This post is the second of a three-part series detailing the child custody factors in Louisiana. This looks at factors #4-#8. Click here for part one, or here for part three of the series on child custody.
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.
#4 – The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
The court will be weary about removing children from the family home if that home has been a stable and nurturing environment. If you choose to move out of the family home and you still plan to seek custody of your children, it is important to pick a new home with that in mind. A judge will be unlikely to agree that it is in the best interest of the children that they move from the family home, where they have been for several years, into a one bedroom apartment to be shared with several people. If you move out of the family home, choose a new home with plenty of room for both you and the children. Make sure it is in a safe location and will be a stable environment for the kids.
#5 – The permanence, as a family unit, of the existing or proposed custodial home or homes.
Where the children are going to live after divorce can depend on the family unit in each location. If one parent immediately begins dating and has a new person spending the night each week, the court will weigh this negatively. Likewise, if one parent is trying to move the children in with the grandparents, and that has proven to be an unstable environment full of conflict, negative weight will be given. Ideally, if the children are to be moved out of the family home and into a home with other friends or family members, the children should already be familiar with those people. The relationship between the members of the new home, the parent seeking custody, and the children should be long standing an positive so as to lend the court to the belief that if child custody is granted, it will be in the best interest of the children.
#6 – The moral fitness of each party, insofar as it affects the welfare of the child.
The court will not be likely to award child custody to a parent who is currently taking illegal drugs, or has a recent or long history of drug or alcohol abuse. Multiple arrests, lying to the court, and domestic abuse are all going to shed a negative light on a parent as far as the court is concerned. These issues may seem obvious, but sometimes less obvious but equally damaging are text messages, emails, voicemails, and Facebook posts. Divorce is a contentious thing and when people get angry they say things that can hurt them. If you lash out in anger, especially in writing, you should plan on those texts being printed and brought to court. If you make threats, use obscene names, or post social media rants about your ex, you can be assured that the judge will see this as a reflection of your moral character and weigh this against you when determining child custody.
#7 – The mental and physical health of each party.
As a parent, you have to be able to tend to your children. If your physical health is at a point where you are unable to reasonably care for others, the court will take this into consideration. While courts have viewed psychiatric issues and treatment stemming from drug and alcohol abuse as a negative, they have also found shared custody to be a viable option where the addict or alcoholic has sought continued treatment for their disease.
#8 – The home, school, and community history of the child.
This factor is more likely to be taken into consideration where the parent seeking child custody is also seeking to move the child to a new location. Courts have found that young children, below the age of 5, do not have a real history of community or schooling. But older children, who have been in the same school for several years and have been involved in extracurricular activities for several years in the same community have been found to have sufficient ties to their school and community. Courts are reluctant to sever with those ties, and have found that doing so may not be in the best interest of the child.
Tomorrow I will address factors 9 through 12, 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, Louisiana Family Law Attorney