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 Agreement

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. 

Steps And Considerations To Custody By Consent Agreements

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.

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. 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.

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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