Custody in Louisiana.

Decisions against where the child lives

Louisiana does not use the phrase 'legal custody.' It handles authority through the implementation order and the domiciliary designation. R.S. 9:335(A)(2)(a) requires the implementation order to allocate 'the time periods during which each parent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents,' and R.S. 9:335(A)(3) requires it to allocate 'the legal authority and responsibility of the parents.' R.S. 9:335(B)(3) is the one to read twice: 'The domiciliary parent shall have 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 shall be subject to review by the court upon motion of the other parent. It shall be presumed that all major decisions made by the domiciliary parent are in the best interest of the child.' If no domiciliary parent is designated and the implementation order is silent, joint custody gives both parents the same rights and responsibilities as parental authority under the Civil Code (R.S. 9:335(C)).

What the judge must weigh

Art. 134. Factors in determining child's best interest

A. Except as provided in Paragraph B of this Article, the court shall consider all relevant factors in determining the best interest of the child, including:

1. (1) The potential for the child to be abused, as defined by Children's Code Article 603, which shall be the primary consideration.
2. (2) The love, affection, and other emotional ties between each party and the child.
3. (3) 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.
4. (4) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
5. (5) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
6. (6) The permanence, as a family unit, of the existing or proposed custodial home or homes.
7. (7) The moral fitness of each party, insofar as it affects the welfare of the child.
8. (8) The history of substance abuse, violence, or criminal activity of any party.
9. (9) 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.
10. (10) The home, school, and community history of the child.
11. (11) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
12. (12) 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.
13. (13) The distance between the respective residences of the parties.
14. (14) The responsibility for the care and rearing of the child previously exercised by each party.

B. In cases involving a history of committing family violence, as defined in R.S. 9:362, or domestic abuse, as defined in R.S. 46:2132, including sexual abuse, as defined in R.S. 14:403(A)(4)(b), whether or not a party has sought relief under any applicable law, the court shall determine an award of custody or visitation in accordance with R.S. 9:341 and 364. The court may only find a history of committing family violence if the court finds that one incident of family violence has resulted in serious bodily injury or the court finds more than one incident of family violence.

What the child wants

No age is set. Art. 134(A)(11) makes 'the reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference' one of fourteen factors. Whether a child is old enough is the judge's call, case by case, and the child's wish never controls.

Where there has been violence or abuse

La. R.S. 9:364, reached through Civ. Code art. 134(B). Sec. 364(A) creates a presumption that no parent who has a history of perpetrating family violence (R.S. 9:362) or domestic abuse (R.S. 46:2132), or who has sexually abused or knowingly permitted the abuse of a child or stepchild, 'shall be awarded sole or joint custody of children.' The threshold definition matters: a court may find a history of family violence only if one incident resulted in serious bodily injury, or there was more than one incident. Sec. 364(B): the presumption is overcome only if the court finds all three by a preponderance – the parent completed a court-monitored domestic abuse intervention program (defined in R.S. 9:362(3) as at least 26 in-person sessions) after the last instance of abuse; the parent is not abusing alcohol or illegal substances; and the child's best interest requires that parent's participation as a custodial parent because of the other parent's absence, mental illness, substance abuse or similar circumstance. Sec. 364(C): the fact that the abused parent suffers from the effects of the abuse is not grounds to deny that parent custody. Sec. 364(D): if both parents have a history, custody goes solely to the parent less likely to continue, who must complete an intervention program. Sec. 364(E): a parent with a history of family violence gets only supervised visitation under R.S. 9:341 – and R.S. 9:362(7) says supervised visitation may never be overnight or in the violent parent's home, and that parent pays all supervision costs. Sec. 364(F): on clear and convincing evidence of sexual abuse of the child, the court shall prohibit all visitation and contact.

The parenting plan

Louisiana does not call it a parenting plan. La. R.S. 9:335(A)(1): 'In a proceeding in which joint custody is decreed, the court shall render a joint custody implementation order except for good cause shown.' The implementation order must allocate physical custody time periods, allocate legal authority and responsibility, and include an emergency/evacuation provision requiring continuous communication about the child's safe evacuation, location, and an interim custody plan if a declared emergency or disaster makes the ordered schedule impossible (R.S. 9:335(A)(2)(c)). There is no single statewide form; district courts publish their own implementation order and custody forms under local rules.

Mediation

No. La. R.S. 9:332(A): 'The court MAY order the parties to mediate their differences in a custody or visitation proceeding.' The court may stay further custody determination for up to 30 days, may order costs paid in advance by either or both, and may apportion costs if an agreement is reached; if mediation ends without agreement the costs are taxed as court costs. Statements and conduct in mediation are not admissible in any proceeding (sec. 332(C)). Individual judicial districts may require mediation or use custody hearing officers by local rule.

If the court appoints someone to look into it

La. R.S. 9:331. The court may order a mental health evaluation of a party or the child for good cause shown, by a licensed mental health professional chosen by the parties or the court. Who pays: 'The court may render judgment for the costs of the mental health evaluation, or any part thereof, against any party or parties as the court may consider equitable, taking into consideration the parties' ability to pay. The court may also preliminarily allocate costs at the outset and reserve the right to reallocate costs upon conclusion of the matter.' The evaluator must give the parties a written report and serves as a witness subject to cross-examination. Sec. 331(D): an evaluator appointed where domestic abuse is at issue must have current, demonstrable training and experience with perpetrators and victims of domestic abuse. Sec. 331(E) bans ex parte communication with the evaluator. Sec. 331(F) guarantees full pretrial discovery of the evaluator's entire file, including the right to depose, and sec. 331(F)(5) protects an indigent parent's right to depose and cross-examine on the same terms as a paying parent.

Changing the order

Louisiana's Civil Code sets only the best-interest standard (art. 131), and Louisiana courts add a much heavier burden for changing a custody decree that was rendered after the court actually heard evidence. Relocation is handled separately under R.S. 9:355.1 et seq. rather than as an ordinary modification.

If you were never married

Acknowledgment matters enormously in Louisiana. La. Civ. Code art. 256(A): 'The mother is of right the tutrix of her child born outside of marriage not acknowledged by the father, or acknowledged by him without her concurrence.' Art. 256(C): if both parents have acknowledged the child, the judge appoints as tutor the one by whose care the child's best interest will be served – but if the parents are awarded joint custody of an acknowledged child born outside of marriage, 'the cotutorship of such child shall belong of right to both parents, with equal authority to act alone, on behalf of the child, and with equal privileges and responsibilities,' unless the court or an approved parental agreement says otherwise. Under R.S. 9:355.3(5), 'a person who is the natural tutor of a child born outside of marriage' is among those authorized to propose a relocation. Once paternity is acknowledged or adjudicated, the same best-interest factors under art. 134 and the same joint custody rule under art. 132 apply.