Notes. This section, concerning paternity referees, was repealed by Acts 1993, No. 1242, § 2. The section was derived from Acts 1983, No. 559, § 1; A.S.A. 1947, § 34-701.1.

9-10-107. [Repealed.]

Publisher's Notes. This section, concerning hearings for enforcement of support orders, was repealed by Acts 1995, No. 1064, § 2. The section was derived from Acts 1985, No. 988, § 4; 1986 (2nd Ex. Sess.), No. 14, § 1; A.S.A. 1947, § 34-701.2; Acts 1993, No. 1242, § 3; 1995, No. 1184, §§ 1, 3. For current law, see § 9-14-204.

9-10-108. Paternity test.

    1. Upon motion of either party in a paternity action, the trial court shall order that the putative father, mother, and child submit to scientific testing for paternity, which may include deoxyribonucleic acid testing, to determine whether or not the putative father can be excluded as being the biological father of the child and to establish the probability of paternity if the testing does not exclude the putative father.
      1. Upon motion of either party in a paternity action when the mother is deceased or unavailable, the trial court shall order that the putative father and child submit to scientific testing for paternity, which may include deoxyribonucleic acid typing, to determine whether or not the putative father can be excluded as being the biological father of the child and to establish the probability of paternity if the testing does not exclude the putative father.
      2. If a maternal relative is available and willing to participate in paternity testing, the trial court shall include the maternal relative within its order for paternity testing.
      1. Upon motion of either party in a paternity action when the father is deceased or unavailable, the trial court shall order that the mother and child submit to scientific testing for paternity, which may include deoxyribonucleic acid typing, to determine whether or not the putative father can be excluded as being the biological father of the child and to establish the probability of paternity if the testing does not exclude the putative father.
      2. If a paternal relative is available and willing to participate in paternity testing, the trial court shall include the paternal relative within its order for paternity testing.
    2. The tests shall be made by a duly qualified expert or experts to be appointed by the court.
      1. A written report of the test results prepared by the duly qualified expert conducting the test or by a duly qualified expert under whose supervision or direction the test and analysis have been performed certified by an affidavit duly subscribed and sworn to by him or her before a notary public may be introduced into evidence in paternity actions without calling the expert as a witness unless a motion challenging the test procedures or results has been filed within thirty (30) days of the trial on the complaint and bond is posted in an amount sufficient to cover the costs of the duly qualified expert to appear and testify.
        1. If contested, documentation of the chain of custody of samples taken from test subjects in paternity testing shall be verified by affidavit of one (1) person witnessing the procedure or extraction, packaging, and mailing of the samples and by one (1) person signing for the samples at the place where the samples are subject to the testing procedure.
        2. Submission of the affidavits along with the submission of the test results shall be competent evidence to establish the chain of custody of these specimens.
      1. If the results of the paternity tests establish a ninety-five percent (95%) or more probability of inclusion that the putative father is the biological father of the child after corroborating testimony of the mother in regard to access during the probable period of conception, it shall constitute a prima facie case of establishment of paternity, and the burden of proof shall shift to the putative father to rebut that proof.
      2. If the results of the paternity tests conducted pursuant to subdivision (a)(2) of this section establish a ninety-five percent (95%) or more probability of inclusion that the putative father is the biological father of the child, after corroborating testimony concerning the conception, birth, and history of the child, this shall constitute a prima facie case of establishment of paternity, and the burden of proof shall shift to the putative father to rebut that proof.
    3. Whenever the court orders scientific testing for paternity and one (1) of the parties refuses to submit to the testing, that fact shall be disclosed upon the trial and may be considered civil contempt of court.
    4. The costs of the scientific testing for paternity and witness fees shall be taxed by the court as other costs in the case.
    5. Whenever it shall be relevant to the prosecution or the defense in a paternity action, scientific testing for paternity that excludes third parties as the biological father of the child may be introduced under the same requirements as set out in this section.
  1. The appearance of the name of the father with his consent on the certificate of birth, the Social Security account number of the alleged father filed with his consent with the Division of Vital Records of the Department of Health pursuant to § 20-18-407, a certified copy of the certificate or records on which the name of the alleged father was entered with his consent from the vital records department of another state, or the registration of the father with his consent in the Putative Father Registry pursuant to § 20-18-702 shall constitute a prima facie case of establishment of paternity, and the burden of proof shall shift to the putative father to rebut such in a proceeding for paternity establishment.

History. Acts 1955, No. 127, §§ 1-3; 1981, No. 473, § 1; 1983, No. 437, § 1; 1985, No. 988, § 1; A.S.A. 1947, §§ 34-705.1 — 34-705.3; Acts 1989, No. 725, § 2; 1991, No. 474, § 2; 1991, No. 986, § 1; 1995, No. 1178, § 1.

Research References

Ark. L. Rev.

Blood Tests in Paternity Proceedings, 9 Ark. L. Rev. 395.

Recent Developments, 45 Ark. L. Rev. 257.

Recent Developments, Domestic Relations — Adoption, 57 Ark. L. Rev. 697.

U. Ark. Little Rock L.J.

Legislative Survey, Family Law, 4 U. Ark. Little Rock L.J. 595.

Survey — Family Law, 11 U. Ark. Little Rock L.J. 215.

Note, Evidence — Criminal Law — Evidence of DNAFingerprinting Admitted for Identification Purposes in Rape Trial, 12 U. Ark. Little Rock L.J. 543.

Survey, Miscellaneous — Evidence, 13 U. Ark. Little Rock L.J. 384.

Survey — Family Law, 14 U. Ark. Little Rock L.J. 799.

U. Ark. Little Rock L. Rev.

Note: Family Law—Putative Fathers and the Presumption of Legitimacy—Adams and the Forbidden Fruit: Clashes Between the Presumption of Legitimacy and the Rights of Putative Fathers in Arkansas, 25 U. Ark. Little Rock L. Rev. 369.

Case Notes

Constitutionality.

Trial court ruling that utilizing this section to allow blood tests in evidence only to exclude paternity was not a denial of equal protection and that blood tests would not be admitted to establish paternity was evidentiary and thus not an appealable order. Story v. Hodges, 272 Ark. 365, 614 S.W.2d 506 (1981).

In General.

The claim of child support enforcement against putative father was an original action to establish paternity, as opposed to an action to modify a paternity order under § 9-10-115, and the judge correctly found paternity pursuant to subdivision (a)(6)(B) of this section. Bean v. Office of Child Support Enforcement, 340 Ark. 286, 9 S.W.3d 520 (2000).

Statute granting trial courts authority to order a paternity test made an express distinction between the type of testimony required when the mother was alive and when the mother was deceased; subdivision (a)(2)(A) of this section instructs that, upon motion of either party in a paternity action when the mother was deceased or unavailable, the trial court could order the putative father and child to submit to scientific testing for paternity. Watt v. Office of Child Support Enforcement, 364 Ark. 236, 217 S.W.3d 785 (2005).

Where the putative father and the child's mother had a brief romantic relationship, he did not know the mother was pregnant and did not see or talk to her after the encounter, and at the time an adoption petition was filed he had not registered with the putative-father registry, the putative father was not statutorily entitled to notice of the adoption proceeding. Escobedo v. Nickita, 365 Ark. 548, 231 S.W.3d 601 (2006).

Additional Tests.

Though subdivision (a)(5) of this section does not explicitly provide procedures for requesting additional court-ordered tests, the statute also does not exclude such a possibility; in light of the legislative intent that paternity of the children be established in the most expedient manner for all children of Arkansas, the circuit courts have wide discretion to take actions to resolve the question of paternity and may require a party requesting an additional paternity test to prove that the first test was defective before the court can compel a second paternity test. State Office of Child Support Enforcement v. Morgan, 364 Ark. 358, 219 S.W.3d 175 (2005).

Section 9-10-103 applies to paternity tests ordered by the Office of Child Support Enforcement and not to tests ordered by the court; this section specifically deals with court-ordered paternity tests and, more importantly, while some language in § 9-10-103 incorporates the procedures of this section, there is no language in this section incorporating the protections of § 9-10-103. State Office of Child Support Enforcement v. Morgan, 364 Ark. 358, 219 S.W.3d 175 (2005).

Admissibility.

The trial court erred in allowing into evidence two blood tests which did not exclude defendant as being the father, for the purpose of showing that he was the father. Winston v. Robinson, 270 Ark. 996, 606 S.W.2d 757 (1980).

Fact of refusal to take blood test is admissible. Cox v. Farrell, 292 Ark. 177, 728 S.W.2d 954 (1987).

Blood tests inadmissible where person who verified test results did not perform them. This section requires that person performing blood test make verification thereon. Tolhurst v. Reynolds, 21 Ark. App. 94, 729 S.W.2d 25 (1987).

Where a paternity test was required to be notarized under subdivision (a)(5)(A) of this section, it was a self-authenticating document under Ark. R. Evid. Rule 902(8) and plaintiff was not required to produce any extrinsic evidence of authenticity as a condition precedent to admissibility. Barnes v. Barnes, 311 Ark. 287, 843 S.W.2d 835 (1992).

Appeals.

In a suit alleging paternity, an order for the defendant to report for paternity blood testing under this section is not final, and therefore not appealable under Ark. R. App. P. Civ. 2(a). Helton v. Ark. Dep't of Human Servs., 309 Ark. 268, 828 S.W.2d 842 (1992).

Burden of Proof.

In a paternity proceeding brought against a living putative father, the mother's burden of proof is a mere preponderance of the evidence, as the proceeding is civil in nature. Stewart v. Winfrey, 308 Ark. 277, 824 S.W.2d 373 (1992); Barnes v. Barnes, 311 Ark. 287, 843 S.W.2d 835 (1992); Erwin L.D. v. Myla Jean L., 41 Ark. App. 16, 847 S.W.2d 45 (1993).

A Roche blood-test report finding a 99.98% probability that defendant was the father of plaintiff's child, along with the corroborating testimony of plaintiff, constituted a prima facie case of establishment of paternity; defendant had the burden of rebutting this proof. Bain v. State, 56 Ark. App. 7, 937 S.W.2d 670 (1997).

If the results of the paternity tests conducted pursuant to subdivision (a)(2) of this section establish a ninety-five percent (95%) or more probability of inclusion that the putative father is the biological father of the child, and there is corroborating testimony concerning the conception, birth, and history of the child, a prima facie case of establishment of paternity is created, and the burden of proof shall shift to the putative father to rebut such proof. Bean v. Office of Child Support Enforcement, 340 Ark. 286, 9 S.W.3d 520 (2000).

Certification.

Although subsection (a) of this section was amended to allow for certification by an expert under whose supervision or direction the test has been performed, the statements by the signatory of the report, that she was a director of the laboratory and that she had read the report, also fell short of meeting the foundational prerequisites for admission under the amended version. Bain v. State, 56 Ark. App. 7, 937 S.W.2d 670 (1997).

Chain of Custody.

Like a challenge of the test procedures or results pursuant to subdivision (a)(5)(A) of this section, subdivision (a)(5)(B)(i) of this section requires a contest on chain-of-custody grounds within 30 days of trial. Parks v. Ewans, 316 Ark. 91, 871 S.W.2d 343 (1994).

Circuit court did not err when it admitted the seven appellees' reports of DNA test results into evidence, after finding substantial compliance with subdivision (a)(5)(B) of this section, and held that decedent was appellees' biological father, rejecting the contention of decedent's estate that strict compliance with the statutory requirements concerning chain-of-custody affidavits was required. All of the DNA test results contained supporting documentation of the collection and receipt of the samples at the testing facility, the packages containing the DNA specimens were examined for integrity upon receipt at the lab, and there was no sign of tampering during transit; and the case did not involve any challenge to the authenticity of the DNA test results or any allegation of tampering. Johnson v. Johnson, 2020 Ark. App. 9, 593 S.W.3d 33 (2020).

Corroboration.

Since subdivision (a)(6)(A) of this section requires corroborating testimony of access from the mother, where mother's affidavit providing corroboration was not proffered, the statutory presumption never arose. State v. Rogers, 50 Ark. App. 108, 902 S.W.2d 243 (1995).

Cross-Examination.

The trial court was correct in ruling that laboratory report was not admissible, since the persons who performed the blood tests at the laboratory were not available for cross-examination. Chandler v. Baker, 16 Ark. App. 253, 700 S.W.2d 378 (1985).

Evidence.

Although putative father attempted to rebut the evidence of paternity by offering the Affidavit of Birth Out of Wedlock and birth certificate as evidence that someone else was the father, his rebuttal failed, because under the law applicable when those documents were executed, they constituted presumptive evidence of paternity only, not conclusive evidence. Bean v. Office of Child Support Enforcement, 340 Ark. 286, 9 S.W.3d 520 (2000).

Expert Witnesses.

In a paternity action, no prejudicial error found in plaintiff's examination of expert witness who administered blood test. Bradley v. Houston, 12 Ark. App. 351, 676 S.W.2d 746 (1984).

Ark. R. Civ. P. Rule 26(e), regarding supplementation of responses concerning expert witness, did not apply where court had ordered defendant and child to undergo blood tests. Bradley v. Houston, 12 Ark. App. 351, 676 S.W.2d 746 (1984).

Defendant failed to request expert witness's appearance within a reasonable time prior to trial where defendant made the request to cross-examine the expert who lived out-of-state only six business days before trial. Barnes v. Barnes, 311 Ark. 287, 843 S.W.2d 835 (1992).

Foreign Judgment.

As the North Carolina courts would give res judicata effect to its finding of paternity in a divorce judgment in its courts, the Arkansas court was required to do likewise under the constitutional command of full faith and credit in denying the defendant's motion for blood testing. Benac v. State, 34 Ark. App. 238, 808 S.W.2d 797 (1991).

Defendant failed to request expert witness's appearance within a reasonable time prior to trial where defendant made the request to cross-examine the expert who lived out-of-state only six business days before trial. Barnes v. Barnes, 311 Ark. 287, 843 S.W.2d 835 (1992).

Genetic Testing.

In light of the fact that recently developed genetic testing can, with a high degree of certainty, identify the father of a child, and be viewed as conclusive by the fact-finder in paternity suits, strict adherence to the statutory foundational prerequisites is not unreasonable. Ross v. Moore, 30 Ark. App. 207, 785 S.W.2d 243 (1990).

Circuit court did not err in denying the request for an additional paternity test because the Office of Child Support Enforcement presented no evidence that the first paternity test was untrustworthy or defective; however, the circuit court did not expressly determine that a dismissal with prejudice was in the best interests of the child as, at the time of the trial, paternity had not been established for the child and the only effect of a dismissal with prejudice was to permanently exclude appellee from further paternity testing. State Office of Child Support Enforcement v. Morgan, 364 Ark. 358, 219 S.W.3d 175 (2005).

Identity of Test-Giver.

Although the chancery court has broad discretion in determining whether blood test reports should be admitted into evidence, chancellor abused his discretion by admitting report that contained nothing to indicate the identity of the person who performed the test or whether the person who performed the test was a duly qualified expert, and was signed by the laboratory director and scientific director respectively, but did not indicate that these two men performed the test or that they were qualified experts. Boyles v. Clements, 302 Ark. 575, 792 S.W.2d 311 (1990).

Blood test inadmissible where there was nothing in the report to indicate the identity of the person who performed the test or whether the person who performed the test was a duly qualified expert. Ross v. Moore, 30 Ark. App. 207, 785 S.W.2d 243 (1990).

Notice of Objection.

Putative father was not required to give 30 days' notice in order to object to admission of a blood test report; such notice is required only where the chain of custody, test procedures, or results are contested. Bain v. State, 56 Ark. App. 7, 937 S.W.2d 670 (1997).

Paternity of Deceased Child.

Father's petition to establish paternity to a deceased child through DNA testing pursuant to this section was properly dismissed under Ark. R. Civ. P. 12(b)(1) and (6) as there was no provision in the statute for establishing paternity when it was the child who was deceased. Scoggins v. Medlock, 2011 Ark. 194, 381 S.W.3d 781 (2011).

Right to Counsel.

Putative father's physical liberty was not in jeopardy at the initial hearing when he was ordered to submit to a paternity test; thus, he was not guaranteed the right to counsel in the paternity proceeding. Burrell v. Ark. Dep't of Human Servs., 41 Ark. App. 140, 850 S.W.2d 8 (1993).

Sufficiency.

Evidence of blood tests was sufficient to establish that husband was not father of wife's child. Richardson v. Richardson, 252 Ark. 244, 478 S.W.2d 423 (1972).

Where the blood tests showed a 99.27% probability that the putative father was the father, he was living with the mother during the probable period of conception, and the mother stated she was not involved with anyone else at that time, this evidence gave her a statutory presumption of paternity. Stewart v. Winfrey, 308 Ark. 277, 824 S.W.2d 373 (1992).

Blood test showing a 99.59% probability that defendant was the natural father, coupled with the mother's testimony regarding access during the probable period of conception, gave rise to a statutory presumption of paternity which was not rebutted by the father. Barnes v. Barnes, 311 Ark. 287, 843 S.W.2d 835 (1992).

Where written blood test report did not comply with the foundational prerequisites set forth in subdivision (a)(5)(A), it could not be admitted into evidence. Bain v. State, 56 Ark. App. 7, 937 S.W.2d 670 (1997).

Cited: George v. George, 247 Ark. 17, 444 S.W.2d 62 (1969); Dunn v. Davis, 291 Ark. 492, 725 S.W.2d 853 (1987); Laden v. Morgan, 303 Ark. 585, 798 S.W.2d 678 (1990); Roe v. State, 304 Ark. 673, 804 S.W.2d 708 (1991); Green v. Bell, 308 Ark. 473, 826 S.W.2d 226 (1992); Davis v. Child Support Enforcement Unit, 326 Ark. 677, 933 S.W.2d 798 (1996); Blankenship v. Office of Child Support Enforcement, 58 Ark. App. 260, 952 S.W.2d 173 (1997); In re SCD, 358 Ark. 51, 186 S.W.3d 225 (2004).

9-10-109. Child support following finding of paternity.

      1. Subsequent to the execution of an acknowledgment of paternity by the father and mother of a child pursuant to § 20-18-408 or § 20-18-409, or a similar acknowledgment executed during the child's minority, or subsequent to a finding by the court that the putative father in a paternity action is the father of the child, the court shall follow the same guidelines, procedures, and requirements as set forth in the laws of this state applicable to child support orders and judgments entered by the circuit court as if it were a case involving a child born of a marriage in awarding custody, visitation, setting amounts of support, costs, and attorney's fees, and directing payments through the clerk of the court, or through the Arkansas Child Support Clearinghouse if the case was brought pursuant to Title IV-D of the Social Security Act 42 U.S.C. § 651 et seq.
      2. All child support payments paid by income withholding shall be subject to the provisions set forth in § 9-14-801 et seq.
    1. The court may provide for the payment of support beyond the eighteenth birthday of the child to address the educational needs of a child whose eighteenth birthday falls prior to graduation from high school so long as such support is conditional on the child's remaining in school.
    2. The court may also provide for the continuation of support for an individual with a disability that affects the ability of the individual to live independently from the custodial parent.
      1. All orders directing payments through the registry of the court or through the Arkansas Child Support Clearinghouse shall set forth a fee to be paid by the noncustodial parent or obligated spouse in the amount of thirty-six dollars ($36.00) per year.
      2. The fee shall be collected from the noncustodial parent or obligated spouse at the time of the first support payment and during the anniversary month of the entry of the order each year thereafter, or nine dollars ($9.00) per quarter at the option of the obligated parent, until no children remain minor and the support obligation is extinguished and any arrears are completely satisfied.
    1. The clerk upon direction from the court and as an alternative to collecting the annual fee during the anniversary month each year after entry of the order may prorate the first fee collected at the time of the first payment of support under the order to the number of months remaining in the calendar year and thereafter collect all fees as provided in this subsection during the month of January of each year.
      1. Payments made for this fee shall be made on an annual basis in the form of a check or money order payable to the clerk of the court or other such legal tender that the clerk may accept.
      2. This fee payment shall be separate and apart from the support payment, and under no circumstances shall the support payment be reduced to fulfill the payment of this fee.
    2. Upon the nonpayment of the annual fee by the noncustodial parent within ninety (90) days, the clerk may notify the payor under the order of income withholding for child support who shall withhold the fee in addition to any support and remit it to the clerk.
      1. All moneys collected by the clerk as a fee as provided in this subsection shall be used by the clerk's office to offset administrative costs as a result of this subchapter.
        1. Until all necessary data processing equipment has been acquired, at least twenty percent (20%) of the moneys collected annually shall be used to purchase, maintain, and operate an automated data system for use in administering the requirements of this subchapter.
        2. The acquisition and update of software for the automated data system shall be a permitted use of these funds.
        1. All fees collected under this subsection shall be paid into the county treasury to the credit of the fund to be known as the “support collection costs fund”.
        2. Moneys deposited into this fund shall be appropriated and expended for the uses designated in this subdivision (b)(5) by the quorum court at the direction of the clerk of the court.
  1. The clerk of the court shall maintain accurate records of all support orders and payments under this section.
  2. The clerk may accept the support payment in any form of cash or commercial paper, including personal checks, and may require that the custodial parent or nonobligated spouse be named as payee thereon.

History. Acts 1979, No. 71, § 1; 1985, No. 988, § 2; A.S.A. 1947, § 34-706.1; Acts 1987, No. 599, § 2; 1989 (3rd Ex. Sess.), No. 54, § 2; 1991, No. 1008, § 1; 1991, No. 1098, § 1; 1991, No. 1102, § 1; 1995, No. 1091, § 2; 1997, No. 208, § 6; 1997, No. 1296, §§ 5, 6; 1999, No. 1514, § 1.

A.C.R.C. Notes. Acts 1997, No. 208, § 1, as reenacted by Acts 2017, No. 255, § 1, provided: “Legislative intent and purpose. The General Assembly hereby acknowledges that many of the laws relating to individuals with disabilities are antiquated, functionally outmoded, derogatory, and ambiguous or are inconsistent with more recently enacted provisions of the law. Consequently, it is the intent of the General Assembly and the purpose of this act to clarify the relevant chapters of Titles 1, 6, 9, 13, 14, 16, 17, 20, 22, 23, and 27 of the Arkansas Code of 1987 Annotated.”

Publisher's Notes. Acts 1989 (3rd Ex. Sess.), No. 54, § 2, is also codified as § 9-12-312.

Research References

U. Ark. Little Rock L.J.

Seventeenth Annual Survey of Arkansas Law — Family Law, 17 U. Ark. Little Rock L.J. 557.

Case Notes

Construction.

Subdivision (a)(1) of this section and § 9-10-113(a) are congruous; the finding of paternity and the establishment of visitation therein is a final determination from which to use the same standards as other custody situations. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

Attorney's Fees.

Both subsection (a) of this section and § 9-27-342(d) provide a statutory basis for awarding attorney's fees in paternity actions. Beavers v. Vaughn, 41 Ark. App. 96, 849 S.W.2d 6 (1993).

The plain language of subdivision (a)(1) of this section limits an award of attorney's fees to proceedings in which the court finds the putative father to be the father of the child. Child Support Enforcement Unit v. Haller, 50 Ark. App. 10, 899 S.W.2d 485 (1995).

Where there was no finding that party was the father of the child, subdivision (a)(1) of this section does not provide a statutory basis to award attorney's fees. Child Support Enforcement Unit v. Haller, 50 Ark. App. 10, 899 S.W.2d 485 (1995).

Trial court did not abuse its discretion in denying mother's motion for attorney's fees in a paternity action; the trial court considered the proper factors in deciding the mother's attorney's fee motion and she failed to show an abuse of discretion by the trial court. Davis v. Williamson, 359 Ark. 33, 194 S.W.3d 197 (2004).

Burden of Proof.

Fathers of illegitimate children should certainly bear the same burden as fathers of legitimate children born of marriage. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

Custody.

Each parent has the right to request a change in custody; it is then that party's burden to show that there has been a change in circumstances since the original order establishing custody or that there were facts not presented at the initial hearing that would bear on the best interests of the child. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

It is not an unfair burden to require the biological father to prove a change of circumstances when the law presumes the child shall be in the custody of the mother and the paternity order establishes visitation. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

Joint Custody.

“Favored” status of joint custody specifically applies in divorce cases rather than custody cases involving children born to unmarried parents but this section expressly provides that, once paternity has been established, the court is ordered to follow “the same guidelines, procedures, and requirements … as if it were a case involving a child born of a marriage in awarding custody [and] visitation.” Accordingly, in a case concerning custody of a child born to unmarried parents, the circuit court did not err in recognizing that joint custody is “favored” under § 9-13-101. Ryan v. White, 2015 Ark. App. 494, 471 S.W.3d 243 (2015).

Once paternity is established, the presumption of awarding custody to the mother is erased, and the biological father is afforded the same right to establish a parental and custodial relationship with the child to which a married parent is entitled. Ryan v. White, 2015 Ark. App. 494, 471 S.W.3d 243 (2015).

Jurisdiction.

Where defendant was found to be father of child in paternity case and ordered to pay support and mother subsequently filed a petition under the Revised Uniform Enforcement of Support Act seeking modification of support order, petition was to be treated just as though it were a child support proceeding subsequent to a divorce, and in such a case, the chancery court that granted the divorce is the court that has continuing jurisdiction to modify the original allowance of child support. White v. Winston, 302 Ark. 345, 789 S.W.2d 459 (1990).

Modifications.

This section authorizes modifications from time to time in the continuing order of support but it does not authorize a modification of a finding of paternity. Wilkins v. Ford, 275 Ark. 469, 631 S.W.2d 298 (1982).

Public Policy.

Insofar as the agreement represented an attempt to permanently deprive the child of support, it was void as against public policy. Paul M. v. Teresa M., 36 Ark. App. 116, 818 S.W.2d 594 (1991).

Cited: Roe v. State, 304 Ark. 673, 804 S.W.2d 708 (1991); Green v. Bell, 308 Ark. 473, 826 S.W.2d 226 (1992); Rudolph v. Floyd, 309 Ark. 514, 832 S.W.2d 219 (1992); Reed v. Glover, 319 Ark. 16, 889 S.W.2d 729 (1994); Doughty v. Douglas, 2017 Ark. App. 445, 527 S.W.3d 732 (2017).

9-10-110. Judgment for lying-in expenses — Commitment on failure to pay.

  1. If it is found by the court that the accused is the father of the child, the court shall render judgment against him for the lying-in expenses in favor of the mother, person, or agency incurring the lying-in expenses, if claimed.
  2. If the lying-in expenses are not paid upon the rendition of the judgment, together with all costs that may be adjudged against him in the case, then the court shall have the power to commit the accused person to jail until the lying-in expenses are paid, with all costs.
    1. Bills and invoices for pregnancy and childbirth expenses and paternity testing are admissible as evidence in the circuit court or juvenile division of circuit court without third-party foundation testimony if such bills or invoices are regular on their face.
    2. Such bills or invoices shall constitute prima facie evidence of amounts incurred for such services or for testing on behalf of the child.

History. Acts 1875 (Adj. Sess.), No. 24, § 5, p. 25; 1879, No. 72, § 3, p. 95; C. & M. Dig., § 777; Acts 1927, No. 111, § 1; Pope's Dig., § 933; Acts 1955, No. 236, § 1; 1979, No. 718, § 1; 1983, No. 177, § 1; A.S.A. 1947, § 34-706; Acts 1997, No. 1296, § 7.

Research References

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Family Law, 1 U. Ark. Little Rock L.J. 200.

Shively, Survey of Family Law, 3 U. Ark. Little Rock L.J. 223.

Legislation of the 1983 General Assembly, Family Law, 6 U. Ark. Little Rock L.J. 624.

Case Notes

Constitutionality.

This section does not discriminate on the basis of sex and does not violate the equal protection clause. Eaves v. Dover, 291 Ark. 545, 726 S.W.2d 276 (1987).

Purpose.

The major purpose of Arkansas' filiation laws is to provide a process by which the putative father can be identified so that he may assume his equitable share of the responsibility to his child. Eaves v. Dover, 291 Ark. 545, 726 S.W.2d 276 (1987).

Counsel.

While the statutes provide that the prosecuting attorney shall conduct the suit on behalf of the state on all appeals to the circuit court in cases of paternity, this does not mean that the mother of the child cannot have an attorney to represent her nor does it mean that the suit must be dismissed if the prosecuting attorney does not appear in the case. Epperson v. Sharp, 222 Ark. 456, 261 S.W.2d 267 (1953).

Determination of Liability.

Father has no vested right to have his liability determined by law as it existed when the child was born; this is not an ex post facto law. State ex rel. Woolems v. Davis, 178 Ark. 692, 11 S.W.2d 479 (1928).

Discretion of Court.

The trial court has discretion in assessing the amount of any awards made under this section. Eaves v. Dover, 291 Ark. 545, 726 S.W.2d 276 (1987).

The court, in awarding lying-in expenses or attorney's fees under this section, may exercise its discretion in determining the amount that father should bear, and in doing so, it may even consider the mother's financial means when making an award. Eaves v. Dover, 291 Ark. 545, 726 S.W.2d 276 (1987).

Proof.

A judgment awarding lying-in expenses and maintenance of the child would not be reversed because there was no proof as to the amount of the expenses. Belford v. State, 96 Ark. 274, 131 S.W. 953 (1910).

Trial court did not err in denying some of the expenses included in mother's claim for lying-in expenses as this section includes expenses directly connected to the birth of a healthy infant and does not normally include items such as maternity clothes, lost wages, or counseling that are for the benefit of the mother; further, this section allows expenses to be paid to the person incurring the expense and the trial court would have considered a claim for medical expenses paid by the prospective adoptive parents, however, the mother failed to provide proof that she incurred the medical expenses allegedly paid by the adoptive parents. Taylor v. Finck, 363 Ark. 183, 211 S.W.3d 532 (2005).

Trail court did not err in disallowing counseling expenses where nothing in the record indicated that the counseling was for her baby. Taylor v. Finck, 363 Ark. 183, 211 S.W.3d 532 (2005).

Trail court did not err in disallowing expenses for maternity clothes since no Arkansas cases considered maternity clothes as lying-in expenses. Taylor v. Finck, 363 Ark. 183, 211 S.W.3d 532 (2005).

Trail court did not err in disallowing medical expenses that had been paid by prospective adoptive parents where the mother failed to adequately prove that she had incurred the expenses allegedly paid. Taylor v. Finck, 363 Ark. 183, 211 S.W.3d 532 (2005).

Trail court properly disallowed two medical bills for which a Medicaid claim was pending where the mother failed to show that the expenses had either been paid or incurred. Taylor v. Finck, 363 Ark. 183, 211 S.W.3d 532 (2005).

Cited: Dozier v. Veasley, 272 Ark. 210, 613 S.W.2d 93 (1981); Roque v. Frederick, 272 Ark. 392, 614 S.W.2d 667 (1981); Wilkins v. Ford, 275 Ark. 469, 631 S.W.2d 298 (1982); Davis v. Child Support Enforcement Unit, 326 Ark. 677, 933 S.W.2d 798 (1996).

9-10-111. Judgment for child support — Bond.

  1. If it is found by the circuit court that the accused is the father of the child and, if claimed by the mother, the circuit court or circuit judge shall give judgment for a monthly sum of not less than ten dollars ($10.00) per month for every month from the birth of the child until the child attains eighteen (18) years of age.
    1. The court shall further order that the father enter into bond to the State of Arkansas in the penal sum of five hundred dollars ($500), with good and sufficient security.
    2. The bond shall be void if the person or his executors or administrators indemnify each county in this state from all costs and expenses for the maintenance or otherwise of the child while under eighteen (18) years of age and for the payment of the monthly payments that may be adjudged as provided in subsection (a) of this section.
    3. Bonds shall be approved by the circuit judge and an entry made on the record of the conditions and the securities thereon.
  2. If the person refuses or neglects to enter into bond with security as provided in this section, the circuit judge shall commit him to the jail of the county, there to remain until he complies with the order or until he is otherwise discharged according to law.

History. Acts 1875 (Adj. Sess.), No. 24, § 5, p. 25; 1879, No. 72, § 3, p. 95; C. & M. Dig., §§ 777, 778; Acts 1927, No. 111, § 1; Pope's Dig., §§ 933, 934; Acts 1955, No. 236, § 1; 1979, No. 718, § 1; 1983, No. 177, § 1; A.S.A. 1947, §§ 34-706, 34-707.

Research References

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Family Law, 1 U. Ark. Little Rock L.J. 200.

Shively, Survey of Family Law, 3 U. Ark. Little Rock L.J. 223.

Legislation of the 1983 General Assembly, Family Law, 6 U. Ark. Little Rock L.J. 624.

Case Notes

Counsel.

While the statutes provide that the prosecuting attorney shall conduct the suit on behalf of the state on all appeals to the circuit court in cases of paternity, this does not mean that the mother of the child cannot have an attorney to represent her nor does it mean that the suit must be dismissed if the prosecuting attorney does not appear in the case. Epperson v. Sharp, 222 Ark. 456, 261 S.W.2d 267 (1953).

Determination of Liability.

Father has no vested right to have his liability determined by law as it existed when the child was born; this is not an ex post facto law. State ex rel. Woolems v. Davis, 178 Ark. 692, 11 S.W.2d 479 (1928).

The trial court was not limited to amounts actually expended for past support. Green v. Bell, 308 Ark. 473, 826 S.W.2d 226 (1992).

Modification.

A general reservation of jurisdiction, in the absence of fraud or another ground listed under Ark. R. Civ. P. 60(c), will permit modification of a decree after 90 days only with respect to issues that were before the court in the original action. Beavers v. Vaughn, 41 Ark. App. 96, 849 S.W.2d 6 (1993).

Noncompliance.

Commitment of the putative father of an illegitimate child to jail indefinitely for failure to pay sums to the prosecuting witness and to furnish bond was held erroneous where the evidence disclosed that it was impossible for him to comply with the order of the county court. Hemby v. State, 188 Ark. 586, 67 S.W.2d 182 (1934).

Police Power.

Imprisonment under this statute is an exercise of police powers and not for debt. Land v. State, 84 Ark. 199, 105 S.W. 90 (1907).

Retroactive Support.

Circuit court erred in declining to award retroactive child support where the basis for its decision, i.e., that the father had not been able to have visitation with the child since birth, was in violation of subsection (a) of this rule; in addition, Arkansas caselaw is clear that a parent's child-support obligation does not depend on the parent's relationship or visitation with the child. Walden v. Jackson, 2016 Ark. App. 573, 506 S.W.3d 904 (2016).

Trial court clearly erred in failing to award the mother child-support arrearages for the period between the date when the father stopped providing voluntary support for the child to the date the father filed his petition to establish paternity as the father had never disputed his paternity and had paid child support or shared expenses previously. Henderson v. Johnston, 2017 Ark. App. 620, 534 S.W.3d 196 (2017).

Trial court clearly erred in abating the father's child-support obligation for the period the mother and child were living in another country as the obligation for child support did not depend on the father's relationship or visitation with the child. Henderson v. Johnston, 2017 Ark. App. 620, 534 S.W.3d 196 (2017).

Circuit court abused its discretion by determining not to award any amount of retroactive support because an award of retroactive child support from the date of the child's birth is statutorily required. Furthermore, while the creation of a trust or educational savings account is a deviation factor under the Arkansas Child Support Guidelines, the court cannot order the creation of such accounts in lieu of an award of retroactive support. Szwedo v. Cyrus, 2019 Ark. App. 23, 570 S.W.3d 484 (2019).

Cited: Belford v. State, 96 Ark. 274, 131 S.W. 953 (1910); Dozier v. Veasley, 272 Ark. 210, 613 S.W.2d 93 (1981); Roque v. Frederick, 272 Ark. 392, 614 S.W.2d 667 (1981); Wilkins v. Ford, 275 Ark. 469, 631 S.W.2d 298 (1982); Watt v. Office of Child Support Enforcement, 364 Ark. 236, 217 S.W.3d 785 (2005).

9-10-112. Income withholding — Delinquent noncustodial parent.

    1. Except as provided in subsection (b) of this section, all persons under court order on August 1, 1985, to pay support who become delinquent thereunder in an amount equal to the total court-ordered support payable for thirty (30) days shall be subject to income withholding.
      1. In all orders that provide for the payment of money for the support of any child, the circuit court shall include a provision directing a payor to deduct from money, income, or periodic earnings due the noncustodial parent an amount that is sufficient to meet the periodic child support payments imposed by the court, plus an additional amount of not less than twenty percent (20%) of the periodic child support payment to be applied toward liquidation of any accrued arrearage due under the order.
      2. The use of income withholding does not constitute an election of remedies and does not preclude the use of other enforcement remedies.
    1. Beginning October 1, 1989, in all cases brought pursuant to Title IV-D of the Social Security Act, 42 U.S.C. § 651 et seq., the support orders issued or modified shall include a provision for immediate implementation of income withholding, absent a finding of good cause not to require immediate income withholding or a written agreement of the parties incorporated in the order setting forth an alternative agreement. Otherwise, it shall become effective under subsection (a) of this section following the procedure set forth in subsection (c) of this section, or as provided in subsection (d) of this section.
    2. Beginning January 1, 1994, all support orders issued or modified shall include a provision for immediate implementation of income withholding absent a finding of good cause not to require immediate income withholding or a written agreement of the parties incorporated in the order setting forth an alternative agreement.
    3. In all non-Title IV-D cases brought prior to January 1, 1994, the support order may include a provision for immediate implementation of income withholding, absent a finding of good cause not to require immediate withholding or a written agreement of the parties incorporated in the order setting forth an alternative agreement. The judge of each division shall determine if all support orders shall be subject to the provisions of this section and shall enter a standing order setting forth the treatment of non-Title IV-D cases in that division prior to January 1, 1994.
  1. In activating an order of income withholding that did not become effective immediately, the court shall follow the same procedures and requirements as set forth in the laws of this state applicable to child support orders and judgments entered by the circuit court.
  2. In cases brought pursuant to Title IV-D of the Social Security Act, 42 U.S.C. § 651 et seq., with support orders effective prior to October 1, 1989, income withholding may take effect immediately in any child support case at the request or upon the consent of the noncustodial parent.

History. Acts 1983, No. 592, § 1; 1985, No. 988, § 3; A.S.A. 1947, § 34-706.2; Acts 1989, No. 948, § 1; 1991, No. 1095, § 1; 1993, No. 396, § 3; 2003, No. 1020, § 1.

Cross References. Jurisdiction of circuit courts, Ark. Const. Amend. 80, §§ 6, 19.

Research References

U. Ark. Little Rock L.J.

Legislation of the 1983 General Assembly, Family Law, 6 U. Ark. Little Rock L.J. 624.

Case Notes

Cited: Cochran v. Cochran, 309 Ark. 604, 832 S.W.2d 252 (1992); Ark. Dep't of Human Servs. v. Hardy, 316 Ark. 119, 871 S.W.2d 352 (1994).

9-10-113. Custody of child born outside of marriage.

  1. When a child is born to an unmarried woman, legal custody of that child shall be in the woman giving birth to the child until the child reaches eighteen (18) years of age unless a court of competent jurisdiction enters an order placing the child in the custody of another party.
  2. A biological father, provided he has established paternity in a court of competent jurisdiction, may petition the circuit court in the county where the child resides for custody of the child.
  3. The court may award custody to the biological father upon a showing that:
    1. He is a fit parent to raise the child;
    2. He has assumed his responsibilities toward the child by providing care, supervision, protection, and financial support for the child; and
    3. It is in the best interest of the child to award custody to the biological father.
  4. When in the best interest of a child, visitation shall be awarded in a way that assures the frequent and continuing contact of the child with the mother and the biological father.

History. Acts 1981, No. 665, § 1; A.S.A. 1947, § 34-718; Acts 1987, No. 488, § 1; 1987, No. 667, § 1; 2003, No. 1185, § 13; 2007, No. 654, § 1.

Publisher's Notes. Acts 1981, No. 665, § 2, stated the General Assembly's finding and determination that, prior to June 17, 1981, parents of illegitimate children were not being accorded equal protection of the law and that the United States Supreme Court had determined that both parents of an illegitimate child have a right to establish a parental and custodial relationship with the child.

Amendments. The 2007 amendment substituted “child born outside of marriage” for “illegitimate child” in the section heading; and added (d).

Cross References. Uniform Child-Custody Jurisdiction and Enforcement Act, § 9-19-101 et seq.

Research References

U. Ark. Little Rock L.J.

Legislative Survey, Family Law, 4 U. Ark. Little Rock L.J. 595.

Arkansas Law Survey, Price, Civil Procedure, 9 U. Ark. Little Rock L.J. 91.

Survey — Family Law, 10 U. Ark. Little Rock L.J. 577.

Seventeenth Annual Survey of Arkansas Law — Family Law, 17 U. Ark. Little Rock L.J. 557.

Case Notes

In General.

Under this section, a biological father may petition for custody, provided that he has established paternity. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

Trial court did not procedurally err in considering the mother's evidence of her fitness to have custody of the child where although the mother had not filed an affirmative pleading in response to the biological father's temporary custody action, custody of the child was with the mother under this section, and thus, permanent custody was the issue to be decided at the final hearing. Deaton v. Morgan, 2014 Ark. App. 521, 443 S.W.3d 580 (2014).

Trial court did not clearly err in granting custody of the child to the mother where the testimony concerning the mother's living situation, her employment, and her attentiveness to the child did not leave the appellate court with a definite and firm conviction that a mistake had been made. Deaton v. Morgan, 2014 Ark. App. 521, 443 S.W.3d 580 (2014).

Construction.

Section 9-10-109(a)(1) and subsection (a) of this section are congruous; the finding of paternity and the establishment of visitation therein is a final determination from which to use the same standards as other custody situations. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

Best Interest of Child.

Trial court did not err in awarding custody of the parties' child to the mother. There was evidence that the mother had been the primary caregiver during the child's life and was able to provide a suitable home with help from family members to care for the child. Smith v. Hudgins, 2014 Ark. App. 150, 433 S.W.3d 265 (2014).

Burden of Proof.

Each parent has the right to request a change in custody; it is then that party's burden to show that there has been a change in circumstances since the original order establishing custody or that there were facts not presented at the initial hearing that would bear on the best interests of the child. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

Fathers of illegitimate children should certainly bear the same burden as fathers of legitimate children born of marriage. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

Change in Circumstances.

It is not an unfair burden to require the biological father to prove a change of circumstances when the law presumes the child shall be in the custody of the mother and the paternity order establishes visitation. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

The chancellor did not err by charging father with showing a change of circumstances since the last custody order, which the chancellor deemed the initial determination of paternity, and adding this to the three requirements listed in subsection (c) of this section, since a “material change of circumstances” is required in other change of custody cases. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

Where a child was born outside of marriage and the father petitioned for a change of custody so that he could gain custody, although the appellate court had doubts about the father's alleged drug use, the circuit court, after weighing the evidence, properly decided that evidence existed to support a finding of changed circumstances, and determined that awarding custody of the child to the father was in the child's best interests. Cranston v. Carroll, 97 Ark. App. 23, 242 S.W.3d 643 (2006).

Order awarding custody of an illegitimate child to the child's father was upheld where the trial court did not err in not requiring the father to prove a material change of circumstances prior to the entry of the custody order; although an original visitation order did not set a future date for a custody hearing, the order was temporary in nature because it did not resolve the issue of custody. Harmon v. Wells, 98 Ark. App. 355, 255 S.W.3d 501 (2007).

In a petition for protection, paternity, and custody, a father, before being awarded custody of his minor daughter, was not required to show a material change of circumstances under this section because no order had been entered regarding custody until the father filed his petition. Donato v. Walker, 2010 Ark. App. 566, 377 S.W.3d 437 (2010).

Trial court erred in requiring a biological father to prove a material change of circumstances in order to obtain custody of his two children because it was an initial custody determination with the paternity action, not a change of custody action. Lane v. Blevins, 2013 Ark. App. 270 (2013).

In a custody case involving a child born to unmarried parents, a father was not required to establish a material change of circumstances; because the father filed his petition for custody before paternity was established, and a subsequent June 11, 2013, order was temporary in nature, the father only had to meet the three requirements in this section to be awarded custody. Moreover, the mother initially exhibited a lack of regard for the father's opportunity and time to be with the child, an award of joint custody was in the best interest of the child, and both parties were appropriate for the placement of the child in their care and custody. Ryan v. White, 2015 Ark. App. 494, 471 S.W.3d 243 (2015).

Father of an out-of-wedlock child was required to plead and establish a material change of circumstances where a paragraph in the initial paternity judgment stated that the mother had custody until a subsequent order placed the child in the custody of another person or the child turned 18, whichever was later, that paragraph was an enforceable judicial determination that clearly established custodial rights even though it was silent as to the father's visitation rights, and nothing in the order indicated that it was temporary. Rivers v. DeBoer, 2019 Ark. App. 132, 572 S.W.3d 887 (2019).

Custody to Father.

Circuit court was in the best position to judge the witnesses' credibility in what was essentially a swearing match about who would be the better custodial parent, and the appellate court deferred to the circuit court's decision granting custody of the parties' daughter born out of wedlock to the father. The circuit court's rulings banning alcohol, drugs, and cohabitation by unwed or non-blood relatives adequately addressed any other issues about the father's custody being in his daughter's best interest. Medina v. Roberts, 2010 Ark. App. 165 (2010).

In a petition for protection, paternity, and custody, the trial court properly awarded custody of the parties' minor daughter to the father because the evidence showed that the mother's temper scared her daughter, that the mother attempted to commit suicide, and that the father was an exceptional parent. Donato v. Walker, 2010 Ark. App. 566, 377 S.W.3d 437 (2010).

Order granting custody of the parties' child to the father following a finding of paternity was proper because the circuit court's finding that it was in the child's best interest to be in the custody of the father was not clearly erroneous. Although the circuit court recognized the mother's homosexual relationship, it was her “lifestyle choices” that resulted in the decision to award custody to the father, including the fact that she was not employed and was not progressing academically in college and yet she left the child in daycare. Brimberry v. Gordon, 2013 Ark. App. 473 (2013).

Trial court properly awarded custody to a father because he established his paternity, had provided housing and support for the child since her birth, and the mother failed to preserve her arguments regarding any “material change in circumstances.” Abo v. Walker, 2014 Ark. App. 500 (2014).

Custody to Third Party.

An award of custody of a child to the child's grandmother, with liberal visitation to the father was appropriate, where (1) the biological mother surrendered custody to the grandmother, (2) the father never voluntarily established his paternity and failed to assume his responsibilities toward the child for over 3 years, (3) the father recognized the difficulties he and his wife would face if there was an immediate removal of the child from the only home she had known, and (4) the grandmother also had custody of a half-sister of the child. Freshour v. West, 334 Ark. 100, 971 S.W.2d 263 (1998).

Joint Custody.

“Favored” status of joint custody specifically applies in divorce cases rather than custody cases involving children born to unmarried parents but § 9-10-109 expressly provides that, once paternity has been established, the court is ordered to follow “the same guidelines, procedures, and requirements … as if it were a case involving a child born of a marriage in awarding custody [and] visitation.” Accordingly, in a case concerning custody of a child born to unmarried parents, the circuit court did not err in recognizing that joint custody is “favored” under § 9-13-101. Ryan v. White, 2015 Ark. App. 494, 471 S.W.3d 243 (2015).

In awarding a biological father joint custody and increased visitation time with a child born out of wedlock, the circuit court did not improperly predicate its child custody ruling on § 9-13-101(a)(1) where it simply acknowledged the favored status joint custody received under that statute. Gibson v. Keener, 2016 Ark. App. 363, 498 S.W.3d 760 (2016).

Circuit court did not err in finding a material change in circumstances to warrant a change of custody where the evidence showed that the father's relationship with the child had blossomed into a parent-child relationship that had not yet begun at the time of the last custody order, and although there was conflicting testimony on the father's alcohol use and how much involvement he had with the child's care, the evidence supported the circuit court's conclusion that the mother and father were reasonable parents capable of co-parenting. Gibson v. Keener, 2016 Ark. App. 363, 498 S.W.3d 760 (2016).

Parental Fitness.

The chancellor was clearly justified in denying father's motion to change custody where the clear evidence established that he had not assumed the responsibilities specified in subdivision (c)(2) of this section, even if he was deemed a fit parent in other respects. State Office of Child Support Enforcement v. Mitchell, 61 Ark. App. 54, 964 S.W.2d 218 (1998).

Court properly awarded custody of child to the father where paternity was established, the father paid child support and was a fit parent, the mother was unemployed, and she failed to aid the facilitation of a relationship between the father and the child. Sheppard v. Speir, 85 Ark. App. 481, 157 S.W.3d 583 (2004).

Court erred by awarding child custody to a father because the mother lived within her means, was receiving child support, was receiving legitimate governmental aid, and managed to run an independent household where she could be a full-time parent. Although the father had held down a full-time job for several years, had his family to support his parenting, and had taken responsibility for the child, he lived with his parents, he had a sister who could not be left alone with the child due to drug-abuse concerns, and he had no experience in raising a child. Sykes v. Warren, 99 Ark. App. 210, 258 S.W.3d 788 (2007).

Trial court properly awarded custody of a child to his biological father, pursuant to subsection (a) of this section, where the father had a clean, stable, loving environment for the child; the child suffered from a dog bite wound and had dirty hygiene while in the care of his mother, whose religious beliefs and mental health were factors in the trial court's assessment of the child's best interests. Hicks v. Cook, 103 Ark. App. 207, 288 S.W.3d 244 (2008).

Presumption of Custody.

Before 1987, no provisions for presumption of custody were in this section, and either parent of an illegitimate child could petition for custody under the same three criteria; however, in 1987, the legislature changed this section be adding a presumption of custody in the mother and leaving the father with the right to seek custody after establishing paternity. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

The order establishing paternity gave the statutory presumption the effect of judicial determination. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

Implicit in an order of paternity establishing visitation is a determination that custody should continue to rest in the mother. Norwood v. Robinson, 315 Ark. 255, 866 S.W.2d 398 (1993).

Relation to Divorce Cases.

In a divorce case, a wife's argument under this section relating to children that were born out of wedlock was rejected because this section is part of the Paternity Code, and its applicability did not extend to divorce decrees; moreover, the husband alleged that he was the father of the children born out of wedlock in his divorce complaint, the allegation was uncontested by the wife, and the divorce decree stated that the husband was the father. Villanueva v. Valdivia, 2016 Ark. App. 107, 483 S.W.3d 308 (2016).

Venue.

The fact that the legislature provided for venue in two counties in § 9-10-104 (rewritten by 1989 amendment), which governs suits brought by a father to determine paternity, but only one county in this section, demonstrates that this section was intended to limit venue in custody actions to the county wherein the child resides. Fuller v. Robinson, 279 Ark. 252, 650 S.W.2d 585 (1983).

Mother properly raised a venue argument in her first responsive pleading; however, the issue was without merit because the provisions of this section were inapplicable in a case where a minor child no longer resided in Arkansas. Thomas v. Avant, 370 Ark. 377, 260 S.W.3d 266 (2007).

Cited: Roque v. Frederick, 272 Ark. 392, 614 S.W.2d 667 (1981); Jarmon v. Brown, 286 Ark. 455, 692 S.W.2d 618 (1985); Hooks v. Pratte, 53 Ark. App. 161, 920 S.W.2d 24 (1996); Leach v. Leach, 57 Ark. App. 155, 942 S.W.2d 286 (1997); Gilbert v. Moore, 364 Ark. 127, 216 S.W.3d 583 (2005).

9-10-114. Visitation rights of father.

When any circuit court in this state determines the paternity of a child and orders the father to make periodic payments for support of the child, the court may also grant reasonable visitation rights to the father and may issue such orders as may be necessary to enforce the visitation rights.

History. Acts 1979, No. 621, § 1; A.S.A. 1947, § 34-715.

Research References

U. Ark. Little Rock L.J.

Shively, Survey of Family Law, 3 U. Ark. Little Rock L.J. 223.

Case Notes

Contempt Power.

A chancery court has the power to use its contempt power to enforce its order awarding visitation to a stepparent in the context of a divorce decree. Young v. Smith, 331 Ark. 525, 964 S.W.2d 784 (1998).

Cited: Roque v. Frederick, 272 Ark. 392, 614 S.W.2d 667 (1981).

9-10-115. Modification of orders or judgments.

  1. The circuit court may at any time enlarge, diminish, or vacate any order or judgment in the proceedings under this section except in regard to the issue of paternity as justice may require and on such notice to the defendant as the court may prescribe.
  2. The court shall not set aside, alter, or modify any final decree, order, or judgment of paternity in which paternity blood testing, genetic testing, or other scientific evidence was used to determine the adjudicated father as the biological father.
  3. Any signatory to a voluntary acknowledgment of paternity may rescind the acknowledgment by completing a form provided for that purpose and filing the form with the Division of Vital Records of the Department of Health:
    1. Prior to the date that an administrative or judicial proceeding, including a proceeding to establish a support order, is held relating to the child and the person executing the voluntary acknowledgment of paternity is a party; or
    2. Within sixty (60) days of executing the voluntary acknowledgment of paternity,
    1. Beyond the sixty-day period or other limitation set forth in subsection (c) of this section, a person may challenge a paternity establishment pursuant to a voluntary acknowledgment of paternity or an order based on an acknowledgment of paternity only upon an allegation of fraud, duress, or material mistake of fact.
    2. The burden of proof shall be upon the person challenging the establishment of paternity.
      1. When any man has been adjudicated to be the father of a child or is deemed to be the father of a child pursuant to an acknowledgment of paternity without the benefit of scientific testing for paternity and as a result was ordered to pay child support, he shall be entitled to one (1) paternity test, pursuant to § 9-10-108, at any time during the period of time that he is required to pay child support upon the filing of a motion challenging the adjudication or acknowledgment of paternity in a court of competent jurisdiction.
      2. If an acknowledgment of paternity was the basis for the order of support, the motion must comply with the requirements of subsection (d) of this section.
    1. The duty to pay child support and other legal obligations shall not be suspended while the motion is pending except for good cause shown, which shall be recited in the court's order.
    1. If the test administered under subdivision (e)(1)(A) of this section excludes the adjudicated father or man deemed to be the father pursuant to an acknowledgment of paternity as the biological father of the child and the court so finds, the court shall:
      1. Set aside the previous finding or establishment of paternity;
      2. Find that there is no future obligation of support;
      3. Order that any unpaid support owed under the previous order is vacated; and
      4. Order that any support previously paid is not subject to refund.
    2. If the name of the adjudicated father or man deemed to be the father pursuant to an acknowledgment of paternity appears on the birth certificate of the child, the court shall issue an order requiring the birth certificate to be amended to delete the name of the father.
  4. If the test administered under subdivision (e)(1)(A) of this section confirms that the adjudicated father or man deemed to be the father pursuant to an acknowledgment of paternity is the biological father of the child, the court shall enter an order adjudicating paternity and setting child support in accordance with § 9-10-109, the guidelines for child support, and the family support chart.

whichever date occurs first.

History. Acts 1875 (Adj. Sess.), No. 24, § 5, p. 25; 1879, No. 72, § 3, p. 95; C. & M. Dig., § 777; Acts 1927, No. 111, § 1; Pope's Dig., § 933; Acts 1955, No. 236, § 1; 1979, No. 718, § 1; 1983, No. 177, § 1; A.S.A. 1947, § 34-706; Acts 1993, No. 1242, § 8; 1995, No. 1091, § 3; 1997, No. 1296, § 8; 1999, No. 1514, § 2; 2001, No. 1736, § 1; 2007, No. 60, § 1.

A.C.R.C. Notes. As originally enacted, subsection (a) provided:

“The chancery court may at any time….” Amendment 80 to the Arkansas Constitution was adopted by voter referendum and became effective July 1, 2001. Amendment 80 established circuit courts as the trial courts of original jurisdiction of all justiciable matters not otherwise assigned pursuant to the Constitution and specifically provided that “jurisdiction conferred on Circuit Courts established by this Amendment includes all matters previously cognizable by Circuit, Chancery, Probate and Juvenile Courts….”

Acts 2007, No. 60, § 1, in amending § 9-10-115(f)(1) deleted the language “relieve him of any future obligation of support as of the date of the finding” without markup. Upon review of the language of the bill as introduced and the language of the amendment to the bill, it was determined that it was the intent of the amendment to replace the missing language with the language that is now subdivision (f)(1)(B). Therefore, the missing language is repealed.

Amendments. The 2007 amendment added (f)(1)(B) through (D); redesignated the former provisions of (f)(1) as the introductory language of (f)(1) and (f)(1)(A), and made related changes.

Research References

Ark. L. Rev.

Case Note, Child Support Supported: Policy Trumps Equity in Martin v. Pierce Despite Fraud and a Controversial Amendment to the Paternity Code, 61 Ark. L. Rev. 571.

Rachel A. Orr, Recent Developments: Putative Father Entitled to Paternity Test Only During the Period of Time That He Is Required to Pay Child Support, 65 Ark. L. Rev. 517 (2012).

Brittany Horn, Case Note: Who's Your Daddy? State v. Perry and Its Impact on Paternity and the Rights of Adjudicated Fathers in Arkansas, 66 Ark. L. Rev. 1059 (2013).

U. Ark. Little Rock L.J.

Survey of Arkansas Law, Family Law, 1 U. Ark. Little Rock L.J. 200.

Shively, Survey of Family Law, 3 U. Ark. Little Rock L.J. 223.

Legislation of the 1983 General Assembly, Family Law, 6 U. Ark. Little Rock L.J. 624.

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Family Law, 24 U. Ark. Little Rock L. Rev. 483.

Case Notes

Purpose.

The major purpose of Arkansas' filiation laws is to provide a process by which the putative father can be identified so that he may assume his equitable share of the responsibility to his child. Eaves v. Dover, 291 Ark. 545, 726 S.W.2d 276 (1987).

Previously adjudicated or acknowledged father could not be relieved of past-due child support as this statute only refers to relief from any future obligation of support and the duty to pay child support and other legal obligations is not suspended while a motion challenging the adjudication of paternity is pending; the legislature did not intend for a previously adjudicated or acknowledged father to be relieved of past-due child support upon a finding that he was actually not the legal father. State Office of Child Support Enforcement v. Parker, 368 Ark. 393, 246 S.W.3d 851 (2007).

Applicability.

Because this section should not be applied retroactively, the voluntary acknowledgment of paternity was not conclusive by operation of law under the law as it existed in 1990, and paternity was not established that would trigger the running of the statute of limitations of the former law. Bean v. Office of Child Support Enforcement, 340 Ark. 286, 9 S.W.3d 520 (2000).

Although this section had been amended, it did not overrule an appellate court decision concluding that the statute did not apply when paternity became an issue after a divorce decree had been entered. Martin v. Pierce, 370 Ark. 53, 257 S.W.3d 82 (2007).

Order holding that appellee was not the biological father of a child, setting aside an order of paternity, setting aside orders for child support, and vacating the outstanding amounts of child support was proper because the trial court applied the version of this section in effect at the time the written order was filed. Wesley v. Hall, 104 Ark. App. 50, 289 S.W.3d 143 (2008).

Authority to Modify.

A judgment may be modified only by the court which ordered it and not by any other court, especially not by a court of inferior jurisdiction. Rose v. Mahan, 29 Ark. App. 93, 777 S.W.2d 864 (1989).

The chancery court did not have the authority to grant a putative father's motion for a paternity test, and later to set aside the paternity judgment, twelve years after the original adjudication of his paternity was entered upon his failure to comply with the testing requirements. Flemings v. Littles, 325 Ark. 367, 926 S.W.2d 445 (1996).

Discretion of Court.

The trial court has discretion in assessing the amount of any awards made under this section. The court, in awarding lying-in expenses or attorney's fees under this section, may exercise its discretion in determining the amount that father should bear, and in doing so, it may even consider the mother's financial means when making an award. Eaves v. Dover, 291 Ark. 545, 726 S.W.2d 276 (1987).

The claim of child support enforcement against putative father was an original action to establish paternity, as opposed to an action to modify a paternity order under this section, and the judge correctly found paternity pursuant to § 9-10-108(a)(6)(B). Bean v. Office of Child Support Enforcement, 340 Ark. 286, 9 S.W.3d 520 (2000).

Effect of Amendments.

If Acts 1995, No. 1091 were applied to any type of “acknowledgment of paternity” signed before the act's effective date, a new obligation would be created and the man signing the form, by operation of law, would become the father conclusively, when before Acts 1995, No. 1091 was passed, such evidence could only be used as persuasive, presumptive evidence of paternity. Bean v. Office of Child Support Enforcement, 340 Ark. 286, 9 S.W.3d 520 (2000).

Jurisdiction.

Default judgment in a child support case should have been set aside because service was unquestionably defective where it was effectuated upon a purported father's brother; therefore, a circuit court abused its discretion when it took any action other than a dismissal of the case under Ark. R. Civ. P. 4(i). The father's subsequent participation in enforcement proceedings, including his act of filing for paternity testing, did not validate the void judgment. Foury v. Office of Child Support Enforcement, 99 Ark. App. 341, 260 S.W.3d 328 (2007).

Legislative Intent.

All legislation is intended to act prospectively unless the purpose and intent of the legislature is to give the statutes retroactive effect which is expressly declared or necessarily implied from the language used. Bean v. Office of Child Support Enforcement, 340 Ark. 286, 9 S.W.3d 520 (2000).

Modification Denied.

A petition for modification will be denied where the change in financial condition is due to the fault, voluntary wastage, or dissipation of one's talents or assets, or where the means with which to pay were reduced or eliminated by criminal activity. Reid v. Reid, 57 Ark. App. 289, 944 S.W.2d 559 (1997).

Motion to Transfer.

Trial court erred in granting mother's motion to transfer a custody action because there was evidence that the father never established a residence outside of the first county, as contemplated by § 9-10-102(f)(1)(B)(i); thus, on father's motion to vacate, the trial court should have vacated the transfer under subsection (a) of this section rather than grant father a directed verdict under Ark. R. Civ. P. 60(a). Stephens v. Miller, 91 Ark. App. 253, 209 S.W.3d 452 (2005).

Paternity Testing.

Where a default judgment was entered in paternity proceedings and the adjudicated father's support obligation was established in 1995, the Office of Child Support Enforcement instituted proceedings in 2005 to recover support arrearages, and the adjudicated father requested a paternity test, the circuit court erred in granting the father's motion because the father's motion was untimely. Subdivision (e)(1)(A) of this section allows an adjudicated father one paternity test during any time period in which he is required to pay child support and the father's child support obligation terminated under § 9-14-237 when the child reached the age of majority. State v. Perry, 2012 Ark. 106 (2012).

Period of time that the father was required to pay child support ended under § 9-14-237 when the child turned 18; likewise, the period of time in which the father could seek a paternity test also ended when the child turned 18. State v. Perry, 2012 Ark. 106 (2012).

Retroactive Modification.

Since this section plainly directs the court to relieve the alleged father of only future obligation of support, an adjudicated father, later determined not to be the biological father, was not entitled to a refund of the support paid. State v. Phillippe, 323 Ark. 434, 914 S.W.2d 752 (1996).

An adjudicated father who was shown by scientific evidence not to be the biological father of the child in question was not entitled to relief from back child support under the statute since there was no evidence or contention that he ever had physical custody of the child, as required by § 9-14-234. Littles v. Flemings, 333 Ark. 476, 970 S.W.2d 259 (1998).

Order that an alleged father was not obligated to pay the unpaid balance of his support obligation from the date of the order forward pursuant to subdivision (f)(1)(C) of this section was affirmed because the circuit court correctly applied the amended version of this section and found that the alleged father's obligation had to be vacated. State v. Jones, 2009 Ark. 620 (2009).

Termination.

The changes in circumstances which gave rise to a previous modification of support cannot be used again as the basis for termination of support. Benn v. Benn, 57 Ark. App. 190, 944 S.W.2d 555 (1997).

Where scientific evidence proves that an adjudicated father is not, in fact, the biological father of the child in question, the statute mandates prospective relief from child support. Littles v. Flemings, 333 Ark. 476, 970 S.W.2d 259 (1998).

A paternity adjudication in a divorce decree is not affected by subsequent scientific testing which negates paternity. State Office of Child Support Enforcement v. Williams, 338 Ark. 347, 995 S.W.2d 338 (1999).

Cited: Belford v. State, 96 Ark. 274, 131 S.W. 953 (1910); Epperson v. Sharp, 222 Ark. 456, 261 S.W.2d 267 (1953); Dozier v. Veasley, 272 Ark. 210, 613 S.W.2d 93 (1981); Roque v. Frederick, 272 Ark. 392, 614 S.W.2d 667 (1981); Wilkins v. Ford, 275 Ark. 469, 631 S.W.2d 298 (1982).

9-10-116. [Repealed.]

Publisher's Notes. This section, concerning chancellor's fees, was repealed by Acts 2003, No. 1185, § 14. The section was derived from Acts 1879, No. 72, § 4, p. 95; C. &. M. Dig., § 785; Pope's Dig., § 941; A.S.A. 1947, § 34-714.

9-10-117. [Repealed.]

A.C.R.C. Notes. Former § 9-10-117, concerning appeal to circuit court, is deemed to be superseded by this section. The former section was derived from Acts 1875 (Adj. Sess.), No. 24, § 7, p. 25; C. & M. Dig., § 780; Pope's Dig., § 936; A.S.A. 1947, § 34-709.

Publisher's Notes. This section, concerning appeals, was repealed by Acts 2003, No. 1185, § 15. The section was derived from Acts 1989, No. 725, § 5.

9-10-118. [Superseded.]

A.C.R.C. Notes. This section, concerning trial de novo on appeal, is deemed to be superseded by § 9-10-117 [repealed]. This section was derived from Acts 1875 (Adj. Sess.), No. 24, § 9, p. 25; C. & M. Dig., § 782; Pope's Dig., § 938; A.S.A. 1947, § 34-711.

9-10-119. Revival of judgment.

The judgment may be revived against the executor or administrator of the person against whom the judgment was rendered.

History. Acts 1875 (Adj. Sess.), No. 24, § 6, p. 25; C. & M. Dig., § 779; Pope's Dig., § 935; A.S.A. 1947, § 34-708.

9-10-120. Effect of acknowledgment of paternity.

  1. A man is the father of a child for all intents and purposes if he and the mother execute an acknowledgment of paternity of the child pursuant to § 20-18-408 or § 20-18-409, or a similar acknowledgment executed during the child's minority.
    1. Acknowledgments of paternity shall by operation of law constitute a conclusive finding of paternity, subject to the modification of orders or judgments under § 9-10-115, and shall be recognized by the circuit courts and juvenile divisions thereof as creating a parent and child relationship between father and child.
    2. Such acknowledgments of paternity shall also be recognized as forming the basis for establishment and enforcement of a child support or visitation order without a further proceeding to establish paternity.
  2. The Department of Health shall offer voluntary paternity establishment services in all of its offices throughout the state. The Department of Health shall coordinate such services with the Office of Child Support Enforcement of the Revenue Division of the Department of Finance and Administration.
  3. Upon submission of the acknowledgment of paternity to the Division of Vital Records, the State Registrar of Vital Records shall accordingly establish a new or amended certificate of birth reflecting the name of the father as recited in the acknowledgment of paternity.
  4. The Administrator of the Office of Child Support Enforcement of the Revenue Division of the Department of Finance and Administration and the hospital, birthing center, certified nurse practitioner, or licensed midwife delivering the child shall enter into cooperative agreements to compensate at a rate not to exceed twenty dollars ($20.00) for each acknowledgment of paternity forwarded by the hospital, birthing center, certified nurse practitioner, or licensed midwife to the office.

History. Acts 1995, No. 1091, § 1; 1997, No. 1296, § 9.

Research References

Ark. L. Rev.

Lacey Johnson, Comment: Low-Income Fathers, Adoption, and the Biology Plus Test for Paternal Rights, 70 Ark. L. Rev. 1113 (2018).

Case Notes

Effect of Amendments.

If Acts 1995, No. 1091 were applied to any type of “acknowledgment of paternity” signed before the act's effective date, a new obligation would be created and the person signing the form, by operation of law, would become the father conclusively, when before Acts 1995, No. 1091 was passed, such evidence could only be used as persuasive, presumptive evidence of paternity. Bean v. Office of Child Support Enforcement, 340 Ark. 286, 9 S.W.3d 520 (2000).

Time of Execution.

Although §§ 20-18-408 and 20-18-409 were not in effect in 1990 when the “Affidavit of Birth Out of Wedlock” was signed, this section also allows a “similar acknowledgment” to suffice if it is executed during the child's minority. Bean v. Office of Child Support Enforcement, 340 Ark. 286, 9 S.W.3d 520 (2000).

Cited: Fox v. Ark. Dep't of Human Servs., 2020 Ark. App. 13, 592 S.W.3d 260 (2020).

9-10-121. Termination of certain parental rights for putative fathers convicted of rape.

  1. All rights of a putative father to custody, visitation, or other contact with a child conceived as a result of a rape shall be terminated immediately upon conviction of the rape in which the child was conceived under § 5-14-103.
  2. The biological mother of a child conceived as a result of rape may petition the court under § 9-10-104 to reinstate the parental rights of a putative father terminated under subsection (a) of this section.
  3. A putative father to a child conceived as a result of rape shall pay child support as provided under § 9-10-109.
  4. A child conceived as a result of rape is entitled to:
    1. Child support under § 9-10-109; and
    2. Inheritance under the Arkansas Inheritance Code of 1969, § 28-9-201 et seq.

History. Acts 2013, No. 210, § 1.

Subchapter 2 — Artificial Insemination

Research References

ALR.

Validity and construction of surrogate parenting agreement. 77 A.L.R.4th 70.

Rights and obligations resulting from human artificial insemination. 83 A.L.R.4th 295.

Am. Jur. 41 Am. Jur. 2d, Illegitimate Children, § 2.

Ark. L. Rev.

Artificial Insemination, 23 Ark. L. Rev. 81.

C.J.S. 67 C.J.S., Parent & Child, § 6.

U. Ark. Little Rock L.J.

Legislative Survey, Family Law, 8 U. Ark. Little Rock L.J. 577.

9-10-201. Child born to married or unmarried woman — Presumptions — Surrogate mothers.

  1. Any child born to a married woman by means of artificial insemination shall be deemed the legitimate natural child of the woman and the woman's husband if the husband consents in writing to the artificial insemination.
  2. A child born by means of artificial insemination to a woman who is married at the time of the birth of the child shall be presumed to be the child of the woman giving birth and the woman's husband except in the case of a surrogate mother, in which event the child shall be that of:
    1. The biological father and the woman intended to be the mother if the biological father is married;
    2. The biological father only if unmarried; or
    3. The woman intended to be the mother in cases of a surrogate mother when an anonymous donor's sperm was utilized for artificial insemination.
    1. A child born by means of artificial insemination to a woman who is unmarried at the time of the birth of the child shall be, for all legal purposes, the child of the woman giving birth, except in the case of a surrogate mother, in which event the child shall be that of:
      1. The biological father and the woman intended to be the mother if the biological father is married;
      2. The biological father only if unmarried; or
      3. The woman intended to be the mother in cases of a surrogate mother when an anonymous donor's sperm was utilized for artificial insemination.
    2. For birth registration purposes, in cases of surrogate mothers the woman giving birth shall be presumed to be the natural mother and shall be listed as such on the certificate of birth, but a substituted certificate of birth may be issued upon orders of a court of competent jurisdiction.

History. Acts 1985, No. 904, §§ 1, 2; A.S.A. 1947, §§ 34-720, 34-721; Acts 1989, No. 647, § 1.

Cross References. Child conceived after death of parent, § 28-9-221.

Research References

Ark. L. Rev.

Brad Aldridge, Comment: A Constellation of Benefits and a Universe of Equal Protection: The Extension of the Right to Marry Under Pavan v. Smith, 72 Ark. L. Rev. 245 (2019).

Case Notes

Estoppel.

Finding that the husband was estopped from denying that twins conceived by artificial insemination were not his was proper even though the written consent required by § 9-10-202(b) had not been obtained because the husband knew the facts and acted as if he agreed to the procedure; further, he accepted the children as his own. Brown v. Brown, 83 Ark. App. 217, 125 S.W.3d 840 (2003).

Even though father had been ordered to pay child support for children conceived through artificial insemination, collateral estoppel did not preclude him from raising the issue of consent in a subsequent action against a physician and a clinic alleging outrage and negligence because the issue was not dispositive in the divorce case. Brown v. Wyatt, 89 Ark. App. 306, 202 S.W.3d 555 (2005).

9-10-202. Supervision by physician — Written agreement.

  1. Artificial insemination of a woman shall only be performed under the supervision of a physician licensed under the Arkansas Medical Practices Act, § 17-95-201 et seq., § 17-95-301 et seq., and § 17-95-401 et seq.
  2. Prior to conducting the artificial insemination, the supervising physician shall obtain from the woman and her husband or the donor of the semen a written statement attesting to the agreement to the artificial insemination, and the physician shall certify their signatures and the date of the insemination.

History. Acts 1985, No. 904, § 3; A.S.A. 1947, § 34-722.

Case Notes

Estoppel.

Finding that the husband was estopped from denying that twins conceived by artificial insemination were not his was proper even though the written consent required by subsection (b) of this section had not been obtained because the husband knew the facts and acted as if he agreed to the procedure; further, he accepted the children as his own. Brown v. Brown, 83 Ark. App. 217, 125 S.W.3d 840 (2003).

Wrongful Birth.

Summary judgment was properly granted to a physician and a clinic in an outrage claim based on their failure to comply with subsection (b) of this section regarding an artificial insemination procedure on a wife because a wrongful birth action was not cognizable under Arkansas law. Brown v. Wyatt, 89 Ark. App. 306, 202 S.W.3d 555 (2005).

Chapter 11 Marriage

Subchapter 1 — General Provisions

Effective Dates. Acts 1875, No. 102, § 2: effective six months after passage.

Acts 1941, No. 32, § 3: approved Feb. 6, 1941. Emergency clause provided: “Whereas, numerous marital contracts entered into between persons of immature ages continuously create serious domestic relations problems, and under present conditions the parent has insufficient control over the marriage contract of his minor child, all of which results in confusion, an emergency is declared to exist. This act being for the immediate preservation of public peace, health and safety, shall be in full force and effect from and after its passage.”

Acts 1964 (1st Ex. Sess.), No. 5, § 3: Mar. 26, 1964. Emergency clause provided: “It is hereby found and determined by the General Assembly that the present law of this State provides that marriage contracted by a male person under the age of eighteen (18) years or a female person under the age of sixteen (16) years is absolutely void; that there are many persons in this State who were married when one or both parties to the contract were under the ages set out above who believe themselves to be validly married and who have lived together as husband and wife for many years; that the fact that such marriages are declared void by the present laws of this State have resulted in and will continue to result in such persons being deprived of certain privileges and benefits to which such persons would have been entitled had their marriage not been deemed absolutely void by law; and that it is necessary that this inequity be corrected immediately. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in effect from the date of its passage and approval.”

Acts 1971, No. 145, § 3: approved Feb. 22, 1971. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that there are many cases involving males under the age of eighteen (18) and females under the age of sixteen (16) wherein the female has given birth to a child, but under existing law the underage parties under these circumstances are prohibited from marrying. It is further determined by the General Assembly that where a child has been born to an underage couple that it would be in the interest of the couple, their families and the State of Arkansas that they be permitted to enter into the bonds of marriage. Therefore, an emergency is declared to exist and this Act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage.”

Acts 1973, No. 79, § 3: Feb. 7, 1973. Emergency clause provided: “It is hereby found and determined by the General Assembly of the State of Arkansas that under the present laws of this State, males under eighteen (18) years of age cannot contract marriage even with parental consent but that such seventeen (17) year old males are in fact permitted and encouraged to serve in the armed forces of the United States and to do and perform many other acts which demonstrate their maturity; that it is unfair and inequitable to deprive these young men, seventeen (17) years of age of the privilege of contracting marriage and that this Act is designed to correct this situation and should be given effect immediately. Therefore, an emergency is declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1981, No. 371, § 3: Mar. 9, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that present law provides that parental consent is required for the issuance of a marriage license to a male under the age of twenty-one (21) years but is not required in the instance of a female who is over eighteen (18) years of age; that such distinction between males and females is unreasonable and that this act is immediately necessary to grant equal treatment to both the males and females as regards parental consent for obtaining a marriage license. Therefore, an emergency is hereby declared to exist and this Act being immediately necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 2008 (1st Ex. Sess.), No. 3, § 5: Apr. 2, 2008. Emergency clause provided: “It is found and determined by the General Assembly that questions concerning the application of Act 441 of 2007 as enacted have arisen, and differing interpretations by the courts and county clerks require the immediate correction and clarification of the law to ensure uniform application of the minimum age requirement for marriage. Therefore, an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall become effective on: 1. The date of its approval by the Governor; 2. If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or 2. If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2009, No. 956, § 34: July 31, 2009. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that laws concerning juveniles need to be amended and updated; that the fair and efficient administration of juvenile law is highly important to society at large; and that this act is immediately necessary because the judiciary needs to begin addressing these changes in laws involving juveniles. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall become effective on: (1) The date of its approval by the Governor; (2) If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or (3) If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Research References

ALR.

Validity of marriage as affected by lack of legal authority of person solemnizing it. 13 A.L.R.4th 1323.

Am. Jur. 52 Am. Jur. 2d, Marriage, § 1 et seq.

Ark. L. Rev.

Domestic Relations — Annulment by Parents When Minors Are Above Statutory Marriage Age, 8 Ark. L. Rev. 113.

The Effect of Void and Voidable Marriages in Arkansas, 10 Ark. L. Rev. 188.

The Cause of Action for Annulment of Marriage in Arkansas, 14 Ark. L. Rev. 85.

The Uniform Marriage and Divorce Act: Analysis for Arkansas, 28 Ark. L. Rev. 175.

C.J.S. 14A C.J.S., Civil R, § 235.

38A C.J.S., Gifts, § 67.

55 C.J.S., Marriage, § 1 et seq.

65 C.J.S., Names, §§ 4-6.

Case Notes

Reputation.

Where record evidence had been destroyed by fire, reputation of marriage was admissible to establish legitimacy of issue. Farmer v. Towers, 106 Ark. 123, 152 S.W. 993 (1913).

Cited: Pickens-Bond Constr. Co. v. Case, 266 Ark. 323, 584 S.W.2d 21 (1979).

9-11-101. Marriage a civil contract — Consent of parties.

Marriage is considered in law a civil contract to which the consent of the parties capable in law of contracting is necessary.

History. Rev. Stat., ch. 94, § 1; C. & M. Dig., § 7036; Pope's Dig., § 9016; A.S.A. 1947, § 55-101.

Case Notes

Common-Law Marriage.

A common-law marriage is invalid in this state. Furth v. Furth, 97 Ark. 272, 133 S.W. 1037 (1911).

Consent of Parties.

If a man marries a woman through fear of the consequences of seduction, the marriage will, nevertheless, be valid. Honnett v. Honnett, 33 Ark. 156 (1878); Marvin v. Marvin, 52 Ark. 425, 12 S.W. 875 (1890).

Presumptions.

Where a man and woman are living together as husband and wife, a valid marriage is presumed. Fountain v. Fountain, 80 Ark. 481, 97 S.W. 656 (1906); Darling v. Dent, 82 Ark. 76, 100 S.W. 747 (1907).

Where a married man and a woman held themselves out as husband and wife, before and after his divorce, there was no presumption of a legal marriage. O'Neill v. Davis, 88 Ark. 196, 113 S.W. 1027 (1908).

Regulation.

Marriage is more than only a civil contract; it is a social and domestic relation subject to regulation under the state's police power. Dodson v. State, 61 Ark. 57, 31 S.W. 977 (1895).

9-11-102. Minimum age — Parental consent — Definition.

  1. Every male who has arrived at the full age of seventeen (17) years and every female who has arrived at the full age of seventeen (17) years shall be capable in law of contracting marriage.
      1. However, males and females under the age of eighteen (18) years shall furnish the clerk, before the marriage license can be issued, satisfactory evidence of the consent of the parent or parents or guardian to the marriage.
      2. As used in subdivision (b)(1)(A) of this section, “satisfactory evidence” means a verified affidavit signed in the presence of a notary that states that the parent or parents or guardian of the minor consents to the marriage.
      1. The consent of both parents of each contracting party shall be necessary before the marriage license can be issued by the clerk unless the parents have been divorced and custody of the child has been awarded to one (1) of the parents exclusive of the other, or unless the custody of the child has been surrendered by one (1) of the parents through abandonment or desertion, in which cases the consent of the parent who has custody of the child shall be sufficient.
      2. The consent of the parent may be voided by the order of a circuit court on a showing by clear and convincing evidence that:
        1. The parent is not fit to make decisions concerning the child; and
        2. The marriage is not in the child's best interest.
  2. There shall be a waiting period of five (5) business days for any marriage license issued under subdivision (b)(2) of this section.
  3. If a child has a pending case in the circuit court, a parent who files consent under subsection (b) of this section shall immediately notify the circuit court, all parties, and attorneys to the pending case.

History. Rev. Stat., ch. 94, § 2; C. & M. Dig., § 7037; Pope's Dig., § 9017; Acts 1941, No. 32, § 1; 1961, No. 497, § 1; 1963, No. 72, § 1; 1964 (1st Ex. Sess.), No. 5, § 1; 1971, No. 145, § 1; 1973, No. 79, § 1; 1981, No. 371, § 1; A.S.A. 1947, § 55-102; Acts 2007, No. 441, § 1; 2008 (1st Ex. Sess.), No. 3, § 1; 2009, No. 956, § 4; 2019, No. 849, § 1.

Amendments. The 2007 amendment rewrote (a) and (b) and added (c).

The 2008 (1st Ex. Sess.) amendment rewrote the section.

The 2009 amendment inserted (b)(2)(B), redesignated the existing text of (b)(2) accordingly, and made a related change; and added (c) and (d).

The 2019 amendment substituted the second occurrence of “seventeen (17) years” for “sixteen (16) years” in (a); redesignated (b)(1) as (b)(1)(A); and added (b)(1)(B).

Case Notes

Out-of-State Marriage.

This section, silent as to marriages of underage persons outside the state, has no effect upon such marriages, even of domiciled inhabitants, entered into out of the state. State v. Graves, 228 Ark. 378, 307 S.W.2d 545 (1957).

Parental Consent.

The Arkansas Code Revision Commission exceeded its authority when it altered the language of subsection (b) of this section to limit the right of a parent to consent to the marriage of a minor child. Porter v. Ark. Dep't of Health & Human Servs., 374 Ark. 177, 286 S.W.3d 686 (2008).

Cited: Barnett v. State, 35 Ark. 501 (1880).

9-11-103. Minimum age — Exception.

    1. If an application for a marriage license is made where one (1) or both parties are under eighteen (18) years of age but older than sixteen (16) years of age and the female is pregnant, both parties may appear before a judge of the circuit court of the district where the application for a marriage license is being made.
    2. Evidence shall be submitted as to:
      1. The pregnancy of the female in the form of a certificate from a licensed and regularly practicing physician of the State of Arkansas;
      2. The birth certificates of both parties; and
      3. Parental consent of each party who may be under the minimum age.
    3. Thereupon, after consideration of the evidence and other facts and circumstances, if the judge finds that it is to the best interest of the parties, the judge may enter an order authorizing and directing the county clerk to issue a marriage license to the parties.
    4. The county clerk shall retain a copy of the order on file in the clerk's office with the other papers.
  1. However, if the female has given birth to the child, the court before whom the parties are to appear, if satisfied that it would be to the best interests of all the interested parties and if all the requirements of subsection (a) of this section are complied with, with the exception of the physician's certificate as to the pregnancy, may enter an order authorizing and directing the county clerk to issue a marriage license as provided in subsection (a) of this section.

History. Rev. Stat., ch. 94, § 2; C. & M. Dig., § 7037; Pope's Dig., § 9017; Acts 1941, No. 32, § 1; 1961, No. 497, § 1; 1963, No. 72, § 1; 1964 (1st Ex. Sess.), No. 5, § 1; 1971, No. 145, § 1; 1973, No. 79, § 1; 1981, No. 371, § 1; A.S.A. 1947, § 55-102; Acts 2007, No. 441, § 2; 2008 (1st Ex. Sess.), No. 3, § 2; 2019, No. 849, § 2.

Amendments. The 2007 amendment, in (a)(1), deleted “an application for a marriage license is made where” following “if”, inserted “of the” following “both”, inserted “to a contract for marriage or application for a marriage license”, substituted “a party who has not obtained parental consent under § 9-11-102” for “both parties”, and substituted “circuit court judge in” for “judge of the circuit court of”; rewrote (a)(2); in (a)(3), substituted “The circuit court judge” for “Thereupon”, substituted “considering” for “consideration of”, deleted “if the judge finds that it is to the best interest of the parties, the judge” following “circumstances” and added “if the circuit court judge finds that issuance of a marriage license is in the best interests of the parties”; in (a)(4), inserted “circuit court judge's” and inserted “county” before “clerk's”; inserted the (b)(1) designation; rewrote (b)(1); and added (b)(2) through (b)(4).

The 2008 (1st Ex. Sess.) amendment rewrote the section.

The 2019 amendment substituted “under eighteen (18) years of age but older than sixteen (16) years of age” for “under the minimum age prescribed in § 9-11-102” in (a)(1).

Cross References. County offices defined, § 14-14-603.

Distribution of powers of county governments, § 14-14-502.

Case Notes

Out-of-State Marriages.

This section, silent as to marriages of underage persons outside the state, has no effect upon such marriages, even of domiciled inhabitants, entered into out of the state. State v. Graves, 228 Ark. 378, 307 S.W.2d 545 (1957).

Cited: Barnett v. State, 35 Ark. 501 (1880).

9-11-104. Minimum age — Lack of parental consent or misrepresentation of age — Annulment.

In all cases in which the consent of the parent or parents or guardian is not provided, or there has been a misrepresentation of age by a contracting party, the marriage contract may be set aside and annulled upon the application of the parent or parents or guardian to the circuit court having jurisdiction of the cause.

History. Rev. Stat., ch. 94, § 2; C. & M. Dig., § 7037; Pope's Dig., § 9017; Acts 1941, No. 32, § 1; 1961, No. 497, § 1; 1963, No. 72, § 1; 1964 (1st Ex. Sess.), No. 5, § 1; 1971, No. 145, § 1; 1973, No. 79, § 1; 1981, No. 371, § 1; A.S.A. 1947, § 55-102.

Case Notes

Discretion of Court.

If parental consent is required for underage male or female, the trial court is entitled to exercise its discretion in determining whether marriage is to be set aside, since phrase “may be set aside” is used. Mitchell v. Mitchell, 219 Ark. 69, 239 S.W.2d 748 (1951).

Trial court did not abuse its discretion in refusing to set aside marriage where parties were underage, if neither party testified. Mitchell v. Mitchell, 219 Ark. 69, 239 S.W.2d 748 (1951).

Evidence of Nonconsent.

Evidence by parents of nonconsent to marriage was admissible under complaint by father to annul marriage of daughter where complaint alleged that daughter was underage and marriage was void. Warner v. Warner, 221 Ark. 939, 256 S.W.2d 734 (1953).

Out-of-State Marriage.

This section, silent as to marriages of underage persons outside the state, has no effect upon such marriages, even of domiciled inhabitants, entered into out of the state. State v. Graves, 228 Ark. 378, 307 S.W.2d 545 (1957).

Pregnancy.

Annulment of marriage of minor under the age of consent is not contrary to public policy notwithstanding wife's pregnancy. Hood v. Hood, 206 Ark. 1057, 178 S.W.2d 670 (1944).

Unclean Hands Doctrine.

Theory of unclean hands is not applicable to action to annul marriage on grounds of nonage, even though party seeking relief made false statement as to age in affidavit for marriage. Hood v. Hood, 206 Ark. 1057, 178 S.W.2d 670 (1944).

Cited: Barnett v. State, 35 Ark. 501 (1880).

9-11-105. Marriage of underage parties voidable.

  1. The marriage of any male under the full age of seventeen (17) years and the marriage of any female under the full age of sixteen (16) years is voidable.
  2. All marriages contracted prior to March 26, 1964, where one (1) or both parties to the contract were under the minimum age prescribed by law for contracting marriage are declared to be voidable only and shall be valid for all intents and purposes unless voided by a court of competent jurisdiction.
  3. All marriages contracted between July 30, 2007, and April 2, 2008, in which one (1) or both parties to the contract were under the minimum age prescribed by law for contracting marriage are voidable only and are valid for all intents and purposes unless voided by a court of competent jurisdiction.

History. Rev. Stat., ch. 94, § 2; C. & M. Dig., § 7037; Pope's Dig., § 9017; Acts 1941, No. 32, § 1; 1961, No. 497, § 1; 1963, No. 72, § 1; 1964 (1st Ex. Sess.), No. 5, §§ 1, 2; 1971, No. 145, § 1; 1973, No. 79, § 1; 1981, No. 371, § 1; A.S.A. 1947, §§ 55-102, 55-102.1; Acts 2008 (1st Ex. Sess.), No. 3, § 4.

Amendments. The 2008 (1st Ex. Sess.) amendment added (c).

Case Notes

Out-of-State Marriage.

Though the marriage of an underage person is void by the laws of this state, if the person is married in another state where the common law prevails the marriage will be deemed valid here. Barnett v. State, 35 Ark. 501 (1880) (decision prior to 1964 amendment).

This section, silent as to marriages of underage persons outside the state, has no effect upon such marriages, even of domiciled inhabitants, entered into out of the state. State v. Graves, 228 Ark. 378, 307 S.W.2d 545 (1957).

Cited: Mitchell v. Mitchell, 219 Ark. 69, 239 S.W.2d 748 (1951).

9-11-106. Incestuous marriages — Penalties for entering into or solemnizing.

  1. All marriages between parents and children, including grandparents and grandchildren of every degree, between brothers and sisters of the half as well as the whole blood, and between uncles and nieces, and between aunts and nephews, and between first cousins are declared to be incestuous and absolutely void. This section shall extend to illegitimate children and relations.
  2. Whoever contracts marriage in fact, contrary to the prohibitions of subsection (a) of this section, and whoever knowingly solemnizes the marriage shall be deemed guilty of a misdemeanor and shall upon conviction be fined or imprisoned, or both, at the discretion of the jury who shall pass on the case, or if the conviction shall be by confession, or on demurrer, then at the discretion of the court.

History. Rev. Stat., ch. 94, §§ 3, 9; Acts 1875, No. 102, § 1, p. 221; C. & M. Dig., §§ 7038, 7045; Pope's Dig., §§ 9018, 9025; Acts 1973, No. 253, § 1; A.S.A. 1947, §§ 55-103, 55-105.

Cross References. Incest, § 5-26-202.

Case Notes

First Cousins.

A marriage between first cousins does not create “much social alarm,” so that the marriage will be recognized if it was valid by the law of the state in which it took place. Etheridge v. Shaddock, 288 Ark. 481, 706 S.W.2d 395 (1986).

Where after divorce and awarding of custody of children to father, he married his first cousin and when they discovered that such marriages were prohibited in Arkansas had such marriage annulled and got married in state permitting such marriages and returned to Arkansas, such remarriage was not a sufficient basis for change of custody. Etheridge v. Shaddock, 288 Ark. 481, 706 S.W.2d 395 (1986).

9-11-107. Validity of foreign marriages.

  1. All marriages contracted outside this state that would be valid by the laws of the state or country in which the marriages were consummated and in which the parties then actually resided shall be valid in all the courts in this state.
  2. This section shall not apply to a marriage between persons of the same sex.

History. Rev. Stat., ch. 94, § 7; C. & M. Dig., § 7043; Pope's Dig., § 9023; A.S.A. 1947, § 55-110; Acts 1997, No. 144, § 2.

Research References

Ark. L. Notes.

Watkins, A Guide to Choice of Law in Arkansas, 2005 Arkansas L. Notes 151.

Ark. L. Rev.

Britta Palmer Stamps, Recent Developments: Same-Sex Marriage — United States District Judge Kristine Baker Declares Arkansas's Marriage Laws Unconstitutional, 67 Ark. L. Rev. 1111 (2014).

Case Notes

Constitutionality.

Arkansas law violated Due Process Clause and Equal Protection Clause of Fourteenth Amendment to the United States Constitution because it precluded same-sex couples from exercising their fundamental right to marry in Arkansas, refused to recognize valid same-sex marriages from other states, and discriminated on the basis of gender. Jernigan v. Crane, 64 F. Supp. 3d 1261 (E.D. Ark. 2014), aff'd 796 F.3d 976 (8th Cir. 2015).

Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. Obergefell v. Hodges, — U.S. —, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015).

Laws denying same-sex couples the right to marry are unconstitutional. Jernigan v. Crane, 796 F.3d 976 (8th Cir. 2015).

Common-Law Marriages.

A common-law marriage contracted in another state, and valid there, is valid here. Darling v. Dent, 82 Ark. 76, 100 S.W. 747 (1907); Evatt v. Miller, 114 Ark. 84, 169 S.W. 817 (1914); Estes v. Merrill, 121 Ark. 361, 181 S.W. 136 (1915).

Where parties cohabited in Arkansas and temporarily sojourned in a state where common-law marriage was recognized, they could not by that conduct alone become legally man and wife. Walker v. Yarbrough, 257 Ark. 300, 516 S.W.2d 390 (1974).

Common-law marriages are not permitted in Arkansas, but the state will recognize marriages contracted in another state which are valid by the laws of that state. One seeking to prove the existence of a valid common-law marriage in another state must do so by a preponderance of the evidence. Knaus v. Relyea, 24 Ark. App. 7, 746 S.W.2d 389 (1988).

Residency in a state in which a common law marriage may be created is necessary for the recognition of the common law marriage in Arkansas. Brissett v. Sykes, 313 Ark. 515, 855 S.W.2d 330 (1993).

Trial court properly found that there was no common law marriage between a decedent and his alleged spouse, who had lived together in Alberta, Canada, because Alberta statutory law did not recognize such marriages and the decedent and alleged wife had not lived as married for three years in order to meet the Alberta case law definition; hence, under subsection (a) of this section there was no valid marriage that could be recognized in Arkansas. Craig v. Carrigo, 353 Ark. 761, 121 S.W.3d 154 (2003).

Circuit court did not clearly err in finding that no common-law marriage existed between the parties, because the parties lived in Arkansas, which did not recognize common-law marriages, the wedding ceremony took place in Texas without obtaining a marriage license or certificate, and there was no evidence that the parties lived together in Texas after the ceremony. Crane v. Taliaferro, 2009 Ark. App. 336, 308 S.W.3d 648 (2009).

Indian Territory.

Laws relating to marriage in the Indian Territory must be proved. Johnson v. State, 60 Ark. 45, 28 S.W. 792 (1894).

Residency.

Circuit court properly granted comity to the marriage license issued to a son's mother and her husband in 1994 and denied the son's petition to quash the husband's motion to terminate the son's guardianship over his mother; while the husband and the mother never resided in Louisiana, it was undisputed that their marriage on a boat by a captain was valid under Louisiana law. Stovall v. Preston, 2018 Ark. App. 64, 539 S.W.3d 638 (2018).

Cited: Bickford v. Carden, 215 Ark. 560, 221 S.W.2d 421 (1949); Stilley v. Stilley, 219 Ark. 813, 244 S.W.2d 958 (1952); May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004).

9-11-108. Presumption of spouse's death — Validity of subsequent marriage.

In all cases in which any husband abandons his wife, or a wife her husband, and resides beyond the limits of this state for the term of five (5) successive years, without being known to the other spouse to be living during that time, the abandoning party's death shall be presumed. Any subsequent marriage entered into after the end of the five (5) years shall be as valid as if the husband or wife were dead.

History. Rev. Stat., ch. 94, § 8; C. & M. Dig., § 7044; Pope's Dig., § 9024; A.S.A. 1947, § 55-109.

Cross References. Presumption of death, § 16-40-105.

Case Notes

Abandonment.

Evidence inconsistent with the theory of abandonment. Cole v. Cole, 249 Ark. 824, 462 S.W.2d 213 (1971).

Burden of Proof.

It is settled that neither the fact of death nor that of absence from the state can be inferred from the bare fact of a disappearance. Petitioner has the burden of producing evidence from which the court might fairly conclude that first husband had lived continuously outside the state for at least five years before the petitioner's second marriage. Baxter v. Baxter, 232 Ark. 151, 334 S.W.2d 714 (1960).

Presumptions.

Where the presumption of death was overcome by substantial evidence, the court was warranted in finding the subsequent marriage invalid. Goset v. Goset, 112 Ark. 47, 164 S.W. 759 (1914).

Presumption in favor of validity of second marriage does not apply if separation from first wife was by mutual consent. Watson v. Palmer, 219 Ark. 178, 240 S.W.2d 875 (1951).

9-11-109. Validity of same-sex marriages.

Marriage shall be only between a man and a woman. A marriage between persons of the same sex is void.

History. Acts 1997, No. 144, § 1.

Research References

Ark. L. Rev.

Britta Palmer Stamps, Recent Developments: Same-Sex Marriage — United States District Judge Kristine Baker Declares Arkansas's Marriage Laws Unconstitutional, 67 Ark. L. Rev. 1111 (2014).

Case Notes

Constitutionality.

Arkansas law violated Due Process Clause and Equal Protection Clause of Fourteenth Amendment to the United States Constitution because it precluded same-sex couples from exercising their fundamental right to marry in Arkansas, refused to recognize valid same-sex marriages from other states, and discriminated on the basis of gender. Jernigan v. Crane, 64 F. Supp. 3d 1261 (E.D. Ark. 2014), aff'd 796 F.3d 976 (8th Cir. 2015).

Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. Obergefell v. Hodges, — U.S. —, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015).

Laws denying same-sex couples the right to marry are unconstitutional. Jernigan v. Crane, 796 F.3d 976 (8th Cir. 2015).

Subchapter 2 — License and Ceremony

Cross References. Marriage license fees, generally, § 14-20-111.

Marriage license fees, miscellaneous county clerk fees, § 21-6-406.

Marriage registration, § 20-18-501.

Effective Dates. Acts 1843, p. 55, § 3: Apr. 1, 1843.

Acts 1873, No. 2, § 4: effective on passage, provided the penalty prescribed in the act should not be enforced within 60 days.

Acts 1875, No. 127, § 10: effective 30 days after passage.

Acts 1885, No. 123, § 2: effective on passage.

Acts 1901, No. 123, § 3: effective on passage.

Acts 1941, No. 404, § 3: approved Mar. 27, 1941. Emergency clause provided: “It being found by the General Assembly that this act is necessary for the better living conditions of the people of Arkansas and this act being necessary for the preservation of the public health, peace and safety, an emergency is declared to exist and this act shall be in full force and effect from and after its passage.”

Acts 1945, No. 112, § 7: approved Feb. 27, 1945. Emergency clause provided: “Due to prevailing conditions the need for such a law is urgent, therefore, it is necessary for the immediate preservation of the public peace, health and safety, an emergency is declared, and this act shall take effect and be in force from and after its passage.”

Acts 1967, No. 380, § 4: Mar. 15, 1967. Emergency clause provided: “It is hereby found and determined by the General Assembly that there are many residents of this State of marriageable age in the Armed Forces of the United States; that such persons' furloughs are often too short to permit an Arkansas marriage because of the many and cumbersome requirements of Arkansas law; that it is necessary that these requirements be waived to give special consideration to those persons who are residents of this State but who are on active duty in the Armed Forces of the United States; and that in order to remedy these onerous requirements of Arkansas in the case of military personnel and to encourage Arkansas marriages, it is necessary that this act become effective immediately. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety of this State shall be in full force and effect from and after its passage and approval.”

Acts 1983, No. 419, § 3: Mar. 13, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that present law requires marriage license applications to be signed by at least one person other than the applicant; that such law is unduly burdensome and in need of revision; and that this Act is immediately necessary to provide such revision. Therefore, an emergency is hereby declared to exist and this Act being immediately necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1997, No. 862, § 5: Mar. 27, 1997. Emergency clause provided: “It is hereby found and determined by the General Assembly that the current law relating to persons who may solemnize marriages is unclear with respect to the authority of some judges; that unless the ambiguity is corrected immediately, marriages by such judges may be the subject of controversy and may leave the validity of some marriages in doubt; that this act is designed to clarify this ambiguity and should be given effect immediately. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2008 (1st Ex. Sess.), No. 3, § 5: Apr. 2, 2008. Emergency clause provided: “It is found and determined by the General Assembly that questions concerning the application of Act 441 of 2007 as enacted have arisen, and differing interpretations by the courts and county clerks require the immediate correction and clarification of the law to ensure uniform application of the minimum age requirement for marriage. Therefore, an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall become effective on: 1. The date of its approval by the Governor; 2. If the bill is neither approved nor vetoed by the Governor, the expiration of the period of time during which the Governor may veto the bill; or 2. If the bill is vetoed by the Governor and the veto is overridden, the date the last house overrides the veto.”

Acts 2017, No. 897, § 21: July 1, 2017. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that it would be prudent to abolish the State Child Abuse and Neglect Prevention Board and transfer the powers and duties of the State Child Abuse and Neglect Prevention Board to the Department of Human Services; that this act facilitates the timely transfer of the State Child Abuse and Neglect Prevention Board to the Department of Human Services; and that this act is necessary for alignment with the fiscal year. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2017.”

Research References

ALR.

Validity of marriage as affected by lack of legal authority of person solemnizing it. 13 A.L.R.4th 1323.

Am. Jur. 52 Am. Jur. 2d, Marriage, § 15 et seq.

Ark. L. Rev.

The Uniform Marriage and Divorce Act: Analysis for Arkansas, 28 Ark. L. Rev. 175.

C.J.S. 55 C.J.S., Marriage, § 27 et seq.

9-11-201. Licenses required.

  1. All persons hereafter contracting marriage in this state are required to first obtain a license from the clerk of the county court of some county in this state.
  2. On and after July 1, 1997, the county clerk shall record the Social Security numbers of the persons obtaining a marriage license on the marriage license application or the coupon for the marriage license. If an applicant does not possess a Social Security number, the clerk shall note this representation on the marriage license application or the coupon for the marriage license.
    1. The county clerk shall transmit Social Security numbers of marriage license applicants to the Division of Vital Records. The clerk is not required to otherwise maintain or report the Social Security numbers of marriage license applicants. Compliance with the Social Security number reporting requirements of this section by the clerk of the county court shall be deemed to satisfy licensing entity reporting requirements under this section relative to marriage licenses.
    2. The Division of Vital Records shall allow the Office of Child Support Enforcement of the Revenue Division of the Department of Finance and Administration access to such Social Security information and on an automated basis to the maximum extent feasible.

History. Acts 1875, No. 127, § 1, p. 260; C. & M. Dig., § 7057; Pope's Dig., § 9039; A.S.A. 1947, § 55-201; Acts 1997, No. 1163, § 2; 1997, No. 1296, § 41.

A.C.R.C. Notes. Acts 1997, No. 1296 added material in addition to that which was added by Acts 1997, No. 1163. Therefore, the two amendments were merged pursuant to § 1-2-303.

Cross References. County offices defined, § 14-14-603.

Distribution of powers of county governments, § 14-14-502.

Case Notes

Foreign License.

Arkansas residents may legally contract marriage in Arkansas with a license issued by a foreign state since the statute providing for an Arkansas marriage license for persons contracting marriage in the state is directory and not mandatory, so that a marriage was valid when performed by a duly qualified minister on the Arkansas side of Texarkana for parties who were licensed on the Texas side of the city. De Potty v. De Potty, 226 Ark. 881, 295 S.W.2d 330 (1956).

Presumption of Legitimacy of Children.

The presumption of legitimacy of children born during wedlock is not overcome by evidence that a marriage license for the parents was never issued or recorded, since marriage license statutes are merely directory and not mandatory, and, although this section provides for the procurement of a license by those contracting marriage, Arkansas has no statute providing that a marriage is void when no license is obtained. Wright v. Vales, 1 Ark. App. 175, 613 S.W.2d 850 (1981).

9-11-202. Form of license.

  1. The license may be in the following form:
  2. The party solemnizing the rites of matrimony shall endorse on the license his or her certificate of that fact in the following form:
  3. If the parties intend to contract a covenant marriage, the application for a marriage license must also include the following statement completed by at least one (1) of the two (2) parties:

“State of Arkansas, County of To any person authorized by law to solemnize marriage: You are hereby commanded to solemnize the rites and publish the banns of matrimony between A. B., age years, and D.C., age years, according to law, and officially sign and return this license to the parties herein named. Issued with official seal, this day of , 20 . [L. S.]”

Click to view form.

“State of Arkansas, County of ss I, A. B., do hereby certify that on the day of , 20 , I did duly, and according to law as commanded in the foregoing license, solemnize the rites and publish the banns of matrimony between the parties herein named. Witness my hand this day of , 20 . A. B., Justice of the Peace” (Or insert whatever title the party has, as minister, etc.)

Click to view form.

“We, [insert name of spouse] and [insert name of spouse], declare our intent to contract a covenant marriage and accordingly have executed the attached declaration of intent.”

History. Acts 1875, No. 127, § 3, p. 260; C. & M. Dig., § 7060; Pope's Dig., § 9042; A.S.A. 1947, § 55-204; Acts 2001, No. 1486, § 1; 2015, No. 1127, § 1.

Amendments. The 2015 amendment, in (a), substituted “Issued with” for “Witness my hand and” and deleted “A.B., County Clerk” at the end.

Cross References. County offices defined, § 14-14-603.

Covenant Marriage Act, § 9-11-801 et seq.

Distribution of powers of county governments, § 14-14-502.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Family Law, 24 U. Ark. Little Rock L. Rev. 483.

9-11-203. Issuance by clerks.

  1. The clerks of the county courts of the several counties in this state are required to furnish the license upon:
    1. Application's being made;
    2. Being fully assured that applicants are lawfully entitled to the license; and
    3. Receipt of his or her fee.
  2. It shall be lawful for clerks of the circuit courts to issue marriage licenses in counties having two (2) judicial districts.
    1. In addition to the standard certificate of marriage issued under subsection (a) of this section, the county clerk shall offer and, upon payment of a fee established by rule promulgated by the Department of Human Services, issue an heirloom certificate of marriage.
      1. The department shall adopt rules for the design of the heirloom certificate and shall print and distribute the certificates to each county clerk in this state.
        1. The department shall set the amount of the fee for the heirloom certificates to exceed the estimated actual costs for the development and distribution of the certificates but not to exceed the estimated fair market value of a comparable artistic rendition.
        2. The fee is in addition to any other fee established by law for the issuance of a certificate of marriage.
        3. The additional fees from the sale of heirloom certificates shall be transmitted monthly by the county clerk to the Treasurer of State for deposit into the State Treasury to the credit of the Children's Trust Fund.
      1. The heirloom certificate shall be in a form consistent with the need to protect the integrity of vital records and suitable for display.
      2. It may bear the seal of the state and may be signed by the Governor.
    2. An heirloom certificate of marriage issued under this subsection has the same status as evidence as the standard certificate of marriage issued under subsection (a) of this section.
    3. Heirloom certificates of marriage may be issued for any marriage certificate issued at any time in this state, whether before or after August 13, 2001.
  3. It is not a requirement that a marriage license be signed by a county clerk for the license to be effective.

History. Acts 1875, No. 127, § 2, p. 260; 1901, No. 123, § 1, p. 194; C. & M. Dig., §§ 7058, 7059; Pope's Dig., §§ 9040, 9041; A.S.A. 1947, §§ 55-202, 55-203; Acts 2001, No. 968, § 1; 2015, No. 1127, § 2; 2017, No. 897, § 2.

Amendments. The 2015 amendment added (d).

The 2017 amendment, in (c)(1), substituted “rule” for “regulation” and “Department of Human Services” for “State Child Abuse and Neglect Prevention Board”; and substituted “department” for “board” in (c)(2)(A) and (c)(2)(B)(i).

Cross References. Additional county fee on marriage licenses, § 14-20-111.

County offices defined, § 14-14-603.

Distribution of powers of county governments, § 14-14-502.

9-11-204. Issuance of license unlawfully — Penalty.

If any county clerk in this state shall issue any license contrary to the provisions of this act, or to any persons who are declared by law as not entitled to the license, he or she shall be deemed guilty of a misdemeanor and upon conviction shall be fined in any sum not less than one hundred dollars ($100) nor more than five hundred dollars ($500).

History. Acts 1875, No. 127, § 8 (1st part), p. 260; C. & M. Dig., § 7065; Pope's Dig., § 9047; A.S.A. 1947, § 55-214.

Meaning of “this act”. Acts 1875, No. 127, codified as §§ 9-11-2019-11-204, 9-11-209, 9-11-210, 9-11-212, 9-11-2169-11-218, and 9-11-220.

Cross References. County offices defined, § 14-14-603.

Distribution of powers of county governments, § 14-14-502.

9-11-205. Notice of intention to wed — Noncompliance, penalties, and effect.

  1. No marriage license shall be issued by the clerks unless a notice of intention to wed shall have been signed by both of the applicants applying for the marriage license and filed with the county clerk where the license is obtained.
  2. The notice shall state the name, age, and address of both parties desiring to wed.
  3. The county clerk shall verify the age of both parties and may treat birth certificates as prima facie proof of age.
  4. The notice of intention to wed referred to in this section shall be filed with the county clerk of the county where the marriage license is obtained.
  5. The county clerk may destroy the notice of intention to wed one (1) year after the date of its issuance.
  6. Upon the failure on the part of the county clerk or any other person to comply with the provisions of this section, he or she shall be adjudged guilty of a misdemeanor and upon conviction shall be fined not less than one hundred dollars ($100) nor more than five hundred dollars ($500).
  7. No marriage shall be void for failure to comply with the provisions of this section.
  8. If applicable, the notice of intention to wed shall contain the declaration of intent for a covenant marriage as provided in the Covenant Marriage Act of 2001, § 9-11-801 et seq.

History. Acts 1945, No. 112, §§ 1, 3-5; 1957, No. 119, § 1; 1959, No. 52, § 1; 1981, No. 788, § 1; 1983, No. 712, § 1; A.S.A. 1947, §§ 55-205, 55-207 — 55-209; Acts 2001, No. 1486, § 2.

Cross References. Content of declaration of intent, § 9-11-804.

County offices defined, § 14-14-603.

Distribution of powers of county governments, § 14-14-502.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Family Law, 24 U. Ark. Little Rock L. Rev. 483.

9-11-206. Clerk's fees.

The fee prescribed by law for the issuance of the marriage license shall be paid to the clerk at the time the applicants apply for the marriage license and sign the notice of intention to wed.

History. Acts 1945, No. 112, § 1; 1959, No. 52, § 1; 1981, No. 788, § 1; 1983, No. 712, § 1; A.S.A. 1947, § 55-205.

Cross References. Marriage license fees, generally, § 14-20-111.

Marriage license fees, miscellaneous county clerk fees, § 21-6-406.

9-11-207. Applicants for marriage licenses to be sober.

It shall be unlawful for any clerk who is authorized to issue marriage licenses to furnish or sell to any person or persons a license to marry at a time when either of the contracting parties is visibly under the influence of intoxicating drinks or under the influence of any kind of drugs. The parties applying for the license shall at the time be duly sober.

History. Acts 1941, No. 404, § 1; A.S.A. 1947, § 55-210.

9-11-208. License not issued to persons of the same sex.

      1. It is the public policy of the State of Arkansas to recognize the marital union only of man and woman.
      2. A license shall not be issued to a person to marry another person of the same sex, and no same-sex marriage shall be recognized as entitled to the benefits of marriage.
    1. Marriages between persons of the same sex are prohibited in this state. Any marriage entered into by a person of the same sex, when a marriage license is issued by another state or by a foreign jurisdiction, shall be void in Arkansas, and any contractual or other rights granted by virtue of that license, including its termination, shall be unenforceable in the Arkansas courts.
    2. However, nothing in this section shall prevent an employer from extending benefits to a person who is a domestic partner of an employee.
  1. A license shall not be issued to a person to marry unless and until the female shall attain the age of sixteen (16) years and the male the age of seventeen (17) years and then only by written consent by a parent or guardian until the male shall have attained the age of eighteen (18) years and the female the age of eighteen (18) years.

History. Acts 1941, No. 404, § 2; A.S.A. 1947, § 55-211; Acts 1997, No. 146, §§ 1, 2; 2007, No. 441, § 3; 2008 (1st Ex. Sess.), No. 3, § 3; 2011, No. 793, § 2.

A.C.R.C. Notes. Former § 9-11-222 was added to this section as present subdivision (a)(3) pursuant to § 1-2-303(d)(4).

Amendments. The 2007 amendment deleted former (a) relating to age.

The 2008 (1st Ex. Sess.) amendment added (d).

The 2011 amendment redesignated the subsections of the section; and substituted “a person” for “persons” throughout the section.

Research References

Ark. L. Rev.

Britta Palmer Stamps, Recent Developments: Same-Sex Marriage — United States District Judge Kristine Baker Declares Arkansas's Marriage Laws Unconstitutional, 67 Ark. L. Rev. 1111 (2014).

Case Notes

Constitutionality.

Arkansas law violated Due Process Clause and Equal Protection Clause of Fourteenth Amendment to the United States Constitution because it precluded same-sex couples from exercising their fundamental right to marry in Arkansas, refused to recognize valid same-sex marriages from other states, and discriminated on the basis of gender. Jernigan v. Crane, 64 F. Supp. 3d 1261 (E.D. Ark. 2014), aff'd 796 F.3d 976 (8th Cir. 2015).

The Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state. Obergefell v. Hodges, — U.S. —, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015).

Laws denying same-sex couples the right to marry are unconstitutional. Jernigan v. Crane, 796 F.3d 976 (8th Cir. 2015).

Cited: Smith v. Wright, 2014 Ark. 222 (2014).

9-11-209. Proof of age — Parental consent.

  1. Any person applying for the license to marry another may introduce the parent or guardian of himself or herself or the other party, or the certificate of the parent or guardian duly attested, to prove to the satisfaction of the clerk that the parties to the marriage are of lawful age.
  2. In case either or both of the parties to the marriage are not of lawful age, it shall be the duty of the clerk, before issuing the license, to require the party applying therefor to produce satisfactory evidence of the consent and willingness of the parent or guardian of the party to the marriage, which shall consist of either verbal or written consent thereto.
  3. If there are any doubts in the mind of the clerk as to the evidence of the consent and willingness of the parent or guardian of the party applying for the license or if the clerk is in doubt as to the true age of the party so making application, the clerk may require the applicants to furnish a copy of their birth certificates as proof of lawful age or may require the parties to make affidavit to the genuineness of the consent granted or to the correctness of the ages given. The affidavit so made shall be filed in the clerk's office for public inspection.

History. Acts 1875, No. 127, § 5, p. 260; 1885, No. 123, § 1, p. 200; C. & M. Dig., § 7062; Pope's Dig., § 9044; Acts 1963, No. 117, § 1; A.S.A. 1947, § 55-212.

Case Notes

Purpose.

This section was enacted for the protection of the county clerk and has nothing whatever to do with the annulment of marriages for failure to first obtain consent of parents or guardians. Witherington v. Witherington, 200 Ark. 802, 141 S.W.2d 30 (1940).

Annulment.

False statement as to age in affidavit for marriage license did not estop affiant from seeking to annul the marriage on ground of nonage. Hood v. Hood, 206 Ark. 1057, 178 S.W.2d 670 (1944).

Perjury.

Making false affidavit for license is perjury. Cox v. State, 164 Ark. 126, 261 S.W. 303 (1924).

9-11-210. Bond of applicant.

  1. Any person applying for a license under the provisions of this act shall be required to enter into bond to the State of Arkansas in the penal sum of one hundred dollars ($100) for the use of and benefit of the general fund of the county to ensure that the parties applying have a lawful right to the license and that they will faithfully carry into effect and comply with the provisions of this act.
  2. The bond shall be void when the license is duly returned to the office of the county clerk, duly executed and officially signed by someone authorized by law to solemnize the rites of matrimony.

History. Acts 1875, No. 127, § 4, p. 260; C. & M. Dig., § 7061; Pope's Dig., § 9043; Acts 1983, No. 419, § 1; A.S.A. 1947, § 55-213; Acts 1999, No. 1540, § 1.

Meaning of “this act”. See note to § 9-11-204.

Cross References. County offices defined, § 14-14-603.

Distribution of powers of county governments, § 14-14-502.

9-11-211. Military personnel — Waiver of certain license requirements — Proceedings.

    1. Upon written petition being filed with the county clerk of any county in this state, the county court, after hearing, may in its discretion waive by written order the requirement of bond, as prescribed by § 9-11-210, and the consent of parents, as required by §§ 9-11-102 — 9-11-105. The court may authorize and direct the county clerk to forthwith issue a license to marry to any resident of this state who is on active duty with the United States Armed Forces or to any resident of this state to marry a person who is on active duty with the United States Armed Forces.
    2. Nothing in this section is to be considered as reducing the statutory marriageable age of females not in the military service.
    1. The petition shall be signed and properly verified by both the parties seeking the license to marry and shall be styled “In the Matter of the Issuance of a Marriage License to a Member of the Armed Forces of the United States of America”.
    2. The petition shall set out the full name and address of each party, the military serial number of the service man or woman, rank, and military organization to which he or she is attached.
    3. The birth certificate of the nonservice man or woman shall be attached to the petition as an exhibit.
    4. The parties shall personally appear before the court, and the service man or woman will appear in uniform and exhibit to the court his or her military identification card.
    5. The parties will be required to execute the notice of intention to wed as prescribed by § 9-11-205 and file the notice with the county clerk.
  1. The county courts of this state for the purpose of this section shall be open and in session during regular office hours.

History. Acts 1967, No. 380, §§ 1-3; A.S.A. 1947, §§ 55-247 — 55-249.

Cross References. County offices defined, § 14-14-603.

Distribution of powers of county governments, § 14-14-502.

9-11-212. Application without other's consent — Penalties — Damages.

  1. If any person shall apply for and obtain a license to marry another, without first obtaining the consent of that party, the person shall be guilty of a misdemeanor and upon conviction shall be fined in any sum not less than ten dollars ($10.00) nor more than one hundred dollars ($100). The fines, when collected, shall be paid into the general fund of the county wherein the offense is tried.
  2. The party so doing shall moreover be liable to the party injured in any sum that a court or jury of competent jurisdiction may adjudge for damages.

History. Acts 1875, No. 127, § 7, p. 260; C. & M. Dig., § 7064; Pope's Dig., § 9046; A.S.A. 1947, § 55-215; Acts 1999, No. 1540, § 2.

9-11-213. Persons who may solemnize marriages.

  1. For the purpose of being registered and perpetuating the evidence thereof, marriage shall be solemnized only by the following persons:
    1. The Governor;
    2. Any former justice of the Supreme Court;
    3. Any judges of the courts of record within this state, including any former judge of a court of record who served at least four (4) years or more;
    4. Any justice of the peace, including any former justice of the peace who served at least two (2) terms since the passage of Arkansas Constitution, Amendment 55;
    5. Any regularly ordained minister or priest of any religious sect or denomination;
    6. The mayor of any city or town;
    7. Any official appointed for that purpose by the quorum court of the county where the marriage is to be solemnized; or
    8. Any elected district court judge and any former municipal or district court judge who served at least four (4) years.
    1. Marriages solemnized through the traditional rite of the Religious Society of Friends, more commonly known as Quakers, are recognized as valid to all intents and purposes the same as marriages otherwise contracted and solemnized in accordance with law.
    2. The functions, duties, and liabilities of a party solemnizing marriage, as set forth in the marriage laws of this state, in the case of marriages solemnized through the traditional marriage rite of the Religious Society of Friends, shall be incumbent upon the clerk of the congregation or, in his or her absence, his or her duly designated alternate.

History. Rev. Stat., ch. 94, § 10; Acts 1873, No. 2, § 1, p. 2; C. & M. Dig., § 7046; Pope's Dig., § 9026; Acts 1947, No. 231, § 1; 1977, No. 95, § 2; 1979, No. 693, § 1; 1983, No. 850, § 1; A.S.A. 1947, § 55-216; Acts 1987, No. 394, § 1; 1997, No. 862, § 1; 2001, No. 1068, § 1; 2003, No. 1185, § 16; 2007, No. 98, § 1.

A.C.R.C. Notes. With respect to the duties of persons solemnizing marriages, see also § 20-18-501.

Amendments. The 2007 amendment, in (a)(4), deleted “of the county where the marriage is solemnized” following “Any justice of the peace” and substituted “two (2)” for “three (3).”

Research References

U. Ark. Little Rock L.J.

Shively, Survey of Family Law, 3 U. Ark. Little Rock L.J. 223.

9-11-214. Recordation of credentials of clerical character.

  1. No minister of the gospel or priest of any religious sect or denomination shall be authorized to solemnize the rites of matrimony in this state until the minister or priest has caused to be recorded his or her license or credentials of his or her clerical character in the office of the county clerk of some county in this state. The minister or priest must also have obtained from the clerk a certificate, under his or her hand and seal, that the credentials are duly recorded in his or her office.
  2. It shall be the duty of a minister of the gospel or priest to add to the certificate of marriage required by law a statement setting forth the county where and the time when his or her license or credentials were so recorded.
  3. Any minister of the gospel, priest of any religious sect or denomination, or any person purporting to be such, who shall solemnize the rites of matrimony contrary to the provisions of this section, shall be deemed guilty of a misdemeanor. On conviction he or she shall be fined in any sum not less than one hundred dollars ($100).
    1. It shall be the duty of the clerk and recorder in each county, seasonably to record, in a well-bound book to be kept for that purpose, all licenses or credentials of clerical character of the persons who deposit the licenses or credentials of clerical character with him or her for record.
    2. Any clerk failing to comply with the provisions of this subsection shall, on motion of the party aggrieved, giving the clerk ten (10) days' notice in writing of the motion, be fined any sum not exceeding one hundred dollars ($100).

History. Rev. Stat., ch. 94, §§ 11, 22, 23; Acts 1843, §§ 2, 3, p. 55; Acts 1873, No. 2, §§ 2, 3, p. 2; C. & M. Dig., §§ 7047, 7049, 7053, 7054; Pope's Dig., §§ 9027, 9029, 9033, 9034; Acts 1947, No. 93, § 1; A.S.A. 1947, §§ 55-218 — 55-221.

Cross References. Acts validating recordation of credentials of clerical character, § 9-11-703.

County offices defined, § 14-14-603.

Distribution of powers of county governments, § 14-14-502.

Case Notes

Construction.

The statutes regulating and prescribing the manner and form in which marriages may be solemnized in this state are mandatory and not directory. Spicer v. Spicer, 239 Ark. 1013, 397 S.W.2d 129 (1965).

Revocation of Credentials.

In a suit to enjoin a church organization and the county clerk from attempting to cancel licenses and credentials filed according to this section, civil courts will not assume jurisdiction of a dispute involving church doctrine or discipline unless property rights are involved. Kinder v. Webb, 239 Ark. 1101, 396 S.W.2d 823 (1965).

9-11-215. Marriage ceremony.

  1. When marriages are solemnized by a minister of the gospel or priest, the ceremony shall be according to the forms and customs of the church or society to which he or she belongs. When solemnized by a civil officer, the form observed shall be the one the officer deems most appropriate.
  2. It shall be lawful for religious societies who reject formal ceremonies to join together in marriage persons who are members of the society according to the forms, customs, or rites of the society to which they belong, with the exception that the requirements set forth in the Covenant Marriage Act of 2001, § 9-11-801 et seq., shall be complied with if the parties enter into a covenant marriage.

History. Rev. Stat., ch. 94, §§ 12, 13; C. & M. Dig., §§ 7050, 7051; Pope's Dig., §§ 9030, 9031; A.S.A. 1947, §§ 55-222, 55-223; Acts 2001, No. 1486, § 3.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Family Law, 24 U. Ark. Little Rock L. Rev. 483.

Case Notes

Construction.

The statutes regulating and prescribing the manner and form in which marriages may be solemnized in this state are mandatory and not directory. Spicer v. Spicer, 239 Ark. 1013, 397 S.W.2d 129 (1965).

9-11-216. Solemnization contrary to law — Penalty.

  1. Any person who presumes to solemnize marriage in this state contrary to the provisions of this act shall be adjudged guilty of a misdemeanor and upon conviction shall be fined in any sum not less than one hundred dollars ($100) nor more than five hundred dollars ($500).
  2. The fine imposed by subsection (a) of this section shall be paid when collected into the general fund of the county in which the offense was committed.

History. Acts 1875, No. 127, § 8 (last part), p. 260; C. & M. Dig., § 7066; Pope's Dig., § 9048; A.S.A. 1947, § 55-217; Acts 1999, No. 1540, § 3.

Meaning of “this act”. See note to § 9-11-204.

Case Notes

Construction.

The statutes regulating and prescribing the manner and form in which marriages may be solemnized in this state are mandatory and not directory. Spicer v. Spicer, 239 Ark. 1013, 397 S.W.2d 129 (1965).

Notary Public.

A notary public has no authority to solemnize a marriage, and it is immaterial that he told the parties he could not marry them. Pearce v. State, 97 Ark. 5, 132 S.W. 986 (1910).

9-11-217. Failure to sign and return license at time of marriage — Penalty.

  1. Any person who fails to officially sign and return any license to the parties at the time of the marriage shall be adjudged guilty of a misdemeanor and upon conviction shall be fined in any sum not less than one hundred dollars ($100) nor more than five hundred dollars ($500).
  2. The fine imposed by subsection (a) of this section shall be paid when collected into the general fund of the county in which the offense was committed.

History. Acts 1875, No. 127, § 8 (last part), p. 260; C. & M. Dig., § 7066; Pope's Dig., § 9048; A.S.A. 1947, § 55-217; Acts 1999, No. 1540, § 4.

9-11-218. Return of executed license to clerk — Effect on bond.

  1. Any person obtaining a license under the provisions of this act shall be required to return the license to the office of the clerk of the county court within sixty (60) days from the date of the license.
    1. If the license is 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 be deemed null and void.
    2. Otherwise, it shall remain in full force and effect.

History. Acts 1875, No. 127, § 6, p. 260; C. & M. Dig., § 7063; Pope's Dig., § 9045; A.S.A. 1947, § 55-224.

Meaning of “this act”. See note to § 9-11-204.

Cross References. County offices defined, § 14-14-603.

Distribution of powers of county governments, § 14-14-502.

Case Notes

Construction.

Failure to comply with Arkansas's licensing statutes, as distinguished from the solemnization statutes, does not void an otherwise valid marriage. Fryar v. Roberts, 346 Ark. 432, 57 S.W.3d 727 (2001).

Marriage Upheld.

As a failure to do a ministerial act, i.e., to return a marriage license to the county clerk within 60 days of its issuance, could not render a marriage void, the parties had solemnized their marriage by a wedding ceremony, and the minister signed the marriage license, the trial court erred in ruling on summary judgment that the parties were not married. Fryar v. Roberts, 346 Ark. 432, 57 S.W.3d 727 (2001).

9-11-219. False return or record — Penalty.

If any person authorized to solemnize any marriage in this state shall willfully make a false return of any marriage or pretended marriage to the clerk and recorder, or if the clerk and recorder shall willfully make a false record of any return of a marriage license made to him or her, the offender shall be deemed guilty of a misdemeanor and on conviction shall be fined in any sum not less than one hundred dollars ($100).

History. Rev. Stat., ch. 94, § 25; C. & M. Dig., § 7068; Pope's Dig., § 9050; A.S.A. 1947, § 55-225.

9-11-220. Duty of clerk on return of license — Issuance of certificate.

  1. Upon the return of any license officially signed as having been executed and that the parties therein named have been duly and according to law joined in marriage, the clerk issuing the license shall make a record thereof in the marriage record in his or her office.
  2. The clerk shall immediately make out a certificate of the record, giving the names, date, book, and page, together with the name of the county and state, and attach the certificate to the license and return the license to the party presenting it.
  3. The certificate shall be sealed with the county seal.
  4. The circuit clerks in counties having two (2) judicial districts shall keep a record at the county site of each district in which marriage licenses shall be recorded.
    1. If a license has been returned and recorded by the clerk that contains clerical or scrivener's errors, the licensee may submit proof of the error to the circuit court in an ex parte proceeding.
    2. The court, upon a finding of error, shall order the county clerk to correct the errors on the license.
    3. The licensee shall not be charged a fee for filing a request to correct clerical or scrivener's errors.
  5. On the face of the certificate shall appear the certification to the fact of marriage, including, if applicable, a designation that the parties entered into a covenant marriage signed by the parties to the marriage and the witnesses, and the signature and title of the officiant.

History. Acts 1875, No. 127, § 9, p. 260; 1901, No. 123, § 2, p. 194; C. & M. Dig., §§ 7059, 7067; Pope's Dig., §§ 9041, 9049; A.S.A. 1947, §§ 55-226, 55-227; Acts 2001, No. 751, § 1; 2001, No. 1486, § 4; 2015, No. 1127, § 3.

Amendments. The 2015 amendment deleted “signed officially by the clerk and” preceding “sealed” in (c).

Cross References. County offices defined, § 14-14-603.

Covenant Marriage Act, § 9-11-801 et seq.

Distribution of powers of county governments, § 14-14-502.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Family Law, 24 U. Ark. Little Rock L. Rev. 483.

9-11-221. Certified copies of record as evidence.

The books of marriages and clerical credentials to be kept by the respective clerks and recorders and copies duly certified by the clerks and recorders shall be evidence in all the courts in this state.

History. Rev. Stat., ch. 94, § 24; C. & M. Dig., § 7055; Pope's Dig., § 9035; A.S.A. 1947, § 55-230.

Research References

Ark. L. Rev.

The Best Evidence Rule — A Rule Requiring the Production of a Writing to Prove the Writing’s Contents, 14 Ark. L. Rev. 153.

Documentary Evidence —Arkansas, 15 Ark. L. Rev. 79.

Case Notes

Rebuttal.

The evidence of marriage may be rebutted by proving that any circumstances rendered indispensably necessary by law to a valid marriage were wanting. Goset v. Goset, 112 Ark. 47, 164 S.W. 759 (1914).

Subchapter 3 — Marriage Contracts Generally

Publisher's Notes. This subchapter was probably superseded by Acts 1981, No. 548 (repealed), which was formerly codified as subchapter 4 of this chapter, as to antenuptial agreements made after July 1, 1981. This subchapter, however, would continue to apply to antenuptial agreements made prior to July 1, 1981.

Acts 1981, No. 548 was repealed and replaced by Acts 1987, No. 715, which now probably supersedes this subchapter and applies to premarital agreements executed on or after July 20, 1987.

Cross References. Promises made in consideration of marriage must be written, § 4-59-101.

Research References

ALR.

Parties' behavior during marriage as regarding contractual rights. 56 A.L.R.4th 998.

Family court jurisdiction to hear contract claims. 46 A.L.R.5th 735.

Am. Jur. 41 Am. Jur. 2d, Husb. & Wife, § 81 et seq.

C.J.S. 41 C.J.S., Husb. & Wife, § 93 et seq.

Case Notes

Acknowledgment and Recordation.

Antenuptial contract neither recorded nor acknowledged was not invalid as between the parties and their privies and could be pleaded in bar of wife's claim of homestead, dower and statutory allowances. Burnes v. Burnes, 203 Ark. 334, 157 S.W.2d 24 (1942).

Cited: Galbreath, Stewart & Co. v. Cook, 30 Ark. 417 (1875).

9-11-301. Execution of contract.

All marriage contracts whereby any estate, real or personal, is intended to be secured or conveyed to any person, or whereby the estate may be affected in law or equity, shall be in writing acknowledged by each of the contracting parties or proved by one (1) or more subscribing witnesses.

History. Rev. Stat., ch. 95, § 1; C. & M. Dig., § 7028; Pope's Dig., § 9008; A.S.A. 1947, § 55-301.

Research References

ALR.

Validity of Postnuptial Agreements in Contemplation of Spouse's Death. 87 A.L.R.6th 495.

Validity, Construction, and Enforcement of Oral Antenuptial Agreements. 15 A.L.R.7th Art. 2 (2015).

Case Notes

Burden of Proof.

Administrator of deceased husband's estate pleading antenuptial contract in bar to widow's claim of homestead, dower and statutory allowances had burden to prove that the contract had been knowingly entered into. Burnes v. Burnes, 203 Ark. 334, 157 S.W.2d 24 (1942).

Evidence.

Under this section, a postnuptial marriage settlement must be in writing and oral statements to the contrary fell short of establishing a binding property settlement. Rush v. Smith, 239 Ark. 874, 394 S.W.2d 613 (1965).

Knowledge.

Antenuptial contract signed by woman, without knowledge of its provisions, was so unjust and unequitable as not to bar widow's claim. Burnes v. Burnes, 203 Ark. 334, 157 S.W.2d 24 (1942).

Evidence sufficient to prove antenuptial agreement was knowingly entered into by the wife without any fraud or misunderstanding. Babb v. Babb, 270 Ark. 289, 604 S.W.2d 574 (Ct. App. 1980).

Woman not permitted to excuse her allegedly unknowing entry into an antenuptial agreement by saying she was “in love.” Babb v. Babb, 270 Ark. 289, 604 S.W.2d 574 (Ct. App. 1980).

Partial Performance of Parol Agreement.

A parol antenuptial agreement is not void but merely unenforceable; part performance subsequently acknowledged in writing rendered it enforceable. Sims v. Roberts, 188 Ark. 1030, 68 S.W.2d 1001 (1934).

9-11-302. Acknowledgment or proof.

Marriage contracts shall be acknowledged or proven before a court of record, before some judge or clerk of a court of record, or before any former judge of a court of record who served at least four (4) years, of the state in which the contract is made and executed, which acknowledgment or proof shall be taken and certified in the same manner as deeds of conveyance for lands are or shall be required by law to be acknowledged or proven.

History. Rev. Stat., ch. 95, § 2; C. & M. Dig., § 7029; Pope's Dig., § 9009; Acts 1983, No. 850, § 2; A.S.A. 1947, § 55-302.

Case Notes

Cited: Babb v. Babb, 270 Ark. 289, 604 S.W.2d 574 (Ct. App. 1980).

9-11-303. Recordation — Effect.

  1. Every marriage contract whereby any real estate is conveyed or secured shall be recorded with the certificate of proof or acknowledgment in the office of the clerk and recorder of every county in which any estate intended to be affected or conveyed shall be situated.
  2. When a marriage contract is deposited with the recorder of any county for record, it shall be deemed full notice to all persons of the contents thereof, as far as relates to real estate affected thereby in the county where it is deposited.

History. Rev. Stat., ch. 95, §§ 3, 4; C. & M. Dig., §§ 7030, 7031; Pope's Dig., §§ 9010, 9011; A.S.A. 1947, §§ 55-303, 55-304.

Case Notes

Cited: Babb v. Babb, 270 Ark. 289, 604 S.W.2d 574 (Ct. App. 1980).

9-11-304. Effect of unrecorded contract.

No marriage contract shall be valid or affect property, except between the parties thereto and those who have actual notice thereof, until it shall be deposited for record with the clerk and recorder of the county where the real estate is situated.

History. Rev. Stat., ch. 95, § 5; C. & M. Dig., § 7032; Pope's Dig., § 9012; A.S.A. 1947, § 55-305.

Case Notes

Validity Between Parties.

Failure to record acknowledged antenuptial agreement did not affect its validity as between the parties and their privies. Davis v. Davis, 196 Ark. 57, 116 S.W.2d 607 (1938).

9-11-305. Contract or copy as evidence — Conclusiveness.

  1. Marriage contracts duly proved or acknowledged, certified, or recorded shall be received as evidence in any court of record of this state, without further proof of their execution.
  2. When it shall appear to a court that any marriage contract duly acknowledged or proved and recorded is lost or is not in the power of the party wishing to use it, a copy duly certified under the hand and seal of the clerk and recorder may be received in evidence.
  3. Neither the certificate of acknowledgment nor probate of any marriage contract, nor the record or transcript thereof, shall be conclusive, but may be rebutted.

History. Rev. Stat., ch. 95, §§ 6-8; C. & M. Dig., §§ 7033-7035; Pope's Dig., §§ 9013-9015; A.S.A. 1947, §§ 55-306 — 55-308.

Research References

Ark. L. Rev.

Documentary Evidence — Arkansas, 15 Ark. L. Rev. 79.

Subchapter 4 — Arkansas Premarital Agreement Act

Publisher's Notes. Former subchapter 4, concerning antenuptial contracts or settlements, was repealed by Acts 1987, No. 715, § 13. The former subchapter was derived from the following sources:

9-11-401. Acts 1981, No. 548, § 6; A.S.A. 1947, § 55-314.

9-11-402. Acts 1981, No. 548, § 1; A.S.A. 1947, § 55-309.

9-11-403. Acts 1981, No. 548, § 2; A.S.A. 1947, § 55-310.

9-11-404. Acts 1981, No. 548, § 1; A.S.A. 1947, § 55-309.

9-11-405. Acts 1981, No. 548, § 3; A.S.A. 1947, § 55-311.

9-11-406. Acts 1981, No. 548, § 4; A.S.A. 1947, § 55-312.

9-11-407. Acts 1981, No. 548, § 5; A.S.A. 1947, § 55-313.

Research References

ALR.

Modern status of views as to validity of premarital agreements contemplating divorce or separation. 53 A.L.R.4th 22.

Enforceability of premarital agreements governing support or property rights upon divorce or separation as affected by circumstances surrounding execution. 53 A.L.R.4th 85.

Enforceability of premarital agreements governing support or property rights upon divorce or separation as affected by fairness or adequacy of those terms. 53 A.L.R.4th 161.

Parties' behavior during marriage as regarding contractual rights. 56 A.L.R.4th 998.

Failure to disclose extent or value of property owned as ground for avoiding premarital contract. 3 A.L.R.5th 394.

Family court jurisdiction to hear contract claims. 46 A.L.R.5th 735.

Construction and Application of Uniform Premarital Agreement Act of 1983, 33 A.L.R.7th Art. 2 (2018).

Am. Jur. 41 Am. Jur. 2d, Husb. & Wife, § 81 et seq.

Ark. L. Rev.

Maria Korzendorfer, Case Note: In re Estate of Thompson: The Shortcomings of the Arkansas Elective Share Statute, 68 Ark. L. Rev. 1089 (2016).

C.J.S. 41 C.J.S., Husb. & W., § 93 et seq.

U. Ark. Little Rock L.J.

Survey — Family Law, 10 U. Ark. Little Rock L.J. 577.

U. Ark. Little Rock L. Rev.

Lucy L. Holifield, Note: Property Law—Upending the Familiar Tools of Estate Planning: Equity Renders Revocable Trusts Subject to the Arkansas Spousal Election. In re Estate of Thompson, 38 U. Ark. Little Rock L. Rev. 75 (2015).

9-11-401. Definitions.

  1. “Premarital agreement” means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.
  2. “Property” means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.

History. Acts 1987, No. 715, § 1.

Case Notes

In General.

Parties contemplating marriage may, by agreement, fix the rights of each in the property of the other differently than established by law; such agreements must be made in contemplation of the marriage lasting until death, rather than in contemplation of divorce. Lee v. Lee, 35 Ark. App. 192, 816 S.W.2d 625 (1991).

An agreement that is not solely intended to be operative upon divorce is not void merely because it mentions or is operative upon divorce, among other contingencies. Lee v. Lee, 35 Ark. App. 192, 816 S.W.2d 625 (1991).

9-11-402. Formalities — Definition.

  1. A premarital agreement must be in writing and signed and acknowledged by both parties. It is enforceable without consideration.
  2. As used in this section, “acknowledged” means:
    1. A formal declaration or admission before an authorized public officer by the parties who execute the premarital agreement providing that the premarital agreement is the act and deed of the parties;
    2. A sworn affirmation by the respective attorneys of each party that the party represented by the attorney understands and consents to the legal effect of the premarital agreement;
    3. An agreement signed by the parties that is witnessed by a notary and includes a statement that the parties:
      1. Have consulted with their respective attorneys regarding the premarital agreement;
      2. Have read and understand the premarital agreement; and
      3. Freely entered into the premarital agreement without coercion or undue influence; or
    4. An execution of the premarital agreement by both parties that is witnessed by two (2) individuals who are disinterested parties to the premarital agreement.

History. Acts 1987, No. 715, § 2; 2017, No. 654, § 2.

A.C.R.C. Notes. Acts 2017, No. 654, § 1, provided: “Legislative findings. The General Assembly finds that:

“(1) Arkansas Code § 9-11-402 requires a premarital agreement to be in writing, signed, and acknowledged by both parties to the agreement;

“(2) In Lyle Farms P'ship et al. v. Lyle, 2016 Ark. App. 577 (2001), the Arkansas Court of Appeals defined ‘acknowledged’ in terms of the requirements necessary to satisfy an acknowledgement;

“(3) An ‘acknowledgement’ is a formal declaration before a notary that an instrument is the act and deed of the declarant; and

“(4) As parties are able to acknowledge their intent to be bound in numerous ways, the term ‘acknowledge’ should be defined in order to clarify the requirements of Arkansas Code § 9-11-402.”

Amendments. The 2017 amendment added (b) and redesignated the existing language as (a).

Case Notes

Acknowledgement.

Trial court properly granted a wife summary judgment on her declaratory judgment action seeking to have a prenuptial agreement declared null and void where the parties to the agreement did not include an acknowledgement as required by this section, and the inclusion of the word “acknowledge” in the body of the agreement and notary signature and seal were not the equivalent of an acknowledgement. Lyle Farms P'ship v. Lyle, 2016 Ark. App. 577, 507 S.W.3d 519 (2016) (decision under prior law).

9-11-403. Content.

  1. Parties to a premarital agreement may contract with respect to:
    1. the rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
    2. the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
    3. the disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
    4. the modification or elimination of spousal support;
    5. the making of a will, trust, or other arrangement to carry out the provisions of the agreement;
    6. the ownership rights in and disposition of the death benefit from a life insurance policy;
    7. the choice of law governing the construction of the agreement; and
    8. any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
  2. The right of a child to support may not be adversely affected by a premarital agreement.

History. Acts 1987, No. 715, § 3.

9-11-404. Effect of marriage.

A premarital agreement becomes effective upon marriage.

History. Acts 1987, No. 715, § 4.

9-11-405. Amendment or revocation.

After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation is enforceable without consideration.

History. Acts 1987, No. 715, § 5.

9-11-406. Enforcement.

  1. A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:
    1. that party did not execute the agreement voluntarily; or
    2. the agreement was unconscionable when it was executed and, before execution of the agreement, that party:
      1. was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
      2. did not voluntarily and expressly waive after consulting with legal counsel, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
      3. did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
  2. If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one (1) party to the agreement to be eligible for support under a program of public assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.
  3. An issue of unconscionability of a premarital agreement shall be decided by the court as a matter of law.

History. Acts 1987, No. 715, § 6.

Research References

ALR.

Validity of Postnuptial Agreements in Contemplation of Spouse's Death. 87 A.L.R.6th 495.

Case Notes

Applicability.

This section does not apply to a postnuptial agreement and, thus, such an agreement was upheld as valid under contract elements where both parties waived and released any rights as a surviving spouse to elect to take against the other's will or to have any interest in the property of the deceased spouse. Stewart v. Combs, 368 Ark. 121, 243 S.W.3d 294 (2006).

Classification of Property.

Where the agreement clearly stated that property acquired subsequent to the marriage shall be owned jointly, with each party entitled to one-half ownership in any such property, the fact that the husband bought property with his own money did not make that property his separate property. Lee v. Lee, 35 Ark. App. 192, 816 S.W.2d 625 (1991).

Disclosure.

Circuit court clearly erred in invalidating the premarital agreement under subdivision (a)(2) of this section and in finding that the wife had not received a fair and reasonable disclosure of the husband's assets where the exhibits attached to the agreement showed his approximate net worth and listed his personal and real property, as well as various investment accounts. Branch v. Branch, 2016 Ark. App. 613, 508 S.W.3d 911 (2016).

Failure to Read Agreement.

Wife's failure to read the proposed agreement before she signed it did not excuse her from its consequences. Lee v. Lee, 35 Ark. App. 192, 816 S.W.2d 625 (1991).

Trial court did not clearly err in finding that the decedent's wife had voluntarily signed a premarital agreement; the trial court put the responsibility on the wife, a college-educated adult, for any alleged failure to read or comprehend the agreement as a choice made at her own peril. Mays v. Mullins, 2018 Ark. App. 200, 547 S.W.3d 474 (2018).

Legal Malpractice.

When the client sued the attorney in connection with the execution of a prenuptial agreement, her complaint was barred by the three-year statute of limitations for legal-malpractice claims under § 16-56-105; there was no written contract to bring the action under the five-year statute of limitations set forth in § 16-56-111. While the prenuptial agreement contained a certification that the document was not enforceable under this section if the party did not voluntarily and expressly waive further disclosures after consulting with legal counsel, this writing did not convey written obligations upon the attorney. Pounders v. Reif, 2009 Ark. 581 (2009).

Present Value.

The chancellor's finding of the total present value of all property acquired subsequent to the marriage was clearly against the preponderance of the evidence, where he failed to consider all property acquired subsequent to the marriage. Lee v. Lee, 35 Ark. App. 192, 816 S.W.2d 625 (1991).

Presumption of Concealment.

Where the provisions for the wife are disproportionate to the means of the husband, a presumption arises that there has been a designed concealment, and such presumption places a burden on the husband to show by a preponderance of the evidence that the wife had knowledge of the character and extent of his assets, or ought to have had such knowledge at the time the agreement was signed. Lee v. Lee, 35 Ark. App. 192, 816 S.W.2d 625 (1991).

The presumption was overcome by proof that the husband made available to the wife a complete list of his assets, the value thereof, and his estimated net worth; there was evidence that, before the marriage, she had been on his farm; and she admitted that no pressure had been applied to force her to sign the agreement. Lee v. Lee, 35 Ark. App. 192, 816 S.W.2d 625 (1991).

Unconscionability.

Trial court did not err in concluding that the premarital agreement was not unconscionable where the parties had equal bargaining power, and the agreement disclosed the decedent's premarital real estate with particularity. Mays v. Mullins, 2018 Ark. App. 200, 547 S.W.3d 474 (2018).

9-11-407. Enforcement — Void marriage.

If a marriage is determined to be void, an agreement that would otherwise have been a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result.

History. Acts 1987, No. 715, § 7.

9-11-408. Limitations of actions.

Any statute of limitations applicable to an action asserting a claim for relief under a premarital agreement is tolled during the marriage of the parties to the agreement. However, equitable defenses limiting the time for enforcement, including laches and estoppel, are available to either party.

History. Acts 1987, No. 715, § 8.

9-11-409. Application and construction.

This subchapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this act among states enacting it.

History. Acts 1987, No. 715, § 9.

A.C.R.C. Notes. The reference to “this act among states enacting it” refers to the Uniform Premarital Agreement Act.

9-11-410. Short title.

This subchapter may be cited as the “Arkansas Premarital Agreement Act”.

History. Acts 1987, No. 715, § 10.

9-11-411. Severability.

If any provision of this subchapter or its application to any person or circumstance be held invalid, the invalidity does not affect other provisions or applications of this subchapter that can be given effect without the invalid provision or application, and to this end the provisions of this subchapter are severable.

History. Acts 1987, No. 715, § 11.

9-11-412. Time of taking effect.

This subchapter takes effect July 20, 1987, and applies to any premarital agreement executed on or after that date.

History. Acts 1987, No. 715, § 12.

A.C.R.C. Notes. As enacted, this section provided for an effective date of July 1, 1987. However, since the act contained no emergency clause, such effective date would be invalid under Arkansas case law (see State ex rel. Arkansas Tax Com. v. Moore, 103 Ark. 48, 145 S.W. 199 (1912) and related cases). Consequently, the general effective date for 1987 legislation was substituted in this section by the Arkansas Code Revision Commission pursuant to its authority under § 1-2-303.

9-11-413. Repeal.

The following acts and parts of acts are repealed:

  1. Acts 1981, No. 548.
  2. All laws and parts of laws in conflict with this subchapter.

History. Acts 1987, No. 715, § 13.

Subchapter 5 — Rights and Property of Married Persons

Cross References. Deeds between spouses, § 18-12-401.

Effective Dates. Acts 1873, No. 126, § 12: effective on passage.

Acts 1899, No. 5, § 2: effective on passage.

Research References

ALR.

Deed to persons described as husband and wife but not legally married. 9 A.L.R.4th 1189.

Prior institution of annulment proceedings or other attack on validity of one's marriage as barring or estopping one from entitlement to property rights as surviving spouse. 31 A.L.R.4th 1190.

Validity and effect of one spouse's conveyance to the other spouse of interest in property held as estate by entireties. 18 A.L.R.5th 230.

Property rights arising from relationship of couple cohabiting without marriage. 69 A.L.R.5th 219.

Am. Jur. 41 Am. Jur. 2d, Husb. & Wife, § 11 et seq.

Ark. L. Rev.

Personal Property — Ownership of Wedding Gifts, 8 Ark. L. Rev. 184.

The Effect of Void and Voidable Marriages in Arkansas, 10 Ark. L. Rev. 188.

Family Torts in Automobile Cases, 13 Ark. L. Rev. 299.

Torts and the Family — Areas of Liability, 14 Ark. L. Rev. 92.

Torts — Assault and Battery — Liability of One Who Aids and Abets Where Principal Assailant Not Liable, 15 Ark. L. Rev. 201.

Res Judicata — Privity Between Husband and Wife, 18 Ark. L. Rev. 103.

Note, Imputed Negligence Under the Arkansas Comparative Liability Statute, Exception: Stull, Adm'x v. Ragsdale, 35 Ark. L. Rev. 722.

Note, Attwood v. Estate of Attwood: A Partial Abrogation of the Parental Immunity Doctrine, 36 Ark. L. Rev. 451.

C.J.S. 41 C.J.S., Husb. & Wife, § 3 et seq.

U. Ark. Little Rock L.J.

Note, Torts — Negligence — Contributory Negligence of One Parent Is Imputed to the Other to Diminish the Latter's Recovery for the Death of a Minor Child (Stull v. Ragsdale). 5 U. Ark. Little Rock L.J. 289.

Harris, The Arkansas Marital Property Statute and the Arkansas Appellate Courts: Tiptoeing Together Through the Tulips, 7 U. Ark. Little Rock L.J. 1.

9-11-501. Construction of this section and §§ 9-11-509 — 9-11-514.

The rule that statutes in derogation of the common law shall be strictly construed shall have no application to this section and §§ 9-11-5099-11-514.

History. Acts 1875 (Adj. Sess.), No. 91, § 6, p. 172; C. & M. Dig., § 5596; Pope's Dig., § 7246; Acts 1981, No. 873, § 11; A.S.A. 1947, § 55-414.

Case Notes

Cited: Medlock v. Fort Smith Serv. Fin. Corp., 304 Ark. 652, 803 S.W.2d 930 (1991).

9-11-502. [Repealed.]

Publisher's Notes. This section, concerning removal of disabilities of married women, was repealed by Acts 2013, No. 1152, § 5. The section was derived from Acts 1915, No. 159, § 1; 1919, No. 66, § 1; C. & M. Dig., § 5577; Pope's Dig., § 7227; A.S.A. 1947, § 55-401.

9-11-503. Rights generally.

  1. A married person may bargain, sell, assign, and transfer his or her separate personal property, carry on any trade or business, and perform any labor or services on his or her sole and separate account.
  2. The earnings of any married person from the trade, business, labor, or services shall be his or her sole and separate property and may be used or invested in the person's own name.
  3. He or she may sue alone or be sued in the courts of this state on account of the property, business, or services.

History. Acts 1873, No. 126, § 3, p. 382; C. & M. Dig., § 5581; Pope's Dig., § 7231; Acts 1981, No. 873, § 1; A.S.A. 1947, § 55-402.

Case Notes

In General.

This section removed the common law disability of coverture, and repealed the saving clause in statute of limitations in a woman's favor. Hershy v. Latham, 42 Ark. 305 (1883); Batte v. McCaa, 44 Ark. 398 (1884); McGaughey v. Brown, 46 Ark. 25 (1885); Garland County v. Gaines, 47 Ark. 558, 2 S.W. 460 (1886).

Conduct of Business.

This section empowers a woman to become something more than a trader in the commercial sense. The primary signification of “business” is employment and includes farming. Hickey v. Thompson, 52 Ark. 234, 12 S.W. 475 (1889).

This section confers the right to conduct business in the way and by the means usually employed in carrying on business. Cooper v. Burel, 129 Ark. 261, 195 S.W. 356 (1917).

Contracts.

Husband and wife could not, by this section, contract between themselves. Spurlock v. Spurlock, 80 Ark. 37, 96 S.W. 753 (1906).

Obligations between husband and wife incurred before marriage were not extinguished by the marriage. McKie v. McKie, 116 Ark. 68, 172 S.W. 891 (1914).

Clearly, the law in Arkansas provides that a married person can contract in his or her own right; he or she can sue or be sued in his or her own right. Medlock v. Fort Smith Serv. Fin. Corp., 304 Ark. 652, 803 S.W.2d 930 (1991).

Partnership.

Wife may form a partnership in trade with any one, except her husband, and as to her separate estate, will be bound by all the contracts of the firm and to the same extent as if she were not married. Abbott v. Jackson, 43 Ark. 212 (1884).

Under this section wife could not form a partnership with her husband. Gilkerson-Sloss Comm'n Co. v. Salinger, 56 Ark. 294, 19 S.W. 747 (1892)

Suit Against Married Woman.

The husband need not be joined in a suit against the wife. Ark. Stables v. Samstag, 78 Ark. 517, 78 Ark. 517, 94 S.W. 699 (1906); Alphin v. Wade, 89 Ark. 354, 116 S.W. 667 (1909).

The burden of proof in an action seeking to enforce liability against a married woman is upon the plaintiff to show that the contract was one which she had the power to make. Hardin v. Jessie, 103 Ark. 246, 146 S.W. 499 (1912).

This section did not mean that in every instance a married woman must be sued alone. Williamson v. O'Dwyer & Ahern Co., 127 Ark. 530, 192 S.W. 899 (1917).

9-11-504. [Repealed.]

Publisher's Notes. This section, concerning authority to make executory contracts and power of attorney, was repealed by Acts 2013, No. 1152, § 6. The section was derived from Acts 1895, No. 47, § 1, p. 58; Pope's Dig., § 7226; A.S.A. 1947, § 55-405.

9-11-505. Control of separate real and personal property.

  1. The real and personal property that any married person now owns, or has had conveyed to him or her by any person in good faith and without prejudice to existing creditors, that is acquired as sole and separate property, that comes to him or her by gift, bequest, descent, grant, or conveyance from any person, that he or she has acquired by trade, business, labor, or services carried on or performed on his or her sole or separate account, that a married person in this state holds or owns at the time of the marriage, and the rents, issues, and proceeds of all such property shall, notwithstanding the marriage, be and remain his or her sole and separate property.
  2. The separate property may be used, collected, and invested by him or her, in his or her own name, and shall not be subject to the interference or control of his or her spouse nor shall it be liable for the spouse's debts, except as may have been contracted for the support of the spouse, or support of the children of the marriage by the spouse or his or her agent.

History. Acts 1873, No. 126, § 2, p. 382; C. & M. Dig., § 5580; Pope's Dig., § 7230; Acts 1981, No. 873, § 2; A.S.A. 1947, § 55-404.

Cross References. Property of femme covert, Ark. Const., Art. 9, § 7.

Case Notes

Construction with Other Law.

Where decedent and his surviving spouse were married for only four years, the trial court did not clearly err in finding that the transfer-on-death (TOD) account was the sole and separate property of decedent's three children by a prior marriage as the named beneficiaries of the TOD account; the funds used to purchase the account were gained as the result of the sale of decedent's business, which he acquired before his marriage to the surviving spouse and continued to hold as his separate property during the course of the marriage, and the surviving spouse admittedly had no ownership interest in the business, nor was their commingling of any funds between the surviving spouse and the decedent once they were married. Ginsburg v. Ginsburg, 359 Ark. 226, 195 S.W.3d 898 (2004).

Conveyance.

A wife may convey her separate estate as a femme sole and even though conveyance is without acknowledgment it would be valid between the parties. Johnson v. Graham Bros. Co., 98 Ark. 274, 135 S.W. 853 (1911).

Curtesy.

If a woman makes no disposal of her separate property and there is issue born alive of the marriage, at her death husband's right of curtesy attaches as at common law. Neely v. Lancaster, 47 Ark. 175, 1 S.W. 66 (1886). See also Percy v. Cockrill, 53 F. 872 (8th Cir. 1893); McGuire v. Cook, 98 Ark. 118, 135 S.W. 840 (1911).

Husband's right of curtesy is superior to claim of wife's creditors. Hampton v. Cook, 64 Ark. 353, 42 S.W. 535 (1897).

Liability for Debts.

The contracts of a married woman will not be enforced against her separate estate, unless they are made in reference thereto, or for her personal benefit. Stillwell v. Adams, 29 Ark. 346 (1874).

If the obligation is for improvement or preservation of the wife's estate, it will be implied that her property is liable for the debt. Henry v. Blackburn, 32 Ark. 445 (1877).

A married woman may contract for improvements upon her separate property and such a contract become the basis of a mechanic's lien for labor and materials. Hoffman v. McFadden, 56 Ark. 217, 19 S.W. 753 (1892).

Where husband was unable to pay on contract secured by a note executed by husband and wife to secure payment, the note was a valid obligation of the wife so far as it was for the benefit of her separate estate. Crenshaw v. Collier, 70 Ark. 5, 65 S.W. 709 (1901).

9-11-506. Spouses not liable for each other's antenuptial debts.

In all marriages solemnized after February 1, 1899, neither spouse shall be held to be liable for the antenuptial debts of the other, except by virtue of an express written contract.

History. Acts 1899, No. 5, § 1, p. 4; C. & M. Dig., § 5590; Pope's Dig., § 7240; Acts 1981, No. 873, § 5; A.S.A. 1947, § 55-408.

Case Notes

Cited: Fitzpatrick v. Owens, 124 Ark. 167, 186 S.W. 832 (1916).

9-11-507. Separate property of one spouse not liable for other spouse's debts.

The property of any male or female, whether real or personal, and whether acquired before or after marriage in that person's own right, shall not be sold to pay the debts of a spouse contracted for or damages incurred by the spouse before marriage.

History. Rev. Stat., ch. 60, § 22; C. & M. Dig., § 5589; Pope's Dig., § 7239; Acts 1981, No. 873, § 4; A.S.A. 1947, § 55-406.

Case Notes

Cited: Allen v. Hanks, 136 U.S. 300, 10 S. Ct. 961, 34 L. Ed. 414 (1890).

9-11-508. Contracts concerning separate property of one spouse not binding on other spouse.

No bargain or contract made by any married person, in respect to his or her sole and separate property or any property that may come to him or her by descent, devise, bequest, purchase, or gift or grant of any person, and no bargain or contract entered into by any married person, in or about the carrying on of any trade or business, under any statute of the state, shall be binding upon his or her spouse or render his or her person or property in any way liable therefor.

History. Acts 1873, No. 126, § 4, p. 382; C. & M. Dig., § 5582; Pope's Dig., § 7232; Acts 1981, No. 873, § 3; A.S.A. 1947, § 55-407.

Case Notes

Divorce.

This section does not control on the issue of marital debt associated with division of property in a divorce case. Hunt v. Hunt, 341 Ark. 173, 15 S.W.3d 334 (2000).

Cited: Mattar Bros. v. Wathen, 99 Ark. 329, 138 S.W. 455 (1911); Medlock v. Fort Smith Serv. Fin. Corp., 304 Ark. 652, 803 S.W.2d 930 (1991).

9-11-509. Schedule of separate personal property — Filing — Effect.

  1. A married person owning any separate personal property may make a schedule of the property and file it in the recorder's office of the county where he or she then lives.
  2. The schedule so filed, or a duly certified copy thereof, under the hand and seal of the recorder, shall be prima facie evidence, in all courts and places, that the property mentioned in the schedule, together with the issues and increases of the property, is, and was at the date of the making of the schedule, the separate property of the married person.

History. Acts 1875 (Adj. Sess.), No. 91, § 1, p. 172; C. & M. Dig., § 5591; Pope's Dig., § 7241; Acts 1981, No. 873, § 6; A.S.A. 1947, § 55-409.

Cross References. Scheduling separate personal property of married women, Ark. Const., Art. 9, § 8.

Case Notes

Purpose.

Failure to file a schedule will not enlarge the common law estate of a husband in his wife's property. The object of the statute was to increase the wife's rights and at the same time protect her husband's creditors. Coquard v. Pearce, 68 Ark. 93, 56 S.W. 641 (1900).

Exchanged Property.

Property for which scheduled property has been exchanged is not protected by the schedule. Berlin v. Cantrell, 33 Ark. 611 (1878).

Femme Sole.

Schedules can only be filed by a married woman, and a schedule filed by a femme sole will not avail upon her subsequent marriage. Berlin v. Cantrell, 33 Ark. 611 (1878).

Money.

A married woman is not required to schedule her money. German Bank v. Himstedt, 42 Ark. 62 (1883).

Cited: Taylor v. De Lapp, 181 Ark. 1147, 24 S.W.2d 862 (1930).

9-11-510. Form of schedule.

That schedule of a married person's separate property may be in the following form:

“STATE OF ARKANSAS COUNTY OF Be it known that I, , (Wife) (Husband) of of the County and State aforesaid, own in my own right the property below described, which I hereby schedule as my separate property, to-wit: (listing of property) Witness my hand this day of , 20 . SIGNATURE”.

Click to view form.

History. Acts 1875 (Adj. Sess.), No. 91, § 7, p. 172; C. & M. Dig., § 5597; Pope's Dig., § 7247; Acts 1981, No. 873, § 12; A.S.A. 1947, § 55-415.

9-11-511. Filing of schedule by person selling or giving property — Effect of recording conveyance or will.

  1. Any persons who shall bona fide sell or give any property to a married person may schedule and record the sale or gift as the separate property of the married person, with the same and like effect as though the scheduling and recording had been done by the married person.
  2. Any conveyance or will of property to a married person, on being duly recorded, shall have all the effect of a schedule under this section and §§ 9-11-501, 9-11-509, 9-11-510, and 9-11-512 — 9-11-514.

History. Acts 1875 (Adj. Sess.), No. 91, § 2, p. 172; C. & M. Dig., § 5592; Pope's Dig., § 7242; Acts 1981, No. 873, § 7; A.S.A. 1947, § 55-410.

Case Notes

Cited: Wallace v. Watson, 140 Ark. 430, 215 S.W. 892 (1919).

9-11-512. Effect of failure to file schedule.

The separate estate and property of a married person shall not be forfeited nor shall any rights and title thereto be prejudiced by a failure or neglect to file a schedule. However, in any suit, action, or proceeding relating to the property when the property has not been scheduled and recorded the burden of proof shall rest upon the married person to show the property is his or her separate property.

History. Acts 1875 (Adj. Sess.), No. 91, § 3, p. 172; C. & M. Dig., § 5593; Pope's Dig., § 7243; Acts 1981, No. 873, § 8; A.S.A. 1947, § 55-411.

9-11-513. Control of one spouse's separate property by other spouse — Presumption of agency or trusteeship.

The fact that a married person permits his or her spouse to have the custody, control, and management of separate property shall not of itself be sufficient evidence that the married person has relinquished title to the property. However, the presumption shall be that the spouse is acting as the agent or trustee of the other. This presumption may be rebutted by any evidence establishing a sale or gift of the property to the other spouse.

History. Acts 1875 (Adj. Sess.), No. 91, § 4, p. 172; C. & M. Dig., § 5594; Pope's Dig., § 7244; Acts 1981, No. 873, § 9; A.S.A. 1947, § 55-412.

Case Notes

Burden of Proof.

The burden is upon the husband to repel the presumption even though property paid for by the wife is taken in the husband's name. Gilbert v. Gilbert, 180 Ark. 596, 22 S.W.2d 32 (1929).

Presumption.

Evidence sufficient to support presumption that husband acted as the agent of the wife. Priddy v. Wood, 245 Ark. 209, 431 S.W.2d 744 (1968).

Rebutting Evidence.

This section does not require that the rebutting evidence should show a formal gift, it being sufficient if the proof shows that the wife's property was used by the husband in such manner as to preclude the idea that she expected him to account to her as her agent or trustee. Wyatt v. Scott, 84 Ark. 355, 105 S.W. 871 (1907).

Evidence sufficient to rebut presumption that husband acted as wife's agent. Jones v. Seward, 265 Ark. 225, 578 S.W.2d 16 (1979).

Cited: Fletcher v. Dunn, 188 Ark. 734, 67 S.W.2d 579 (1934).

9-11-514. Settlements in equity.

This section and §§ 9-11-501 and 9-11-5099-11-513 shall not be construed to abridge the existing jurisdiction and powers of a court of equity to make a settlement upon a spouse out of his or her separate estate and property and otherwise protect his or her separate property rights. Such jurisdiction is extended to securing to each spouse his or her separate property as required by law.

History. Acts 1875 (Adj. Sess.), No. 91, § 5, p. 172; C. & M. Dig., § 5595; Pope's Dig., § 7245; Acts 1981, No. 873, § 10; A.S.A. 1947, § 55-413.

9-11-515. [Repealed.]

Publisher's Notes. This section, concerning reformation of deeds, was repealed by Acts 2013, No. 1152, § 7. The section was derived from Acts 1893, No. 21, § 2, p. 38; C. & M. Dig., § 5578; Pope's Dig., § 7228; A.S.A. 1947, § 55-403.

9-11-516. Doctrine of necessaries — Abolished.

    1. Absent express authority, neither a husband nor a wife is liable for the other's debt obligations, including those for necessaries.
    2. As used in this section, “necessaries” means all such things required for the sustenance of a person, including food, clothing, medicine, and habitation.
  1. The doctrine of necessaries, as it is known in the common law, is hereby abolished.

History. Acts 2011, No. 1183, § 1.

Subchapter 6 — Rights in Real Estate of Insane Spouse

Effective Dates. Acts 1905, No. 337, § 6: effective on passage.

Acts 1907, No. 393, § 4: effective on passage.

Acts 1923, No. 472, § 2: approved Mar. 20, 1923. Emergency clause provided: “This act being necessary for the immediate preservation of the public peace, health and safety, an emergency is hereby declared to exist and this act shall take effect and be in force from and after its passage.”

Acts 1981, No. 714, § 75: Mar. 25, 1981. Emergency clause provided: “It has been found and is declared by the General Assembly of Arkansas that existing law relating to such matters as homestead, dower, curtesy, statutory allowances payable from a decedent's estate, and the right of a surviving spouse to take against the will of a decedent, do not in all circumstances provide for equal treatment between the sexes, that the constitutionality of such existing law has been drawn into question by decisions of the United States Supreme Court and the Arkansas Supreme Court, and that there is an urgent need to insure that the law provides equality in the property rights and interests of married persons. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from the date of its approval.”

9-11-601. Obligations to support spouse unaffected by subchapter.

Nothing in this subchapter shall be construed to release the plaintiff from any legal obligation the plaintiff may be under to support the defendant out of the plaintiff's estate, the same as if this subchapter had not been enacted.

History. Acts 1905, No. 337, § 4, p. 794; C. & M. Dig., § 3564; Pope's Dig., § 4450; Acts 1981, No. 714, § 12; A.S.A. 1947, § 59-704.

9-11-602. Sale of real estate free of dower or curtesy — Petition.

    1. Any person owning lands in this state and whose spouse is adjudged insane may apply by petition to the circuit court of the county where the lands are situated for leave to sell the real estate, or any part thereof, discharged and unencumbered of the rights of dower or curtesy of the spouse.
    2. The petition shall set forth the insanity of the spouse, the nature and duration thereof, the person with whom and the place at which the spouse may then be residing, the nature and object of the conveyance desired to be made, describing the real estate and giving the name of the person to whom the conveyance is intended to be made, and the consideration thereof, and that the intention of the conveyance is not to deprive the spouse of dower or curtesy, as the case may be, but to dispose of the real estate in the usual and ordinary course of business.
  1. On the filing of the petition, the court shall appoint some reliable and disinterested citizen not related to either of the parties, nor interested directly or indirectly in the real estate or any part thereof described in the petition as guardian ad litem for the defendant. The guardian ad litem shall forthwith cause the appearance of the defendant to be entered of record in the case from time to time and make such pleadings in the case as may seem fit to him or her for the interest of his or her ward and be consistent with the practice of the court. All acts of the guardian ad litem shall be deemed valid and binding on the defendant.

History. Acts 1905, No. 337, § 1, p. 794; C. & M. Dig., § 3561; Pope's Dig., § 4447; Acts 1981, No. 714, § 10; A.S.A. 1947, § 59-701.

9-11-603. Sale of real estate free of dower or curtesy — Order and deposit.

  1. Upon the hearing of the petition, if the court deems it to be in the best interest of the parties that the land be sold, it may make an order that the plaintiff may sell the land free and discharged and unencumbered of the right of dower or curtesy, as the case may be.
  2. In every such order, the court shall adjudge as part of the order that before the sale shall become effective, the petitioner or his or her grantee shall deposit into the registry of the court, in cash, one-third (1/3) of the purchase price of the lands to be disposed of as provided in this section. In all such sales, the sale shall be reported to the circuit court and the sale approved thereby.
    1. The deposit of one-third (1/3) of the purchase price of the land shall be held in trust by the clerk of the court and loaned out by him or her under the order of the court from time to time at the highest obtainable rate of interest, upon security to be approved by the court or judge in vacation. The clerk shall be responsible therefor on his or her official bond.
    2. The interest on the money shall be paid over annually to the plaintiff. However, the court may make, upon application, of which the plaintiff shall be notified, and on reasonable showing, reasonable allowance out of the interest from time to time for the support of the defendant.
    1. Should the insane defendant be survived by the plaintiff, the deposit shall be paid over to the plaintiff upon the plaintiff's application to the court. If the plaintiff survives the defendant but dies before an order of the court is actually made to pay the moneys over to the plaintiff, then the moneys shall descend to the plaintiff's heirs at law as realty and shall be paid over to the plaintiff's heirs or legal representatives according to law or the lawful order of the circuit court.
    2. In the event that the plaintiff is survived by the defendant, the interest accruing on the deposit shall be paid over to the defendant only during the defendant's natural life. At the defendant's death the deposit shall descend to the heirs at law of the plaintiff as realty and shall be paid over to the plaintiff's heirs or legal representatives according to law or the lawful order of the circuit court.

History. Acts 1905, No. 337, §§ 2-5, p. 794; C. & M. Dig., §§ 3562-3565; Pope's Dig., §§ 4448-4451; Acts 1981, No. 714, §§ 11-13; A.S.A. 1947, §§ 59-702 — 59-705.

9-11-604. Setting apart dower or curtesy as life estate in certain lands.

    1. Any person owning lands in this state whose spouse is adjudged permanently insane may apply by petition to the circuit court of the county where the lands or the greater part thereof are situated to have a life estate in a part of the lands set apart to the spouse in lieu of the spouse's inchoate right of dower or curtesy, as the case may be, in all of the lands and the remaining lands discharged and unencumbered of the dower or curtesy interest of the spouse.
    2. The petition shall set forth the insanity of the spouse, the nature and duration thereof, the person with whom and the place at which the spouse may then be residing, describing all the real estate of the plaintiff, and that it will be to the best interest of all parties.
  1. On the filing of the petition, the court shall appoint some reliable person, a citizen of the county, not related to either of the parties nor interested directly or indirectly in the real estate nor in any part thereof as guardian ad litem for the spouse. The guardian ad litem shall forthwith cause the appearance of the spouse to be entered of record in the case and make such pleadings in the case from time to time as may seem fit to him or her for the interest of his or her ward and be consistent with the practice of the court. All acts of the guardian ad litem shall be deemed valid and binding on his or her ward.
  2. The court on hearing the petition and being satisfied that it will be to the best interests of the parties to have the life estate in a part of the lands set apart to the spouse in lieu of dower or curtesy in the whole of the lands shall appoint three (3) persons as commissioners not interested in the lands nor in any part thereof who shall set apart the life estate in lieu of dower or curtesy, designating specifically the lands. They shall make their report to the court, which report shall be subject to the approval of the court.
  3. On approval of the report of the commissioners, the court shall make an order and decree divesting the dower or curtesy of the spouse out of the real estate of the plaintiff and in lieu thereof vesting in the spouse a life estate of the lands designated by the commissioners, and authorizing and empowering the plaintiff to sell the remainder of the lands or to mortgage and encumber the remainder of the lands free from any dower or curtesy rights of the spouse.

History. Acts 1907, No. 393, §§ 1-3, p. 985; C. & M. Dig., §§ 3566-3568; Acts 1923, No. 472, § 1; Pope's Dig., §§ 4452-4454; Acts 1981, No. 714, §§ 14-16; A.S.A. 1947, §§ 59-706 — 59-708.

Subchapter 7 — Validating Acts

Effective Dates. Acts 1843, p. 55, § 3: Apr. 1, 1843.

Acts 1873, No. 2, § 4: effective on passage, provided the penalty prescribed in the act should not be enforced within 60 days.

Acts 1885, No. 110, § 3: effective on passage.

Acts 1945, No. 6, § 3: approved Jan. 26, 1945. Emergency clause provided: “On account of the fact that persons other than county clerks or their deputies have issued marriage licenses and the legality of the marriages consummated thereunder has been called into question by reason of the fact that such licenses were not issued by the county clerk or his legally appointed deputy an emergency is found to exist and this act, being necessary for the immediate preservation of the public peace, health and safety shall take effect and be in force from and after its passage.”

Acts 1989 (3rd Ex. Sess.), No. 46, § 11: approved Nov. 14, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that there is an urgent need to validate otherwise legal marriages declared void by court decisions, to declare and preserve the legitimacy of the children born of such marriages, and to validate all property rights between the parties themselves and third persons; that it is in the best interest of the state that this act declaring such marriages take effect immediately. It is further determined that it is in the best interest of the state that the actions of alienation of affection and criminal conversation be abolished immediately. Therefore, an emergency is declared to exist and this act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage.”

Research References

ALR.

Validity of marriage as affected by lack of legal authority of person solemnizing it. 13 A.L.R.4th 1323.

Am. Jur. 52 Am. Jur. 2d, Marriage, § 33 et seq.

C.J.S. 55 C.J.S., Marriage, § 43 et seq.

9-11-701. Persons acting for clerk.

  1. The acts and deeds of all persons acting for and in behalf of any county clerk in this state in the issuance of marriage licenses prior to January 26, 1945, whether the person was a duly and legally appointed deputy of the county clerk or not, are declared to be as legal and valid as if the licenses had been issued by the county clerk in person.
  2. All marriages solemnized in this state prior to January 26, 1945, pursuant to a marriage license issued by a person other than the county clerk of the county wherein the license was issued or by the legally appointed deputy of the county clerk are declared to be valid. All the marriages shall be as binding and effectual as if the licenses had been issued by the county clerk of the county in person.

History. Acts 1945, No. 6, §§ 1, 2; A.S.A. 1947, §§ 55-231, 55-232.

9-11-702. Marriages performed by mayors.

All marriage ceremonies performed by mayors in the State of Arkansas prior to June 12, 1947, are declared to be valid.

History. Acts 1947, No. 231, § 2; A.S.A. 1947, § 55-216n.

9-11-703. Recordation of credentials of clerical character — Applicability of § 9-11-214.

  1. Section 9-11-214(a) and (b) shall not apply to those ministers and priests who properly filed their credentials prior to February 18, 1947, according to the law as it existed at the time the credentials were filed.
  2. Any marriage solemnized by any regularly ordained minister or priest of any religious sect or denomination in this state prior to February 18, 1947, is declared legal and valid, whether or not the minister or priest caused his or her license or credentials to be recorded as provided by § 9-11-214(a) and (b).

History. Acts 1843, § 2, p. 55; 1873, No. 2, § 2, p. 2; C. & M. Dig., § 7047; Pope's Dig., § 9027; Acts 1947, No. 93, §§ 1, 2; A.S.A. 1947, §§ 55-218, 55-218n.

Publisher's Notes. Previous acts which validated marriages conducted by ministers or priests who had failed to record their credentials were: Acts 1881, No. 93; Acts 1891, No. 37; Acts 1917, No. 253.

9-11-704. Marriages solemnized out of county.

  1. All marriages between persons authorized to contract marriage and solemnized prior to March 31, 1885, by any justice of the peace, or any other person authorized by law to solemnize the rites of matrimony, of any county in any other county in this state, and the persons afterwards lived together as husband and wife, are declared to be legal and their children legitimate.
  2. All marriages so solemnized prior to March 31, 1885, by any justice of the peace, or any other person authorized by law to solemnize the rites of matrimony, of any county in any other county are legalized and made as binding between the married persons in every respect as if the rites of matrimony had been solemnized by a justice of the peace of the county where the marriage was solemnized.

History. Acts 1885, No. 110, §§ 1, 2, p. 182; C. & M. Dig., §§ 7070, 7071; Pope's Dig., §§ 9052, 9053; A.S.A. 1947, §§ 55-233, 55-234.

9-11-705. Marriages solemnized by municipal court judges.

All marriages solemnized by municipal court judges prior to July 20, 1987, are declared valid ab initio.

History. Acts 1987, No. 394, § 2.

9-11-706. Marriage before entry of divorce decree.

  1. It is the intent of this section to validate all marriages deemed void as a result of the decision of the Supreme Court in Standridge v. Standridge, 298 Ark. 494, 769 S.W.2d 12 (1989), whether occurring prior to or subsequent to November 14, 1989.
    1. All marriages heretofore or hereafter declared void because the parties had entered into an otherwise valid marriage after the rendition of a valid decree of divorce of either of the parties but before the entry for record of the decree are declared valid for all purposes.
    2. All children born to any marriage declared valid by this section are deemed to be the legitimate children of both parents for all purposes.
    3. All property rights, including, but not limited to, conveyances, inheritance, intestate succession, dower, curtesy, and all rights and duties between the parties themselves or third persons, are declared to be those of validly married persons.
  2. This section shall apply to all marriages occurring both prior and subsequent to November 14, 1989.

History. Acts 1989 (3rd Ex. Sess.), No. 46, §§ 1-5.

Research References

U. Ark. Little Rock L.J.

Survey, Family Law, 12 U. Ark. Little Rock L.J. 631.

Subchapter 8 — Covenant Marriage Act

Effective Dates. Acts 2003, No. 1473, § 74: July 1, 2003. Emergency clause provided: “It is found and determined by the General Assembly of the State of Arkansas that this act includes technical corrects to Act 923 of 2003 which establishes the classification and compensation levels of state employees covered by the provisions of the Uniform Classification and Compensation Act; that Act 923 of 2003 will become effective on July 1, 2003; and that to avoid confusion this act must also effective on July 1, 2003. Therefore, an emergency is declared to exist and this act being necessary for the preservation of the public peace, health, and safety shall become effective on July 1, 2003.”

9-11-801. Title.

This subchapter shall be known and may be cited as the “Covenant Marriage Act of 2001”.

History. Acts 2001, No. 1486, § 5.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Family Law, 24 U. Ark. Little Rock L. Rev. 483.

The Shackles of Covenant Marriage: Who Holds the Keys to Wedlock?, 25 U. Ark. Little Rock L. Rev. 261.

Raymond C. O'Brien, Family Law’s Challenge to Religious Liberty, 35 U. Ark. Little Rock L. Rev. 3 (2012).

9-11-802. Definitions.

As used in this subchapter:

  1. “Authorized counseling” means marital counseling provided by:
    1. A priest;
    2. A minister;
    3. A rabbi;
    4. A clerk of the Religious Society of Friends;
    5. Any clergy member of any religious sect or a designated representative;
    6. A marriage educator approved by the person who will perform the marriage ceremony; or
    7. As defined by § 17-27-102:
      1. A licensed professional counselor;
      2. A licensed associate counselor;
      3. A licensed marriage and family therapist;
      4. A licensed clinical psychologist; or
      5. A licensed associate marriage and family therapist; and
  2. “Judicial separation” means a judicial proceeding pursuant to § 9-11-809 that results in a court determination that the parties to a covenant marriage live separate and apart.

History. Acts 2001, No. 1486, § 5; 2003, No. 1115, § 1; 2003, No. 1473, § 15.

9-11-803. Covenant marriage.

    1. A covenant marriage is a marriage entered into by one (1) male and one (1) female who understand and agree that the marriage between them is a lifelong relationship.
    2. Parties to a covenant marriage will have received authorized counseling emphasizing the nature, purposes, and responsibilities of marriage.
    3. Only when there has been a complete and total breach of the marital covenant commitment may a party seek a declaration that the marriage is no longer legally recognized.
    1. A man and a woman may contract a covenant marriage by declaring their intent to do so on their application for a marriage license as otherwise required under this chapter and executing a declaration of intent to contract a covenant marriage as provided in § 9-11-804.
    2. The application for a marriage license and the declaration of intent shall be filed with the official who issues the marriage license.

History. Acts 2001, No. 1486, § 5.

9-11-804. Content of declaration of intent.

  1. A declaration of intent to contract a covenant marriage shall contain all of the following:
    1. A recitation signed by both parties to the following effect:
    2. An affidavit by the parties that they have received authorized counseling that shall include a discussion of the seriousness of covenant marriage, communication of the fact that a covenant marriage is a commitment for life, a discussion of the obligation to seek marital counseling in times of marital difficulties, and a discussion of the exclusive grounds for legally terminating a covenant marriage by divorce;
    3. An attestation, signed by the counselor and attached to or included in the parties' affidavit, confirming that the parties received authorized counseling as to the nature and purpose of the marriage and the grounds for termination of the marriage and an acknowledgment that the counselor provided to the parties the informational pamphlet developed and promulgated by the Administrative Office of the Courts under this subchapter that provides a full explanation of the terms and conditions of a covenant marriage; and
      1. The signature of both parties witnessed by a notary.
      2. If one (1) of the parties is a minor, or both are minors, the written consent or authorization of those persons required under this chapter to consent to or authorize the marriage of minors.
  2. The declaration shall consist of two (2) separate documents:
    1. The recitation as set out in subdivision (a)(1) of this section; and
    2. The affidavit with the attestation either included within or attached to the document.
  3. The recitation, affidavit, and attestation shall be filed as provided in § 9-11-803(b).

“A COVENANT MARRIAGE

We do solemnly declare that marriage is a covenant between a man and a woman who agree to live together as husband and wife for so long as they both may live. We have chosen each other carefully and disclosed to one another everything which could adversely affect the decision to enter into this marriage. We have received authorized counseling on the nature, purposes, and responsibilities of marriage. We have read the Covenant Marriage Act of 2001, and we understand that a covenant marriage is for life. If we experience marital difficulties, we commit ourselves to take all reasonable efforts to preserve our marriage, including marital counseling.

With full knowledge of what this commitment means, we do hereby declare that our marriage will be bound by Arkansas law on covenant marriages, and we promise to love, honor, and care for one another as husband and wife for the rest of our lives.”;

History. Acts 2001, No. 1486, § 5; Acts 2011, No. 793, § 3.

Amendments. The 2011 amendment redesignated the subdivisions of (a)(2) and (3) as (a)(2) through (4).

9-11-805. Form of affidavit.

The following is the suggested form of the affidavit that may be used by the parties, notary, and counselor:

“STATE OF ARKANSAS COUNTY OF BE IT KNOWN THAT on this day of , , before me the undersigned notary, personally came and appeared: and who after being duly sworn by me, a notary, deposed and stated that: Affiants acknowledge that they have received premarital counseling from a priest, minister, rabbi, clerk of the Religious Society of Friends, any clergyman of any religious sect, or a professional marriage counselor, which marriage counseling included: A discussion of the seriousness of covenant marriage; Communication of the fact that a covenant marriage is a commitment for life; The obligation of a covenant marriage to take reasonable efforts to preserve the marriage if marital difficulties arise; and That affiants both read the pamphlet entitled “Covenant Marriage Act” developed and promulgated by the Administrative Office of the Courts, which provides a full explanation of a covenant marriage, including the obligation to seek marital counseling in times of marital difficulties and the exclusive grounds for legally terminating a covenant marriage by divorce or divorce after a judgment of separation from bed or board. (Name of prospective spouse) (Name of prospective spouse) SUBSCRIBED AND SWORN TO BEFORE ME THIS DAY OF , NOTARY PUBLIC ATTESTATION The undersigned attests that the affiants did receive counseling from me as to the nature and purpose of marriage, which included a discussion of the seriousness of covenant marriage, communication of the fact that a covenant marriage is for life, and the obligation of a covenant marriage to take reasonable efforts to preserve the marriage if marital difficulties arise. Counselor”.

Click to view form.

History. Acts 2001, No. 1486, § 5.

9-11-806. Other applicable rules.

A covenant marriage shall be governed by all of the provisions of this title, except as otherwise specifically provided in this subchapter.

History. Acts 2001, No. 1486, § 5.

9-11-807. Applicability to already married couples.

  1. A married couple, upon submission of a copy of their marriage certificate, which need not be certified, may execute a declaration of intent to designate their marriage as a covenant marriage to be governed by this subchapter.
  2. This declaration of intent in the form and containing the contents required by subsection (c) of this section must be filed with the officer who issues marriage licenses in the county in which the couple is domiciled.
    1. A declaration of intent to redesignate a marriage as a covenant marriage shall contain all of the following:
      1. A recitation by the parties as set out in § 9-11-804;
      2. An affidavit by the parties as set out in § 9-11-805 that they have discussed their intent to designate their marriage as a covenant marriage with an authorized counselor that included a discussion of the obligation to seek marital counseling in times of marital difficulties and the exclusive grounds for legally terminating a covenant marriage by divorce;
      3. An attestation signed by the counselor and attached to the parties' affidavit acknowledging that the counselor provided to the parties the informational pamphlet developed and promulgated by the Administrative Office of the Courts under this subchapter that provides a full explanation of the terms and conditions of a covenant marriage; and
      4. The signature of both parties witnessed by a notary.
      1. The declaration shall contain two (2) separate documents:
        1. The recitation; and
        2. The affidavit with the attestation either included within or attached to the document.
      2. The recitation, affidavit, and attestation shall be filed as provided in subsection (b) of this section.

History. Acts 2001, No. 1486, § 5.

9-11-808. Divorce or separation.

  1. Notwithstanding any other law to the contrary and subsequent to the parties' obtaining authorized counseling, a spouse to a covenant marriage may obtain a judgment of divorce only upon proof of any of the following:
    1. The other spouse has committed adultery;
    2. The other spouse has committed a felony or other infamous crime;
    3. The other spouse has physically or sexually abused the spouse seeking the divorce or a child of one (1) of the spouses;
    4. The spouses have been living separate and apart continuously without reconciliation for a period of two (2) years; or
      1. The spouses have been living separate and apart continuously without reconciliation for a period of two (2) years from the date the judgment of judicial separation was signed.
        1. If there is a minor child or children of the marriage, the spouses have been living separate and apart continuously without reconciliation for a period of two (2) years and six (6) months from the date the judgment of judicial separation was signed.
        2. However, if abuse of a child of the marriage or a child of one (1) of the spouses is the basis for which the judgment of judicial separation was obtained, then a judgment of divorce may be obtained if the spouses have been living separate and apart continuously without reconciliation for a period of one (1) year from the date the judgment of judicial separation was signed.
  2. Notwithstanding any other law to the contrary and subsequent to the parties' obtaining authorized counseling, a spouse to a covenant marriage may obtain a judgment of judicial separation only upon proof of any of the following:
    1. The other spouse has committed adultery;
    2. The other spouse has committed a felony and has been sentenced to death or imprisonment;
    3. The other spouse has physically or sexually abused the spouse seeking the legal separation or divorce or a child of one (1) of the spouses;
    4. The spouses have been living separate and apart continuously without reconciliation for a period of two (2) years; or
    5. The other spouse shall:
      1. Be addicted to habitual drunkenness for one (1) year;
      2. Be guilty of such cruel and barbarous treatment as to endanger the life of the other; or
      3. Offer such indignities to the person of the other as shall render his or her condition intolerable.

History. Acts 2001, No. 1486, § 5.

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2001 Arkansas General Assembly, Family Law, 24 U. Ark. Little Rock L. Rev. 483.

Case Notes

Divorce Improperly Granted.

Circuit court granted the wife a divorce, although she did not attend the trial to prosecute her claim, based solely on testimony offered by the husband to prove and corroborate the wife's ground of adultery; the circuit court had the authority to dismiss the wife's amended complaint for failure to prosecute, or the circuit court could have continued the case, but there was no known authority to permit the husband to proceed with the wife's amended complaint, which she declined to prosecute, and the matter was reversed. Olson v. Olson, 2014 Ark. 537, 453 S.W.3d 128 (2014).

9-11-809. Suit against spouse — Separation.

  1. Unless judicially separated, spouses in a covenant marriage may not sue each other except for causes of action:
    1. Pertaining to contracts;
    2. For restitution of separate property;
    3. For judicial separation in covenant marriages;
    4. For divorce or for declaration of nullity of the marriage; and
    5. For causes of action pertaining to spousal support or the support or custody of a child while the spouses are living separate and apart, although not judicially separated.
    1. Any court that is competent to preside over divorce proceedings has jurisdiction of an action for judicial separation or divorce in a covenant marriage if:
      1. One (1) or both of the spouses are domiciled in this state and the ground for judicial separation or divorce in a covenant marriage was committed or occurred in this state or while the matrimonial domicile was in this state; or
      2. The ground therefor occurred elsewhere while either or both of the spouses were domiciled elsewhere, provided the person obtaining the judicial separation was domiciled in this state prior to the time the cause of action accrued and is domiciled in this state at the time the action is filed.
    2. An action for a judicial separation in a covenant marriage shall be brought in a county where either party is domiciled, or in the county of the last matrimonial domicile.
    3. The venue provided in this section may not be waived, and a judgment of separation rendered by a court of improper venue is an absolute nullity.
  2. Judgments on the pleadings and summary judgments shall not be granted in any action for judicial separation in a covenant marriage.
  3. In a proceeding for a judicial separation in a covenant marriage or thereafter, a court may award a spouse all incidental relief afforded in a proceeding for divorce, including, but not limited to, spousal support, claims for contributions to education, child custody, visitation rights, child support, injunctive relief, and possession and use of a family residence or joint property.

History. Acts 2001, No. 1486, § 5.

9-11-810. Effects of separation.

  1. Judicial separation in a covenant marriage does not dissolve the bond of matrimony since the separated husband and wife are not at liberty to marry again, but it puts an end to their conjugal cohabitation and to the common concerns that existed between them.
  2. Spouses who are judicially separated in a covenant marriage shall retain that status until either reconciliation or divorce.

History. Acts 2001, No. 1486, § 5.

9-11-811. Informational pamphlet.

  1. The Administrative Office of the Courts shall promulgate an informational pamphlet, entitled “Covenant Marriage Act of 2001”, which shall outline in sufficient detail the consequences of entering into a covenant marriage.
  2. The informational pamphlet shall be made available to any counselor who provides authorized counseling as provided for by this subchapter.

History. Acts 2001, No. 1486, § 5.

Chapter 12 Divorce and Annulment

Subchapter 1 — General Provisions

9-12-101. Subsequent marriage before dissolution of prior marriage prohibited.

No subsequent or second marriage shall be contracted by any person during the lifetime of any former husband or wife of the person unless the marriage with the former husband or wife has been dissolved for some one (1) of the causes set forth in the law concerning divorces by a court of competent authority.

History. Rev. Stat., ch. 94, § 6; C. & M. Dig., § 7042; Pope's Dig., § 9022; A.S.A. 1947, § 55-108.

Research References

Ark. L. Rev.

The Effect of Void and Voidable Marriages in Arkansas, 10 Ark. L. Rev. 188.

Case Notes

Void Marriage.

A marriage in violation of this section is void and no decree is necessary to avoid it. Goset v. Goset, 112 Ark. 47, 164 S.W. 759 (1914).

A bigamous marriage is void though one of the parties entered into it in good faith. Evatt v. Miller, 114 Ark. 84, 169 S.W. 817 (1914).

This section does not apply to void marriages and where wife was married prior to the granting of divorce from former husband, court had jurisdiction to annul the marriage. Bramble v. Kemper, 227 Ark. 186, 297 S.W.2d 104 (1957).

A subsequent marriage before dissolution of a prior marriage is void. Acuna v. Sullivan, 765 F. Supp. 510 (E.D. Ark. 1991).

Cited: Smiley v. Smiley, 247 Ark. 933, 448 S.W.2d 642 (1970); Clark v. Clark, 19 Ark. App. 280, 719 S.W.2d 712 (1986).

Subchapter 2 — Annulment

Research References

ALR.

Prior institution of annulment proceedings or other attack on validity of one's marriage as barring or estopping one from entitlement to property rights as surviving spouse. 31 A.L.R.4th 1190.

Homosexuality, transvestitism and similar sexual practices as grounds for annulment of marriage. 68 A.L.R.4th 1069.

Power of incompetent spouse's guardian or representative to sue for granting or vacation of divorce or annulment of marriage, or to make compromise or settlement in such suit. 32 A.L.R.5th 673.

Am. Jur. 4 Am. Jur. 2d, Annulment of Marriage, § 1 et seq.

Ark. L. Rev.

Domestic Relations — Annulment for Failure to Reveal Family Morals, 5 Ark. L. Rev. 442.

The Effect of Void and Voidable Marriages in Arkansas, 10 Ark. L. Rev. 188.

The Cause of Action for Annulment of Marriage in Arkansas, 14 Ark. L. Rev. 85.

C.J.S. 55 C.J.S., Marriage, § 70 et seq.

9-12-201. Grounds.

When either of the parties to a marriage is incapable from want of age or understanding of consenting to any marriage, or is incapable of entering into the marriage state due to physical causes, or when the consent of either party shall have been obtained by force or fraud, the marriage shall be void from the time its nullity shall be declared by a court of competent jurisdiction.

History. Rev. Stat., ch. 94, § 5; C. & M. Dig., § 7041; Pope's Dig., § 9021; A.S.A. 1947, § 55-106.

Research References

U. Ark. Little Rock L.J.

Survey, Family Law, 13 U. Ark. Little Rock L.J. 369.

Case Notes

In General.

A marriage may be annulled only for causes set up by statute. Phillips v. Phillips, 182 Ark. 206, 31 S.W.2d 134 (1930).

Construction.

The word “void” as used in this section is used in the sense that the marriage can be avoided. Ragan v. Cox, 210 Ark. 152, 194 S.W.2d 681 (1946).

The word “void” as used in this section means voidable. Vance v. Hinch, 222 Ark. 494, 261 S.W.2d 412 (1953).

The words “want of understanding” as used in this section are broad enough to include a person of unsound mind. Vance v. Hinch, 222 Ark. 494, 261 S.W.2d 412 (1953).

Abatement on Death of Party.

Administrator of a husband's estate lacked standing to appeal the denial of his motion to be substituted as a party for the husband in the wife's annulment action because he was not a party below. Additionally, pursuant to this section, providing for annulment during the lives of the parties, the annulment action abated on the death of the husband. Stuhr v. Oliver, 2010 Ark. 189, 363 S.W.3d 316 (2010).

Alimony.

Where a guardian sues to annul a marriage between an infant husband and infant wife, wife cannot sue guardian or parent for alimony. Erwin v. Erwin, 120 Ark. 581, 180 S.W. 186 (1915).

Attorney's Fees.

Where evidence did not sustain annulment of marriage, defendant wife was entitled to award of fees for her attorney. Shatford v. Shatford, 214 Ark. 612, 217 S.W.2d 917 (1949).

Burden of Proof.

Burden of proof is upon husband to establish fraud where he files an action to annul marriage on the ground of fraud. Shatford v. Shatford, 214 Ark. 612, 217 S.W.2d 917 (1949).

Conflict of Laws.

The validity of a marriage must be determined by the law of the state where the marriage was contracted. Feigenbaum v. Feigenbaum, 210 Ark. 186, 194 S.W.2d 1012 (1946).

Fraud.

In action to annul marriage on the ground of fraud the plaintiff must establish the fraud with the same amount of evidence, as is required in an action to set aside a deed or other written contract on the ground of fraud. Shatford v. Shatford, 214 Ark. 612, 217 S.W.2d 917 (1949).

Evidence did not justify annulment of marriage on the ground of false representation. Shatford v. Shatford, 214 Ark. 612, 217 S.W.2d 917 (1949).

Minors.

This section reaffirms public policy of the state to the effect that underage marriages, valid where contracted, are not void in Arkansas until nullified by a court of competent jurisdiction. State v. Graves, 228 Ark. 378, 307 S.W.2d 545 (1957).

The public policy of Arkansas against underage marriages is not such that a marriage, valid in the state where contracted, would be void in Arkansas. State v. Graves, 228 Ark. 378, 307 S.W.2d 545 (1957).

Nonresidents.

An Arkansas court has jurisdiction of a suit by a nonresident against a nonresident for the annulment of a marriage contracted between them in Arkansas. Feigenbaum v. Feigenbaum, 210 Ark. 186, 194 S.W.2d 1012 (1946).

Particular Grounds.

Marriage induced through fear of prosecution for having seduced a girl is not ground for annulling the marriage. Kibler v. Kibler, 180 Ark. 1152, 24 S.W.2d 867 (1930).

A marriage may be annulled when one of the parties is infected with syphilis. Brown v. Brown, 181 Ark. 528, 27 S.W.2d 85 (1930).

A woman who took part in a marriage ceremony at a time when by reason of intoxication she was incapable of consenting to marriage is entitled to have the marriage annulled. Bickley v. Carter, 190 Ark. 501, 79 S.W.2d 436 (1935).

Marriage induced by misrepresentation as to paternity of child may be annulled on the ground of fraud. Shatford v. Shatford, 214 Ark. 612, 217 S.W.2d 917 (1949).

In son's action for an injunction prohibiting his deceased father's wife from receiving the father's pension benefits, the son could not challenge the validity of the father's marriage on appeal where the issue of whether the marriage should be set aside on the ground of undue influence was argued before, and decided by, the trial court. Hooten v. Jensen, 94 Ark. App. 130, 227 S.W.3d 431 (2006).

Res Judicata.

Decision in an annulment proceeding brought on the ground of false representation as to paternity of child is not res judicata in either a paternity or heirship action, as child is not a party privy to the annulment proceeding. Shatford v. Shatford, 214 Ark. 612, 217 S.W.2d 917 (1949).

Time of Bringing Action.

The marriage of an insane person is voidable only, and is subject to attack, only during the lifetime of both parties. Vance v. Hinch, 222 Ark. 494, 261 S.W.2d 412 (1953).

A state of marriage can only be dissolved during the lives of the parties to the marriage by annulment or by divorce. Mabry v. Mabry, 259 Ark. 622, 535 S.W.2d 824 (1976).

9-12-202. Proceedings for annulment to be in equity — Venue.

  1. The action shall be by equitable proceedings in the county where the complainant or complainants reside.
  2. The process may be directed in the first instance to any county in the state where the defendant may then reside or be found.

History. Pope's Dig., § 9021A, as added by Acts 1947, No. 168, § 1; A.S.A. 1947, § 55-107.

Research References

Ark. L. Rev.

Acts of 1947. Changes in Venue Laws, 1 Ark. Law Rev. 209.

Conflict of Laws — Jurisdiction in Amendment, 22 Ark. L. Rev. 509.

Case Notes

Void Marriages.

This section does not apply to void marriages and where wife was married prior to the granting of divorce from former husband, chancery court of the county where the void marriage was performed had jurisdiction to annul the marriage. Bramble v. Kemper, 227 Ark. 186, 297 S.W.2d 104 (1957).

Subchapter 3 — Actions for Divorce or Alimony

Cross References. Divorce or annulment registration, § 20-18-502.

Effective Dates. Acts 1891, No. 26, § 2: effective on passage.

Acts 1893, No. 102, § 2: effective on passage.

Acts 1931, No. 71, in part: approved Feb. 26, 1931. Emergency clause provided: “This law being necessary to create the uniformity in divorce laws in the states of the union and being necessary for the immediate preservation of the public health, peace and safety of the citizens of the state of Arkansas, an emergency is hereby declared and this law shall be in full force and effect from and after its passage.”

Acts 1937, No. 167, § 2: effective on passage.

Acts 1939, No. 20, § 4: approved Jan. 27, 1939. Emergency clause provided: “Because it is ascertained and determined that it is vital to the continued foundation of the social structure of the State that laws be established for the protection of domestic relations, and this act being essential for the protection of public safety, peace and health of the State of Arkansas, it shall be in full force from and after its passage.”

Acts 1943, No. 428, § 3: became law without Governor's signature, Apr. 1, 1943. Emergency clause provided: “Because it is ascertained and determined that it is vital to the continued foundation of the social structure of the State that laws be established for the protection of domestic relations, and this act being essential for the protection of public safety, peace and health of the State of Arkansas, it shall be in full force from and after its passage.”

Acts 1945, No. 274, § 2: approved Mar. 20, 1945. Emergency clause provided: “This act being necessary for the immediate preservation of the public peace, health and safety of the state of Arkansas, shall take effect and be in full force from and after the date of its passage and approval.”

Acts 1947, No. 16, § 3: Jan. 31, 1947. Emergency clause provided: “It is hereby ascertained and declared by the 56th General Assembly of the state of Arkansas, that there is a lack of uniformity in the construction and application of section 4394 in cases where the divorce is granted to the husband, when by reason of law it should apply to all divorce actions, and that with the law in its present state, great confusion occurs in the restoration of the proper legal name to the wife in divorce decrees, and accordingly, an emergency is declared to exist, and this act, being necessary for the immediate preservation of the public peace, health and safety, shall take effect and be in full force from and after the date of its passage and approval.”

Acts 1947, No. 159, § 2: approved Mar. 3, 1947. Emergency clause provided: “Because it is ascertained and determined that it is vital to the continued foundation of the social structure of the state that laws be established for the protection of domestic relations, and this act being essential for the protection of public safety, peace and health of the State of Arkansas, it shall be in full force from and after its passage.”

Acts 1947, No. 340, § 3: Mar. 28, 1947. Emergency clause provided: “The general assembly of the state of Arkansas finds and declares that numerous injustices have been done because courts of equity within the state of Arkansas have lacked the power heretofore, upon dissolutionment of the marital status, to dissolve estates in property created by the marital status; and that, accordingly, an emergency is hereby declared to exist, and this act, being necessary for the immediate preservation of the public peace, health and safety, shall take effect and be in full force from and after the date of its passage and approval.”

Acts 1953, No. 348, § 6: approved Mar. 28, 1953. Emergency clause provided: “Because it is ascertained and determined that it is vital to the continued foundation of the social structure of the state that laws be established for the protection of domestic relations, and this act being essential for the protection of public safety, peace and health of the state of Arkansas, it shall be in full force from and after its passage.”

Acts 1957, No. 36: Feb. 11, 1957. Emergency clause provided: “Because it is ascertained and determined that confusion exists by reason of various conflicting decisions, particularly in Squire v. Squire, 186 Ark. 511, 54 S.W.2d 281, and Cassen v. Cassen, 211 Ark. 582, whereby many persons throughout the United States have been embarrassed and their marital status made obscure by reason of said conflicting decisions; and this Act being necessary for the preservation of the public peace, health and safety, an emergency is hereby declared to exist and this Act shall take effect and be in full force from and after its passage and approval.”

Acts 1959, No. 39, § 3: Feb. 13, 1959. Emergency clause provided: “Whereas, under existing law and procedure of the various chancery courts of this state, the authority of such judges to grant divorces in vacation in cases where the defendant is a nonresident of the state of Arkansas and against whom a warning order has been published, is doubtful, and should be clarified so as to prevent long delays, great inconvenience and hardship on resident plaintiffs in such cases, and the immediate passage of this act being necessary to correct said situation, Now, Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1963, No. 74, § 3: Feb. 21, 1963. Emergency clause provided: “It is hereby ascertained and determined by the General Assembly that it is vital to the social structure of this state that laws be established for the protection of domestic relations and that only by the immediate passage of this act may this be accomplished. Therefore an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health and safety shall be in effect from the date of its passage and approval.”

Acts 1963, No. 190, § 2: Mar. 8, 1963. Emergency clause provided: “It is hereby found and determined by the General Assembly the present law regarding the venue of divorce actions is not clear, that such lack of clarity results in undue hardship on the people of this State, and that this can be corrected only by the immediate passage of this act. Therefore, an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health, safety and welfare, shall be in effect from the date of its passage and approval.”

Acts 1969, No. 398, § 4: Apr. 11, 1969. Emergency clause provided: “It having been found by the General Assembly that in many cases plaintiffs, entitled to a divorce, are unable to prove by others matters for which a divorce should be granted, and unable to corroborate plaintiff's own testimony, and, therefore, unable to obtain a divorce which ought to be granted, to the harm of the plaintiff and of society in general, working an undue hardship on the parties, and so an emergency is declared to exist and this act being necessary to the public peace, health and safety, shall be in full force and effect from and after its passage and approval.”

Acts 1975, No. 297, § 3: Mar. 3, 1975. Emergency clause provided: “It is hereby found and determined by the General Assembly that the present law regarding the venue for divorce actions is unduly harsh and restrictive and in many instances works a great hardship on the people of this State, and that it can be corrected only by the immediate passage of this Act. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health, safety and welfare, shall be in effect from the date of its passage and approval.”

Acts 1975, No. 457, § 3: Mar. 18, 1975. Emergency clause provided: “It is hereby found and determined by the General Assembly that under present law Chancery Courts rendering decrees of divorce are authorized to dissolve estates by the entirety or survivorship held by the parties to the divorce and to treat such parties as tenants in common, but that considerable confusion results in such cases when the Court does not specifically dissolve such estates in the decree; that it is in the best interests of all parties concerned that the law on the subject be revised to provide that dissolution of estates by the entirety shall be automatic upon rendition of a final decree of divorce unless specifically provided otherwise in the decree; that this Act is designed to accomplish this purpose and to verify the law on the subject of estates by the entirety held by parties to a divorce proceeding, and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect form and after its passage and approval.”

Acts 1979, No. 705, § 7: emergency failed to pass. Emergency clause provided: “It is hereby found and determined by the General Assembly that in a dissenting opinion in the recent case of McNew v. McNew, 262 Ark. 567, 559 S.W.2d 155 (1977), regarding Ark. Stat. Ann. Section 34-1214, a justice of the Arkansas Supreme Court said that ‘The Arkansas law regarding property was enacted before the turn of the century and can no longer be defended historically or legally with any confidence’, and that ‘It clearly violates the Equal Protection Clauses of the Arkansas and the United States Constitutions’; that in the majority opinion in that same case the Court did not decide this issue, stating ‘We will not decide constitutional issues unless their determination is essential to disposition of the case’, and holding that this issue of property division at the time of a divorce action was not properly before it; that a decision holding that Ark. Stat. Ann. Section 34-1214 is unconstitutional would create chaos in all divorce actions then pending in Arkansas courts until such time as the Arkansas General Assembly could enact legislation to cover this subject; and that this Act is designed to correct and clarify the law on this subject. Therefore, an emergency is declared to exist and this Act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.” Approved Apr. 2, 1979.

Acts 1981, No. 69, § 2: Feb. 16, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that under the present law relative to the division of marital property in divorce proceedings, if the court does not divide such property equally between the parties, the court is required to state in writing the basis and reasons for not dividing the property equally; that the requirement that such basis and reasons be stated in writing in all such cases results in unreasonable delays in such proceedings and in inconvenience to the parties and to the courts; that this Act is designed to permit the court to orally state the basis and reasons for such division of property and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1981, No. 267, § 3: Mar. 2, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that in many cases in which any issue is contested the injured party, entitled to divorce, is unable to corroborate the injured party's own testimony as to grounds for divorce, and, therefore, is unable to obtain a divorce which ought to be granted. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after its passage and approval.”

Acts 1981, No. 657, § 4: Mar. 23, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that the Arkansas Supreme Court, in the case of Webb v. Webb, 262 Ark. 461, 557 S.W.2d 878 (1977), held that an award of alimony in fixed installments for a specified period of time is improper in that such award is in fact a gross sum instead of a continuing allowance; that this Act is designed to specifically authorize the award of alimony in fixed installments for a specified period of time in order that such payments will qualify as ‘periodic payments’ within the meaning of Section 71 (a) of the Internal Revenue Code; that this Act should be given effect immediately to accomplish such purposes. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1981, No. 714, § 75: Mar. 25, 1981. Emergency clause provided: “It has been found and is declared by the General Assembly of Arkansas that existing law relating to such matters as homestead, dower, curtesy, statutory allowances payable from a decedent's estate, and the right of a surviving spouse to take against the will of a decedent, do not in all circumstances provide for equal treatment between the sexes, that the constitutionality of such existing law has been drawn into question by decisions of the United States Supreme Court and the Arkansas Supreme Court, and that there is an urgent need to insure that the law provides equality in the property rights and interests of married persons. Therefore, an emergency is declared to exist, and this act being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from the date of its approval.”

Acts 1981, No. 798, § 4: Mar. 28, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that the federal income tax consequences of property divisions incident to divorce can make the after tax results drastically different from the value before taxes, of property divided between the spouses; that this Act is designed to provide for the consideration of such tax consequences; and that this Act should be given effect immediately to alert all parties in divorce proceedings to the potential impact of federal income taxes upon property divisions. Therefore, an emergency is hereby declared to exist, and this Act being necessary for the immediate preservation of public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1981, No. 799, § 4: Mar. 28, 1981. Emergency clause provided: “It is hereby found and determined by the General Assembly that under the present Arkansas law, there is no provision for a ‘decree of legal separation’; that since there is no such provision, paragraph (3) of subsection (B) of Section 461 of the Civil Code as amended by Act 705 of 1979 actually has no application; that in a recent decision, the Arkansas Supreme Court carefully distinguished the proof requirements of absolute divorce and divorce from bed and board; that this Act is designed to clarify paragraph (3) of subsection (B) of Section 461 of the Civil Code, as amended, to specifically make the provisions thereof with respect to the division of property applicable not only in decrees of absolute divorce but also to decrees of divorce from bed and board; that this Act should be given effect immediately to render the provisions of present property division law compatible with the divorce law and cases. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1983, No. 369, § 5: Mar. 8, 1983. Emergency clause provided: “It is hereby found and determined by the General Assembly that the present law relating to the authority of the court with respect to division of corporate stock and other securities in divorce proceedings is unclear and in many cases inadequate to permit the court to do equity in the division of property; that this Act is designed to permit the court to order that the securities be distributed to one party on the condition that one-half of the fair market value of such securities would be set aside and distributed to the other party; that this Act is necessary to clarify the law in this respect and should be given effect immediately. Therefore, an emergency is hereby declared to exist and this Act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1985, No. 989, § 6: Aug. 1, 1985.

Acts 1987, No. 599, § 4: Apr. 4, 1987. Emergency clause provided: “It is hereby found and determined by the General Assembly that there is an urgent need for clarification as to what fees are permitted to be charged for support collection throughout the state. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.”

Acts 1989, No. 948, § 10: Mar. 27, 1989, except §§ 1, 2, and 5 effective Oct. 1, 1989. Emergency clause provided: “It is hereby found and determined by the General Assembly that it is in the best interest of the people of the State of Arkansas that child support be collected in the most expedient manner for all children of this state; that new federal requirements of the Title IV-D program operated by the Department of Human Services should be extended to all litigants of this state enforcing collection of child support; and that the smooth transition from current requirements to those of this act require some provisions to become effective immediately upon passage and other effective at a later date. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval with sections 1, 2 and 5 of this act to become effective October 1, 1989.”

Acts 1991, No. 131, § 5: Feb. 12, 1991. Emergency clause provided: “It is hereby ascertained and determined by the General Assembly that it is vital to the social structure of the State that laws be established for the protection of domestic relations and that only by the immediate passage of this act may this be accomplished. Therefore, an emergency is hereby declared to exist and this act being necessary for the preservation of the public peace, health, and safety, shall be in effect from the date of its passage and approval.”

Acts 1999, No. 1491, § 5: Apr. 15, 1999. Emergency clause provided: “It is hereby found and determined by the Eighty-second General Assembly that present law does not address the circumstances where subsequent to an Arkansas divorce both parties leave the county of jurisdiction resulting in custody concerns being under the jurisdiction of the chancery court of the county where neither party resides; that this act addresses that problem and allows for the transfer of the case to the county of residence of either party; and that this act should, therefore, go into effect as soon as possible. Therefore, an emergency is declared to exist and this act being immediately necessary for the preservation of the public peace, health and safety shall become effective on the date of its approval by the Governor. If the bill is neither approved nor vetoed by the Governor, it shall become effective on the expiration of the period of time during which the Governor may veto the bill. If the bill is vetoed by the Governor and the veto is overridden, it shall become effective on the date the last house overrides the veto.”

Acts 2019, No. 904, § 14: Jan. 1, 2020.

Research References

ALR.

Laches or acquiescence as defense, so as to bar recovery of arrearages of permanent alimony or child support. 5 A.L.R.4th 1015.

Receiver for marital or community property. 15 A.L.R.4th 224.

Vacating or setting aside divorce decree after remarriage of party. 17 A.L.R.4th 1153.

Children's needs considered in making property division. 19 A.L.R.4th 239.

Escalation clause in divorce decree relating to alimony and child support. 19 A.L.R.4th 830.

Spouse's liability after divorce for community debt contracted by other spouse during marriage. 20 A.L.R.4th 211.

Appreciation in value of separate property during marriage without contribution by either spouse as separate or community property. 24 A.L.R.4th 453.

Excessiveness or adequacy of amount of money awarded as separate maintenance, alimony, or support for spouse without absolute divorce. 26 A.L.R.4th 1190.

Excessiveness or adequacy of money awarded as temporary alimony. 26 A.L.R.4th 1218.

Amount of alimony and child support combined. 27 A.L.R.4th 1038.

Amount of permanent alimony. 28 A.L.R.4th 786.

Effect of death of party to divorce proceeding pending appeal or time allowed for appeal. 33 A.L.R.4th 47.

Valuation date for property being distributed pursuant to divorce. 34 A.L.R.4th 63.

Court's authority to award temporary alimony or suit money where existence of valid marriage is contested. 34 A.L.R.4th 814.

Reconciliation of spouses affecting decree. 36 A.L.R.4th 502.

Spouse's right to discovery of closely held corporation records during divorce proceeding. 38 A.L.R.4th 145.

Dissipation of assets prior to divorce as factor in determining property division. 41 A.L.R.4th 416.

Equitable distribution doctrine. 41 A.L.R.4th 481.

Treatment or valuation of stock options for purposes of dividing marital property. 46 A.L.R.4th 640; 46 A.L.R.4th 689.

Divorced or separated spouse's living with member of opposite sex as affecting other spouse's obligation of alimony or support under separation agreement. 47 A.L.R.4th 38.

Excessiveness or adequacy of combined property division and spousal support awards. 55 A.L.R.4th 14.

Propriety of property distribution leaving both parties with substantial ownership interest in same business. 56 A.L.R.4th 862.

Divorce order requiring that party not compete with former marital business. 59 A.L.R.4th 1075.

Treatment and method of valuation of future interest in real estate or trust property not realized during marriage. 62 A.L.R.4th 107.

Prejudgment interest awards in divorce cases. 62 A.L.R.4th 156.

Power to modify spousal support award for a limited term, issued in conjunction with divorce, so as to extend the term or make the award permanent. 62 A.L.R.4th 180.

Voluntary contributions to child's education expenses as factor justifying modification of spousal support award. 63 A.L.R.4th 436.

Lis pendens as applicable to suit for separation or dissolution of marriage. 65 A.L.R.4th 522.

Withholding visitation rights for failure to make alimony or support payments. 65 A.L.R.4th 1155.

Enforceability of separation agreement affecting property rights upon death of one party prior to final judgement of divorce. 67 A.L.R.4th 237.

Effect of court order prohibiting sale or transfer of property on party's right to change beneficiary of insurance policy. 68 A.L.R.4th 929.

Attributing undisclosed income to parent or spouse for purposes of making child or spousal support award. 70 A.L.R.4th 173.

Propriety of using contempt proceedings to enforce property settlement award or order. 72 A.L.R.4th 298.

Goodwill in medical or dental practice as property subject to distribution on dissolution of marriage. 76 A.L.R.4th 1025.

Goodwill in accounting practice as property subject to distribution on dissolution of marriage. 77 A.L.R.4th 645.

Accrued vacation, holiday time and sick leave as marital or separate property. 78 A.L.R.4th 1107.

Obligor spouse's death as affecting alimony. 79 A.L.R.4th 10.

What constitutes order made pursuant to state domestic law for purposes of qualified domestic relations order exemption to antialienation provision of ERISA. 79 A.L.R.4th 1081.

Court's authority to institute or increase spousal support award after discharge of prior property award in bankruptcy. 87 A.L.R.4th 353.

Spouse's right to order that other pay expert witness fees. 4 A.L.R.5th 403.

Joinder of tort action between spouses with proceeding for dissolution of marriage. 4 A.L.R.5th 972.

Consideration of tax consequences of capital gain or loss in distribution of marital property. 9 A.L.R.5th 568.

Award of interest on deferred installment payments of marital asset distribution. 10 A.L.R.5th 191.

Spouse's right to set off debt owed by other spouse against accrued spousal or child support payments. 11 A.L.R.5th 259.

Consideration of obligated spouse's earnings from overtime or “second job” held in addition to regular full-time employment in fixing alimony or child support awards. 17 A.L.R.5th 143.

Treatment of depreciation expenses claimed for tax or accounting purposes in determining ability to pay child or spousal support. 28 A.L.R.5th 46.

Worker's compensation benefits as marital property subject to distribution. 30 A.L.R.5th 139.

Full faith and credit “last-in-time” rule as applicable to sister state divorce or custody judgement which is inconsistent with the forum state's earlier judgement. 36 A.L.R.5th 527.

Validity and construction of provision for arbitration of disputes as to alimony or support payments, or child visitation or custody matters. 38 A.L.R.5th 69.

Contingent fee contracts as marital property subject to distribution. 44 A.L.R.5th 671.

Family court jurisidiction to hear contract claims. 46 A.L.R.5th 735.

Alimony as affected by recipient spouse's remarriage, in absence of controlling statute. 47 A.L.R.5th 129.

Validity, construction, and application of provision in separation agreement affecting distribution or payment of attorneys' fees. 47 A.L.R.5th 207.

Lump-sum alimony award. 49 A.L.R.5th 441.

Alimony or child-support awards as subject to attorney's liens. 49 A.L.R.5th 595.

Enforcement of claim for alimony or for attorneys' fees or costs incurred in connection therewith, against exemptions. 52 A.L.R.5th 221.

Assumption or denial of jurisdiction of action involving matrimonial disputes based on forum non conveniens. 55 A.L.R.5th 647.

Consideration of obligor spouse's or parents' personal-injury recovery or settlement in fixing alimony or child-support. 59 A.L.R.5th 489.

Effect of same-sex relationship on right to spousal support. 73 A.L.R.5th 599.

Am. Jur. 24 Am. Jur. 2d, Divorce & S., § 1 et seq.

41 Am. Jur. 2d, Husb. & W., § 166 et seq.

Ark. L. Notes.

Laurence, Protecting Alimony: Steps to Take in Contemplation of Default under a Divorce Decree, 1985 Ark. L. Notes 57.

Ark. L. Rev.

Defenses to Divorce Actions — Excluding Jurisdiction, 13 Ark. L. Rev. 314.

The Arkansas Divorce — Do We Have Problems, 23 Ark. L. Rev. 601.

The Uniform Marriage and Divorce Act: Analysis for Arkansas, 28 Ark. L. Rev. 175.

Leflar, Conflict of Laws: Arkansas, 1978-82, 36 Ark. L. Rev. 191.

Killenbeck, Nothing That We Can Do? Or, Much Ado About Nothing? Some Thoughts on Bates v. Bates, Equity, and Domestic Abuse in Arkansas, 43 Ark. L. Rev. 725.

C.J.S. 27A C.J.S., Divorce, §§ 1-458.

27B C.J.S., Divorce, §§ 459-899.

27C C.J.S., Divorce, §§ 900-end.

41 C.J.S., Husb. & W., § 217 et seq., § 264 et seq.

U. Ark. Little Rock L.J.

Survey of Arkansas Law: Family Law, 4 U. Ark. Little Rock L.J. 213.

Arkansas Law Survey, Irving, Family Law, 9 U. Ark. Little Rock L.J. 173.

Sullivan, The Need for a Business or Payroll Records Affidavit for Use in Child Support Matters, 11 U. Ark. Little Rock L.J. 651.

Survey, Family Law, 12 U. Ark. Little Rock L.J. 631.

Case Notes

Cited: Deal v. Deal, 212 Ark. 958, 208 S.W.2d 782 (1948); Jackson v. Bowman, 226 Ark. 753, 294 S.W.2d 344 (1956); Nickle v. Nickle, 228 Ark. 258, 306 S.W.2d 855 (1957); Coates v. Coates, 238 Ark. 1, 377 S.W.2d 824 (1964); Holt v. Taylor, 242 Ark. 292, 413 S.W.2d 52 (1967); Womack v. Womack, 247 Ark. 1130, 449 S.W.2d 399 (1970); Hughes v. Hughes, 251 Ark. 63, 471 S.W.2d 355 (1971); Lovett v. Lovett, 254 Ark. 349, 493 S.W.2d 435 (1973); Dunn v. Dunn, 255 Ark. 764, 503 S.W.2d 168 (1973).

9-12-301. Grounds for divorce.

  1. A plaintiff who seeks to dissolve and set aside a covenant marriage shall state in his or her petition for divorce that he or she is seeking to dissolve a covenant marriage as authorized under the Covenant Marriage Act of 2001, § 9-11-801 et seq.
  2. The circuit court shall have power to dissolve and set aside a marriage contract, not only from bed and board, but from the bonds of matrimony, for the following causes:
    1. When either party, at the time of the contract, was and still is impotent;
    2. When either party shall be convicted of a felony or other infamous crime;
    3. When either party shall:
      1. Be addicted to habitual drunkenness for one (1) year;
      2. Be guilty of such cruel and barbarous treatment as to endanger the life of the other; or
      3. Offer such indignities to the person of the other as shall render his or her condition intolerable;
    4. When either party shall have committed adultery subsequent to the marriage;
    5. When husband and wife have lived separate and apart from each other for eighteen (18) continuous months without cohabitation, the court shall grant an absolute decree of divorce at the suit of either party, whether the separation was the voluntary act of one (1) party or by the mutual consent of both parties or due to the fault of either party or both parties;
      1. In all cases in which a husband and wife have lived separate and apart for three (3) consecutive years without cohabitation by reason of the incurable insanity of one (1) of them, the court shall grant a decree of absolute divorce upon the petition of the sane spouse if the proof shows that the insane spouse has been committed to an institution for the care and treatment of the insane for three (3) or more years prior to the filing of the suit, has been adjudged to be of unsound mind by a court of competent jurisdiction, and has not been discharged from such adjudication by the court and the proof of insanity is supported by the evidence of two (2) reputable physicians familiar with the mental condition of the spouse, one (1) of whom shall be a regularly practicing physician in the community wherein the spouse resided, and when the insane spouse has been confined in an institution for the care and treatment of the insane, that the proof in the case is supported by the evidence of the superintendent or one (1) of the physicians of the institution wherein the insane spouse has been confined.
        1. In all decrees granted under this subdivision (b)(6), the court shall require the plaintiff to provide for the care and maintenance of the insane defendant so long as he or she may live.
        2. The trial court will retain jurisdiction of the parties and the cause from term to term for the purpose of making such further orders as equity may require to enforce the provisions of the decree requiring the plaintiff to furnish funds for such care and maintenance.
        1. Service of process upon an insane spouse shall be had by service of process upon the duly appointed, qualified, and acting guardian of the insane spouse or upon a duly appointed guardian ad litem for the insane spouse, and when the insane spouse is confined in an institution for the care of the insane, upon the superintendent or physician in charge of the institution wherein the insane spouse is at the time confined.
        2. However, when the insane spouse is not confined in an institution, service of process upon the duly appointed, qualified, and acting guardian of the insane spouse or duly appointed guardian ad litem and thereafter personal service or constructive service on an insane defendant by publication of warning order for four (4) weeks shall be sufficient; and
    6. When either spouse legally obligated to support the other, and having the ability to provide the other with the common necessaries of life, willfully fails to do so.

History. Civil Code, § 464; Acts 1873, No. 88, § 1[464], p. 213; C. & M. Dig., § 3500; Acts 1937, No. 167, § 1; Pope's Dig., § 4381; Acts 1939, No. 20, §§ 1, 2; 1943, No. 428, § 1; 1947, No. 159, § 1; 1953, No. 161, § 1; 1953, No. 348, § 2; 1963, No. 74, § 1; 1981, No. 633, § 5; 1985, No. 360, § 1; A.S.A. 1947, § 34-1202; Acts 1991, No. 131, §§ 1, 2; 2005, No. 1890, § 1.

A.C.R.C. Notes. Acts 2005, No. 1890, § 3, provided:

“This act shall apply to all petitions for divorce filed on or after the effective date of this act.”

Acts 2005, No. 1890 became effective August 12, 2005.

Research References

ALR.

Homosexuality as ground for divorce. 96 A.L.R.5th 83.

What Amounts to Habitual Intemperance, Drunkenness, Excessive Drug Use, and the Like Within Statute Relating to Substantive Grounds for Divorce. 101 A.L.R.6th 455 (2015).

Ark. L. Rev.

Mutual Misconduct in Arkansas Divorces, 3 Ark. L. Rev. 132.

Mental Cruelty as Grounds for Divorce, 5 Ark. L. Rev. 419.

Case Note, Roark v. Roark: An Expansion of the Application of Estoppel to Prohibit the Collection of Child Support Arrearages, 45 Ark. L. Rev. 631.

U. Ark. Little Rock L.J.

Survey — Family Law, 14 U. Ark. Little Rock L.J. 799.

U. Ark. Little Rock L. Rev.

Matthew L. Brunson, Family Law—Providing for Those Who Cannot Provide for Themselves: A Proposal for the Arkansas General Assembly to Follow in the Footsteps of an Already Expansive Guardianship Law and Grant Guardians the Right to File for Divorce on Behalf of a Ward, 38 U. Ark. Little Rock L. Rev. 271 (2016).

Case Notes

Constitutionality.

The act amending this statute so as to allow divorce after separation for three consecutive years was legally passed and is retroactive. White v. White, 196 Ark. 29, 116 S.W.2d 616 (1938).

The act amending subdivision (b)(5) of this section so as to require that the husband and wife shall have lived separate and apart for three consecutive years (now 18 months) without cohabitation was not beyond the power of the legislature to enact. Jones v. Jones, 199 Ark. 1000, 137 S.W.2d 238 (1940) (decision prior to the 1991 amendments).

Act abolishing recrimination as a defense against three-year separation is not unconstitutional as impinging upon equity jurisdiction, since the court of equity has the right to grant divorces on grounds and conditions prescribed by the legislature. Young v. Young, 207 Ark. 36, 178 S.W.2d 994 (1944).

In General.

Where it appears that conditions between a husband and wife have become unendurable without any hope of amelioration and a preponderance of the evidence shows that the husband by his conduct is chiefly responsible, the wife is entitled to a divorce from the bonds of matrimony. Lemaster v. Lemaster, 158 Ark. 206, 249 S.W. 589 (1923).

Divorce is a statutory matter and the legislature has a right to establish the grounds and conditions of divorce. Young v. Young, 207 Ark. 36, 178 S.W.2d 994 (1944).

Adultery.

Where a husband sues his wife upon the ground of adultery, the alleged adultery cannot be proved by evidence tending to show that she had a general reputation for unchastity. Poe v. Poe, 93 Ark. 426, 124 S.W. 1029 (1910).

The charge of adultery may be sufficiently proved by evidence leading to an inference of guilt. While the circumstances need not be such that an inference of guilt is the only possible conclusion that can be drawn therefrom, the facts must be such as to lead a just and reasonable man to the conclusion of guilt; and they are not sufficient if they merely justify a suspicion of guilt in the absence of other incriminating circumstances. Leonard v. Leonard, 101 Ark. 522, 142 S.W. 1133 (1912).

Charges of adultery in a civil proceeding may be sufficiently proved by evidence of circumstances leading to an inference of guilt. Gibson v. Gibson, 234 Ark. 954, 356 S.W.2d 728 (1962).

Appeals.

Where divorce decree was granted under three-year (now 18-month) separation provision of this section, the wife's remarriage during the pendency of appeal did not estop her from appealing the grant of the divorce to the husband, the failure to award her alimony and the settlement of property rights. Neal v. Neal, 258 Ark. 338, 524 S.W.2d 460 (1975).

Although in divorce actions the Court of Appeals reviews chancery cases de novo, it does not disturb a chancellor's finding unless it is clearly against a preponderance of the evidence. Pomraning v. Pomraning, 13 Ark. App. 258, 682 S.W.2d 775 (1985).

Attorney's Fees.

The award of attorney's fees in divorce cases is a matter lying within the sound judicial discretion of the chancellor, the exercise of which will not be disturbed on appeal in the absence of its abuse. Lytle v. Lytle, 266 Ark. 124, 583 S.W.2d 1 (1979).

Chancery Court.

The chancery court has the power to decree separate maintenance to the wife. Gilliam v. Gilliam, 232 Ark. 765, 340 S.W.2d 272 (1960).

Chancery courts have the power to set aside a default divorce, even after the death of one of the parties, if property interests of the survivor are affected. Fair v. Fair, 232 Ark. 800, 341 S.W.2d 22 (1960).

Comparative Fault.

Where a husband sued for a divorce, and his wife cross-claimed for a limited divorce from bed and board and both the husband and wife were at fault, nevertheless, the wife was entitled to a limited divorce as the party less at fault, since her husband was the greater and first offender. Posey v. Posey, 268 Ark. 894, 597 S.W.2d 834 (Ct. App. 1980).

Cruelty.

Wife will not be granted a divorce on account of the cruelty of her husband in chastising her if she has given him serious provocation by her imprudent conduct. Shirey v. Shirey, 87 Ark. 175, 112 S.W. 369 (1908).

Profane and abusive language employed by a husband toward his wife will not constitute legal cruelty where it does not appear that her health was impaired or her condition rendered intolerable. Kientz v. Kientz, 104 Ark. 381, 149 S.W. 86 (1912).

Mere incompatibility of temperament or want of congeniality and the consequent quarrels causing unhappiness are not sufficient to constitute that cruelty which under the statute will justify divorce. Kientz v. Kientz, 104 Ark. 381, 149 S.W. 86 (1912); Disheroon v. Disheroon, 211 Ark. 519, 201 S.W.2d 17 (1947).

There must be proof of specific acts of cruelty. Dunn v. Dunn, 114 Ark. 516, 170 S.W. 234 (1914).

A husband is not entitled to a divorce on account of his wife's cruelty toward his children by a former wife where it appears that her cruelty is not habitual nor exercised with the intent of causing suffering to the husband. Poe v. Poe, 149 Ark. 62, 231 S.W. 198 (1921).

Evidence sufficient to find spouse entitled to a divorce on the ground of cruelty. Crabtree v. Crabtree, 154 Ark. 401, 242 S.W. 804 (1922).

There were grounds for a divorce based on cruel and barbarous treatment where husband lunged at wife through the window of her car, grabbed her neck, pushed her against the seat, and strangled her to the point that she could not breathe and felt as if she were choking. Rogers v. Rogers, 90 Ark. App. 321, 205 S.W.3d 856 (2005).

Divorce from Bed and Board.

A limited divorce is called divorce from bed and board in the statute; it is also known as divorce a mensa et thoro. Lytle v. Lytle, 266 Ark. 124, 583 S.W.2d 1 (1979).

The grounds on which a divorce from bed and board may be granted are the same as those specified for an absolute divorce. Lytle v. Lytle, 266 Ark. 124, 583 S.W.2d 1 (1979); Kesterson v. Kesterson, 21 Ark. App. 287, 731 S.W.2d 786 (1987).

The statutory remedy of limited divorce (divorce mensa et thoro) is available only on proof of one of the statutory grounds. Paulson v. Paulson, 8 Ark. App. 306, 652 S.W.2d 46 (1983).

Foreign Decree.

Decree for wife in husband's suit for divorce in another state charging habitual indulgence in violent and ungovernable fits of temper and extreme cruelty was held res judicata in subsequent suit in Arkansas charging indignities rendering husband's condition in life intolerable. Blauvelt v. Blauvelt, 199 Ark. 710, 136 S.W.2d 201 (1940).

Decree for wife in husband's suit for divorce in another state on grounds of ungovernable temper and extreme cruelty would not be res judicata in subsequent suit in Arkansas on ground of desertion if the desertion occurred after the adjudication of former action. Blauvelt v. Blauvelt, 199 Ark. 710, 136 S.W.2d 201 (1940).

Former adjudication in other states wherein the legal right created by this section was not available was held not res judicata in husband's suit for divorce. Goud v. Goud, 203 Ark. 244, 156 S.W.2d 225 (1941).

Where husband and wife lived separate and apart without cohabitation for more than three years, husband was entitled to a divorce on that ground notwithstanding former decree in favor of wife in separate maintenance suit in another state. Brickey v. Brickey, 205 Ark. 373, 168 S.W.2d 845 (1943).

Divorce, granted in Arkansas, was reversed, case dismissed and the parties remanded to state which granted a prior separate maintenance agreement for any orders for maintenance. Swanson v. Swanson, 212 Ark. 439, 206 S.W.2d 169 (1947).

Habitual Drunkenness.

One is addicted to habitual drunkenness who has a fixed habit of frequently getting drunk. Brown v. Brown, 38 Ark. 324 (1881).

To be a habitual drunkard within the meaning of this section, a person does not have to be constantly drunk nor incapacitated from doing business; it is sufficient if he has a fixed habit of frequently and repeatedly getting drunk when the opportunity presents itself or has lost the will power to resist temptation in that respect. O'Kane v. O'Kane, 103 Ark. 382, 147 S.W. 73 (1912).

Evidence insufficient to show that spouse was a habitual drunkard. Oxford v. Oxford, 237 Ark. 384, 373 S.W.2d 707 (1963).

Indignities.

Personal indignities contemplated by the statute as grounds for divorce include rudeness, vulgarity, unmerited reproach, haughtiness, contempt, contumeliousness, studied neglect, intentional incivility, injury, manifest disdain, abusive language, malignant ridicule and every other plain manifestation of settled hate, alienation, and estrangement. Rose v. Rose, 9 Ark. 507 (1849); Kurtz v. Kurtz, 38 Ark. 119 (1881).

The indignities to the person need not consist of personal violence. They may consist of unmerited reproach, rudeness, contempt, studied neglect, open insult, and many other things, habitually and systematically pursued, which may, according to the habits of the parties and their condition in life, be just as effectually within the statute as personal violence. Haley v. Haley, 44 Ark. 429 (1884). See also Cate v. Cate, 53 Ark. 484, 14 S.W. 675 (1890).

Evidence of indignities was sufficient to show entitlement to divorce. McGee v. McGee, 72 Ark. 355, 80 S.W. 579 (1904); Bell v. Bell, 179 Ark. 171, 14 S.W.2d 551 (1929); Bullington v. Bullington, 194 Ark. 1155, 106 S.W.2d 185 (1937); Morgan v. Morgan, 202 Ark. 76, 148 S.W.2d 1078 (1941); Coffey v. Coffey, 223 Ark. 607, 267 S.W.2d 499 (1954); Brimson v. Brimson, 227 Ark. 1045, 304 S.W.2d 935 (1957); Forsgren v. Forsgren, 4 Ark. App. 286, 630 S.W.2d 64 (1982); Hodges v. Hodges, 27 Ark. App. 250, 770 S.W.2d 164 (1989).

Want of congeniality and consequent quarrels are not sufficient to constitute indignities. Bell v. Bell, 105 Ark. 194, 150 S.W. 1031 (1912).

The remedy of absolute divorce contemplated by subdivision (b)(4) of this section is for evils which are unavoidable and unendurable and which cannot be relieved by any exertions of the party seeking the aid of the courts. Meffert v. Meffert, 118 Ark. 582, 177 S.W. 1 (1915).

To authorize a divorce for indignities, conduct of the offending party must indicate settled hate and manifestation of alienation and estrangement and must have been conducted habitually through a period of time sufficient to show that the conduct arose through settled malevolence rendering it impossible to discharge the duties of married life and making one's condition in life intolerable. Preas v. Preas, 188 Ark. 854, 67 S.W.2d 1013 (1934).

Testimony held insufficient to warrant a divorce for indignities. Welborn v. Welborn, 189 Ark. 1063, 76 S.W.2d 98 (1934); Fine v. Fine, 209 Ark. 754, 192 S.W.2d 212 (1946); Price v. Price, 215 Ark. 425, 220 S.W.2d 1021 (1949); Milne v. Milne, 266 Ark. 900, 587 S.W.2d 229 (Ct. App. 1979); Copeland v. Copeland, 2 Ark. App. 55, 616 S.W.2d 773 (1981).

Person to whom a divorce is granted on the ground of indignities does not have to be wholly blameless. Coffey v. Coffey, 223 Ark. 607, 267 S.W.2d 499 (1954).

Condonation of indignities is not a defense if indignities cover a period of time until final separation. Coffey v. Coffey, 223 Ark. 607, 267 S.W.2d 499 (1954).

The statutory requirement that indignities of the offending spouse must be such as to make the other's condition intolerable was not satisfied. Lipscomb v. Lipscomb, 226 Ark. 956, 295 S.W.2d 335 (1956).

Indignities may mean a number of things in various circumstances, but to constitute the grounds for divorce they must be constantly and persistently pursued with the object and effect of rendering the situation of the opposing party intolerable. Gibson v. Gibson, 234 Ark. 954, 356 S.W.2d 728 (1962).

The charge of sexual promiscuity or infidelity is probably the most offensive charge which one spouse can make against the other, and it has been frequently held that to make such a charge without basis is an indignity entitling the person charged to a divorce. Relaford v. Relaford, 235 Ark. 325, 359 S.W.2d 801 (1962).

Drunken conduct may be proved along with other acts to establish indignities rendering the plaintiff's life intolerable in which case it is not necessary to show habitual drunkenness for a period of at least a year. Carmical v. Carmical, 246 Ark. 1142, 441 S.W.2d 103 (1969).

Although the scope of the indignities ground has undergone considerable expansion throughout the years, it is still necessary that the conduct relied upon manifest hate, alienation, and estrangement and be constantly and systematically pursued with the purpose and effect of causing an enduring alienation and estrangement and rendering the condition of the spouse intolerable. Lytle v. Lytle, 266 Ark. 124, 583 S.W.2d 1 (1979).

In contested cases, indignities do not exist absent habitual, continuous, permanent, and plain manifestation of settled hate, alienation, and estrangement on the part of one spouse, sufficient to render the condition of the other intolerable. Milne v. Milne, 266 Ark. 900, 587 S.W.2d 229 (Ct. App. 1979).

Drunken conduct may be proved, along with other acts, to establish the general indignities which have rendered the plaintiff's marital life intolerable. Forsgren v. Forsgren, 4 Ark. App. 286, 630 S.W.2d 64 (1982).

A divorce will be granted when one spouse proves that the other had offered such indignities to her person as to render her condition in life intolerable; 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, continuously, and permanently pursued as to create an intolerable condition. Pomraning v. Pomraning, 13 Ark. App. 258, 682 S.W.2d 775 (1985).

The ground of indignities to the person must be proved by evidence of specific acts and conduct. Gunnell v. Gunnell, 30 Ark. App. 4, 780 S.W.2d 597 (1989).

Where wife asserted indignities as grounds in her complaint for divorce but the chancellor granted the divorce on the grounds of “spousal abuse,” the appellate court found no reversible error as the term “spousal abuse” was, under the circumstances, equivalent to the recognized ground of cruel and barbarous treatment. Rogers v. Rogers, 90 Ark. App. 321, 205 S.W.3d 856 (2005).

Trial court did not clearly err in granting a wife a divorce on the ground of general indignities pursuant to subdivision (b)(3)(C) of this section because the wife showed that the husband frequently directed his wrath toward her in a manner that embarrassed, humiliated, and frightened her; that he publicly and privately harangued her over minor matters; that he acted in a dismissive and suspicious manner by leaving the house for hours without explanation, making a late-night phone call without saying to whom he was speaking, and being in possession of a romantic card from another woman; that he gambled frequently; and that she could not account for a large portion of the couple's joint funds. Ransom v. Ransom, 2009 Ark. App. 273, 309 S.W.3d 204 (2009).

Circuit court did not err by awarding the wife a divorce based on the ground of indignities under subdivision (b)(3)(C) of this section, because the wife offered evidence of her husband's ongoing affair, rudeness, unmerited reproach, and studied neglect that amounted to “settled hate” rendering her condition in life intolerable. Coker v. Coker, 2012 Ark. 383, 423 S.W.3d 599 (2012).

Where a husband appealed a circuit court’s divorce decree, the wife proved a prima facie case of general indignities, and, as required, she corroborated the general indignities. The wife offered proof of a continuing pattern of disrespectful, controlling behavior. Walton v. Walton, 2014 Ark. App. 105 (2014).

Even if the wife's testimony that the husband had made her feel inadequate and belittled for quite a while was sufficient to establish the ground for divorce based on general indignities, the trial court erred in granting a decree for an absolute divorce on that ground as the wife failed to provide any proof corroborating that ground because her sister's testimony was based on what the wife told her, not what she witnessed; and there was no other evidence tending to show general indignities on the part of the husband. Lundy v. Lundy, 2014 Ark. App. 573, 445 S.W.3d 518 (2014).

Wife was not entitled to a divorce on the ground of general indignities because she did not corroborate her allegations, as the allegedly corroborating testimony of her husband was insufficient to satisfy the corroboration requirement. Mayland v. Mayland, 2019 Ark. App. 390, 586 S.W.3d 179 (2019).

Trial court's award of joint child custody was not inconsistent with the court's grant of a divorce on general indignities grounds because different considerations were required to make general-indignities and joint-custody findings. Cunningham v. Cunningham, 2019 Ark. App. 416, 588 S.W.3d 38 (2019).

Insanity.

A divorce for incurable insanity granted to a spouse who is guardian for the insane requires service on the superintendent or physician in charge of the institution where the insane is confined and on a guardian ad litem and lack of representation by guardian ad litem and service thereon renders the divorce voidable and subject to direct attack on the ground of unavoidable casualty even after the death of the spouse to whom the divorce was granted, his or her personal representative and attorney being proper parties defendant in the action to vacate the divorce decree. Jackson v. Bowman, 226 Ark. 753, 294 S.W.2d 344 (1956).

Where a divorce was granted on grounds of the wife's insanity, the trial court's determination that the balance of the wife's attorney's fees should be paid from the wife's estate because of her independent financial resources was reversed as the insane spouse is entitled to every reasonable protection of her interests, including the finest legal services that can be obtained for her, at her husband's expense. Wood v. Wright, 238 Ark. 941, 386 S.W.2d 248 (1965).

Nonsupport.

Evidence insufficient to show that spouse lacked the common necessities of life. Saugey v. Saugey, 228 Ark. 110, 305 S.W.2d 856 (1957); Oxford v. Oxford, 237 Ark. 384, 373 S.W.2d 707 (1963).

Pleadings.

Party in a divorce proceeding prior to trial of the action may amend his complaint and allege the maturity of a cause of action since the filing of the original complaint. Price v. Price, 215 Ark. 425, 220 S.W.2d 1021 (1949).

If evidence is introduced during the trial of a divorce proceeding showing a different cause of action from the one alleged in the complaint, the defendant may waive the right to object to the new cause of action. Price v. Price, 215 Ark. 425, 220 S.W.2d 1021 (1949).

Where plaintiff's complaint for divorce alleges one ground, evidence introduced at trial shows a cause of divorce on another ground, and defendant objects to the new cause of action, court must dismiss the suit as to first ground but without prejudice to the right of the plaintiff to file a new suit on the new ground. Price v. Price, 215 Ark. 425, 220 S.W.2d 1021 (1949).

Where a wife amended her original divorce complaint to seek instead only separate maintenance, that was the only type of decree which could have been entered by the trial court; the chancellor erred in granting the wife a divorce from bed and board and erred in dividing the marital property under § 9-12-315. Spencer v. Spencer, 275 Ark. 112, 627 S.W.2d 550 (1982).

Proof.

Husband was entitled to reversal of a divorce decree granted on the ground of general indignities; although the husband waived corroboration of grounds and failed to object to the sufficiency of proof of grounds at trial, the wife was required to offer sufficient, non-conclusory proof of grounds, which she failed to do. She offered only a general affirmative response to her attorney's question as to whether the husband had treated her in such a manner as to render her condition in life intolerable. Dee v. Dee, 99 Ark. App. 159, 258 S.W.3d 405 (2007).

—Admissibility of Evidence.

Ex parte affidavit of a third person cannot be used as independent evidence. Such affidavit cannot be received as independent testimony or as corroboration in a divorce cause. Wood v. Wood, 232 Ark. 812, 340 S.W.2d 393 (1960).

—Burden of Proof.

Marriage contract should not be severed except upon clear proof of one or more of the grounds prescribed by this section. Fania v. Fania, 199 Ark. 368, 133 S.W.2d 654 (1939).

In an action for divorce the burden was on the plaintiff to show by corroborative evidence and a preponderance thereof, separation for three years (now 18 months) without cohabitation. Ross v. Ross, 213 Ark. 742, 213 S.W.2d 360 (1948).

Divorce is a creature of statute and can only be granted when statutory grounds have been proved and corroborated. Harpole v. Harpole, 10 Ark. App. 298, 664 S.W.2d 480 (1984); Pomraning v. Pomraning, 13 Ark. App. 258, 682 S.W.2d 775 (1985).

Regardless of whether a divorce is contested or uncontested, the injured party must always prove his or her ground(s) for divorce as set forth in this section; in other words, existing statutory law does not allow a spouse to stipulate to or waive grounds for divorce. Harpole v. Harpole, 10 Ark. App. 298, 664 S.W.2d 480 (1984); Hodges v. Hodges, 27 Ark. App. 250, 770 S.W.2d 164 (1989).

—Corroboration.

Testimony held to be insufficiently corroborated. Ledwidge v. Ledwidge, 204 Ark. 1032, 166 S.W.2d 267 (1942); Stimmel v. Stimmel, 218 Ark. 293, 235 S.W.2d 959 (1951).

Allegation of separation for three years (now 18 months), which was admitted by the defendant, required corroboration. Allen v. Allen, 211 Ark. 335, 200 S.W.2d 324 (1947).

Corroborating evidence held to be sufficient. Obennoskey v. Obennoskey, 215 Ark. 358, 220 S.W.2d 610 (1949); Pomraning v. Pomraning, 13 Ark. App. 258, 682 S.W.2d 775 (1985).

Corroboration is as essential to the granting of a divorce on the grounds of three-year (now 18-month) separation as it is in any other case, but, where it is plain that the divorce action is not collusive, the corroboration may be comparatively slight; nonetheless, there must be corroboration to some substantial fact or circumstance independent of the testimony of the party asserting the claimed separation period which would lead an impartial and reasonable mind to believe that the material testimony is true. Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982).

Res Judicata.

The rule of res judicata in divorce suits applies only when the second suit is on the same cause of action as the first suit. Narisi v. Narisi, 233 Ark. 525, 345 S.W.2d 620 (1961).

Separation.

Pleadings and affidavits supported the statutory grounds of 18 months' continuous separation without cohabitation, and the trial court erred as a matter of law by denying the husband's counterclaim for absolute divorce. White v. Shepard, 2015 Ark. App. 223, 459 S.W.3d 333 (2015).

—In General.

Divorce granted on grounds of separation. Clarke v. Clarke, 201 Ark. 10, 143 S.W.2d 540 (1940); Day v. Langley, 202 Ark. 775, 152 S.W.2d 308 (1941); Goud v. Goud, 203 Ark. 244, 156 S.W.2d 225 (1941); McCall v. McCall, 204 Ark. 836, 165 S.W.2d 255 (1942); Carty v. Carty, 222 Ark. 183, 258 S.W.2d 43 (1953); Fair v. Fair, 232 Ark. 800, 341 S.W.2d 22 (1960).

Subdivision (b)(5) of this section makes a decree of divorce mandatory on the court at the suit of either party, where the conditions of the statute have been met, no matter what caused the separation. Brooks v. Brooks, 201 Ark. 14, 143 S.W.2d 1098 (1940); McCormick v. McCormick, 246 Ark. 348, 438 S.W.2d 23 (1969) (decision prior to the 1991 amendments).

Where husband left wife and child with the understanding that after he established himself they would join him, there was not a separation under subdivision (b)(5) of this section until they ceased to correspond with each other; and husband, praying for a divorce on that ground in cross-complaint to wife's suit for maintenance, had burden to show separation. Bockman v. Bockman, 202 Ark. 585, 151 S.W.2d 99 (1941).

If plaintiff files suit for divorce on statutory ground of desertion for three years (now 18 months) the court cannot consider any defense by the defendant based on the ground of misconduct of the plaintiff, as this section is mandatory. Warren v. Warren, 214 Ark. 379, 216 S.W.2d 398 (1949).

Husband is entitled to divorce on ground of separation if separated from wife for three years (now 18 months), regardless of fault upon his part. Mohr v. Mohr, 214 Ark. 607, 215 S.W.2d 1020 (1949).

In a suit for divorce on the ground of three years' separation (now 18 months' separation), the question of who was the injured party may only be considered in settlement of property rights and the question of alimony. Grytbak v. Grytbak, 216 Ark. 674, 227 S.W.2d 633 (1950); Fair v. Fair, 232 Ark. 800, 341 S.W.2d 22 (1960).

In action by wife to set aside divorce granted on grounds of separation, allegation that separation was result of husband having deserted wife constituted meritorious defense even though wife admitted separation. Fair v. Fair, 232 Ark. 800, 341 S.W.2d 22 (1960).

—Cohabitation.

Evidence established that husband and wife were not living separate and apart from each other within subdivision (b)(5) of this section. McClure v. McClure, 205 Ark. 1032, 172 S.W.2d 243 (1943); Varnell v. Varnell, 207 Ark. 711, 182 S.W.2d 466 (1944); Brimson v. Brimson, 227 Ark. 1045, 304 S.W.2d 935 (1957); Oxford v. Oxford, 237 Ark. 384, 373 S.W.2d 707 (1963).

When the legislature used the word “cohabitation,” the popular sense purporting sexual intercourse, rather than the literal or derivative meaning of living together, was intended. McClure v. McClure, 205 Ark. 1032, 172 S.W.2d 243 (1943); Varnell v. Varnell, 207 Ark. 711, 182 S.W.2d 466 (1944).

Where access to a spouse is admitted, marital relations will be presumed. Hancock v. Hancock, 222 Ark. 823, 262 S.W.2d 881 (1953).

—Evidence.

Proof of alleged misconduct occurring more than five years before filing suit was admissible to show injured party. Alexander v. Alexander, 227 Ark. 938, 302 S.W.2d 781 (1957).

Evidence of incidents which happened after separation was admissible to show who was the injured party. Alexander v. Alexander, 227 Ark. 938, 302 S.W.2d 781 (1957).

Where for all outward appearances, the husband and wife lived separate and apart, and not as husband and wife, for over three years (now 18 months) immediately prior to the decree of divorce, the wife's stay of four nights at the motel where the husband lived did not break the continuity of their separation where, during the stay, the parties slept apart, and the husband denied having sexual relations with the wife. Santostefano v. Santostefano, 18 Ark. App. 173, 712 S.W.2d 324 (1986).

—Mutuality.

Subdivision (b)(5) of this section must be construed as though it read “when they have lived apart for three consecutive years [now 18 months]” so as to contemplate an agreement or understanding that they will act in concert of purpose, voluntarily living apart for three years, at the end of which period either may obtain a divorce from the other by alleging and establishing mutuality of the separation. White v. White, 196 Ark. 29, 116 S.W.2d 616 (1938).

Insane wife cannot be said to have voluntarily lived apart from her husband, and there was no element of mutuality in the separation which established a ground for divorce under subdivision (b)(6) of this section. Carlson v. Carlson, 198 Ark. 231, 128 S.W.2d 242 (1939).

Subdivision (b)(5) of this section assumes that the period of living apart without cohabitation for three years (now 18 months) must have been the conscious act of both parties and the purpose is not to grant divorce on ground of insanity of either party. Serio v. Serio, 201 Ark. 11, 143 S.W.2d 1097 (1940); Wilder v. Wilder, 207 Ark. 414, 181 S.W.2d 17 (1944).

Husband was entitled to a divorce under subdivision (b)(5) of this section where parties had lived apart without cohabitation for three years (now 18 months) even though separation was involuntary upon wife's part and was under his coercion. Brooks v. Brooks, 201 Ark. 14, 143 S.W.2d 1098 (1940).

—Time Period.

Supreme Court has no authority to exclude from separation contemplated by subdivision (b)(5) of this section period of time during which parties lived apart under separation decree. Jones v. Jones, 199 Ark. 1000, 137 S.W.2d 238 (1940).

Time spent in military service may be included in statutory period required for separation. Mogensky v. Mogensky, 212 Ark. 28, 204 S.W.2d 782 (1947); Mohr v. Mohr, 214 Ark. 607, 215 S.W.2d 1020 (1949).

Cited: Parrish v. Parrish, 195 Ark. 766, 114 S.W.2d 29 (1938); Smith v. Smith, 219 Ark. 278, 242 S.W.2d 350 (1951); Oakes v. Oakes, 219 Ark. 363, 242 S.W.2d 128 (1951); Bishop v. Lucas, 220 Ark. 871, 251 S.W.2d 126 (1952); McIntire v. McIntire, 270 Ark. 381, 605 S.W.2d 474 (1980).

9-12-302. Equitable proceedings.

The action for alimony or divorce shall be by equitable proceedings.

History. Civil Code, § 456; C. & M. Dig., § 3499; Pope's Dig., § 4380; A.S.A. 1947, § 34-1201.

Case Notes

In General.

A state of marriage can only be dissolved during the lives of the parties to the marriage by annulment or by divorce. Mabry v. Mabry, 259 Ark. 622, 535 S.W.2d 824 (1976).

Alimony.

An independent action for alimony will lie. Wood v. Wood, 54 Ark. 172, 15 S.W. 459 (1891); Shirey v. Hill, 81 Ark. 137, 98 S.W. 731 (1906); Kientz v. Kientz, 104 Ark. 381, 149 S.W. 86 (1912); Harmon v. Harmon, 152 Ark. 129, 237 S.W. 1096 (1922); Kesterson v. Kesterson, 21 Ark. App. 287, 731 S.W.2d 786 (1987).

The chancery court and the Supreme Court on appeal had jurisdiction to award suit money and alimony to a wife notwithstanding a denial of a divorce to the husband. Gabler v. Gabler, 209 Ark. 459, 190 S.W.2d 975 (1945).

Enforcement of a contract for alimony is an action for alimony and not for debt, even though the obligation existed by reason of agreement between the parties. McCue v. McCue, 210 Ark. 826, 197 S.W.2d 938 (1946).

This section allows independent proceeding for the division of marital property or alimony when neither the division nor alimony could have been considered in the divorce action. Woods v. Woods, 285 Ark. 175, 686 S.W.2d 387 (1985).

Income from a spendthrift trust can be reached by means of equitable garnishment or other means to satisfy a judgment for an arrearage in alimony. Council v. Owens, 28 Ark. App. 49, 770 S.W.2d 193 (1989).

Jurisdiction.

The chancery court has exclusive jurisdiction of all cases involving matters of child support; neither the municipal nor circuit court has concurrent jurisdiction with chancery court to enforce an agreement for child support. Boren v. Boren, 318 Ark. 378, 885 S.W.2d 852 (1994).

Mental Capacity.

The mere fact that a man had been adjudged incompetent under Uniform Veterans Guardian Act and a guardian appointed for his estate did not affect his capacity to marry or sue for divorce. Lovett v. Lovett, 254 Ark. 349, 493 S.W.2d 435 (1973).

Cited: Jackson v. Jackson, 253 Ark. 1033, 490 S.W.2d 809 (1973).

9-12-303. Venue — Service of process.

  1. The proceedings shall be in the county where the complainant resides unless the complainant is a nonresident of the State of Arkansas and the defendant is a resident of the state, in which case the proceedings shall be in the county where the defendant resides and, in any event, the process may be directed to any county in the state.
  2. In actions initiated by the Office of Child Support Enforcement of the Revenue Division of the Department of Finance and Administration or the Department of Human Services, proceedings may also be commenced in the county where the defendant resides.
  3. When a spouse initiates an action against the other spouse for an absolute divorce, divorce from bed and board, or separate maintenance, then the venue for the initial action shall also be the venue for any of the three (3) named actions filed by the other spouse, regardless of the residency of the other spouse.

History. Rev. Stat., ch. 51, § 5; C. & M. Dig., § 3502; Pope's Dig., § 4383; Acts 1963, No. 190, § 1; 1979, No. 799, § 1; A.S.A. 1947, § 34-1204; Acts 1987, No. 12, § 1; 1995, No. 1184, § 4.

Research References

Ark. L. Rev.

Clarification of Vacation Divorce Decrees on Constructive Service, 13 Ark. L. Rev. 345.

Grounds for Venue in Arkansas — A Survey, 25 Ark. L. Rev. 468.

Recent Developments, Child Support Decrees — Uniform Enforcement of Foreign Judgments Act, Mathews v. Mathews, 59 Ark. L. Rev. 803.

U. Ark. Little Rock L. Rev.

Annual Survey of Case Law: Family Law, 29 U. Ark. Little Rock L. Rev. 883.

Case Notes

Concurrent Venue Improper.

Under subsection (c) of this section, where the initial action filed in Pulaski County was still pending on appeal when the second suit was filed in Saline County, Pulaski County was the county of proper venue, and the Saline County court erred in refusing to dismiss the action filed in that court. Tortorich v. Tortorich, 324 Ark. 128, 919 S.W.2d 213 (1996).

Cross-Complaint.

Where wife instituted suit in a county other than her county of residence, and husband, who resided in that county, filed a cross-complaint without questioning the jurisdiction of the court on the complaint, court was held to have acquired jurisdiction of the parties and subject matter of the suit under the cross-complaint. Laird v. Laird, 201 Ark. 483, 145 S.W.2d 27 (1940).

Foreign Jurisdiction.

The law will not presume that a husband invoked the aid of a foreign jurisdiction and obtained a divorce from the fact that he cohabited with another woman. Orsburn v. Graves, 213 Ark. 727, 210 S.W.2d 496 (1948) (decision prior to 1963 amendment).

Fraud.

Where complainant was not a resident of the county and constructive service was fraudulently attempted on the defendant, the court had no jurisdiction of the cause, and could not proceed on the original suit in an action by the defendant to vacate the decree. Corney v. Corney, 79 Ark. 289, 95 S.W. 135 (1906).

Where husband obtained a divorce decree in a county by fraudulently claiming that he was a resident of the county and also fraudulently claiming that the defendant was a nonresident of Arkansas, the divorce decree was an absolute nullity and wife was entitled to bring a suit for support and maintenance in the county of her residence. Cloman v. Cloman, 229 Ark. 447, 316 S.W.2d 817 (1958).

Residence.

Trial court erred in dismissing the husband's complaint for divorce which he filed in the county where he resided before his wife filed, because the plain language of this section placed venue where the complainant resided and granted the venue determination to the first Arkansas resident to file. Parker v. Parker, 2013 Ark. 236 (2013).

—In General.

This section contemplates actual residence. Vanness v. Vanness, 128 Ark. 543, 194 S.W. 498 (1917).

The court was without jurisdiction when evidence showed that residence was acquired solely for the purpose of obtaining a divorce. McLaughlin v. McLaughlin, 193 Ark. 207, 99 S.W.2d 571 (1936); Allen v. Allen, 211 Ark. 335, 200 S.W.2d 324 (1947).

The provisions of this law may be availed only by one who actually and in good faith became and was a resident of this state for the period of time prescribed by this section, but the actual residence, once established, is not lost by temporary absence from the state. Tarr v. Tarr, 207 Ark. 622, 182 S.W.2d 348 (1944).

In suit based on three-years' (now 18 months') separation plaintiff did not establish a bona fide domicile in Arkansas where evidence showed that in prior litigation it had been determined by courts in other states that he had established a domicile in another state. Smith v. Smith, 219 Ark. 278, 242 S.W.2d 350 (1951).

There must be a bona fide intention to make county in which suit is filed the residence of the complainant. Smith v. Smith, 219 Ark. 876, 245 S.W.2d 207 (1952).

Residence under this section means domicile. Smith v. Smith, 219 Ark. 876, 245 S.W.2d 207 (1952).

Regardless of the defendant spouse's residence, once a plaintiff spouse has filed for (1) absolute divorce, (2) limited divorce, or (3) separate maintenance, the defendant spouse can no longer go to a different court (division or county) to file any one of the 3 named marital-related actions, but must file any new marital cause of action in the same action the plaintiff spouse has already initiated. Tortorich v. Tortorich, 333 Ark. 15, 968 S.W.2d 53 (1998).

—Duration.

No certain length of time is necessary to fix the residence contemplated by this statute, but it must be such, with the attendant circumstances surrounding its acquirement, as to manifest a bona fide intention of making it a fixed and permanent place of abode. McLaughlin v. McLaughlin, 193 Ark. 207, 99 S.W.2d 571 (1936).

The brevity of a wife's residence, of course, was relevant to her intention, but not controlling, in view of the fact that no particular length of time is required for the establishment of a domicile. Moon v. Moon, 265 Ark. 310, 578 S.W.2d 203 (1979).

No particular length of time is required for the establishment of a domicile, but there must be residence attended by such circumstances surrounding its acquirement as to manifest a bona fide intention of making it a fixed and permanent place of abode. Moon v. Moon, 265 Ark. 310, 578 S.W.2d 203 (1979); Bachman v. Bachman, 274 Ark. 23, 621 S.W.2d 701 (1981).

—Evidence.

Evidence sustained the conclusion that husband's move from county where he formerly resided to county where he instituted suit for divorce was not made in good faith. Hillman v. Hillman, 200 Ark. 340, 138 S.W.2d 1051 (1940).

Evidence was held to show that plaintiff, who went to another state, continued his residence in this state. Morgan v. Morgan, 202 Ark. 76, 148 S.W.2d 1078 (1941).

Evidence insufficient to establish that complainant was bona fide resident. Barth v. Barth, 204 Ark. 151, 161 S.W.2d 393 (1942).

Evidence sufficient to establish that complainant was resident. Feldman v. Feldman, 205 Ark. 544, 169 S.W.2d 866 (1943); Cole v. Cole, 233 Ark. 210, 343 S.W.2d 561 (1961); Puterbaugh v. Puterbaugh, 254 Ark. 61, 491 S.W.2d 386 (1973).

—Separate Domicile.

A wife may acquire a separate domicile from that of her husband and at that domicile she may institute proceedings for divorce. McLaughlin v. McLaughlin, 193 Ark. 207, 99 S.W.2d 571 (1936).

Trial court had jurisdiction of suit for divorce by wife based on three years' (now 18 months') separation, where wife left state for residence in sanatorium outside of state due to tuberculosis, since domicile was not changed by absence from state for purpose of benefiting health. Oakes v. Oakes, 219 Ark. 363, 242 S.W.2d 128 (1951).

Waiver.

Venue of an action may be waived. Hargis v. Hargis, 292 Ark. 487, 731 S.W.2d 198 (1987).

Cited: Isely v. Isely, 287 Ark. 401, 700 S.W.2d 49 (1985).

9-12-304. Pleadings — Interrogatories.

  1. The pleadings are not required to be verified by affidavit.
  2. However, either party may file interrogatories to the other in regard to any matter of property involved in the action that shall be answered on oath as interrogatories in other actions and have the same effect.

History. Civil Code, § 457; C. & M. Dig., § 3503; Pope's Dig., § 4384; A.S.A. 1947, § 34-1205.

9-12-305. No judgment pro confesso.

The statements of the complaint for a divorce shall not be taken as true because of the defendant's failure to answer or admission of their truth on the part of the defendant.

History. Civil Code, § 458; C. & M. Dig., § 3504; Pope's Dig., § 4385; A.S.A. 1947, § 34-1207.

Research References

Ark. L. Rev.

Clarification of Vacation Divorce Decrees on Constructive Service, 13 Ark. L. Rev. 345.

Case Notes

Purpose.

In a contested divorce case the corroboration may be relatively slight since the purpose of the requirement is to prevent collusion. Goodlett v. Goodlett, 206 Ark. 1048, 178 S.W.2d 666 (1944); Fitzgerald v. Fitzgerald, 227 Ark. 1063, 303 S.W.2d 577 (1957); Anderson v. Anderson, 234 Ark. 379, 352 S.W.2d 369 (1961).

Cited: Smiley v. Smiley, 247 Ark. 933, 448 S.W.2d 642 (1970); McNew v. McNew, 262 Ark. 567, 559 S.W.2d 155 (1977).

9-12-306. Corroboration.

  1. In uncontested divorce suits, corroboration of the plaintiff's grounds for divorce shall not be necessary or required.
  2. In contested suits, corroboration of the injured party's grounds may be expressly waived in writing by the other spouse.
    1. This section does not apply to proof as to residence, which must be corroborated, and does not apply to proof of separation and continuity of separation without cohabitation, which must be corroborated.
    2. In uncontested cases, proof as to residence and proof of separation and continuity of separation without cohabitation may be corroborated by either oral testimony or verified affidavit of persons other than the parties.

History. Acts 1969, No. 398, § 1; 1981, No. 267, § 1; 1985, No. 474, § 1; A.S.A. 1947, § 34-1207.1.

Research References

U. Ark. Little Rock L.J.

Legislative Survey, Family Law, 4 U. Ark. Little Rock L.J. 595.

Arkansas Law Survey, Morgan, Family Law, 8 U. Ark. Little Rock L.J. 169.

Case Notes

Contested Cases.

Although this section removed the need for corroboration in uncontested divorce suits it did not remove the requirement in contested suits. Adams v. Adams, 252 Ark. 20, 477 S.W.2d 183 (1972).

In contested suit wife's testimony was not corroborated and she was therefore not entitled to a divorce. Peter v. Peter, 10 Ark. App. 292, 663 S.W.2d 744 (1984).

In contested cases where corroboration has not been waived but there is no intimation of collusion, the corroborating evidence of grounds for divorce may be relatively slight. Gunnell v. Gunnell, 30 Ark. App. 4, 780 S.W.2d 597 (1989).

Circuit court did not err by awarding the wife a divorce based on the ground of indignities under § 9-12-301(b)(3)(C), because the wife offered evidence of her husband's ongoing affair, rudeness, unmerited reproach, and studied neglect that amounted to “settled hate” rendering her condition in life intolerable. Evidence of his indignities was corroborated under this section by her mother who indicated that her husband was rude, inattentive, and did not care about her; additionally, his misuse of marital funds, purchase of diamonds, and hotel bills provided some inference that he was engaged in studied neglect, open insult, and alienation and estrangement. Coker v. Coker, 2012 Ark. 383, 423 S.W.3d 599 (2012).

Residence.

An issue of residence deals directly with the authority, power and right of the trial court to act and therefore, the corroborating evidence, although relatively slight, should not be speculative and vague in scope. Hingle v. Hingle, 264 Ark. 442, 572 S.W.2d 395 (1978).

Proof of residency held corroborated. Rachel v. Rachel, 294 Ark. 110, 741 S.W.2d 240 (1987).

Residency must be corroborated and proven in every instance, despite admission by a defendant. Hodges v. Hodges, 27 Ark. App. 250, 770 S.W.2d 164 (1989).

The purpose of the corroboration of residency rule is to prevent procurement of divorce by collusion, and when there is no collusion, the