In a divorce or a parentage / paternity action, child custody is one of the most disputed issues. Parents who have decided to split up, often find it difficult to agree on who should have custody over their children and what type of visitation schedule works for both parties and is in the best interest of the children.
At Big River Trial Attorneys our Baton Rouge child custody attorneys recognize the harm and trauma that drawn-out custody battles can have on parents and children. You owe it to your children to resolve your disputes in a dignified and respectful manner. Unfortunately, all too often we see one parent trying to use the children as a weapon to hurt the other parent. We can help you settle your custody matter fairly and amicably or present your case to the court and vigorously advocate for your children’s best interests.
If you and your spouse are not able to work out an agreement, then a judge will decide for you. Neither the mother nor the father is presumed to be the better caretaker – the judge will make an objective decision based on the child’s best interests. The preference in Louisiana is to award custody jointly to the parents unless the parents agree otherwise or one parent is shown by clear and convincing evidence to serve the best interest of the child. Louisiana uses a 14-part test to determine the best interests of the child that includes the following factors:
- The potential for the child to be abused, which shall be the primary consideration.
- 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 material needs.
- The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
- The permanence, as a family unit, of the existing or proposed custodial home or homes.
- The moral fitness of each party, insofar as it affects the welfare of the child.
- The history of substance abuse, violence, or criminal activity of any party.
- The mental and physical health of each party. Evidence that an abused parent suffers from the effects of past abuse by the other parent shall not be grounds for denying that parent custody.
- The home, school, and community history of the child.
- The reasonable preference of the child, if the court deems the child to be of sufficient age 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, except when objectively substantial evidence of specific abusive, reckless, or illegal conduct has caused one party to have reasonable concerns for the child’s safety or well-being while in the care of 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.
No two custody cases are the same. In order to meet the unique circumstances and needs of each family, Louisiana family law recognizes domiciliary and non-domiciliary custody. Even when the parents agree on a custody arrangement the court will still designate one of the parents at the domiciliary parent.
The domiciliary parent is the parent with whom the child will primarily live with, but the other parent will have physical custody during time periods that assure the child has frequent and continuing contact with both parents. The domiciliary parent has authority to make all decisions affecting the child unless an implementation order provides otherwise. All major decisions made by the domiciliary parent concerning the child are subject to review by the court upon motion of the other parent. It is presumed that all major decisions made by the domiciliary parent are in the best interest of the child.
If a parent is not awarded custody, he or she will usually still be entitled to visitation rights. Louisiana has a strong preference for children to have contact with their parents. In certain circumstances a grand-parent, another blood relative, or even a step-parent can be awarded visitation rights.
Courts in Louisiana would prefer that the parents agree on child custody and visitation and we have seen parents set a variety of schedules. Some parents want a week-to-week schedule, but the days can be divided up any number of ways. Parents also need to consider holiday and vacation schedules. The amount of time the children spend with each parent also affects the child support obligations of the parents.