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Featured Articles Louisiana Divorce: Setting Child Custody in a Child’s Best Interest

Louisiana Divorce: Setting Child Custody in a Child’s Best Interest

In all aspects of child custody, the child’s best interest is paramount.

Usually the most important legal issue in divorce to a parent of minor children is custody. It is hard to face uncertainty when it comes to the well being of your children. It can be extremely unsettling not to know with whom they will live and how much contact each parent will have with them.

Like all other states, Louisiana requires that child custody decisions be made in a child’s best interests. What this means depends on the unique circumstances of each family and child, but the law provides that to determine a child’s best interest, all relevant factors must be considered. Louisiana law provides a list of 12 specific factors that may be relevant:

  • Emotional ties between the child and each parent
  • Parental capacity to give love and “spiritual guidance” to the child and to continue “education and rearing”
  • Parental capacity to provide for the child’s basic physical and material needs
  • Length of time the child has had a “stable, adequate environment” and whether it should be maintained
  • Permanence of current or proposed home
  • Parents’ “moral fitness,” if it impacts the child’s welfare
  • Parental health
  • Child’s “home, school, and community history”
  • Child’s “reasonable preference” if the court feels the child is sufficiently mature
  • Parental willingness to encourage a relationship between the child and the other parent
  • Distance between the parents’ homes
  • History of each parties’ parenting

Divorcing parents may be able to negotiate a marital settlement agreement, usually through their respective family lawyers, resolving all divorce issues, including custody. The court may also order the parties into mediation in another attempt to settle the issues.

Louisiana law provides that the court is to award custody as the parents agree unless it is not in the best interest of the child.

If the judge rejects the agreement or if the parents are not able to agree, the judge is directed by law to award joint custody, unless clear and convincing evidence proves it would be in the child’s best interest to be in the sole custody of one parent. In certain situations, the judge may order mental health evaluation of either parent or the child, or drug testing of a parent.

Normally, when the judge awards joint custody, he or she also issues an implementation order that details the arrangement. Usually the judge chooses a domiciliary parent with whom the child will “primarily reside.” As much as possible and if it is in the child’s best interest, physical custody is shared equally and the judge will detail in his or her order the time periods with each parent.

Unless otherwise ordered, the domiciliary parent makes decisions for the child, but the other parent may request that the court review any major domiciliary parent decision.

If no domiciliary parent is designated and no court issue says otherwise, joint custody means the parties share parental rights and responsibilities.

Unless it would not be in the child’s best interest, any parent without custody or joint custody has the right to reasonable visitation with the child.

Any parent in Louisiana facing legal issues of child custody should seek the advice and counsel of an experienced divorce attorney as early in the process as possible to understand the likely outcome if the matter goes to court and for assistance in trying to negotiate a settlement agreement, if appropriate. If custody ends up before the judge, legal counsel can advocate on behalf of the client for an arrangement in the child’s best interest.

From her office in Metairie, lawyer Betsy A. Fischer, LLC, represents New Orleans-area clients in matters of family law like divorce, custody and more.