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Family Law

Family Law

How Does The Court Determine Child Custody?

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How Does The Court Determine Child Custody? Another issue in getting divorced or breaking up is the matter of child custody or visitation of minor children. This issue is a sensitive topic and a grave concern for everybody involved. Generally, family courts grant orders that focus on the phrase “best interest of the child” regarding child custody and visitation matters regarding minor children. Given the complex application of the law in the child custody orders, the guidance of a reputable family attorney well-versed in child custody matters is valuable to ensure that your child’s best interest is honored in court. What Does The Term “Best Interest Of The Child” Mean? The term “best interest of the child” is the bottom line in every child custody matter. This phrase means that the court is first to put what is best for the minor children given the circumstances of the case. To determine the child’s best interest, the court assesses the facts of the case and the factors listed by the Louisiana Civil Code 134. What Factors Does The Family Court Consider To Determine Child Custody? The Louisiana Civil Code 134 enumerates the essential factors the family court evaluates and considers to determine a proper child custody order that would serve the child’s best interest. The following factors that the family court must consider and assess to determine how to grant a child custody order that would reflect the best interest of the child are as follows:  The first consideration for the family court is to assess the disposition of the child to be abused in each parent’s custody, as defined by Children’s Code Article 603. Potential to continually foster love, affection, and other emotional ties between each parent and the child. The ability and disposition of each parent to give the child love, affection, and spiritual guidance and to continue to provide education and rearing of the child. The ability of each parent to provide the child with their essential needs such as food, clothing, medical care, and other material necessities. The ability of the child to continue living in a stable environment. Potentially allow the child to have permanence or resemblance of permanence in their living environment by living in the custodial home. The moral fitness of each parent as it relates to and affects the welfare of the child or children. The mental capacity and physical health of each parent. The connection of the home, school, and community to the child. The court may consider the child’s preferences if they are of sufficient age and maturity to express their desires. Assess whether each parent is willing and able to facilitate and encourage a close and continuing relationship between the child and the other parent. The distance between each parent’s residence. Determine how each parent has previously provided care and rearing to the child. How Does The Family Court Determine Child Custody Or Visitation When There Is A History Of Family Violence? The family court could prohibit custody of a child or limit visitation between a parent and children in child custody cases that involve documented history of family violence, domestic abuse, or sexual abuse. These limitations and prohibitions, as stated in the law, are as follows: The family court would prohibit visitation between the abusive parent and abused child until such parent can prove that any visitation would not cause physical, emotional, or psychological harm to the child. If visitation is granted, the court shall order such restrictions, conditions, and safeguard needed to minimize any risk of injury to the child. Moreover, all costs related to complying with this rule are charged to the abusive parent. A parent whose visitation rights have been subsequently authorized as restricted visitation by the court shall not remove the child from the court’s jurisdiction except if they can show good cause and have obtained prior approval from the court. The presumption is a parent who has a history of committing family violence shall not be awarded sole or joint custody of a child. This presumption shall be overcome by a preponderance of the evidence if the abusive parent: Has completed a treatment program; and Not abusing alcohol or any drug; and If it is in the child’s best interest that the parent actively participates as a custodial parent if the other parent is absent, suffers from mental illness, substance abuse, or other similar circumstances. If both parents have a history of committing family violence, the court shall grant custody solely to the parent who is less likely to continue committing family violence. More so, the court will require the custodial parent to complete a treatment program before granting custody of the child. If necessary for the child’s best interest, the court may award custody to a suitable third person who would not allow access to a violent parent unless ordered by the court. The court shall only allow supervised child visitation with a parent that has a history of committing family violence provided that the said parent has completed a mandated treatment program. The said parent could only be allowed an unsupervised visit by the court if they can show by a preponderance of the evidence that the abusive parent has: Completed a treatment program; and Not abusing alcohol or drugs; and Poses no danger to the welfare of the child; and Unsupervised visitation is in the child’s best interest. The court shall not allow any visitation or contact between a parent that has sexually abused their child until the court finds by a preponderance of the evidence in a contradictory hearing that the abusive parent has: Completed a treatment program specifically designed for sexual abusers; and Supervised visitation is in the child’s best interest. Note that the family court may only find a “history of family violence or domestic abuse” in a case if a reported incident resulted in serious bodily injury or if they find a recurring incident of such violence in the family. Child custody matters are handled in a highly-personalized

Family Law

How Does Divorce in a Covenant Marriage Work

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  How Does Divorce In A Covenant Marriage Work Divorce is never easy or pleasant. Aside from the emotional toll that a break-up entails, there are legal matters that need to be considered and fulfilled before a couple can obtain a dissolution of their marriage. Although some divorces can be less complicated than others, divorce proceedings, in general, are filled with complex requirements that require the assistance and guidance of a divorce lawyer. In addition to the complexities of a typical legal divorce, there also exists a type of marriage called covenant marriage in Louisiana. This type of marriage differs from a conventional marriage in that it requires additional provisions when parties to a covenant marriage seek a dissolution of their marriage. Given the necessary complication in a covenant marriage, obtaining the legal representation of a reputable divorce lawyer can provide great value and guidance to any party seeking divorce and is part of a covenant marriage. What Is A Covenant Marriage? In Louisiana, Revised Statutes Title 9 §272 defines covenant marriage as “a marriage that is intentionally entered into by a male and female individual who both understood and agreed to hold themselves married in a lifelong relationship.” A covenant marriage is not very common in Louisiana, even though the law recognizes it. The Louisiana legislature developed this type of marriage to encourage couples to seek counseling when issues in their marriage arise and require such counseling before a couple can obtain a divorce or legal separation from each other. How Do You Enter A Covenant Marriage? As noted above, a covenant marriage is entered by male and female individuals who agree and understand to consider themselves married to each other in a lifelong relationship. In order to enter a covenant marriage, a couple must first receive counseling emphasizing the nature and the purposes of the marriage they are entering into and the responsibilities of being married. Secondly, the couple must enter into a covenant marriage contract by declaring their intent on their application for a marriage license and executing a declaration of intent to enter into a covenant marriage. The marriage license and the declaration of intention must then be filed with the official who issued the marriage license. Can Parties To A Covenant Marriage Get Divorced? Yes, they can.  However, couples in a covenant marriage typically have a more challenging time getting a divorce than their conventional marriage counterparts since additional provisions are only applicable to the dissolution of this type of marriage. What Is Required From A Couple In A Covenant Marriage To Obtain Divorce? The provisions that covenant marriage couples must both satisfy before they can obtain a dissolution of marriage are as follows: The couple must legally agree to seek marital counseling if issues develop during their marriage; and The couple is limited to the following grounds for divorce or legal separation: Adultery by one of the parties; Sexual or physical abuse of one of the parties or a child of either party; Abandonment by the other spouse for at least one year; Commission of a felony by one of the parties that receive a sentence of imprisonment at hard labor or death; or Parties have lived separate and apart from each other for at least two years, or if the parties are judicially or legally separated, and have lived separate and apart from each other since the legal separation for either one of the following: At least one year and six months if there is a minor child/children of the marriage; At least one year if the separation was granted due to an abuse of a child of either party; or At least one year of separation if not based on any abuse. What Are The Differences Between A Couple In A Covenant Marriage Obtaining Divorce From A Traditional Married Couple? In a covenant marriage, the couple is required to fulfill both requirements before they can be granted divorce: 1.) That the couple had sought marital counseling during their marriage when a marital issue arose, and 2.) The couple must allege or base their petition on the dissolution of their marriage or legal separation on the limited grounds listed above. Whereas couples who are in traditional marriages, specifically for those filing a 103 Divorce basis, only need one of the parties to file for divorce based on the following grounds: Adultery by one or both of the parties; Sexual or physical abuse of one of the parties or a child of either party; The couple have lived separate and apart from each other for at least two years; Commission of a felony by one of the parties, and that the said party receive a sentence of imprisonment at hard labor or death; or One of the parties commits habitual intemperance, whether it is alcohol or drug abuse, cruel treatment, or severe mistreatment of the other party. Being a party to a covenant marriage presents some obstacles in obtaining a dissolution of marriage. Thus, it is crucial to consult and seek the assistance of a knowledgeable divorce lawyer to explain the law and assist you in satisfying the requirements needed to obtain a divorce, given your marital situation. Through the guidance of a well-versed lawyer, a couple in a covenant marriage could successfully file for divorce in a seamless manner within the requirements of the law. If you or a loved one is a party to a divorce or contemplating divorce, you need a dependable family lawyer well-versed in divorce law on your side. Our highly experienced family and divorce lawyers are here to guide and help you in your case. Please call us at (225) 963-9638, or you can click here to contact us about a consultation. Our dependable divorce lawyers can help you assess your situation, represent your interests, and answer any concerns you may have regarding your lawsuit.

Family Law

What is the Difference Between a 102 and a 103 Divorce in Louisiana?

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What Is The Difference Between A 102 And A 103 Divorce In Louisiana? Pursuing a divorce action in Louisiana generally begins with determining whether to invoke Louisiana Civil Code 102 or 103. Although both divorce basis shares specific requirements, they greatly vary in detailed proof, conditions, and procedures. Thus, it is vital to understand what each divorce type entails, the similarities, and their differences to better determine which of the two applies in your situation. What Is 103 Divorce In Louisiana? Divorce 103 is defined, and its requirements are stated in the Louisiana Civil Code 103. This basis for divorce is generally regarded as a more straightforward, faster, and more economical option to obtain a divorce in Louisiana because it does not require a Rule to Show Cause, unlike Divorce 102. However, this divorce basis must show immediate causes for divorce to be granted. Moreover, this type of divorce can be granted to a petitioner by a default judgment. A default judgment means that a judge can enter a ruling granting divorce to a petitioner if the defendant fails to respond to the divorce petition. What Is 102 Divorce In Louisiana? Divorce 102 is defined, and its requirements are stated in the Louisiana Civil Code 102. This type of no-fault divorce basis generally takes more time and steps since a Rule to Show Cause is required before a divorce can be granted. What Are The Key Differences Between A 102 And 103 Divorce? The key differences between these two types of no-fault divorce basis in Louisiana are outlined in the proof or paperwork required and proceedings. Divorce Paperwork Or Proof Required Generally, both 102 and 103 Divorce requires the following paperwork to be filed to obtain a dissolution of marriage in Louisiana: Divorce petition that shows the proper venue and jurisdiction where the divorce is filed Acceptance of Service and Waiver of Citation and All Delays Settlement Agreement between the parties, in certain circumstances Judgment of the Court Child Support Worksheet and Parenting Plan agreed upon by both parties if minor children are involved. An additional requirement for a 102 Divorce is a Rule to Show Cause which means there has to be a court hearing. This document is supposed to prove that the parties have met the mandated days of physical separation without reconciliation. A Rule to Show Cause document must state the following:  Proper service of the original petition to the other spouse; That the required 180 (no minor children) or 365 (with minor children) days have elapsed since the proper service; Parties have lived separate and apart for the required 180 (no minor children) or 365 (with minor children) days; Parties did not have a covenant marriage. However, note that a party to the 102 Divorce may expressly waive service of the Rule to Show Cause. Whereas in a 103 Divorce, the petitioner must allege that the other spouse has committed at least one of the following: Adultery; or Committed a felony and sentenced to death or imprisonment at hard labor; or Whether during the marriage, the other spouse has physically or sexually abused the petitioner or a child of one of the spouses. It does not matter for this requirement if the other spouse has been prosecuted or not for the abuse they have committed; or A protective order or injunction was issued after a contradictory hearing or consent decree during the marriage against the other spouse to protect the petitioner or child of one of the spouses. Divorce Proceedings In a 102 divorce proceeding, the parties can immediately file for their marriage’s dissolution without having to live separately and apart first. However, a mandated waiting period is 180 days for parties without minor children and 365 days for parties with minor children before the divorce can be finalized. If there are minor children in the marriage, a hearing would be scheduled after filing the petition to divorce. This hearing would be to discuss other divorce matters about child support, custody, and visitation matters. This hearing could be waived if the parties have an agreement addressing these matters. If no such deal is in place, the parties must attend a mandatory session with a court-appointed hearing officer to sort out child support, custody, and visitation matters. The role of the court-appointed hearing officer would be to assess the case and provide a recommendation regarding child custody, support, and visitation. Unless the parties or one party objects to the hearing officer’s recommendation within five days, the court’s findings become the court’s final judgment. However, if the parties have an objection to the court’s determination, they would be assigned for mediation before they can be set to proceed to a hearing with a judge. Whereas, in a 103 divorce proceeding, the parties without minor children must first live separately and apart for at least 180 days and a mandated 365 days to live separately and apart for parties that have minor children before filing for the divorce petition. It is important to note that reconciliation between the parties nullifies any action for divorce. Reconciliation requires that both parties intend to reconcile and that sexual relations or cohabitations on a limited or trial basis do not show proof of reconciliation. Understanding what entails and the differences between a 102 and 103 divorce in Louisiana is critical to ensure that your case is suitable for the type of divorce you would be filing. Having a family lawyer who is well-versed in divorce law can be extremely helpful in guiding you in pursuing the correct kind of divorce basis. Having a divorce attorney can explain the differences and help you provide the requirements to protect your interests and rights. If you or a loved one is a party to a no-fault divorce or contemplating a no-fault divorce, you need a dependable family lawyer well-versed in divorce law on your side. Our highly experienced family and divorce lawyers are here to guide and help you in your case. Please call us at (225) 963-9638, or

Family Law

3 Grounds for modifying a child custody order in louisiana

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3 GROUNDS FOR MODIFYING A CHILD CUSTODY ORDER IN LOUISIANA Louisiana courts have a preference for equal sharing of children, but actual custody may take different forms. Courts usually grant custody as either joint, sole to one party, or with one parent having primary custody and the other having visitation. A court making a custody determination will start with the view that both you and the other parent are on equal footing but will consider a 12-part test known as the best interest of the child test. While there is a preference for equal custody, it is not always possible and when custody starts off as equal there may be reasons to request a change in custody later. Three of the most common situations that we see come up are discussed below. 1. A MATERIAL CHANGE IN CIRCUMSTANCES One ground for seeking to change a custody order is if you, your co-parent, or your children’s circumstances change materially after the establishment of the order. Examples of such changes include one parent moving to another state, remarriage, neglect, job loss, physical or mental health problems and parental alienation by one of the parents towards the other.  A parent seeking to modify custody based on a material change in circumstances will need to file a petition and present evidence of the change to the court. 2. VOLUNTARY TERMINATION The custody agreement can also be changed if one of the parents agrees to relinquish his or her custody. A court would need to sign off on the voluntary termination and it still may not terminate a child-support obligation. 3. PREFERENCE OF THE CHILD While the children do not generally get to decide where they live, after a certain age, judges may allow them to express their preference. The general rule for age is 12 in Louisiana but there is no hard rule on, and the court will consider other factors such as the maturity of the child. This is actually one of the factors in the best in interest of the child test mentioned above, but as the children get older their preference may change triggering a request for custody modification. If you feel your children are not in a situation best suited to their physical or mental health or education, or they express a desire to live solely with you, it may be time to request a child custody modification. Any of the grounds mentioned above will require a petition to be filed with a court and will likely involve evidence and possibly testimony to convince the court the change is in the best interest of the child.

Family Law

All You Need to Know About Emergency Custody Orders

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All You Need To Know About Emergency Custody Orders Child custody matters are serious issues that need thorough and thoughtful assessment of the Court before rendering an order. One should contact a child custody law firm and get a lawyer’s help with child custody cases. However, some instances might call on the Court to issue an emergency custody order, also known as ex parte custody, without having a formal hearing. Generally, Courts in Louisiana issue their orders regarding custody after a trial where evidence from both sides of the dispute is presented, assessed and analyzed. However, there are emergencies when the Court has to issue a temporary order immediately before a trial, and this type of court order is called ex parte custody order. What Is An Ex Parte Custody Order? An Ex Parte Custody Order is an action filed with the Court by a parent without informing the other parent. These types of orders are called “ex parte” and are only temporary and will expire at the formal hearing when both parents have the chance to present evidence to the Court. Given its urgent nature, an ex parte custody order can only be filed if there is a valid basis for the petition. The circumstances must be situations that pose immediate and irreparable harm to the child. What Are The Circumstances As Basis To File For Ex Parte Custody In Louisiana? As noted above, the San Antonio estate planning law firm states that the custody orders are granted when both parents can present their arguments and case to the Court. However, an ex parte custody order is reserved only for specific situations. Moreover, the petition to file an ex parte custody requires a basis for seeking the Court’s interference. Such basis includes, but are not limited to the following: Immediate and irreparable harm to the child Child abuse Child neglect Substance abuse in the presence of the child Presence of a sex offender in the home of the child If the other parent has been convicted of a serious and violent offense Immediate And Irreparable Harm To Child Under La. Code of Civil Procedure Article 3945, with an attorney’s help with a child adoption, an ex parte custody order may be obtained if it can be shown that a child will suffer immediate and irreparable harm unless the Court intervenes and issues an ex parte custody order. The term immediate refers to the urgency of time when the threat of irreparable harm is posed when the Court can issue the emergency custody order. The term irreparable refers to the harm posed to the child that is serious and permanent. Essentially, this refers to a type of severe trauma that cannot be reversed once the child has been exposed to it. In totality, the Court is urged to act and issue an emergency custody order immediately to prevent the other parent from exposing the child to a grave danger that cannot be remedied once it is committed. Domestic Abuse The Domestic Abuse Assistance Act, R.S. 46:2131 et seq., provides a civil remedy for domestic violence victims to afford immediate and easily accessible protection. This law acts as a basis for the parent to file a petition for ex parte custody with the Court to protect their child from the effects and threat of domestic abuse from the other parent. Children’s Code The Children’s Code Article 1564 et seq. understands the legal and social complexities posed to a child by a violent environment in a domestic setting. Under this law, the child is afforded immediate and easily accessible protection. This law provides a basis for a parent to petition the Court for direct intervention to remove a child from a violent environment that the other parent poses. Post-Separation Family Violence Relief Act The Post-Separation Family Violence Relief Act, R.S. 9:361 et seq. recognizes that there are circumstances of the heightened threat of violence or abuse when divorce or separation happens in a family that can be solved with the help of a family law attorneys. This threat of danger can be severe enough to affect a child’s well-being permanently. Under this law, the Court is asked for an ex parte custody order to remove the child from physical danger, whether it be a threat or actual abuse from the other parent. How Do You File For An Emergency Custody Order? Identify criteria to base your petition to the Court for an emergency custody order. File a petition with the Court for an emergency hearing, along with the relief sought, which could be temporary custody or temporary discontinuation of visitation of the other parent to the child. Your family attorney can file this petition on your behalf to ensure that the document is timely and adequately prepared for the Court’s review. The Court will set an immediate hearing to assess the situation and hear evidence pertaining to the emergency situation. Your family attorney can attend this emergency hearing with you or on your behalf. The attorney can call on witnesses, present evidence, and plead with the Court on you and your child’s behalf to issue the emergency custody order. If the judge grants the emergency custody order, then a formal hearing will be set at a later date. The other parent will then be notified of the formal hearing for them to attend and present their case to the Court. The emergency custody order will expire on the day the formal hearing is set. As shown above, an ex parte custody order is a severe petition to the Court to immediately issue an injunction to stop or prevent extreme danger and risk to the child. This type of petition is time-sensitive and may escalate harm and issues between the parties with severe repercussions to the child if not handled appropriately. Therefore, having an experienced family attorney handle your case is critical to ensure that the Court can act swiftly and appropriately to protect your child and yourself from any danger. If

Family Law

Child Support Modification in Louisiana

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Child Support Modification In Louisiana Child support serves as the ongoing financial support provided by one parent to their child. This monetary continuous, periodic payment is given to help cover the child’s cost of living. The Court issues this order. However, there are certain situations or circumstances when a custodial parent, the parent having custody of the child, may petition the Court to modify the child support order. However, as discussed below, modification of child support order is not necessarily an easy feat. The modification is subject to specific criteria and review before the Court issues a change in the existing child support order. What Is Child Support Modification? According to an experienced attorney from Karen Ann Ulmer, P.C., child support modification refers to the change of the previously established child support order by the Court. This modification is within the discretion of the Court. Moreover, each petition by the custodial parent to seek a change of the child support order must fulfill one of the criteria listed below for the Court to issue a modification. What Are The Criteria To Seek Child Support Modification? In Louisiana, either parent can file a request from the Court to modify child support provided that it fits one of the following conditions: The child support order was established or been last modified more than three years ago; or There is at least a 25% difference between the monthly amount of the child support order and the child support guidelines; or There is a material and substantial change in circumstances since the child support order was last established. Can I Ask For A Modification Of Child Support If My Ex Gets A Raise Or Change Jobs? Generally, yes. As noted above in the news, a modification of child support in Louisiana must meet certain conditions to be valid. A requirement to modify child support applies if there is a material and substantial change in the circumstances, and a change of employment or income may fit in this category. This change in income must be substantial and material concerning the child’s expenses and cost of living. Although the law doesn’t list the exact threshold or amount, the reviewing body assesses all information to the case to determine whether substantial and material change applies. They look into the totality of the matter by calculating if the increase in income and other work-related benefits of one parent could alter the child’s way of life. How Do I Ask For A Modification In Child Support? It requires a court order to modify child support that can be guided by the Robert B. Buchanan Chicago Law Office who are the best in this case. If the child support was set in a lawsuit between the parents, one of the parents will need to file a motion into that proceeding to ask the Court to reconsider the amounts and issue a new order.  If the child support proceeding was originally initiated by the Louisiana Department of Children & Family Services (DCFS), then DCFS can conduct a review of the modification of child support requests. If DCFS has determines that the proposal to modify the existing child support order is valid, then it can request the Court to issue the modification. Generally, a review of the DCFS is only required if one of the parents applies for public assistance. The state would assess why public help is needed and why the other parent is not paying or providing insufficient child support. In these situations, a parent can request a review of your active child support case through DCFS with the help of Texas ALP Law Firm by filing an online request through their website, calling their offices, mailing in a formal request, or contacting your worker through the CAFE Self Service Portal. Once the request for review has been filed, the following documents are needed within 30 days to process your request: Your income, which includes written proof of current wages and most recent federal income tax return; The claim of other’s parent’s substantial increase in income; Child care costs, including, but not limited to, housing and food; and Any other expenses incurred by the child may include health insurance and additional medical-related costs, education-related expenses, and transportation expenses. After the review has been concluded and established that there is a valid basis to modify the current child support order, the Court can rule on the modification request. However, if none of the parents applies or is receiving public assistance, then a parent can directly file with the Court for a motion to modify child support. In Louisiana with the help of attorneys for family law claims, all requests for child support modification must be made through the court systems even if both parents agree with the changes. It is also important to note that Louisiana Revised Statutes 9:311 states that a petitioner filing a frivolous claim to modify child support may be ordered by the Court to pay all court costs and reasonable attorney fees of the other party. Therefore, it is crucial to seek the assistance of a dependable family attorney to guide you with this claim. Louisiana child support guidelines, including modification of child support orders, are complex and technical. Seeking the representation of a highly experienced family attorney is recommended to help you navigate through this process. If you need to file or defend a claim for a modification of a child support claim, please give us a call (225) 963-9638, or you can click here to contact us about a free consultation. Our highly experienced family law attorneys can help you assess your case and represent your and your child’s interests.

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