Louisiana Custody Law Firm
Going through a divorce is difficult enough, but when the couple has young children, the process can be even more taxing. To a parent going through divorce there is nothing more important than the children. Having a seasoned family lawyer is invaluable when it comes to structuring a child custody and visitation arrangement.
The term ‘custody’ can be used to refer to physical custody or legal custody. Physical custody deals with having the child in your presence and in your control. Legal custody deals with rearing the child and making decisions about the child’s life, e.g., how the child will be educated, how the child be raised spiritually, whom the child will associate with, decisions regarding medical care, etc. Co-parents usually divide both legal and physical custody under one of the types of custody arrangements.
If you are going through a visitation or custody dispute be sure to retain the services of an experienced family law attorney. We care about the best interest of the child.
Factors Used to Determine Custody
Co-parents are encouraged to create their own custody agreements, and per La. Civ. Code art. 132 this is the preferred method. The court will usually approve any reasonable custody agreement. The agreed upon custody plan should address the residence of the child, a holiday schedule, how to communicate with the child and each other, who is responsible for decisions, who is responsible for providing for the child’s needs, who is responsible for paying for extracurriculars, etc.
If the parents cannot come to an agreement, the court will decide the arrangement based on the “best interest of the child.” The court will weigh a number of factors in making this determination. These factors are provided in La. Civ. Code art. 134:
- The potential for abuse;
- The love, affection, and other emotional ties between each parent and the child;
- The capacity of each parent to give the child love, affection, spiritual guidance, and education;
- The capacity of each parent to provide the child with material needs;
- The continuity of a stable and adequate environment;
- The permanence of the existing or proposed custodial home;
- The moral fitness of each parent;
- The history of substance abuse, violence, or criminal activity of either parent;
- The mental and physical health of each parent;
- 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 capacity of each parent to facilitate a close relationship between the child and the other parent;
- The distance between the respective residences;
- The history of care and rearing by each parent.
This list is illustrative meaning the court will consider any other factor it deems relevant to serving your child’s best interests. Proving the “best interest of the child” can be a grueling and invasive process. We will advocate on your behalf throughout the court proceedings, while striving to ensure your relationship with your child goes uninterrupted.
Types of Custody & Visitation
As noted above, the preferred method of determining custody is for the parents to agree. The second most preferred outcome is awarding joint custody, which means the co-parents share custody of their child. Parents can share both physical and legal custody, or they may only share physical custody.
Generally, one parent will be designated the primary custodian or the “domiciliary parent.” This parent may have physical custody more often than not, but the real significance is that the domiciliary parent can make decisions regarding how the child will be educated, disciplined, religiously raised, medically cared for, with whom the child will evacuate for hurricanes, etc. In essence, the domiciliary parent has legal custody. The non-domiciliary parent usually receives reasonable physical custody, or perhaps even equal.
The physical schedules awarded in joint custody orders are highly varied. They range from equal 50/50 splits, to weekends only, to summers and holidays only, all depending on the above factors. It is also possible that a domiciliary parent will not be designated if the court finds it in the best interest of the child, in which case the co-parents will share in the decisions that come with legal custody.
Sole custody is when only one parent has physical and legal custody of their child. Per La. Civ. Code art. 136, when this occurs, the non-custodial parent will usually be given visitation rights, unless it’s deemed to not be in the best interest of the child. Visitation may be supervised or unsupervised depending on the circumstances, and the frequency of visitation can be as varied as joint custody orders. It is extremely rare for courts to award sole legal and physical custody to one parent, unless the judge finds that the other parent is unfit. Reasons for being found unfit may include instances of child abuse, a history of substance abuse, or a history of violence.
A split custody order is extremely rare and occurs when parents that have more than one child and each are awarded sole custody or designated the domiciliary parent of at least once child. Courts are reluctant to separate siblings so split custody is awarded only in exceptional situations. It is presumed that children benefit from an upbringing with their siblings and that separation would add trauma to the divorce situation. In making a split custody decision, a court may consider the preferences of the children and parents, the age difference between the children, any disciplinary issues of one of the children, any special needs of one of the children, etc.
This is the least preferred method. Custody may be awarded to a third person if awarding custody to the parents would result in substantial harm to the child. This occasionally arises when both parents are found unfit due to substance abuse, child neglect, violence, etc., or when one parent dies and the surviving parent is found unfit. Common third parties to be awarded custody are grandparents, aunts, uncles, and step-parents. The court will consider how the individual seeking custody can provide for the child in a way that the parent(s) cannot.
Third parties may also be awarded visitation rights in certain circumstances if the court determines that it is in the best interest of the child. This is most common among grandparents after a falling-out between the parent of the child and the grandparents, or when one parent dies and the surviving custodial parent does not willingly facilitate the grandparents spending time with the child. The court will consider a number of factors when determining visitation rights including the length and quality of the relationship between the child and the individual seeking visitation.
it is possible to modify the initial child custody order. This is easier to accomplish if the parents had initially consented to a custody arrangement, in which case a parent only needs to show a material change in circumstances and that the modification is in the child’s best interest. However, if the court had to decide the initial arrangement, then the parent seeking the modification must prove that the existing arrangement is not in the child’s best interest. Modifying a court ordered custody arrangement is very difficult, thus, it is very important to hire a skilled custody lawyer when establishing the initial custody arrangement.
New Orleans Custody Attorneys
Bowes, Petkovich & Palmer, LLC is a Gretna law firm that has served the New Orleans area since 1980. Our experienced family law attorneys are well versed in all domestic matters including custody and visitation. We take pride in offering a personal and trusted experience. Call us today for a free consultation and find out why so many of our clients come back to us.