Child Custody

LOUISIANA CHILD CUSTODY

CUSTODY OVERVIEW

Independent from a proceeding for divorce, or any other proceeding in which parents are aiming to change the living situation of a child, custody will need to be awarded to one or both parents.  This means that custody will either be awarded solely, or jointly.  Sole custody means that custody is awarded to only one parent.  Joint custody means that both parents are awarded custody.  With joint custody, one parent will be designated as the domiciliary parent, with whom the child will live with.  The domiciliary parent has the authority to make all major decisions regarding the child (including medical and educational decisions).  The non-domiciliary parent may ask the court to allow them to review all decisions.  If neither parent is designated as the domiciliary parent, both parents will have equal decision making power concerning the child.  All custody hearings are closed to the public.  Custody proceedings must be brought in the parish where a party is domiciled, or in the parish of the last matrimonial domicile.

The court shall award custody in accordance with the best interest of the child.  In Louisiana, the court will look at several factors to determine what is in the best interest of the child.  These factors include:

  • The love, affection, and other emotional ties between each party and the child;
  • 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;
  • The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs;
  • The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment;
  • The permanence, as a family unit, of the existing or proposed custodial home or homes;
  • The moral fitness of each party, insofar as it affects the welfare of the child;
  • The mental and physical health of each party;
  • The home, school, and community history of the child;
  • The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference;
  • The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party;
  • The distance between the respective residences of the parties; and
  • The responsibility for the care and rearing of the child previously exercised by each party.

More information about these factors can be found on the Best Interest of a Child page by clicking here.

It is always easiest if you and your spouse can agree upon a custody arrangement outside of court.  If the parents can agree upon a custody arrangement before coming into court, the court will award custody in accordance with the parents’ agreement.  Otherwise, if the agreement is not in the best interest of the child, or there is no agreement met, the court shall award custody jointly between the parents.  However, if it can be proven by clear and convincing evidence that custody solely to one parent will best serve the interest of the child, the court will award custody to that parent.

The court will generally aim to place the child in the custody of one or both parents.  In a situation where joint or sole custody to either parent is not in the best interest of the child, the court may award custody to another person.  The person who the child has been living with in a wholesome, stable environment or another person who can provide such environment, may be granted custody from the court.

Once the court issues a custody decree or judgment, you and your spouse must abide by the language of the decree.  On some occasions, custody may be modified.  This is discussed on the Child Custody Modification page.

LEGAL CUSTODY V. PHYSICAL CUSTODY

There is a difference between legal custody and physical custody.  Legal custody concerns the parent making fundamental and important decision regarding the child.  As the term suggests, physical custody is the actual physical possession of the child.

TEMPORARY CUSTODY

Generally, temporary custody means that the parent has legal custody of the child until the court makes a further ruling.  In the instance of temporary custody, the child will live with the parent who has temporary custody.  It is not determinative, but one benefit of having temporary custody is that consistency granting you permanent custody would provide.

EMERGENCY CUSTODY

Emergency custody is also referred to as ex parte custody.  When a child is in “immediate danger of irreparable harm”, an ex parte motion may be filed on your behalf.  By doing this, you are essentially indicating to the court that the current situation your child is in with your spouse is harmful to the child, and you are asking that the court allow you to intervene.  Examples of when you may file an ex parte motion may include:

  • Your spouse is using drugs using drugs or alcohol in the presence of your child;
  • Your child is spending time around a convicted felon;
  • Your spouse is keeping your child home from school excessively;
  • Your spouse is abusing your child.

An ex parte motion should be taken very seriously and should not be abused with frivolous claims in an attempt to get custody of your child.  You should consult with your attorney and discuss whether or not you have the basis for an ex parte motion.  Any ex parte order granted will expire after thirty days, but can be extended one time before its expiration for fifteen days so long as good cause is shown.

PERMANENT CUSTODY

As the name suggests, permanent custody is the continued legal and physical possession of the child after the custody proceedings have concluded.

SOLE CUSTODY

Sole custody is a form of legal custody.  With sole custody, one parent has exclusive custody of the child.  That parent does not need to communicate with or ask permission of the other parent before making decisions concerning the child.  Sole custody allows for the greatest exercise of parental control.

JOINT CUSTODY

Joint Custody is a form of legal custody.  With joint custody each of the parents are assured continuing contact with the child.  The court order should include the time periods during which each parent has custody of the child.  The court favors joint custody since it allows the child to have a continuing relationship with each parent.  When joint custody is ordered, the court will appoint a domiciliary parent.  The child will live with the domiciliary parent.  The domiciliary parent has the authority to make all major decisions regarding the child (including medical and educational decisions).  The non-domiciliary parent may ask the court to allow them to review all decisions.  If neither parent is designated as the domiciliary parent, both parents will have equal decision making power concerning the child.  Joint custody also obligates the parents to exchange information regarding the child’s health, education, and welfare.

SHARED CUSTODY

Shared custody is an arrangement in which the parents have joint legal custody of the child and share physical custody for an approximately equal amount of time.  Child support will be calculated different with a shared custody arrangement.

SPLIT CUSTODY

Split custody occurs in situations where there is more than one child.  Split custody means that each parent is the sole custodial or domiciliary parent of at least one child.  The court does not encourage split custody since it divides siblings between households, but will in some situations authorize the arrangement.  Child support will be calculated differently with a shared custody arrangement.

CUSTODY TO A NON-PARENT

Occasionally, a court may award custody to a person other than a parent if awarding joint custody, or sole custody to either parent, would result in substantial harm to the child.  The non-parent would need to demonstrate to the court that they are able to provide a stable and wholesome environment for the child.

THE “BEST” CUSTODY

There is no best type of custody that is “one size fits all”.  That is to say, the custody plan that works best for one family, may not work best for another family.  Custody is determined on an extreme case by case basis.  In some situations, sole custody is the only option that best protects the welfare of the child.  In other situations, the child is fortunate enough to have parents with joint custody with a shared arrangement.  Since each family is so vastly different, you should consult with your attorney to try and determine which type of custody is in the best interest of your child.  Ultimately, the best custody is the type that best serves your child.

CUSTODY FOR THE RIGHT REASONS

Be sure that you are fighting for custody of your child for the right reasons.  Child support is never a good basis for wanting more custody of your child.  It is important to remember that this whole process is to protect the best interest of your child, whether that means more or less custody for you.

UNIFORM CHILD CUSTODY AND ENFORCEMENT ACT

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) has been adopted by Louisiana along with forty-eight other states. The UCCJEA aims to provide continuing jurisdiction to a single state in custody matters.  The act says jurisdiction will be proper in the child’s home state.  The home state is where the child has been living for the previous six months.  If the child is younger than six months old, the home state will be the state listed on the child’s birth certificate.  That state will have continuing jurisdiction over all custody matters pertaining to that child until that state’s court, or another court, determines from substantial evidence that the child, nor the parents, have substantial connections with that state.

The goal of the UCCJEA is to not have conflicting orders between different states.  This way, all parties involved are on the same page and have the same information.  This helps to lessen disputes over custody orders and expedite the custody process.

CLOSED HEARING

Under Louisiana statute, a custody hearing may be closed to the public.

BEST INTEREST OF A CHILD STANDARD AND OTHER FACTORS

In determining child custody, the court must determine what is in the best interest of the child.  This is the most important question arising out of divorce proceedings.  In Louisiana, there are multiple factors at which the court will look at to determine which living situation is in the best interest of the child.  These factors include, but are not limited to:

  • The love, affection, and other emotional ties between each party and the child;
  • 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;
  • The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs;
  • The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment;
  • The permanence, as a family unit, of the existing or proposed custodial home or homes;
  • The moral fitness of each party, insofar as it affects the welfare of the child;
  • The mental and physical health of each party;
  • The home, school, and community history of the child;
  • The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference;
  • The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party;
  • The distance between the respective residences of the parties; and
  • The responsibility for the care and rearing of the child previously exercised by each party.

There is no mathematical equation that the courts use to determine the weight given to each factor, or exactly which factors will be used for each case.  Each situation is handled differently, as the court sees fit to better serve the child.

So what do each of these factors mean?

#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.  Perhaps you are the boy scout troop leader or den mother of your child’s troop.  Perhaps you share the ability to play a musical instrument, or enjoy cooking together with your child.  It could be that you just take a day every week or month and dedicate it to your child and build your relationship. These things may 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 child.  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.  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.

#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.  If you have a history of moving frequently, it is important to try and establish a more permanent residence.  This will help provide stability to your child and weight positively with the courts.  The relationship between the members of the new home, the parent seeking custody, and the children should be long standing and 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 themselves later down the road.  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.  If it becomes clear that any of these negative actions are taken while supervising, or in the presence of your child, this will weigh even more negatively with the court.

#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.  Be aware that until full recovery is made, or until you are fully mentally and physically fit to care for your child, the court will likely not grant you sole custody.

#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.  You can find more information about relocation and its role with custody on the Relocation & Custody page.  Courts have found that young children, below the age of five, 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.  Remember, the goal of the court is to serve the best interest of the child by finding a solution that is least disruptive to the child’s day to day life.

#9: The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference:

We have a family court judge in Calcasieu Parish who explains this factor better than I can on my own.  He says, “We don’t let children choose where they want to live, because if we did, they would all live in Disney World.”  Preference of a child as to which parent is awarded child custody will only be taken into consideration when the child is old enough to make a reasonable decision.  Louisiana courts have held that great weight should be given to a responsible and mature teenager’s preference as to custody.  But the child must be able to articulate his preference sufficiently and demonstrate that the choice is based on his home situation, not his friends or school.

#10: The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party:

Each parent is tasked with the responsibility of encouraging and fostering the child’s relationship with the other parent.  This can be difficult when one parent has extreme negative feelings toward the other, but child custody isn’t about you as a parent, it’s about what’s best for your child.  Louisiana courts are not going to be quick to award child custody to a parent who speaks ill of the other to the children, and courts have even given negative weight to a mother who was making threats to the father’s new girlfriend.  Additional consideration has been given in child custody cases where a parent refused to facilitate travel arrangements to the other’s location for visitation, or refused to allow the children to speak on the phone with the other parent.  This is in part because the courts want to be sure that a parent is going to follow the custody and visitation guidelines they set, not just ignore them.

#11: The distance between the respective residences of the parties:

This factor is most often looked at when courts are considering a shared child custody arrangement.  Although shared child custody is many times the best for the kids and for the parents, it is not always practical.  In cases where one parent moves away from the marital home in order to start over, the court is unlikely to award shared custody.  While children are in school, it is in their best interest that they have a stable environment and are not traveling great distances every day.  The closer the parents live to one another, the more favorable a shared custody arrangement becomes.  The further apart parents live from one another, the more likely a court will order custody to one parent, the domiciliary parent, and grant visitation for the other parent.

#12: The responsibility for the care and rearing of the child previously exercised by each party:

When determining child custody, courts give weight to whether one parent has been the primary caregiver to the children prior to the request for a custody and visitation order. The judge will take into consideration if one parent has been responsible for obtaining the child’s medical and dental treatment, and daily activities like – feeding her, bathing her, dressing her, putting her to bed, dropping and picking up from daycare.  If one parent has been the primary caregiver for an extended time, the court is likely to question whether the other parent can suddenly step up to those tasks.  This is not to say that a full-time working parent will not be awarded custody, but it will be more difficult to demonstrate to the court that you have the ability, knowledge, practice, and time to take on full-time parenting.

Other factors that the court may consider include:

  • The gender of the child and the parent
  • The age of the child and the parent
  • The “significant” others involved in the parent’s life
  • The criminal record of the parent
  • The race of the child and parent
  • The religion of the parent
  • The financial resources and work schedules of the parent
  • Any history of physical, sexual, drug, or alcohol abuse of the parents

It is important to remember that this list is not exhaustive.  These factors are merely guidelines for the court when determining custody.  Since each child and situation is different, courts may look at factors not represented in this list.  A qualified Louisiana Family Law Attorney can help you to figure out how these factors and other may be applied to your specific case, and how it will affect your chances of being awarded child custody.

CHILD’S PREFERENCE

There are many factors that the court will considering in its determination of custody.  Your child’s preference may or may not be a factor that holds much weight.  The age of your child plays a role in how much weight the court affords your child’s preference.  The older your child is, the greater ability he has to express not only his wants, but his reasoning behinds those wants.  The reasoning behind your child’s preference is just as important as the preference itself.  Take for instance a child who wants to live with you because you help with homework and cook dinner every night before tucking him into bed with a bedtime story.  Compare that child with the child who wants to live with you because you let him watch television and stay up until eight o’clock.  Clearly, the reasoning behind the first child’s preference will have greater weight with the court since it illustrates the strong parent-child relationship.

There is no set age at which a child may indicate his preference to the court.  If either parent wishes the child’s voice to be heard directly, they may request that the court hear him.  If the court does not want to put a child through the possibly difficult situation of advocating for one parent over the other, sending your child to counseling may be beneficial since the counselor may then present their findings to the court.

MODIFYING CUSTODY

After you and your spouse have a judgment or decree issued by the court for child custody, an instance may arise in which you or your spouse wish to modify the order.  Since changing custody would cause a disruption in the day to day life of the child, courts generally do not modify custody decrees.  However, if the court finds that there has been a substantial change in circumstance since the time the prior custody decree was ordered and that a modification would serve the best interest of your child, the court may grant the modification.

Whether it be you or your spouse asking the court to modify the agreement, the party asking for the modification will need to overcome the burden of proof.  That is, the moving party will need to prove to the court that there has been a substantial change in circumstance, and that the proposed modification is truly in the best interest of your child.

First, you will need to show the court that there is a substantial change in circumstance.  The court will consider the totality of your circumstance in determining whether or not there was a substantial change.  The court may look at factors such as the dynamics of both parents’ households, the parents’ employment and schedules, the living situations of the parents, the age of the child, or the child’s academic performance and overall welfare.  Generally, the moving party would need to show that the current arrangement is damaging to the child or that the benefits of the change would outweigh any harm of the change in environment.  The change needs to be substantial in the courts eyes.  This means more than just a new address, or a new paycheck.  This means that, all factors combined, there has been enough change that it is clear that the day to day welfare of the child will be affected positively.  If the court agrees that there has been a substantial change in circumstance, the court will then determine the best interest of the child in issuing a modification of child custody.

In Louisiana, there is law that serves as a guideline to the courts in determining what is in the best interest of the child.  The court will consider all relevant factors. These factors include:

  • The love, affection, and other emotional ties between each party and the child;
  • 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;
  • The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs;
  • The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment;
  • The permanence, as a family unit, of the existing or proposed custodial home or homes;
  • The moral fitness of each party, insofar as it affects the welfare of the child;
  • The mental and physical health of each party;
  • The home, school, and community history of the child;
  • The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference;
  • The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party;
  • The distance between the respective residences of the parties; and
  • The responsibility for the care and rearing of the child previously exercised by each party.

As you can see, the list of factors the court will consider is relatively lengthy.  This is to ensure that the custody decree the court will issue properly serves the best interest of your child.  Some factors will be relied upon more heavily than others, but no one factor alone is determinative.

After determining the best interest of the child, the court will rule either to allow the prior custody decree to stand or to modify the decree.  If modification of the custody decree is issued by the court, the modification will serve as the new decree for custody by which you and your spouse must abide.

PARENTING PLAN

It is a good idea to create a parenting plan between you and your spouse.  A parenting plan should detail how you and your spouse plan to parent your child after your divorce.  This plan should include legal custody, physical custody, parenting time, communication times and methods with your child, decision making concerning the child, and general information like addresses and phone numbers of where your child may be staying.

Prepare to Tell Your Child

In an understandably difficult time for your child, it is recommended that you and your spouse plan when and how you are going to address all the changes happening with your family to your child.  Be sure that your child is calm and comforted through out the conversation.  Be honest about what is occurring without degrading or being negative toward your spouse.  It should be anticipated that your child will have emotions and questions to address at a later time.  Continue to communicate with your child about the process so there are no unexpected surprises for them.  If you feel it may be helpful, seeking counseling for your child is a common occurrence during divorce and custody proceedings.

PRIMARY CARETAKER

The primary caretaker is the parent who in actively more involved in the day to day activities of your child’s life.  This can be determined by considering who:

  • Wakes up and puts your child to sleep
  • Bathes, grooms, and dresses your child
  • Prepares meals and snacks for your child
  • Brings your child to and from school
  • Takes your child to extracurricular activities
  • Helps your child with homework
  • Attends school meetings and functions
  • Takes your child to the doctor and keeps medical records
  • Takes your child to church
  • Cleans your child’s clothes, toys, and bedroom

It is helpful to consider on a daily basis what all you do for your child.  All of those things will help in determining who is your child’s primary caregiver.  To prove some of these actions, it is smart to keep any documentation, receipts, or photographs demonstrating your participation in your child’s life.

MATERNAL PREFERENCE

Dating back for decades, the courts have often found that the welfare of a child is better served by being with their mother.  Historically, it has been difficult to remove a child from the care of their mother without proving the mother as an unfit parent.  While this maternal preference notion may still exist, courts have been more open in the past few years to closer examine which parent truly better serves the interest of the child.  Gender and age of the child play a dominant role in overcoming this notion.  All other factors equal, it is understandable that a six-year-old daughter may need to be with her mother, while a fourteen-year-old son may need to be with his father.  Either way, courts do not default custody to the mother due to maternal preference.  A determination of the best interest of the child will always be made in custody proceedings.

THERAPY AND CUSTODY

If you are in therapy, or counseling of any sort, you should consult with your attorney about what implications that may bring.  The implications will obviously vary depending what you are seeking treatment for.  If you are going to therapy for a condition that in no way affects your ability to parent your child, then as far as the court is concerned, your treatment should not pose a problem to your chances at custody.  Should either parent have mental health issues and be getting treatment, it is likely that this information will come out during the custody proceeding.  Regardless of the reason, you should consult with your attorney and address why you are in therapy.

PRESCRIPTION MEDICATION AND CUSTODY

Prescription medication, if used as prescribed, will not have a negative impact on your chances of obtaining custody of your child.  So long as you are following the advice of your healthcare professional, use of prescription medication is acceptable.

AFFAIRS AND CUSTODY

Remember that divorce proceedings are separate from custody proceedings.  As to be expected, an affair will be information discussed during a divorce proceeding.  However, there are only certain circumstances in a custody proceeding where information about an affair will become relevant.  Factors in determining the relevance of an affair include:

  • Whether the children were exposed to the affair
  • Whether the affair had any impact on the child
  • When the affair occurred and how much time has elapsed since
  • What evidence has been obtained concerning the affair.

Along with the factors for the best interest of the child, the court may consider the moral fitness of the parents which would include the parent’s sexual activity.  This will only be taken into account if the child was exposed to the affair.  If the child was not exposed to the affair, the affair will be considered much more briefly since it did not affect the welfare of the child.  Be sure to disclose to your attorney if you or your spouse had an affair so that your attorney may prepare for any impact it will have on your case.

DATING AND CUSTODY

Dating during custody proceedings may or may not be relevant to the determination of custody.  If the child is aware of and exposed to your dating, the court looks down upon that since your child is still adjusting to the changes already happening with your family.  Consult with your attorney but it may be best for you chances of custody, and for your child, to focus on your child and their adjustment needs.

LIVE-IN PARTNER AND CUSTODY

Having a new significant other live with you during a custody proceeding may affect the court’s custody determination.  Consult with your attorney before you have your significant other move in to discuss how it may affect your custody proceeding.  If your significant other has already moved in, tell your attorney so that they may assess the potential impact your living arrangement has on your custody proceeding.

Living with a significant other may have a significant impact on your case.  The court will look at factors including, but not limited to:

  • The length of separation between you and your spouse;
  • The length of your relationship with your significant other;
  • Your child’s interaction with your significant other.

Since living with a significant other may jeopardize your custody case, it is very important to consult with your attorney, and to act in the best interest of your child.

SEXUAL ORIENTATION AND CUSTODY

Sexual orientation does not limit your legal right to be a parent to your child.  Sexual activity that your child is exposed to however, may harm your child, and thus your custody case. Be sure to note that sexual orientation and sexual activity are different.  Consult with your attorney about any concerns you may have in this regard.

DOMICILIARY PARENT

A domiciliary parent is the parent that your child lives with.  The domiciliary parent is also responsible for making day-to-day, as well as fundamental, decisions about your child’s care.  In deciding which parent should be the domiciliary parent, the court considers the factors concerning the best interest of the child.  The factors include, but are not limited to:

  • The love, affection, and other emotional ties between each party and the child;
  • 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;
  • The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs;
  • The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment;
  • The permanence, as a family unit, of the existing or proposed custodial home or homes;
  • The moral fitness of each party, insofar as it affects the welfare of the child;
  • The mental and physical health of each party;
  • The home, school, and community history of the child;
  • The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference;
  • The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party;
  • The distance between the respective residences of the parties; and
  • The responsibility for the care and rearing of the child previously exercised by each party.

Just because you are awarded domiciliary status, does not mean that you are awarded sole custody.  You and your spouse may have joint custody, while you are the domiciliary parent that the child lives with.  If you are not awarded domiciliary status, you may still have joint custody of your child.

UNFIT PARENT

An unfit parent is a parent that has a personal deficiency or incapacity which will likely prevent them from adequately performing parental obligations for their child.  A common example of a situation in which a parent is found to be unfit is when the parent is a drug or alcohol abuser, or has other serious mental health problems.  While the parent will not be deemed fit for custody, the parent may still be eligible for visitation, likely supervised.

CUSTODY DURING DIVORCE PROCEEDINGS

To help be sure that your child remains living with you during your divorce proceedings it is essential that you have more than an informal, verbal commitment from your spouse.  Obtaining a court order scheduling which spouse has the child on what days will afford you the most protection in keeping your child with you.  You may petition the court for temporary custody.  Generally, temporary custody means that the parent has legal custody of the child until the court makes a further ruling.  In the instance of temporary custody, the child will live with the parent who has temporary custody.  It is not determinative, but one benefit of having temporary custody is that consistency granting you permanent custody would provide.

VISITATION

VISITATION GENERALLY

Visitation can arise in a few different ways.  It may be previously agreed upon and stipulated in the parents’ custody agreement.  It may be mentioned in an agreement that “reasonable visitation” is to be awarded to the non-domiciliary parent.  It may even be ordered by the court.  Whichever manner visitation arises, there is some information you need to know.

Generally, any parent not granted custody is entitled to reasonable visitation, unless the court finds that visitation would not be in the best interest of the child.  The child’s best interest and well-being will always outweigh the parent’s right for visitation.  Reasonable visitation just means a visitation schedule that is not overly burdensome to either parent, but most importantly the child.  If you work days on shift work and the only time you are available for visitation is two hours after the child’s bedtime, the court will want to see some schedule through which you can visit your child without disrupting their daily routine.  This is again why there is a great benefit in agreeing on a visitation schedule prior to entering court.  The more flexible you and your spouse can be with working around one another’s schedules for the best interest of your child, the more likely a court will reward that and agree to your schedule.

It is extremely important that, whether agreed upon out of court or ordered in court, that both parents understand that they are not to interfere with the other parent’s visitation or custody.  Once a visitation schedule is ordered by the court, both parents must follow the schedule.  Should something arise where you are unable to pick up or drop off your child for visitation on time, you must be able to show good cause as to why.

Usually, the only times that a parent will be outright denied visitation of their child is if the court concludes that it would gravely harm the child’s mental or physical health to be around that parent.  This is generally seen in situations where a parent is involved in drugs or illegal conduct.

DETERMINING VISITATION

Similar to determining custody, in determining visitation the courts will look at what is in the best interest of the child.  Factors in determining the best interest of the child include:

  • The love, affection, and other emotional ties between each party and the child;
  • 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;
  • The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs;
  • The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment;
  • The permanence, as a family unit, of the existing or proposed custodial home or homes;
  • The moral fitness of each party, insofar as it affects the welfare of the child;
  • The mental and physical health of each party;
  • The home, school, and community history of the child;
  • The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference;
  • The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party;
  • The distance between the respective residences of the parties; and
  • The responsibility for the care and rearing of the child previously exercised by each party.

VISITATION RIGHTS

A parent that is not granted custody of their child is entitled to reasonable visitation rights.  These rights for visitation may be exercised unless the court, after a hearing, finds that visitation for that parent would not be in the best interest of the child.

So long as a parent is able to exercise their rights to visitation, it is a good idea to specify the visitation rights in the visitation plan.  By specifically addressing details of the visitation (such as which parent transports the child where and when, etc.), complications down the road may be avoided.

Additionally, by noting the specificities of the visitation plan, this will allow each parent to maximize their time with the child.  By detailing dates and times for visitation, parents can plan around their work schedule so that they are not missing out on time with their child while working or tending to other obligations.

NON-PARENT VISITATION

In certain circumstances, a grandparent may be granted reasonable visitation if the court determines that it is in the best interest of the child.  A hearing will be held in order for the court to hear evidence as to why the grandparent should or should not be granted visitation.

Under extreme circumstances, another relative, former stepparent or grandparent may be granted reasonable visitation should the court find that it is in the best interest of the child.  In order to show that circumstances are extraordinary, there must be evidence of a parent abusing drugs or something of the like.  Usually, courts are reluctant to grant visitation or custody to a non-parent, and especially to a non-family member, since it is almost always in the best interest of a child to have a family-like structure.  Generally, a grandparent would be the first non-parent party the court would consider for visitation if:

  • One or both parents have died
  • One or both parents are incarcerated
  • One or both parents have a drug and/or alcohol abuse problem
  • One or both parents are abusive and/or neglectful

INCARCERATED PARENT VISITATION

The court may authorize visitation for incarcerated parents.  The court will include restrictions and conditions with this type of visitation in order to minimize the risk of harm to the child.  In determining whether or not to grant visitation to an incarcerated parent, the court will consider the following factors:

  • The length and quality of the relationship between the child and the incarcerated parent;
  • Whether the incarcerated parent can provide guidance that the child is in need of;
  • If the child desires to visit the incarcerated parent;
  • The willingness of the domiciliary parent to encourage this relationship;
  • The mental and physical health of the child;
  • The mental and physical health of the incarcerated parent;
  • How long the child had lived with the parent prior to incarceration;
  • The cost of visitation.

Just like the factors for determining the best interest of the child, these factors are non-exclusive.  The court may pick and choose which to use as it sees fit.  However, it should be noted that it is rather difficult to obtain an award for visitation while incarcerated since it is very hard to prove to the court that the child would benefit from being in that environment.

COST OF TRAVEL FOR VISITATION

Since there are generally costs included with visitation such as travel expenses, it is a good idea to plan for them.  Having a written agreement between the parties, or court order, that addressing which parent is responsible for each cost will help minimize disputes over costs involved in the visitation process.

BENEFITS OF ALLOWING VISITATION

Sometimes, a parent is concerned and unwilling to allow their spouse visitation.  This attitude ultimately results in a court order doing just the opposite since their spouse is entitled to visitation (except in cases where visitation is not in the child’s best interest).  However, it should be noted that there are several benefits to allowing, and coming to an agreement concerning visitation prior to a court order.

First and foremost, in most cases, it is in the best interest of your child to have a relationship with both of his or her parents.  Fighting to deny visitation is ultimately going to hinder the best interest of your child.

Additionally, visitation is often economically beneficial to both parties.  If your spouse’s schedule visitation is during the time that you are at work, the cost of child care is absent for that time frame.

Overall, being supportive and accommodating in creating a visitation schedule will alleviate difficulties for all parties involved.

EXAMPLE VISITATION

Generally, visitation revolves around the parties’ schedules.  For that reason, weekend visitation is often most convenient.  Visitation can be overnight or not, as well as supervised or not.  The court order or agreement between the parties should stipulate the type and duration of visitation as well as the specific dates and time frames.  For example, visitation may be Thursday afternoon from 3pm to 7pm and Saturday nights from 7pm until Sunday morning at 10am.

TIMING OF THE TRIAL

Often times parents are concerned about who the child will be with during the time leading up to the trial for custody.  When temporary custody is already in place it is important to be aware of the timing of the trial.  If you have temporary custody of your child, there is no pressing reason to rush to trial.  Your child has consistency in their life.  He lives in the same house, goes to the same school, and is a part of the same community on a day to day basis.  At trial, that consistency is subject to change and ultimately, you are looking to maintain that consistency.

If you do not have temporary custody of your child, there may be reason to encourage moving to trial since that will be your opportunity to show to the court why you deserve custody of your child.

MODIFYING VISITATION

Similar to modifying custody, when modifying visitation, the court will consider the best interest of the child.  If you are seeking more visitation, you will need to demonstrate to the court why you now deserve more visitation.  For example, if the reason you previously had Monday and Tuesday nights with your child was because you have long day work hours, and you now have a different work schedule that is more compatible with visiting your child, this would be a good reason to show the court why you are asking for more time.  If you are seeking to limit your spouse’s visitation, you will need to demonstrate to the court the reasons why it should be limited.  For example, if your spouse has consistently missed previously scheduled visitations, and has a babysitter supervise your child when your spouse does utilize visitation, this would be a compelling reason to bring to the court’s notice.

VISITATION AFTER THE DIVORCE IS FINAL

Visitation after the divorce will be subject to the agreement or order issued by the court.  Both parents must abide by the visitation schedule.  If you wish to modify the visitation schedule, you must prove to the court that it would be in the best interest of the child.  More information on modifying visitation can be found on the Modifying Visitation page.

SUPERVISED VISITATION

Supervised visitation will not be ordered by the court unless there is a proven history of domestic violence, sexual abuse, alcohol abuse, or drug abuse.  The abuse needs to demonstrate a pattern of harming the child.  It is very important to discuss any concerns of abuse you may have with your attorney.  It may be the case where supervised visitation will suffice, or is the abuse is excessive, a protection order and limited or terminated contact may be needed.

VISITATION RESTRICTION

If the court finds that a parent has subjected their child to abuse of any manner, the court will prohibit visitation from the abusive parent.  This restriction on visitation will be implemented until the abusive parent is able to prove to the court that allowing visitation would not harm the child psychologically or physically, the court may grant visitation.  However, the visitation will likely be supervised and have other conditions and restrictions placed upon it in order to better protect the child

CHILD REFUSING VISITATION

If your child is resisting visiting with the other parent it is important to try and find out why.  You need to determine if your child is safe going with the other parent, or if your child’s resistance to the visitation is because of abuse or another safety concern.  If you determine that your child is safe being with the other parent, it is important that your child still participate in the scheduled visitation.  The court highly frowns upon violating or not complying with visitation schedules.  You should consult your attorney and see if your visitation may perhaps be modified in order to make your child more comfortable.  If you determine that your child does not want to participate in visitation because of abuse or another safety concern, you will have to use your judgment and weight the concern against the possibility of future litigation if you violate the visitation schedule.  Consult with your attorney to try and determine the best approach to your situation.

IN THE EYES OF THE COURT

CHILDREN IN COURT

In most cases, the court does not want the child present in court.  Bringing a child into open court for a contentious custody trial generally does more harm than good.  Any testimony you feel that your child has to present can usually be brought into court in a different manner.

PRIVATE DETECTIVE

If you suspect that your spouse is having an affair you may want to hire a private detective.  However, realize that unless this affair is affecting the child, results from a private detective will not have much impact on a custody case.  Confirming that your spouse is having an affair will have impact on divorce proceedings.  Discuss with your attorney whether or not hiring a private detective would be beneficial to your case.

ABANDONMENT

Abandonment is when one parent is absent from the child’s life for an extended period of time.  In Louisiana, the court will determine if abandonment has occurred by examining the facts of each particular case.

WITNESSES

Witnesses can be brought into court for a custody case.  Witnesses can provide information to the court through a sworn affidavit, or testimony in open court.

IMPORTANT POTENTIAL WITNESSES

If you and your attorney decide that witnesses are important to your custody case, the next step is to determine which witnesses will be most beneficial to you.  Witnesses may include:

  • Family
  • Friends
  • Babysitters or Nannies
  • Teachers
  • Doctors, Counselors, etc.
  • Clergy Members

You will want to consider what potential impact each witness may have on your case.  Factors of the impact may include:

  • How long the witness has known your child;
  • How often the witness interacts with your child;
  • Whether the witness observed both you and the other parent with your child;
  • How long the witness has known you and/or the other parent;
  • Whether the witness may be biased;
  • Whether the witness is credible.

Once you and your attorney decide which witnesses to have help with your case, be sure to provide your attorney with contact information of each witness including names, phone numbers, and addresses.

SOCIAL MEDIA

During custody proceedings, especially disputed ones, it is important to remember that everything can be evidence to the court.  This means that text messages, e-mails, Facebook messages, Facebook posts and comments, pictures posted on Facebook or Instagram, Twitter posts, and any other social media outlet may be examined in a custody determination.  Everything you post, can be recorded and saved, even if you think it is a private conversation.  Be very careful what information you choose to share on social media during and after custody proceedings.

THE GOOD AND BAD OF BOTH PARENTS

Sometimes during custody disputes, your attorney may ask that you compile a list of both positive and negative attributes for you and the other parent.  Once you provide your attorney with these lists, any information contained within is confidential between you and your attorney.  By making lists, you and your attorney will be prepared for meetings with each other, as well as with custody evaluators.  Remember, in rare cases is your child’s other parent all bad.  Generally, there are some positive attributes of each parent.  It is important to acknowledge a few positives to any custody evaluator so that you do not appear wholly one-sided.  This also help demonstrate that you are truly trying to do what is in the best interest of your child.  Additionally, by writing these lists about yourself, you will be able to identify, acknowledge, and work to correct any bad habits or negative attributes you may currently have.

CO-PARENTING CLASSES

Co-parenting classes are designed to help separated or divorced parents learn how to effectively parent their child in this new family structure.  These classes aim to help parents communicate with one another in order to better protect the welfare of their child.  The court may order co-parenting classes.

CHILDREN AND ATTORNEYS

Generally, your attorney will not need to speak directly to your child.  Attorneys and courts tend to agree that children should not be involved in custody disputes, especially contentious one.  However, if there are allegations of neglect or abuse, your attorney may ask to speak directly to your child, or that your child meet with a counselor or custody expert.  Be sure to discuss any concerns you have about involving your child with your attorney.

COURT APPOINTED ATTORNEY FOR THE CHILD

During custody proceedings, the court may appoint an attorney to represent the child.  This is done so that the attorney may personally represent the welfare of the child.  The appointed attorney will advocate for the best interest of the child.  The court will appoint an attorney for the child only in rare cases.

CUSTODY EXPERT

In circumstances where custody is disputed, the court may appoint a custody expert.  The custody expert is an independent third party who is responsible for determining what is in the best interest of the child.  The custody expert will conduct evaluations with the parents, the child, and any other parties they feel necessary.  Psychological evaluations and interviews are often common methods of practice for the expert.  The expert will review the collected information and submit a recommendation to the court.  The custody expert may also testify at trial.

EXPERTS AND TESTS: BUILD YOUR CASE

Depending on your situation, it may be helpful to obtain third party evaluations of either or both parents.  Professionals evaluating mental health, and/or the parent’s drug use are common kinds of evaluations conducted for custody proceedings.  It may be helpful to preemptively obtain evaluations or tests if you suspect that your spouse will raise issues with your competency during the custody proceedings.  If you have a prior history of drug or alcohol use, it may be beneficial to obtain drug or alcohol testing demonstrating your sobriety.  Consult with your attorney to determine if tests and/or evaluations would be helpful to your case.

ARGUMENTATIVE SPOUSE

Even if your spouse is argumentative, circumstances may arise where you need to communicate with your spouse.  In the case that your spouse is argumentative it is a good idea to put communications in writing.  Try communicating with your spouse through email or text message and keep documentation of each conversation.  Keep your tone in the conversations calm and rational.  Stick to the facts of the situation and refrain from insulting or criticizing your spouse.  Consult with your attorney to determine whether a court order may be necessary to protect the best interest of your child.

MEDIATION

The court may require the parents to attend mediation in a custody dispute.  During mediation, the parents of the child will meet with a mediator who will assist the parties in creating a written agreement that identifies the controversies of the parties, affirms their intent to resolve the controversies, and specify the circumstances under which mediation will terminate.  The mediator is an impartial third party.  The mediator will help the parties come to an agreement about their custody issues and have each party sign and date the agreement.  After mediation, the mediator will submit the agreement to the court.  The court will implement this agreement in its order for custody.  If the parties are unable to come to an agreement during mediation, custody proceedings will continue and the court will make the determination of custody.

ABUSE AND VIOLATIONS

DRUGS AND ALCOHOL

Drug and alcohol abuse if taken very seriously by the court during custody proceedings.  A parent’s abuse of such substances may gravely impair their ability to care for the child and protect the child’s welfare.  If this is the case, the abusing parent may not be granted custody or visitation.  If you are aware of or suspect substance abuse by the other parent, notify your attorney.

NO WITNESSES OF ABUSE

Often times there are no witnesses to domestic abuse aside from the parties involved.  If this is the case, be sure to collect evidence and documentation of all instances of abuse in order to supplement the lack of testimony from a witness.

PAST ABUSE

If you are aware of a history of past abuse of your child by your spouse, protecting your child needs to be your top priority.  Immediately notify your attorney of the abuse and provide your attorney with all information concerning the abuse.  Information may include:

  • Pictures evidencing physical abuse to you or your child
  • Evidence of sexual abuse
  • Threats of harm to your child
  • Threats to abduct your child

Abuse may be bad enough that your attorney will ask the court to issue a restraining order against the other parent.  If the abuse does not rise to that level, the court may issue supervised visitation to the other parent.

In any case, abuse, whether current or past, will be factored into the court’s determination for custody and visitation.

VIOLATION OF AN ORDER

Violations of an order are taken very seriously by the court.  The court’s goal is to protect the best interest of your child through court order.  Visitation orders may be violated in several different ways including not picking up or returning the child at the agreed upon time, at the agreed upon location.  If the other parent violates a visitation order, consult with your attorney how to proceed.  If the violations are frequent and recurring, your attorney may ask the court to modify the visitation to protect the best interest of the child.  If the other parent does not return your child and you suspect abuse, you may need to call law enforcement officials to enforce the order.

REUNIFICATION

GETTING YOUR CHILD BACK

Reunification is a process by which a child who was removed from the custody of their parent (or parents), would be reunited and placed back in the custody of their parent(s).  A Reunification Plan is created and implemented by the Department of Children and Family Services.  Each plan is different depending on the specific situation.  For example, if a child was removed from a parent’s custody because of the parent’s drug use, that Reunification Plan may include attending a rehabilitation program, taking periodic drug tests, and supervised visitation with the child.  By following and completing the Reunification Plan, the parent will have an easier time showing that court that there has been a substantial change in circumstance, that would better serve the interest of the child, when trying to modify custody in their favor.

Just as the Reunification plan can be helpful in modifying custody, it could also hinder a parent’s ability to obtain custody of their child.  If the Department of Children and Family Services implements a Reunification Plan and the parent does not follow it or show some effort in completing it, the court may take that as an indication that nothing has changed, and the parent is not ready for custody of their child.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES

The Department of Children and Family Services is a government entity in Louisiana.  Its goal is to keep children safe, help families and individuals become self-sufficient, and provide safe refuge during disasters.  The Department of Children and Family Services assists with child welfare, child support enforcement, reunification, and much more.  To learn more, visit the website at http://www.dcfs.la.gov.

RELOCATION

RELOCATION GENERALLY

The situation may arise where the domiciliary or custodial parent may decide that they wish to move, taking the minor child with them.  Obviously this situation would present challenges to all parties involved.  While the domiciliary parent may feel relocating the child is necessary and beneficial, the other parent, or even the court, may not share the same feeling.

In Louisiana, there is a law referred to as The Relocation Statute.  This law outlines the process for the relocation of a minor child and applies to all custody or visitation orders unless the order has given specific directions for relocation.

During relocation, the moving parent is attempting to change the child’s principal residence.  The principal residence of the child is generally the location chosen by the court to be the primary residence of the child.  This generally will be the same address as the domiciliary parent.  However, if there is no court order (like in case where the parents are able to agree on custody and visitation arrangements outside of court), the parents may have expressly agreed as to where the child will primarily reside.  If there is no court order and no express agreement made by the parents, the child’s principal residence will be where the child has spent the majority of the last six months.

To be considered as relocation, the move must either be out of state, or at least one hundred and fifty miles away from the other parent, and for a time period exceeding sixty days.  So if a domiciliary parent moves the minor child seventy-five miles away, for forty days, and then returns, this would not be considered a relocation attempt and the parent could do so freely (so long as the absence did not interfere with the visitation schedule or another court order).  In situations where the move would be considered relocation, there are a few steps the moving parent needs to take before doing so.

AUTHORITY TO RELOCATE

Generally, the person who is the sole custodian of the child will have the most control in the relocation of a child.  Second to that, the parent that is the domiciliary parent may propose relocation.  Remember, from the General Custody page, that the domiciliary parent has decision making power in regard to their child.  If a domiciliary parent wishes to relocate the child, then they must follow the steps for relocation and obtain authorization from the court.

In cases where the parents have equal physical custody of the child, the parent wishing to move must still follow the steps for relocation, and either obtain court authorization after a hearing if the other parent object, or get written consent from the other parent that the relocation is alright.

In other instances, a person who is sharing equal parental authority, as defined by statute, or a person who is the natural tutor of a child born outside of the marriage may propose relocation as well.

STEPS TO RELOCATION

Remember, since the court is always protecting the best interests of the child, the court will ultimately have the last say in whether the relocation is granted or not.  You must notify the court of your intent to relocate and wait until the court grants authorization before relocating.

The moving parent must notify not only the court, but also the other parent.  Notice can be given to the other parent by certified mail to the last known address of the parent.  Be sure to provide notice at least sixty days before the move.  You must include your current mailing address, your new address, the telephone number(s) at which you can be reached, the date you plan to move, a brief explanation of why you are moving, along with telling the other parent that they may object to the relocation in writing, delivered to you by certified mail.  These are all requirements that act as safeguards to the non-domiciliary parent.  This affords them the opportunity to tell you, and the court, why they feel it is not in the best interest of the child that you move.  If you fail to notify the other parent of the relocation, the court may use that as a factor in determining whether or not to grant the relocation or as a reason to order the child be returned.  The court may also make you pay the reasonable expenses that the other parent incurred in objecting the relocation if you fail to properly give notice.  Be sure to check the Statutes page to verify that you are properly giving notice to both the court and the other parent.

OBJECTION TO RELOCATION

One of the reasons that you must wait to relocate until the court authorizes the move is because your child’s other parent, or anyone with the authority to object, is afforded the opportunity to object to the move.  A non-parent may only object to relocation if they have been awarded some form of custody of your child.  If the non-parent has not been awarded custody but has been awarded visitation, they may initiate a proceeding to get a new visitation schedule, but not an objection to the relocation.

Anyone objecting to the relocation thirty days after receiving your notice to respond to you by certified mail that they are objecting to the relocation.  Once you receive an objection, you have thirty days to initiate a summary proceeding with the court in order to obtain approval.  The court will hold a contradictory hearing and then make its decision on the relocation.  A contradictory hearing is simply a time at which the court will hear the reasons as to why the other person is objecting your relocation, and you will have an opportunity to tell the court why the relocation is in the best interest of your child.  This hearing will take place within sixty days after you file your motion to obtain approval from the court.

At the hearing, you have to show, in good faith, that the relocation is in the best interest of the child.  Take for example a situation in which you are currently the domiciliary parent.  You live in a one-bedroom apartment, making minimum wage and working odd hours.  Let’s say you are offered a salaried position which would require you to relocate.  The area you would be living in has great schools, and is near your child’s grandparents.  You would only work during the day, and you would be able to pick your child up everyday from school before taking him to football practice with his friends.  A situation like this, where you can demonstrate the the relocation will benefit the child’s overall quality of life (including their financial situation, educational opportunities, and emotional health), will be most helpful in proving to the court that it should approve your relocation.  The court will of course weigh the benefits of your proposed relocation, against the negative effect that moving a child away from their other parent could have.  Basically, the court will again look at the factors for the best interest of the child and make its decision in a manner that best protects the child’s welfare.  To review these factors, see the Best Interest of a Child page.

RELOCATION DENIED

If relocation is denied, the parent proposing the relocation may begin a new process to show the court that the relocation is in fact in the best interest of the child.  It should be noted though that if the court denied the previous proposal, the circumstances of the relocation would have to change greatly in order for the court to approve the relocation.  Keep in mind that unless the relocation proposal (and objection for that matter) is warranted and not frivolous, the court may impose sanctions on the party.  This is to deter any party from harassing or causing delay to the other party.

AFTER RELOCATION IS GRANTED

Once relocation is granted in a final order, you and the minor child have the court’s permission to move to the new principal address.  Since there is a change in the child’s principal residence, a modification of custody may be warranted.  To review whether modification of custody will be granted, see the Custody Modification page.

PARENTING TIME AND TRAVEL

After a divorce, parents often ask if they can travel with their child.  This answer depends on the arrangements of your judgment or agreement.  Some parents afford each other the ability to take vacations with their child out of the state, or even out of the country.  If you know prior to proceedings that you do not want the other parent to have that responsibility, consult with your attorney on how to best address that concern to the court.

RIGHTS

MEDICAL RECORDS AND MEDICAL TREATMENT

As discussed on the Domiciliary Parent page, the domiciliary parent is responsible for making day-to-day and fundamental decisions for their child.  This includes educational, welfare, and medical decisions.  While the domiciliary parent may be required to notify the other parent depending on the custody arrangement, the domiciliary parent still has the final word on decisions concerning medical treatment.  In Louisiana, a non-domiciliary parent may make emergency medical decisions only.

As far as medical records are concerned, both parents, regardless of domiciliary status, have the right to access their child medical records.

SCHOOL RECORDS

Each parent has the right to their child’s school records, regardless of the custody arrangement.  If you are the domiciliary parent, it will likely be easier to obtain these records since you will likely be the parent dropping your child off and picking your child up from school.  If you are not the domiciliary parent and do not have relationships with staff members and teachers at your child’s school, it may be a good idea to contact the correct office and simply ask how you would obtain these records.  If the school has a mailing list or newsletter they send out to keep parents informed, ask if your name can be added to receive such updates.

AFTER YOUR DEATH

In the event of your death, your child’s other parent will have priority in custody of your child, unless they are determined unfit.  It is a good idea to have a will that names the guardian your wish your child to be placed with.  Occasionally, a parent does not plan on naming the child’s other parent as guardian.  If this is the case, discuss with your attorney the best manner to document the other parent’s unfitness since that will need to be proven to supersede their custody rights.

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