Getting A Child Custody Order

Authored By: Lagniappe Law Lab

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About Getting A Child Custody Order

There are different situations in which you may end up getting a child custody order. Custody by consent agreements and considered judgments are two different ways. Depending on the situation you may be able to get custody by consent. You may need to ask the court to decide by getting a considered judgment.

A custody-by-consent agreement is a written agreement between the parents. The agreement sets up the terms and arrangements for custody and visitation. This agreement gets signed by both parents and submitted to the court for approval. Once approved, the agreement becomes a court order and is enforceable.

A considered judgment is a court order that a judge issues after a formal hearing or trial. In a considered judgment, the court considers all the evidence presented. The court makes a decision based on the best interests of the child. If parents are unable to agree on custody terms, a considered judgment may be necessary to resolve the dispute. 

Both custody by consent agreements and considered judgments are binding and enforceable. Depending on the specific circumstances of your case you may choose to get custody either way. If there are concerns about abuse or neglect, a court may require a formal hearing to determine custody arrangements. 

Ultimately, the best approach will depend on the individual circumstances of the case. It may be important to consult with a qualified attorney to determine the most appropriate course of action. 

What You Need To Know About Getting A Child Custody Order

Louisiana law provides several methods to petition for custody. Although custody is often requested in a petition for divorce, it can be awarded in several other actions, including: 

  • Annulment Of Marriage
  • Paternity Actions
  • Voluntary Relinquishment Of Custody 
  • Writ Of Habeas Corpus 
  • By Petition When The Parties Are Unmarried 

No matter what type of method you petition for custody, a court will decide custody based on the best interest of the child standard

In a divorce proceeding, either parent may request a determination of custody or visitation of a minor child. Generally, the request is placed in the petition for divorce or in the answer to the petition, and a hearing on custody is requested in a contradictory motion or rule to show cause.  

If the parents plan to file an Article 103(1) no fault-divorce, no divorce petition is initially filed, but the parents may need a resolution regarding custody while living separate and apart. Louisiana law allows spouses who are living separate and apart to petition for custody and support of their minor children. 

Custody can get awarded when a parent seeks a declaration of nullity of a marriage. When a parent seeks a declaration of nullity of a marriage, custody may be awarded if the child was born during the marriage or within 300 days after the marriage was terminated by death, annulment, divorce, or a judgment of separation, and the other parent has not been granted custody by the court. The parent who is granted custody of the child will retain custody unless the court determines that awarding custody to the other parent is in the best interests of the child. 

If you are seeking custody of a child as part of an annulment of marriage in Louisiana, you can include a request for custody in your petition for annulment. In Louisiana, a petition for annulment is filed in the same manner as a petition for divorce. 

 

Without marriage, proof of parenthood may be necessary to obtain custody. With a child's birth certificate, the fact of birth to a particular woman is not difficult to prove. For a father, however, proof of paternity can be more difficult.

A man can formally acknowledge a child in an authentic act that may provide him with the rights of custody and visitation (as well as an obligation of child support). One way for a father to acknowledge paternity is to sign a voluntary acknowledgment of paternity form at the hospital when the child is born. If the father does not sign a voluntary acknowledgment of paternity form, he may need to file a paternity suit in court to establish his legal relationship with eh child. This can involve genetic testing to confirm biological paternity. Once paternity is established, the father may be granted custody or visitation rights and may also be required to pay child support. 

If the mother is married to another man at the time of the child's birth, that man may be presumed to be the legal father, and the biological father may need to file a paternity suit to challenge that presumption and establish his own paternity. Establishing paternity gives the biological father legal rights and responsibilities regarding the child

Getting Custody By Consent

Getting Custody By Consent

Custody by consent happens when the parents can come to an agreement about the custody of the child. Both parents may submit the custody agreement to the court for approval. The court order usually gets granted unless the agreement is not in the best interests of the child. The court may also not grant the order if there is a history of family violence. The safety and well-being of the child are the top priorities.

Steps To Establishing Custody By Consent

Both parents need to come together to negotiate a child custody agreement. Both parents should communicate to have an open and honest discussion. The discussion should be about what is in the best interest of the child. Consider the child's needs and emotional and physical well-being.

Neither parent will get everything they want in the custody arrangement. It is important to be willing to compromise on certain issues to reach an agreement for everyone.

Put the agreement in writing. The written agreement should outline the details of the custody arrangement. This includes visitation and other relevant information about sharing custody of the child.

Once the parents agree to the custody arrangement, they need to file a petition for custody. The petition can get filed in the parish where the child lives or where the parents got married. The petition includes the details of the agreement and asks the court to approve it. 

You will need to get the necessary forms for filing the petition. The form you can use is the Petition to Establish Custody, Visitation, and/or Child Support. Fill out the form completely and accurately. Provide all the required information, including details about the child, the parents, and the proposed custody arrangement. 

Once the forms are completed, file the petition with the court. You will need to pay a filing fee at the time of the filing. If you are unable to pay for the court fees associated with filing a petition for custody, you may be able to ask for a waiver of those fees by filing a petition for in forma pauperis status

After you file the petition, take a stamped copy to serve the other parent the petition and a summons. You can learn more about service of process here. The purpose of this is to notify the other parent that a custody case has been filed and to provide them with an opportunity to respond to the petition and participate in the custody proceedings. 

After filing the petition, the parents must attend a court hearing. The court will set a date for the hearing. The judge will review the agreement and determine whether it is in the best interests of the child. During the hearing, the parents have an opportunity to present evidence and arguments. The judge will hear all the evidence and consider any testimony. 

If the court approves the custody arrangement, then it will issue a court order. The order will be put in writing and both parents must follow it. The court order makes the custody arrangement legally binding and enforceable by law. 

The court order outlines the specific terms of the arrangement, including which parent has legal and physical custody of the child, visitation schedules, and any other relevant details. It's important for parents to carefully review the custody order and understand their obligations under it to ensure compliance and avoid any legal issues. 

Getting Custody By Considered Judgment

Getting Custody By Considered Judgment

Custody by considered judgments happens when the parents cannot come to an agreement. In this situation, they ask the court to decide the custody arrangement. The court will determine an arrangement based on the best interests of the child. The court will generally make a joint custody determination. The court may grant sole custody if they determine by clear and convincing evidence that joint custody is not in the child's best interests. Only if an award of custody to a parent would be detrimental to the child may the court consider awarding custody to a non-parent.

Steps To Getting Custody By Considered Judgment

You can use the self-help form titled Petition to Establish Custody, Visitation, and/or Child Support to begin the process yourself. A custody case begins when you file a petition, motion, or "rule to show cause." The petition should include information about the child, the parents, and the proposed custody arrangement. 

After you file your petition with the court, you need to serve a copy of the stamped court papers to the other parent. You can serve your custody petition to the other party by following the requirements for the service of process

After you serve the court papers to the other parent, the parent may file a response to the petition. This may get served to you as an answer, opposition, or countermotion to your petition for custody. In the response, the other parent may dispute the allegations in the petition and provide their own version of the facts. They may also request different custody arrangements or propose a visitation schedule that is different from what you have requested in your petition. 

You may need to file additional documents or make changes to your proposed custody arrangement in response to the other parent's response. 

When the court schedules a trial for your custody case make sure that you attend. Courts attempt to set trials within 30 days from the date the initial pleading got filed, or as quickly as the court has an open trial date. At a custody trial, the Court will hear evidence on the issue of what is in the best interest of the child and ultimately make a custody determination. At the hearing, the court will consider a variety of factors, such as the child's age, health, and relationship with each parent. The court may also consider each parent's ability to provide for the child's physical, emotional, and educational needs, as well as any history of domestic violence or substance abuse.

When the case requires a trial, the Court may render judgment at the end of the trial in open court. Otherwise, the Court will take the case "under advisement," which means the judge will make the decision and issue a written judgment later. The judgment will be served on each party at their last known address or through their attorney if they have one. 

The court makes a determination about custody and visitation by considering all the factors in the best interest of the child. The court may award sole custody to one parent or joint custody to both parents. The court may also establish a visitation schedule that allows the non-custodial parent to spend time with the child. Once the court makes its decision and orders the judgment, both parents will be required to comply with its terms. 

Last Review and Update: Apr 17, 2023
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