Divorces by Mac :: Custody

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FREQUENTLY ASKED QUESTIONS ABOUT CUSTODY IN LOUISIANA

1. What does “custody” mean and what is a “custody order?”

Custody is the protective care or guardianship a person has over their children. Custody can be broken into two categories:

i) Physical Custody -- time with the child is divided between the parents to promote shared care of the child and to see that the child has ongoing contact often with both parents; the Domiciliary Parent is the parent with whom the child primarily resides, if there is one.

ii) Legal Custody -- the right or authority of a parent or parents to make decisions about the child's upbringing. Typically, both parents retain legal custody (joint custody). Legal custody involves shared responsibilities for the child, including decisions about education, medical care, discipline, religion and other issues involved in raising the child.

JCIP- Joint Custody Implementation Plan, i.e., Custody Order -- Issued by the court, a custody order sets the terms and conditions of a child's custody.

2. What types of cases include decisions about custody?

Child custody determinations are typically applied in cases dealing with divorce, abuse, when a parent dies or when one parent is moving to another state. There are other situations where the court may decide custody as well.

3. Can parents make a custody arrangement without the court?

Yes, the court will often give preference to the arrangement the parents choose. The court does not have to adhere to or follow the recommendation of the parents if the court finds it is not in the best interest of the child to do so.

4. What if the Parents Cannot Agree?

Should the parents not compromise after a prompting from the court, then the court will fix the custody arrangement.

5. If the Court Sets Custody, What Arrangement Does it Normally Choose?

Should the parents not be able to come to a mutually satisfactory agreement, the court will fix a joint legal and joint physical custody agreement - unless it is in the best interest of the child to do otherwise.

6. How does a court decide who gets custody?

The court uses many factors (including those listed below) to determine what is in a child's best interest.

1. The love, affection and other emotional ties between each party and the child;
2. The capacity of each party to give the child love, affection, and spiritual guidance, and to continue the education and rearing of the child;
3. The capacity of each party to provide the child with food, clothing, medical care, and other material needs;
4. The length of time the child has lived in a stable, adequate environment, and how desirable it is to continue to maintain that environment;
5. The permanence, as a family unit, of the existing custodial home(s), or the proposed custodial home(s);
6. The moral fitness of each party, as far as it would affect the child;
7. The mental and physical health of each party;
8. The home, school, and community history of the child;
9. The reasonable preference of the child, if the court considers the child old enough to express a preference;
10. The willingness and ability of each party to encourage a close relationship with the child and the other parent;
11. The distance between the residences of the parties;
12. The responsibility for care and rearing of the child each party has previously had;
The court may consider other factors as well.

7. What is the difference between sole custody and joint custody?

Sole legal custody is when one parent has custody of the child and makes all legal decisions regarding his/her care without having to consult anyone else. This is not the same as sole physical custody. The other parent may still be awarded visitation rights to spend time with the child, although not a guarantee. In certain cases, if the court finds it to be in the best interest of the child, the court could require that the visitation be supervised. If there is extremely strong evidence that it would be in the best interest of the child for only one parent to have sole physical custody, the court will award sole physical custody to that parent. This is exceptionally rare.

Joint legal custody is when both parents have the obligation to exchange information concerning the health, education, and welfare of the child and to communicate with each other in making decisions. The court has a strong preference for joint legal custody unless there are extenuating circumstances (i.e. domestic violence or substance abuse).

Joint physical custody is an arrangement where each parent has physical custody of the child to assure the child has continuing and frequent contact with both parents. To the extent possible, the time will be shared equally, i.e., seven-and-seven. The court has a strong preference for joint physical custody unless there are extenuating circumstances.

8. Does joint physical custody mean the child lives equally with both parents?

Not necessarily. As is often the case due to school and other obligations, the child may have to stay with one parent for more time than the other. Depending on the best interest of the child, the court could designate one parent as a domiciliary parent, or the parent with whom the child primarily resides, with a visitation schedule for the other, non-domiciliary parent. In the event there is no domiciliary parent, the parents both have the same rights.

9. What if I already have a custody order for my child that I want to change?

Parents can modify a custody arrangement, but this is much simpler if parents (rather than the court) set the first custody arrangement by mutual agreement. If the parents set custody by mutual agreement, they only have to prove a change in circumstances to the court to modify the arrangement. However, if the parents could not agree, and the court set the previous custody order, then the parent seeking the modification must prove two points:

1. A change in custody would be in the child's best interest; and
2. To continue the current custody arrangement would be so harmful to the child as to justify a change, or that the harm to the child caused by a change will be substantially outweighed by the advantages enjoyed by the child if the court allows the change.

To modify a court ordered custody arrangement is very difficult. Parents should keep this in mind when establishing their original custody arrangement and hopefully be able to compromise and develop their own arrangement.

10. How does custody affect child support payments?

When one parent is awarded sole physical or legal custody, the other parent usually is required to fulfill his or her child support obligations by making payments to the custodial parent based on Louisiana State guidelines set forth by statute. The custodial parent is not typically required to pay child support because he or she meets the support obligation through the custody itself. When parents are awarded joint physical custody, i.e. seven and seven, their support obligations are calculated based on Louisiana State guidelines set forth by statute and the greater child support amount is offset by the lesser child support amount.

11. Can the Court Give Custody to a Third Person?

If an award of joint or sole custody to either of the parents would substantially harm the child, the court may assign custody to another person with whom the child has lived in a wholesome and stable environment or to any other person who can provide such an environment.

12. What are grandparents’ rights to legal custody of a grandchild?

If a child lives with a grandparent who needs legal custody to be able to provide school enrollment or access to medical care AND the parents do not object, a grandparent can be given provisional (temporary) custody very quickly. If the parents agree that a grandparent can have custody, they can sign a "Provisional Custody by Mandate" under Louisiana Revised Statute 9:951. This form of custody can last for up to one year at a time.

If any parents are living and don't want to give custody to the grandparent, the parents would have to be sued for custody. A judge would then have to find it in the best interests of the child for the grandparent to have legal custody.

13. What would a grandparent have to show a judge to get custody?

In Louisiana, a grandparent would have to show that parental custody will cause substantial harm to the child. This means something very serious like abuse, violence, abandonment or neglect. A parent's low income is not enough to deny that parent custody. The fact that a child wants to live with a grandparent instead of a parent is also not enough. Further, a grandparent would have to show that having custody would be good for the child.

14. What rights do grandparents have to visitation?

If the grandparent's child (the parent of the grandchild) is deceased, interdicted or incarcerated then a court may grant that grandparent reasonable visitation if it is in the best interest of the grandchild. If the parents of a minor child have lived separate and apart for a period of six months, in extraordinary circumstances such as a determination by the court that a parent is abusing a controlled dangerous substance, the grandparents of the grandchild may have reasonable visitation rights if it would be in the grandchild’s best interests. Post-Adoptive limited visitation rights of grandparents are available if the parent has died or if the parent forfeited their parental rights due to non-support or failure to maintain a relationship with the child.

15. What does the judge consider in evaluating the “best interests” of the grandchild?

The judge will look at the following, non-exclusive factors:
The length and quality of the grandparent’s relationship with the child;
Whether the child is in need of guidance that the grandparent can give;
What the child wants, if the child is old enough to give an opinion;
How willing the grandparent is to encourage a close relationship between the child and the child’s parents; and
The mental and physical health of the grandparent and the child.
Our courts in determining whether court ordered visitation is warranted, closely looks at the above five factors - especially the first one.

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