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Child Custody in Louisiana (Guide)

Authored By: Lagniappe Law Lab
Contents
Legal Information About Custody Step-by-Step Guide to Child Custody Cases Understanding Custody by Consent Custody in Cases of Family Violence Persons With Rights to Custody and Visitation Divorced or Divorcing Parents Unmarried Parents Living Together Unmarried Parents Living Apart Grandparents' Rights to Custody and Visitation Other Relatives' Rights to Custody and Visitation Establishing Paternity Establishing Custody Establishing Custody in a Divorce Case Establishing Custody Between Unmarried Parents Modification of Custody Changing a Consent Judgment Changing a Considered Judgment Material Change in Circumstances Relocation: Moving A Minor Child's Home Relocation Dictionary About Notice of Intent to Relocate: When is it necessary? When is it not required? Notice of Intent Contents Guide to the Relocation Process Registering an Out of State Custody Order in Louisiana About Co-Parenting Parenting Education Course

Legal Information About Custody

What do you need to know to represent yourself in a custody case?

There are basically two parts to any case: 

  1. the legal process that is used in Louisiana for that kind of case, and
  2. the "substantive" law that applies to the issues in the case. 

This guide is designed to help you understand both the process and the applicable "substantive" law.  Substantive law just means the law that applies to the subject of child custody. 

 

Legal Process for Custody Cases

In Louisiana, custody cases use a legal process called "summary proceedings".  In summary proceedings, parties can ask the Court to hold a hearing and make a decision on an issue by filing a motion.  In summary proceedings in Louisiana, a motion is also sometimes called a "rule to show cause".  No matter what it is called, the court will set a hearing date relatively quickly and as long as the other party is served with the motion, they will be expected to appear in court on the hearing date.   

 

Child Custody Process Resources

 

Resources on Louisiana Child Custody Law 

Persons With Rights to Custody and Visitation

Who has a right to custody of and visitation with a minor child?

Click on the links below to learn more about the person's right to custody of and visitation with a minor child. 


 

Divorced or Divorcing Parents

During a marriage, both parents have co-equal rights to make decisions about a child's life. Usually, when parents are married, the children live in a home with both parents.  When parents divorce, the parents or the Court divide the responsibility and the right to make decisions. The Court or the parents also divide the physical time the children spend with each parent.  

Generally speaking, "custody" refers to decision-making rights as well as the kind of physical custody (joint or shared).  "Visitation" refers only to physical time that a parent is awarded with their child or children, regardless of the custody arrangement. 

Custody

Child custody is a matter incidental to divorce.  The party filing a petition for divorce can request that the Court make a custody decision.  Otherwise, the parent responding to the petition for divorce can ask the Court to make a custody decision.  If neither parent requests a custody decision at the beginning of a divorce case, either parent can later file a motion to establish custody.  A motion to establish custody is also sometimes called a "rule to show cause" why custody should not be awarded.  

If the parents agree who is to have custody, the Court will award custody as the parents have agreed, unless either parent has a history of family violence.  If there is a history of family violence, if parents cannot agree on who is to have custody, or if the parents' agreement is not in the best interest of the child, the Court will decide custody based on the best interest of the child.

It is presumed that joint custody between both parents is in the best interest of the child. But a court can award sole custody to one parent if it is shown by clear and convincing evidence that sole custody in that parent is in the best interest of the child. For more information about burdens of proof, see these Child Custody Frequently Asked Questions.

Visitation

A parent not granted custody or joint custody of a minor child is entitled to visitation, unless a court finds it would not be in the best interest of the child. The child has a right to visitation with both parents. If a court awards visitation, custody, or other time with a child, the parent must spend the time with the child as ordered by the court, except for good cause.  No parent should interfere with the exercise of court-ordered custody, visitation, or time with a child, unless there is good cause to do so. If either parent fails to exercise their court-ordered custody or visitation or if either parent interferes with the other parent's court-ordered custody or visitation time, they can face consequences like contempt of court and certain penalties


 

Unmarried Parents Living Together

If parents were unmarried at time of child's birth, the mother has natural tutorship of the child, unless the father has acknowledged the child with the mother's agreement. Paternity can be established either by an agreement called an acknowledgment of paternity, or by blood or tissue testing

Once paternity is established, if there is no court order relating to custody, both unmarried parents of a child have co-equal rights and responsibilities regarding the child.  This is called co-tutorship.

Since court-ordered custody decides which parent the child will primarily live with, when two unmarried parents are living together, they probably cannot get a court order relating to custody. Once the parents are no longer living together, either parent can ask the Court to enter a custody order outlining each parent's individual rights and responsibilities as well as a physical custody schedule.  

Related Resources: 


 

Unmarried Parents Living Apart

If parents were unmarried at time of child's birth, the mother has natural tutorship of the child, unless the father has acknowledged the child with the mother's agreement. Either parent can file a Petition to Establish Paternity and Custody to ask the Court for an order of custody.  Since the child was born outside of a marriage, the Court will first establish paternity.  Paternity can be established either by an agreement called an acknowledgment of paternity, or by blood or tissue testing

Related Resources: 


 

Grandparents' Rights to Custody and Visitation

Custody

A parent can voluntarily transfer custody of a child to the child's grandparent, if they wish to do so.  Otherwise, in certain circumstances, a grandparent can ask the Court to award them custody, even if the parent of the child does not agree. 

Voluntary Transfer of Custody by Mandate

If a parent has custody of a child and is willing to transfer custody to a grandparent voluntarily, the parent can transfer custody by a written "mandate". To do this, the parent can sign a form called a "Provisional Custody by Mandate."  The provisional custody by mandate can only last for a term of one year, at the most, but can be terminated earlier if:

  • any person with parental authority revokes the mandate;
  • the person given provisional custody (called the "mandatary") resigns or renounces the mandate;
  • fifteen days after the death of any person with parental authority; or
  • upon the qualification of a court-appointed tutor or provisional tutor.  

The mandate authorizes the mandatary to provide for the health, education, and welfare of the child. The law authorizes the use of this Provisional Custody by Mandate (Form).

Contested Custody

If a parent is unwilling to transfer custody voluntarily, a grandparent has rights to ask the Court to award the grandparent custody, under certain limited circumstances. If a court finds that awarding either parent custody would result in substantial harm to the child, the court can award custody to another person with whom the child has been living in a wholesome and stable environment, or any person who can provide an adequate and stable environment. It is important to note that the law strongly favors an award of custody to the parents.  Any non-parent seeking custody of a child will have to meet a difficult burden of proof and persuasion. 

Visitation

A grandparent's right to visitation depends on the parents' marital status and living situation, as well as the circumstances of the parents.  

Divorced or Divorcing Parents or Unmarried Parents Living Apart

Grandparents have a right to seek visitation with their grandchildren when the child's parents are divorced, divorcing, or unmarried and living apart.  The Court may award a grandparent a right to visitation, if the Court finds the visitation is in the best interest of the child.  In cases where grandparents seek court-ordered visitation, the Court will first hold a hearing to decide whether to appoint an attorney to represent the child. The Court will also hold a hearing to decide whether the visitation award is in the best interest of the child. 

At a hearing to decide an award of grandparent visitation, the Court can only consider the following factors:

  1. A parent's fundamental constitutional right to make decisions concerning the care, custody, and control of their own children and the traditional presumption that a fit parent will act in the best interest of their children.
  2. The length and quality of the prior relationship between the child and the relative.
  3. Whether the child is in need of guidance, enlightenment, or tutelage which can best be provided by the relative.
  4. The preference of the child if he is determined to be of sufficient maturity to express a preference.
  5. The mental and physical health of the child and the relative.

It is important to know that a parent's fundamental right to make decisions about their child is highly favored in the law. Any grandparent seeking visitation with a grandchild over the objection of the child's parents will have a difficult burden of proof and persuasion to convince the Court that the visitation is in the child's best interest.  

Married Parents or Unmarried Parents Living Together

If the parents of a child are married and have not filed for divorce or they unmarried and living together in the manner of married persons, grandparents' rights to visitation are even more limited. When a child's parent is incarcerated, interdicted, or deceased, the grandparents may have reasonable visitation rights, if it is in the best interest of the child. The Court has discretion to make this decision. Discretion means the decision very strongly depends on the judgment and factual findings made by the trial court judge. 

Married Parents Living Apart 

If the parents of a minor child of the marriage have lived apart for a period of six months, in extraordinary circumstances, the grandparents of the child may have reasonable visitation rights to the child during his minority, if the court in its discretion finds that such visitation rights would be in the best interest of the child. In determining the best interest of the child the court shall consider the same factors contained in Civil Code Article 136(D).  Extraordinary circumstances shall include a determination by a court that a parent is abusing a controlled dangerous substance.

The factors contained in Civil Code Article 136(D) are the same as the ones listed above: 

  1. A parent's fundamental constitutional right to make decisions concerning the care, custody, and control of their own children and the traditional presumption that a fit parent will act in the best interest of their children.
  2. The length and quality of the prior relationship between the child and the relative.
  3. Whether the child is in need of guidance, enlightenment, or tutelage which can best be provided by the relative.
  4. The preference of the child if he is determined to be of sufficient maturity to express a preference.
  5. The mental and physical health of the child and the relative.

Again, it is important to realize that any grandparentparent seeking visitation of a grandchild over the objection of the child's parent has a difficult case to make to the court, but, if visitation with a grandparent is in the best interest of the child, the court can still award the grandparent visitation. 

Related Resources

 

Other Relatives' Rights to Custody and Visitation


Custody

Voluntary Transfer of Custody by Mandate

If a parent has custody of a child and is willing to transfer custody to a grandparent voluntarily, the parent can transfer custody by a written "mandate". To do this, the parent can sign a form called a "Provisional Custody by Mandate."  The provisional custody by mandate can only last for a term of one year, at the most, but can be terminated earlier under certain circumstances:

  • when any person with parental authority revokes (takes back) the mandate. Revocation should be done in writing. 
  • when the person given provisional custody (called the "mandatary") resigns or renounces (gives up) the mandate.
  • fifteen days after the death of any person with parental authority. 
  • upon the qualification of a court-appointed tutor or provisional tutor.  

The mandate authorizes the mandatary to provide for the health, education, and welfare of the child. The law authorizes the use of this Provisional Custody by Mandate (Form).

Contested Custody 

If a parent is unwilling to transfer custody voluntarily, a relative may have a right to ask the Court to award the relative custody, under certain limited circumstances. If a court finds that awarding either parent custody would result in substantial harm to the child, the court can award custody to another person with whom the child has been living in a wholesome and stable environment, or any person who can provide an adequate and stable environment. It is important to note that the law strongly favors an award of custody to the parents.  Any non-parent seeking custody of a child will have to meet a difficult burden of proof and persuasion. 

Visitation

Divorced or Divorcing Parents or Unmarried Parents Living Apart

When a child's parents are divorced, divorcing, or unmarried and living apart, other relatives may have a right to seek visitation of the child.  Under extraordinary circumstances, any relative, by blood or affinity, or a former stepparent or stepgrandparent if the court finds that it is in the best interest of the child. Extraordinary circumstances shall include a determination by a court that a parent is abusing a controlled dangerous substance. 

In cases where other relatives seek court-ordered visitation, the Court will first hold a hearing to decide whether to appoint an attorney to represent the child. The Court will also hold a hearing to decide whether the visitation award is in the best interest of the child. 

At a hearing to decide an award of visitation to a relative, the Court can only consider the following factors:

  1. A parent's fundamental constitutional right to make decisions concerning the care, custody, and control of their own children and the traditional presumption that a fit parent will act in the best interest of their children.
  2. The length and quality of the prior relationship between the child and the relative.
  3. Whether the child is in need of guidance, enlightenment, or tutelage which can best be provided by the relative.
  4. The preference of the child if he is determined to be of sufficient maturity to express a preference.
  5. The mental and physical health of the child and the relative.

It is important to know that a parent's fundamental right to make decisions about their child is highly favored in the law. Any relative seeking visitation with a child over the objection of the child's parents will have a difficult burden of proof and persuasion to convince the Court that the visitation is in the child's best interest.  

Married Parents or Unmarried Parents Living Together

If the parents of a child are married and have not filed for divorce or they unmarried and living together in the manner of married persons, grandparents' rights to visitation are even more limited. When a child's parent is incarcerated, interdicted, or deceased, the grandparents may have reasonable visitation rights, if it is in the best interest of the child. The Court has discretion to make this decision. Discretion means the decision very strongly depends on the judgment and factual findings made by the trial court judge. 

Married Parents Living Apart 

If the parents of a minor child of the marriage have lived apart for a period of six months, in extraordinary circumstances, the relatives of the child may have reasonable visitation rights to the child during his minority, if the court in its discretion finds that such visitation rights would be in the best interest of the child. In determining the best interest of the child the court shall consider the same factors contained in Civil Code Article 136(D).  Extraordinary circumstances shall include a determination by a court that a parent is abusing a controlled dangerous substance.

The factors contained in Civil Code Article 136(D) are the same as the ones listed above: 

  1. A parent's fundamental constitutional right to make decisions concerning the care, custody, and control of their own children and the traditional presumption that a fit parent will act in the best interest of their children.
  2. The length and quality of the prior relationship between the child and the relative.
  3. Whether the child is in need of guidance, enlightenment, or tutelage which can best be provided by the relative.
  4. The preference of the child if he is determined to be of sufficient maturity to express a preference.
  5. The mental and physical health of the child and the relative.

Again, it is important to realize that any relative seeking visitation of a child over the objection of the child's parent has a difficult case to make to the court, but, if visitation with a relative is in the best interest of the child, the court can still award the relative visitation. 


 

Establishing Paternity

How is paternity established?

Our guide to Establishing Paternity explains how paternity is decided by operation of law as well as how to establish, change, or disavow paternity. 

 

Establishing Custody

Modification of Custody

How To Change a Custody Judgment

Where to File 

The appropriate place to file for a change in custody depends on which court issued the judgment that will be modified. 

Custody Judgments Rendered by Louisiana District Courts

In a civil case between two parents or a non-parent and a parent, a person can file for a change of custody in the following parishes:

  1. the parish where the person awarded custody is domiciled or

  2. in the parish where the custody decree was rendered.

If the person awarded custody is no longer domiciled in the state, the proceeding for change of custody may be brought in the parish where the person seeking a change of custody is domiciled or in the parish where the custody decree was rendered.

 

Custody Judgments Rendered by Louisiana Juvenile Courts

If the custody order at issue was rendered by a juvenile court, see this article on Child Custody and Juvenile Court Jurisdiction

 

Custody Judgments Rendered by Out-of-State Courts

Before a Louisiana court will consider a request to modify an out-of-state custody order, the custody judgment must first be registered with a Louisiana court.

 

When To File and What is Needed to Change Custody

Courts prefer stability when it comes to custody orders. What is needed to change custody depends on whether the previous custody order was a consent judgment or a "considered" judgment. This guide to Modifying or Changing Child Custody Judgments in Louisiana explains the law that applies to each. 

 

Relocation: Moving A Minor Child's Home

Understanding Relocation

A parent or guardian's legal right to relocate a child's home is limited, even if there is not a court order of custody.  Depending on the situation, when a parent wishes to move the child's primary residence, the law may consider the move to be a "relocation". Generally, it is a relocation if the child will be moved:

  • to a home more than 75 miles away or
  • any home outside of the state of Louisiana. 

 

Not all parents have the legal authority to relocate a child.  Even if a person has the authority to move the child's home, relocation requires the parent to follow a specific process before the movewhether or not there is a court order of custody.  For more information, see our guide, Moving With Your Child (Relocation) (Guide) and these FAQs About Relocation.

Last Review and Update: Nov 03, 2020