How To Handle Child Custody If You Separate Without Legally Divorcing
Louisiana is one of only three states to have two types of marriages for couples to enter into. In addition to what everyone typically thinks of as marriage, persons obtaining a marriage license in Louisiana can elect to commit themselves even more seriously to a lifetime together by meeting some additional requirements and making some additional promises.
Louisiana has no-fault divorce laws which are available to those who decide to enter into a traditional marriage. But for couples entering into a ‘covenant marriage,’ there are only certain reasons that they can seek a divorce. Divorce is discouraged, and strong efforts at reconciliation must be made before a couple divorces.
Some married couples do have the option to become legally separated but not actually divorced. Legally separating partners are required to make agreements regarding child custody. Once approved by a judge, those agreements become court orders and are legally enforceable. Louisiana does not recognize legal separation in all types of marriages.
For married couples who decide to live separately but are not able to get a legal separation, a parenting plan can still be created and agreed upon even though it cannot be enforced by a court until the couple actually divorces.
Who Can Get a Legal Separation in Louisiana?
Persons who choose a traditional marriage instead of a covenant marriage do not have the option to become legally separated. Divorce is the only option and can be granted upon demonstration that the parties have lived apart for the required period of time.
Those who agree to a covenant marriage can get a legal separation but, like divorce, one spouse must prove that the other engaged in a specific behavior that is recognized as a legitimate reason to end the marriage. A party wanting to obtain a legal ‘separation from bed and board’ must prove the other spouse:
- Committed adultery
- Committed a felony and has been sentenced to death or imprisonment at hard labor
- Has abandoned the marital domicile for at least a year and refuses to return
- Has physically or sexually abused the petitioning spouse or a child of either
One party could also prove that the spouses’ continued living together is insupportable due to the other spouse’s habitual intemperance (drug or alcohol abuse) or cruel treatment. Finally, if the two spouses have been living apart for a period of two years without reconciliation, then a legal separation may be granted.
Determining Child Custody
When married parents legally separate or divorce, they are required to come up with a plan as to how they will continue to parent their children while living separately. If parents can agree and a court determines the agreement to be in the best interests of the child or children involved, the custody plan will be approved.
A custody plan needs to address how much time will be spent with each parent and when. It must also specify how decisions will be made about matters that affect the welfare of the child or children. Custody may be decided in any of the following ways – though assigning custody to only one parent is rare.
- Shared custody – The child or children spend equal time with both parents, and both parents have equal decision-making authority.
- Joint custody – The child or children spend more time with one parent than the other, but both parents share the decision-making authority equally.
- Split custody – This may occur in situations with more than one child where each parent has sole physical custody of one or more of the children.
- Sole custody – Sole custody is usually only considered to be in a child’s best interests in situations where there has been violence or abuse by the non-custodial parent.
Time Spent with Each Parent
A schedule should be included in a custody plan that details when a child is to be with which custodial parent during the week, on weekends, during holidays, for vacations, and other types of special events. It is helpful to provide for the ability to adjust dates and times if circumstances change or unexpected situations arise. Agreeing on how a child will be transported and exchanged between parents can prevent future misunderstandings and disagreements.
Making Decisions Affecting the Welfare of the Child
A custody agreement needs to indicate what legal rights each parent will have regarding decisions about a child’s medical care, education, religious affiliation, after-school activities, and other matters that affect the welfare of the child. Including a method for resolving disputes will prevent deadlock if parents are not able to come to an agreement.
The Best Interests of the Child
Under Louisiana law, custody is to be awarded based on the best interests of the child or children. Courts will usually award custody according to the parents’ agreement unless it is not in a child’s best interests to do so.
In marriages where there has been violence or abuse by a parent, the law presumes that placing custody with the offending parent is not in the best interests of a child. The presumption can be overcome if specific criteria are met. A non-custodial parent may still be entitled to visitation.
All relevant factors are to be considered in determining the best interests of a child, including the:
- Potential for abuse
- Relationship between parent and child
- Capacity of a parent to provide a child with love and guidance
- Capacity of a parent to provide for a child’s basic needs
- Stability of a child’s living situation
- Moral fitness of the parents
- Parent’s history of substance abuse, violence, or criminal activity
- Parent’s mental or physical health
- Child’s ties to school and community
- Preference of the child – if of appropriate age
- History of care provided by each parent
- Distance the parents live from each other
As we write about how to handle child custody when parents divorce or separate, it can seem rather cold and calculating. The reality is that these are emotional issues, and that should be acknowledged by all parties involved. No article can properly convey how tough a child custody battle is, particularly if the parents disagree on custody or visitation agreements. We encourage you to find a support system both for your child and for yourself while this process is ongoing.
Creating a Custody Plan That Helps Your Child Win
Legal separation and divorce are certainly hard on parents, but they can be devastating for children. The law tries to make sure that separated parents are doing their best to continue to parent their children in a way that provides the nurturing, support, and guidance they need to develop into productive, well-adjusted adults.
The Louisiana family law firm of Betsy A. Fischer, LLC has been helping clients negotiate custody agreements for more than 20 years. They understand each custody situation is unique and are able to develop workable solutions for parents that further the best interests of their children. To arrange a consultation in Metairie or the greater New Orleans area, call Betsy A. Fischer, LLC at 504-565-2759 or contact the firm here.