Child Custody (FAQs)
Authored By: Lagniappe Law Lab
FAQs About Child Custody
What is custody? +
At its simplest, custody is responsibility for care over a child or children. Legal custody has two parts: (1) physical custody and (2) legal authority to make decisions. Legal custody comes in five types: (1) joint, (2) shared, (3) split, (4) sole, and (5) guardianship.
Joint, shared and split custody usually refer to the arrangements shared between parents. Sole custody refers to situations when one parent gets custody, while the other parent has limited rights. Guardianship contemplates non-parent custody of a child, including foster care and institutionalization.
Physical custody is the responsibility for the physical supervision and care of a child. It means being in charge of where the child goes, who they are with, what they do, and what happens to them while they are physically present with that parent. During a parent's physical custody time, the parent is in charge of the child's body.
The law favors splitting physical custody time between both parents equally on a 50/50 basis, if possible. This physical custody schedule attempts to encourage shared care of the child. For many reasons, 50/50 division of physical custody is not always possible. When it's not, the child should have close, frequent, and ongoing contact with both parents.
Legal authority is the parent responsible for making decisions about the child. This might include decisions about where the child will go to school or church. It also includes decisions like which sports or programs the child participates in. Medical care and discipline decisions are also part of parental authority. The law favors dividing physical custody and legal authority between both parents.
Joint, Shared, Split, and Sole Custody
Joint, shared, and split custody describe the different ways to divide custody. Physical custody and decision-making authority differ between each type of custody. The differences are described below.
Joint custody involves an approximately equal physical custody schedule. Approximately equal physical custody can be flexible. Instead of 50/50, it could be 45/55 or 30/70. Parents who can agree, can tailor their physical custody schedule to meet their needs and tailor the schedule to the child's needs. In addition, under joint custody, both parents are required to exchange information pertaining to the health, education and welfare of the child and communicate with each other when making decisions about the child.
In most cases, the Court will choose a "domiciliary" parent. The domiciliary parent is the one with whom the child lives most of the time. The domiciliary parent has the duty to discuss decisions with the other parent. If the parents do not agree, the domiciliary parent's decision is presumed to be in the child's best interest.
If the non-domiciliary parent disagrees with a major decision, that parent can ask the Court to review it. Some examples of major decisions may include changing schools, major medical care, or religious instruction.
In shared custody, the time the child spends with each parents is split equally. The Court can divide the legal decision-making authority in any manner. In some cases, the parents can agree to make all major decisions together.
Split custody can be unusual. It involves different custody arrangements for individual children in a family. One parent may have physical custody of one child for a different amount of time than the other. For example, a dad may have domiciliary custody of a son, while a mom has domiciliary custody of a daughter.
Or, one parent may have full decision-making authority related to one child. These cases usually involve special circumstances. One parent may have better skills to manage the needs of a child with a disability, for example.
Sole custody means one parent gets all, or almost all, physical custody and decision-making authority over the child without having to consult anyone else. The court may grant the other parent time with the child under certain circumstances. Courts should only award sole custody to one parent when there is clear and convincing evidence that sole custody is in the best interest of the child. Clear and convincing evidence is a high standard.
What is visitation? +
When one parent is awarded sole custody, the other parent may still have a right to see the child or children. Visitation is the name for the time that the other parent is allowed to see the child. Visitation can be unsupervised or, in some cases, supervised, if there are concerns about whether the behavior of the parent may be unsafe or inappropriate for the children.
Do mothers always get custody of children? +
No. If parents can agree, the Court will accept that arrangement unless the parents' agreement is not in the child's best interest or there has been a history of family violence.
Otherwise, the law favors joint custody, unless it is not in the best interest of the child. This is the presumption of joint custody. To overcome the presumption favoring a sharing of physical and legal authority, the party opposing joint custody has the burden to prove that joint custody is not in the child's best interest.
What is a burden of proof? +
The burden of proof describes the legal duty of who must convince the Court. It also measures how strong the proof, or evidence, must be. In general, a person asking the Court to decide a case in their favor has the burden.
The most common measure of strength of evidence is the preponderance standard. The preponderance is a "more likely than not" level. Using a 100-yard football field as a scale, a preponderance of the evidence is anything past the 50-yard line. This burden is met if a party can show that there is a greater than 50% chance that their claim is based in fact.
The greatest burden of proof is "beyond a reasonable doubt," and it is only used in criminal cases. Think of beyond a reasonable doubt as a definite touchdown.
The clear and convincing standard is between. It is more than halfway, but not quite definite touchdown. It should be enough to convince a reasonable person with no personal interest. Clear and convincing is the standard required for a parent seeking sole custody.
How do Courts decide the best interest of the child? +
The courts determine custody based on the best interests of the child. Judges use Louisiana Civil Code article 134. Article 134 says judges have to consider all relevant factors in their decision. It also lists fourteen specific factors to consider. The primary consideration for the court is the potential for the child to be abused or the history of family violence. Of the remaining factors, no one factor is the most important, but some may be considered more important than others based on the facts of the case. For more detailed explanation, see this article on the best interest of the child.