DivorceLaw

How is Child Custody Determined in Louisiana in 2021?

best louisiana child custody attorneys

Child custody in Louisian is either agreed upon by the parents or taken to court where the judge will decide. If you decide to agree outside of court, your agreement must be in the best interest of the child or the court may not agree and can award custody to the parents jointly.  

In short, you have two option: Parents agree or Judge determines child custody.  

Louisiana Civil Code Article 132 tells us that, “If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award. In the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent.” 

This means that parents can agree to a child custody, but their agreement must be what’s best for the child or the court can intervene and award joint custody to the parents or in the extreme case – sole custody.  

If you can’t agree on child custody, then you can take your matter to court and let the judge hear your case.  

How Does the Judge Determine Child Custody in Louisiana? 

The court will hear both sides of the story and both parents will be permitted to call witnesses and present evidence at trial. It can be a long and hard process, but the judge will take all of the testimony and evidence and make a decision as to child custody using everything that was submitted at trial. Custody of the child will be awarded in accordance with the best interest of the child. Louisiana courts prefer to award joint custody to the parents while naming one parent as the domiciliary parent and the other visitation. However, there are some cases that require sole custody due to the facts and issues of the situation.  

The judge will use multiple factors to determine the case including the best interest of the child factors found in Louisiana Civil Code Article 134, “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. 
  1. 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. 
  1. The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs. 
  1. The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment. 
  1. The permanence, as a family unit, of the existing or proposed custodial home or homes. 
  1. The moral fitness of each party, insofar as it affects the welfare of the child. 
  1. The mental and physical health of each party. 
  1. The home, school, and community history of the child. 
  1. The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference. 
  1. The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.  
  1. The distance between the respective residences of the parties. 
  1. The responsibility for the care and rearing of the child previously exercised by each party. 

The Judge assigned to your child custody case will hear your case and make a decision on custody using the best interest of the child factors.  

Can the Child Custody Hearing Be Closed to the Public? 

Yes, the court has the ability to close the child custody hearing to the public and only allow essential personnel into the courtroom during your case.  

Who Gets to Be the Domiciliary Parent? 

If the parents cannot agree on who is to be the domiciliary parent, the judge will make that determination. The domiciliary parent must act in the best interest of the child and will have authority to make decisions. The domiciliary parent is usually the parent who spends the most time with the child and makes most of the decisions already. The child normally lives with the domiciliary parent and visits the other parent.  

The Non-Domiciliary parent will be awarded reasonable visitation unless the court determines that visitation would not be in the best interest of the child.  

At What Age Can a Child Make Custody Decisions in Louisiana?

You may be thinking that your child can just one day decide they want to live with you and the judge will change visitation. This isn’t entirely true. The judge will consider the preference of the child in one of the many factors he or she considers upon hearing the facts of the case. However, there are other factors that go into the decision. The judge will listen to the child’s preference if they are around 12 to 14 years old at least. It’s unlikely that the judge will put the child on the witness stand in front of everyone, but may agree to speak with the child in the judge’s chambers.

Who Gets Custody During a Separation?

If you’re married and going through a divorce, both parents should get visitation with the child. If you’re not getting to see your children and have just separated, you will need to file a petition for custody with the court. The judge will hear your case and order visitation. If your ex spouse is not allowing visitation prior to the child custody proceedings, contact a Louisiana divorce attorney to speed up the process.

Child Custody Laws for Unmarried Parents in Louisiana

Not all parents are married when they decide to separate. The law states that if the parents are not married when the child is born, the mother is presumed to have custody. There’s an obvious reason for this. If you are married, any child born of the marriage is presumed to be the husband’s unless someone comes forward to challenge paternity. When the couple is not married, the biological father will have to take steps to establish that he is the father and petition the court for visitation rights.

Can a Grandparent Be Granted Visitation? 

Yes, grandparents can be awarded visitation as long as the court determines that it is in the best interest of the child. The court will have to hold a contradictory hearing to decide whether the child needs his or her own attorney to represent their interests. If so, the court will appoint an attorney to represent the child in a hearing to determine grandparent visitation.  

Louisiana Courts Prefer Joint Custody 

Joint custody is normally in the best interest of the child because children need both parents in their lives. It’s only in certain situations that one parent must be excluded from exercising visitation with their child. The court’s first objective is to award custody to both parents jointly, unless there is evidence shown that custody to one parent would be best for the child.  

Joint custody doesn’t necessarily mean that both parents have the child for equal times. Many people refer to it as the 50/50 custody, but that doesn’t mean that each parent has the child 50% of the time. One parent may have a substantial amount of time with the child and it can still be joint custody. This just means that it is not sole custody.

Can a Custodial Parent Deny Visitation? 

Parents are not allowed to interfere with visitation or custody. Louisiana Civil Code Article 136.1 tells us that, “A child has a right to time with both parents. Accordingly, when a court-ordered schedule of visitation, custody, or time to be spent with a child has been entered, a parent shall exercise his rights to the child in accordance with the schedule unless good cause is shown. Neither parent shall interfere with the visitation, custody or time rights of the other unless good cause is shown.” 

In short, neither parent can interfere or stop visitation unless there is good cause shown. Even a custodial parent cannot deny visitation with the other parent unless there is good cause. Also, if a custody order is in place, it must be respected and the schedule must be adhered to unless there is a good reason to deviate. What is “Good cause?” It’s a case-by-case situation that the judge will have to hear and decide.  

Can Men Become Domiciliary Parents in Louisiana? 

Yes, men can be named the domiciliary parent. The determination is not gender specific. The Judge assigned to your case will hear the evidence presented and make the decision to name a domiciliary parent. It doesn’t automatically go to the mother of the child. There may be extenuating circumstances that determine the father should be the domiciliary parent.  

Child custody can be a difficult legal matter and can affect the family for years. It is highly recommended that you speak with an experienced Louisiana attorney that specializes in child custody cases. You should speak with an attorney even if you plan to make a child custody agreement without going to court.

What Makes a Parent Unfit in Louisiana?

All couples argue. All parents make mistakes. Unfit parenting is something completely different altogether. 

If there are claims of unfit parenting in a child custody case, there may be some issues. If you have reason to believe that your ex’s participation in your child’s life would be detrimental to them, you will have to prove it to the judge and show evidence in court. The judge presiding over your case will listen to oral argument by your attorney and make a decision whether or not to restrict visitation from the other parent. 

The best interests of the children is the deciding factor when determining visitation or custody and a parent may be cut off from seeing the children for a time if it is proven they are unfit parents. Proving a parent to be unfit in Louisiana is a tough task. You will want to consult with a Louisiana divorce attorney before proceeding to make sure you have enough evidence and can present the facts correctly.

Disclaimer: This website does not intend to give legal advice. Speak with an attorney about your legal issue as you may require legal advice. Nothing on this website is to be taken as legal advice.

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