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One of the most difficult issues for a couple to deal with when a marriage breaks apart is what to do about custody of the children of the marriage. Louisiana determines custody by what is in the best interests of the children and there is no preference in law as to which parent is best suited to care for them. It is presumed that joint custody is in the best interest of the children. Q. How is custody determined when the parents don’t agree? A. A court will award custody based on the best interests of the child or children. Unless it is NOT in the best interest of the child, the court is required to award custody to both parents jointly. Thus, there is a clear preference for joint custody in Louisiana. When joint custody is decreed, the court is required to issue an implementation order. The order allocates the time periods during which each parent has physical custody of the child, and also specifies the legal authority and responsibilities of each parent. The order also specifies which parent is the domiciliary parent. When sole custody is decreed, the court is to award visitation rights to the other parent unless visitation is not in the best interests of the child. Q. Can a non-parent, such as a grandparent, get custody or visitation of a child? A. YES. If an award of joint custody or of sole custody would result in substantial harm to a child, the court shall award custody to another person able to provide a wholesome and stable environment. This would certainly include grandparents. However, Louisiana law is very clear that a parent has a paramount right to custody of his or her child, and to get custody, a non-parent has a heavy burden in proving that continued custody by a parent would result in substantial harm to the child. Still, a relative, by blood or affinity, may be able to get visitation rights with a child. Under extraordinary circumstances, such a person may be granted visitation if it is in the best interests of the child. Q. What factors are used in determining what is in the child’s best interest? A. The following factors are to be used by the court:
A. Absolutely. The legal custodian, or parents acting jointly, can authorize any person of legal age to provide for the care, custody and control of a minor child. This is done by a mandate of provisional custody and is effective for the time provided therein, but, in no case shall is exceed one year from date of execution. Regardless of the duration specified, the mandate may be revoked by either parent. Click here to see the statutorily prescribed form. Q. My spouse has abused our child. What’s the law with respect to custody? A. Whenever the court finds by a preponderance of the evidence that a parent has subjected his or her child to physical or sexual abuse or exploitation, the court shall prohibit visitation between the abusive parent and the abused child until the parent proves that visitation would not be harmful to the child. Even when visitation is ultimately allowed, the court can restrict it to protect the child. Q. Can a parent move without worrying about a change in custody? A. Typically, the joint custody plan addresses the concerns that parents have about the possibility that one of them may move, even to another state. However, until August 15th, 1997, Louisiana had no substantial statutes that governed how the situation would be handled. An entire set of rules governing relocation of a child’s residence became effective on that date. Q. What can I do if my spouse keeps our child in violation of the custody and visitation order? A. Upon presentation of a certified copy of the child custody or visitation order rendered by a court of this state, together with a sworn affidavit of the custodial parent, a judge may issue a civil warrant directed to law enforcement agencies to return the child to the custodial parent. Click here for a form affidavit. There may also be serious criminal violations, such as parental kidnapping charges, which can be filed with the local law enforcement agency.
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