Custody Determinations for Children in a Divorce
Following a divorce or separation, co-parenting with your ex can be a challenging prospect. Striking a fair balance between your ability and willingness to care for minor children and your ex’s desire to do the same sometimes requires outside-the-box solutions. Ultimately, the best interests of your children will take top priority.
Various child custody arrangements can help you remain involved in your children’s lives while taking into account practical and logistical considerations. Many parents aim for shared or joint custody. Each potential custody arrangement involves its own unique set of legal challenges, and it is important to work with an attorney to find out which arrangement is best for your situation.
Louisiana Child Custody Laws: An Overview
Louisiana child custody laws encourage co-parents to create their own custody agreements. They can then submit their proposal to the court for approval, which, if granted, essentially transforms their private agreement into an enforceable (but modifiable) court order. Most of the time, the court will approve any reasonable custody agreement that is in the best interest of the child.
Louisiana child custody laws require that this plan designates an agreement regarding the residence of the child, where holidays, birthdays, and other special occasions are spent, rights to access and communication with the child, child support amounts, and any other relevant details.
If the parents cannot come to an agreement, the court will decide the arrangement based on a number of factors, which help to determine the “best interest of the child.” This is an important legal term in Louisiana, and has been defined in the Civil Code of Louisiana to 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 needs
- The length of time the child has lived in a stable, adequate home environment and the desirability of maintaining continuity of that environment
- The permanence, as a family unit, of the existing or proposed custodial home(s)
- 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 old enough 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
- The responsibility for the care and rearing of the child previously exercised by each party
Proving the “best interest of the child” under the Louisiana best interest considerations requires a searching look into the family life and parenting decisions of a divorcing couple. This can be an unpleasant experience stacked on top of the upheavals already occurring in the lives of the co-parents. Therefore, working with an attorney who can make the best legal argument to support your desired parenting arrangement is critical during this time.
Legal Custody vs. Physical Custody
Louisiana child custody laws allow for custody decisions regarding both physical and legal types of custody. A co-parent with physical custody acts as the primary residence for the child and handles the day-to-day care of the child. A co-parent with legal custody handles all of the important decision-making for the child; this would include decisions regarding education, religion, health issues, and so on. Co-parents generally divide both legal and physical aspects of custody under one of the types of custody arrangements available in Louisiana.
Shared Custody: Equal Time, Equal Authority
In a shared custody arrangement, both parents spend equal time with the children, and both have equal parenting responsibilities and legal authority. This arrangement typically requires a high level of cooperation between co-parents. You must be able to work together with your ex to communicate well and accommodate your children’s needs.
From a practical standpoint, shared custody also requires that both parents live in relatively close proximity to each other. The children cannot realistically spend equal time with both parents if you live hours apart.
Joint Custody: Equal Authority, Unequal Time
Joint custody is similar to shared custody in that both parents have equal legal authority regarding major decisions in the children’s lives. However, unlike shared custody, both parents do not have equal physical custody, or time with the children. Instead, you will work out a schedule that best suits the children’s needs.
Joint custody still provides both parents with the opportunity for frequent and consistent interaction with the children. However, it is not a 50-50 arrangement.
Split Custody with More Than One Child
A split custody order relates to families that have more than one child, and where each parent is the sole custodial or domiciliary parent of at least one child that they both have. Child support may or may not be owed in split custody situations.
Sole Custody: A Rare Outcome
Louisiana child custody laws also allow for sole custody of the child if the situation is appropriate. Sole custody can also be applied to either physical or legal custody, or both. In most cases where one co-parent has sole legal custody of the child, the non-custodial co-parent will be given visitation rights if it is in the child’s best interest. Louisiana child custody laws may also award visitation rights to other family members or third-party individuals, like grandparents, if the court determines that it is in the best interest of the child. The court will consider a number of factors when determining visitation rights including the following:
- The preference of the child based on their age and maturity level
- The length and quality of the relationship between the child and the individual seeking visitation
- How the individual seeking custody can provide for the child in a way that the co-parent cannot
It should be noted that it is extremely rare for courts to award sole legal and sole physical custody to one parent, unless the judge finds that the other parent is unfit. Reasons for finding one parent unfit can include a history of violence or substance abuse, or specific instances of child abuse or neglect — emotionally, physically, sexually, or mentally.
Despite only having limited, usually supervised visitation rights, the non-custodial parent is still obligated to pay child support and typically retains the right to have access to the child’s school, medical, and dental records.
Custody Arrangements Can Be Changed
Parents do have the right to seek modification of the custody arrangement under Louisiana law. This is much more easily accomplished if the parents, rather than the court, present the initial custody arrangement by way of mutual agreement. A custody arrangement set up this way only requires demonstration of a “change in circumstances” to seek modification.
However, if the parents could not agree, and the court determines the custody order, then the parent seeking the modification must prove that a change in custody would be in the child’s best interest. They must prove that to continue custody under the present arrangement would be so harmful to the child that the harm caused by a change would be outweighed by the advantages to the child over the current situation.
Modifying a court ordered custody arrangement is very difficult. Parents should keep this in mind when establishing their original custody arrangement and go to any length to avoid compromising it.
Which is Right for You?
Both shared and joint custody offer certain advantages and disadvantages. At the law firm of Betsy A. Fischer, LLC, we can assist you in pursuing a custody arrangement that fits your family’s needs. We understand how to strategically approach important custody issues. Drawing on more than 20 years of family law experience, we will work diligently to guide you through the process toward a workable solution.
To schedule a private consultation, please call our office in Metairie at 504-780-8232, or contact us online.