The most important question arising from divorce is, “Who gets the kids?” It is possible that the court will award shared custody, joint custody, or sole custody. In Louisiana, like many other states, the determination of child custody is based upon the court’s analysis of several factors indicating the best interest of the child. These factors are outlined in Louisiana Civil Code Article 134.
LA CIVIL CODE ART 134 – Factors in determining the child’s best interest
The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition 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 and disposition 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 the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of 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 deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.
#1 – The love, affection, and other emotional ties between each party and the child.
This factor refers to the bond between the child and each parent. In many cases, and depending on the age of the child, daughters have an inherent bond with their mother, and sons have that same bond with their father. In other cases, the exact opposite could be true. What are the things that you and your child have bonded because of? The answer could be fishing, football, baseball, dancing, or gymnastics. Maybe you are the boy scout troop leader or den mother. Perhaps you share the ability to play a musical instrument, or enjoy cooking together. It could be that you just take a day every week or month and dedicate it to that child and building your relationship. These things can all be taken into consideration to determine if there is a stronger bond between the child and one of the parents than the other, and this could affect the child custody determination.
#2 – The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
This factor analyzes whether one parent is more nurturing to the children. If you are the only parent attending teacher conferences and viewing report cards, or helping with homework, this will be taken into consideration. If you stay home and watch football or sleep off a hangover while your spouse takes the kids to church every week, this could be used against you. Who wipes away the tears when your child is having a bad day? Who spends time talking with them about their hopes and dreams and how to achieve them? Are you more focused on work than on the lives of your children? If one parent can show a greater capacity and desire to foster their child’s growth spiritually, educationally, and socially, it could affect the child custody determination.
#3 – The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
As important as it is to foster and nurture a child emotionally, educationally, and spiritually, it’s just as important to take care of their physical well-being. It seems somewhat heartless to put child custody in terms of financial ability to provide for the child, but it is a factor used by the courts. Keep in mind that it is only one of several factors, and a child support award may help even the playing field. But child support alone is unlikely to cover the costs of raising a child (more on that later). So where one parent is financially stable and the other refuses or is unable to work, it is possible that this factor can be used in consideration with the remaining factors to affect child custody.
Tomorrow I will address factors 4 through 8, and what they could mean to you when determining child custody in Louisiana.
It is important to note that this list is not exclusive, but rather provide guidelines for the court. When determining child custody, courts may look at factors which are not included in article 134. Each case and each person is unique. A qualified Louisiana Family Law Attorney can help you to figure out how these factors and others may be applied to your specific case and how this will affect your chances of being awarded child custody.
Written By: Sean Corcoran, Lake Charles Family Law Attorney