Getting A Child Custody Order

The first step is for both parents to negotiate and come to an agreement on the custody arrangement that they believe is in the best interest of their child(ren). This can be done privately between the parents or with the help of attorneys or mediators.

Parents should start with an open and honest discussion about their expectations, concerns, and objectives regarding their child's upbringing. It's crucial to prioritize the child's needs and well-being above all else. 

If parents find it challenging to reach an agreement independently, they can opt for mediation. A mediator is a neutral third party who can help facilitate discussions, offer solutions, and ensure the focus remains on the child's best interests.

Next, the parents should work to develop a parenting plan. This plan should detail all aspects of the child's care, including living arrangements, education, healthcare, religious upbringing, and how to handle future disputes. It should be flexible enough to adapt to the child's changing needs.

Once, the parents have reached an agreement they should draft the parenting plan into a formal custody document they can submit to the court. The document should clearly outline the terms of custody, visitation schedules, and other relevant details. When you are asking the court for custody, you need to recommend, what type of custody you want and who should have final decision-making authority for major decisions concerning the child. A legally binding agreement ensures that both parties adhere to the terms and provides a mechanism for enforcement if disputes arise.

Each parent may consult with an attorney to review the proposed custody agreement. This ensures that the agreement is fair, respects both parents' legal rights, and primarily benefits the child.

When the agreement is ready and mutually agreed-upon the parents can file the custody agreement, as a Petition for Custody, to the court for approval. This petition outlines the details of the agreement and requests court approval. If you and the party agree about the proposed custody arrangement, the Court can approve custody as a "Consent Judgment."

You should figure out where you want to file your case. If you file your case in the wrong court, the court might reject your case and you might lose your filing fees. You can file your case in the parish where you are "domiciled," the parish in which the other child's other parent is domiciled, or the parish in which you and the child's other parent were last domiciled together as a married couple.

You can use the free self-help form to prepare your Petition For Custody.

Think about how you will deliver or serve your court case on the other party when or before you file your petition to the court. When you file your petition you must inform the other party about the case. If you and the child's other parent agree about custody and are willing to speak about the process, you can ask the other parent to "waive" service of process. If they will not waive service and they live in Louisiana, you must ask the court to have the Sheriff serve them at home or work. If they will not waive service and they live in another state, you will have to use the “Long Arm” process to serve your spouse.

Figure out your case filing fees before you go to file your petition. Call the Clerk of Court of the parish where you plan to file your case and ask about the costs to file for custody. If you can pay the court fees, get your payment ready. If you cannot afford to pay your court fees in advance, then you can ask the court to proceed in forma pauperis (IFP). Make sure that you remember how you are carrying out service-of-process to the other parent to make sure they get a copy of the official court papers.

When you are ready to file your petition to the court, take your filing fees or IFP and your copy of the petition to the Clerk of Court’s Office where you want to file your case. The Clerk of Court will stamp a date and write a docket number on your case. The Clerk of Court’s office will assign your case to a Judge and a hearing officer (if there is one). The judge will then set hearing dates for your case and the Clerk of Court will inform you of the hearing dates.

Make sure to attend any court dates. Failure to do so can result in decisions being made in your absence, potentially to your disadvantage. During these hearings, the judge will review all submitted documents related to your custody case. This includes applications, affidavits, and any other relevant paperwork you or the opposing party have submitted to court. The judge may ask you, and possibly the other parent, questions about your situation, your child, and your proposed custody and visitation plans. These questions help the judge assess the dynamic of your family, your parenting abilities, and any specific needs or concerns regarding the child.

The judge will make a recommendation or decision regarding custody and visitation. This can range from sole custody to one parent, joint custody, or specific visitation rights, aiming to serve the child’s best interests. The recommendation will outline who has legal and/or physical custody of the child and the visitation schedule for the non-custodial parent. Legal custody refers to the right to make significant decisions about the child's life, while physical custody pertains to with whom the child lives.

The judge’s decision is formalized in a court order. The document details the custody arrangement, visitation schedule, and any other conditions the judge finds necessary for the child’s welfare. Once issued, this order is legally binding. Both parents are required to comply with the terms of the custody and visitation order. This means adhering to the schedules and conditions set forth for custody and visitation, as well as any stipulations regarding decision-making for the child.

Life circumstances can change, and the original custody order may no longer serve the best interest of the child. If this happens, either parent can request the court to modify the order. To do this, the requesting parent must file a petition and demonstrate that there has been a significant change in circumstances that warrants a revision of the custody arrangement.

If one parent violates the custody or visitation order, the other parent can seek enforcement through the court. This might involve filing a motion with the court asking for the order to be enforced, which could lead to legal consequences for the violating parent, such as fines, changes to the custody arrangement, or, in severe cases, criminal charges.

Before initiating any legal action, it's crucial to understand the types of custody (joint, sole, physical, legal) and familiarize yourself with the factors the court considers in determining the child's best interests. This understanding will guide the preparation of your case.

Best Interest Standard: Familiarize yourself with how the court determines what is in the best interest of the child, including factors like the child's health, safety, and welfare, the nature of the child's relationship with each parent, and the parent's ability to provide for the child's needs.

Learn about Different Custody Types: Understand the distinctions between joint and sole custody, as well as legal and physical custody.

• Joint Custody and Sole Custody:
  • Joint Custody: This arrangement allows both parents to share decision-making responsibilities and/or physical custody of the child. Joint custody can be broken down into:
    • Joint Legal Custody: Both parents have the right to make important decisions regarding the child's life, such as education, health care, and religious upbringing.
    • Joint Physical Custody: The child spends significant periods of time with both parents. This doesn't necessarily mean the time is split exactly 50/50, but it's distributed in a way that the child maintains a stable relationship with both parents.
  • Sole Custody: One parent has the primary responsibility for the child, either in terms of physical custody, legal custody, or both.
    • Sole Legal Custody: Only one parent has the authority to make major decisions about the child's welfare, education, health care, etc.
    • Sole Physical Custody: The child lives primarily with one parent, although the other parent may have visitation rights.

• Legal Custody and Physical Custody:

  • Legal Custody: Refers to the authority to make significant decisions about a child's life. This includes decisions about education, health care, and religious instruction.
  • Physical Custody: Pertains to where the child lives and the day-to-day care of the child. This can affect the child's routine, including where they go to school and their home environment.

Before initiating a formal custody battle in court, it's worthwhile to explore the possibility of reaching a mutual agreement through mediation. Mediation is a process where both parties, guided by a neutral third-party mediator, work together to negotiate the terms of the custody arrangement. This approach is often less adversarial and can lead to more amicable outcomes for everyone involved, especially the children.

In Louisiana, like in many other courts, courts often encourage or even require mediation before a custody case proceeds to trial.

Reaching a custody agreement through mediation also demonstrates to the court that both parties are willing to work together for the best interest of the child, a factor that courts find favorable. However, if mediation does not result in an agreement, the case may then proceed to trial, where a judge will make the custody determination based on the child's best interests.

The process formally begins when you file a petition for custody in the appropriate Louisiana parish court where the child resides. It's important to file in the correct parish so you do not lose filing fees. The petition for custody document should detail your relationship with the child, the current custody arrangement, and your reasons for seeking a change, always emphasizing the child's best interest.

The custody petition should include: 

• Your Relationship with the Child: Clearly describe your relationship to the child, whether you are a parent, grandparent, or another guardian.
• Current Custody Arrangement: Outline the current custody situation. If there is an existing custody order in place, mention this and provide details. If there is no formal arrangement, describe the current living situation of the child.
• Reasons for Seeking a Change: Explain why you are seeking custody or a change in the current custody arrangement. This could be due to changes in living situations, concerns about the child's welfare, or a desire to formalize an informal arrangement.
• Child's Best Interest: Central to your petition should be an emphasis on the child's best interest. Louisiana courts prioritize the child's well-being over all else. Your petition should make a compelling case that what you are requesting is in alignment with the child's health, safety, education, and general welfare.

Alongside the petition, it may be necessary to submit additional documents. These can include financial statements, character references, or evidence supporting your claims about the child's best interest.

You can use the free self-help form to prepare your Petition For Custody.

There is typically a fee to file the petition. This fee can vary depending on the parish. You can contact the clerk of court to find out how much the fee to file a petition for custody might cost. If you cannot afford to pay filing fees in advance, you may request to proceed in forma pauperis (IFP), so you can delay paying your court fees. Pay your court fees to the Clerk of Court when you file your petition for custody. 

After the petition is filed, the other parent (or other parties involved in the current custody arrangement) must be formally notified. This process is known as "serving" the petition. This ensures that the process is fair and that both parties have the opportunity to present their case.

The served party is given a specific timeframe to file an answer or response to the petition. This response can agree with, dispute, or provide an alternative perspective on the custody arrangements proposed in the petition.

If the other party does not respond within the given timeframe, the petitioner may seek a default judgment. This could potentially lead to a custody decision in the petitioner's favor without further input from the non-responding party, although the judge will still consider the child's best interests.

Court-Ordered Evaluations: In many cases, the court may order evaluations to assess the living conditions, mental health, and relationships within the family. These evaluations are conducted by professionals and aim to provide the court with a comprehensive understanding of what custody arrangement would best serve the child's interests.

Pre-trial Motions and Hearings: The parties may engage in various legal motions and hearings leading up to the trial. These can address temporary custody arrangements, child support, or procedural issues.

The Custody Hearing: If the parties cannot agree on custody arrangements through mediation or negotiation, the case will proceed to trial. Here, both parties can present evidence, call witnesses, and argue their case before a judge or commissioner, who will make the final custody determination. During the hearing, both parents (and their attorneys, if represented) will have the opportunity to present evidence, call witnesses, and argue their case regarding the custody arrangement that best suits the child's needs and interests.

After evaluating all the evidence and considering the best interest of the child factors, the judge issues a "considered judgment." This document is a formal, written decision that outlines the specifics of the custody arrangement and addresses several critical areas:

1. Custody Arrangement: The judgment will specify whether one parent is granted sole custody or if both parents will share joint custody. It defines the legal and physical custody terms, detailing how decisions about the child's upbringing are made and where the child will live.

2. Visitation Rights: For the non-custodial parent (in cases of sole custody) or both parents (in joint custody scenarios where the child primarily resides with one parent), the judgment outlines visitation rights or parenting time. This schedule includes regular visits, holidays, vacations, and special occasions.

3. Other Stipulations: The judgment may also include various stipulations deemed necessary for the child's welfare. These can cover a wide range of topics, including but not limited to:

   • Financial responsibilities, such as child support and medical expenses
   • Restrictions on relocating with the child
   • Requirements for communication between the parents about the child
   • Guidelines for introducing new partners to the child

4. Modification and Enforcement: The considered judgment will also state the conditions under which the custody arrangement can be modified in the future. It outlines the process for enforcement should one party fail to comply with the terms.

If significant changes occur in the family's circumstances, either parent can request a modification of the custody order. However, they must demonstrate that the changes are substantial and justify a revision in the custody arrangement for it to continue to serve the child's best interests.

Once the considered judgment is issued, it is legally binding. Both parties are required to adhere to its terms. Failure to comply can result in legal consequences, including contempt of court charges, modification of the custody arrangement, or other penalties.