Custody vs. Guardianship in Arkansas: What’s the Difference?

If you are reading this, you are likely trying to step up for a child who needs stability. Whether you are a parent going through a breakup or a grandparent watching a loved one struggle with addiction, you know you need legal authority to make decisions for this child.

But the legal terms can be confusing. You might hear people say, "I need to get custody of my grandson," when legally, they actually need guardianship.

In Arkansas, custody and guardianship are two different legal lanes. Choosing the wrong one can lead to your case being thrown out, wasting time and filing fees you can’t get back.

Here is the simple, people-first guide to understanding which path is right for your situation.

Key Takeaways

• Parents = Custody: If you are the biological parent, you generally fight for custody.

• Non-Parents = Guardianship: If you are a grandparent, aunt, or family friend, you generally file for guardianship.

• The Court differs: Custody is usually a Family Court (Domestic Relations) matter; Guardianship is a Probate Court matter.

• Rights involved: Custody decides sharing time; Guardianship decides protection when parents are unfit.

The Golden Rule: Who Are You?

The easiest way to know which forms you need is to look at your relationship to the child.

Are you the biological or adoptive parent?

• YES: You need to file for Custody (or visitation).

• NO: You likely need to file for Guardianship.

Option A: Custody (For Parents)

Custody cases in Arkansas usually happen when two parents are splitting up or establishing rights for the first time. The court assumes both parents are fit and tries to decide how they will share the child.

• Common Scenarios: Divorce, separation, or unmarried parents establishing paternity.

• Goal: To determine Legal Custody (who makes major decisions like school and religion) and Physical Custody (who the child sleeps with at night).

• The Law: Under Ark. Code Ann. § 9-13-101, the judge makes decisions based solely on the "best interest of the child."

Option B: Guardianship (For Non-Parents)

Guardianship is for when the biological parents are not in the picture, or are currently unable to keep the child safe. When you become a guardian, you are asking the court to let you step into the parents' shoes because they cannot fulfill their duties.

• Common Scenarios: The parents are in jail, in rehab, deceased, or have abandoned the child.

• Goal: To give a responsible adult (the Guardian) the legal power to enroll the child in school, take them to the doctor, and provide a home.

• The Law: Under Ark. Code Ann. § 28-65-201, you must prove the parents are unfit, incapacitated, or unavailable.

Note: A guardianship does not permanently terminate parental rights (like adoption does). It just suspends them. If the parents get their lives back on track, they can ask the court to end the guardianship.

Comparison: The Cheat Sheet

The "Notarized Letter" Myth

I see this happen all the time in Arkansas. A mom is going to rehab or leaving the state, so she writes a letter saying, "I give custody of my son to his grandmother," and gets it notarized.

Please hear this: That piece of paper is not a court order.

While a friendly school principal might look at it and say "okay," they don't have to. If the father shows up demanding the child, or if you need to authorize a major surgery, that letter may be useless. To have real authority that police and hospitals must respect, you need a judge's signature on an Order of Custody or Letters of Guardianship.

The Process: What to Expect

Whether you are filing for custody or guardianship, the process generally follows these three steps:

1. Filing the Petition

You must file a formal complaint or petition with the Circuit Clerk in the correct county (usually where the child lives).

• For Guardianship: You will file a Petition for Appointment of Guardian. You typically need to attach a doctor’s note or other evidence if you are claiming the parents are incapacitated, or proof of why they are unfit.

• For Custody: You will file a Complaint for Divorce or Petition for Paternity/Custody.

2. Notice (Service of Process)

You cannot do this behind the parents' backs. Even if the parents are in jail or haven't seen the kid in years, Arkansas law usually requires you to officially notify them ("serve" them) that you are trying to get custody or guardianship.

3. The Hearing

You will go before a judge.

• Custody Hearing: The judge listens to both parents argue why they should have more time or decision-making power.

• Guardianship Hearing: You must prove to the judge that the guardianship is necessary because the parents are unfit or incapacitated, and that you are qualified to take care of the child.

When Should You Call a Lawyer?

ArkansasLegalNow is designed to help you handle straightforward legal matters yourself. However, kids are the most important thing in the world. If your situation is high-risk, you need to call a licensed Arkansas attorney or Legal Aid of Arkansas.

Seek legal counsel if:

• Domestic Violence: If you are afraid for your safety or the child's safety, get professional help immediately.

Next Steps

If you know which path is right for you, you don't have to wait. Stability for that child is just a few clicks away.

ArkansasLegalNow can help you:

• Create a Guardianship Petition: If you are a grandparent or relative stepping in.

• Create a Custody/Paternity Petition: If you are an unmarried parent trying to establish your rights.

• Get instructions: We give you a step-by-step guide on how to file your papers with the clerk.

Ready to protect the child in your life?

Get Started with our easy legal forms here.

Sources

• Arkansas Custody Law: Ark. Code Ann. § 9-13-101

• Arkansas Guardianship Law: Ark. Code Ann. § 28-65-201

• Qualifications of a Guardian: Ark. Code Ann. § 28-65-203

• Arkansas Judiciary: Court Directory