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What You Should Know about Custody

Authored By: Acadiana Legal Service Corporation LSC Funded
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Types of Custody

 

Custody is broken into two categories:

Physical/Actual Custody -- time with the child is divided between the parents to promote shared care of the child and to see that the child has ongoing contact often with both parents;

Legal Custody -- the right or authority of a parent or parents to make decisions about the child's upbringing. Typically, both parents retain legal custody (joint custody). Legal custody involves shared responsibilities for the child, including decisions about education, medical care, discipline, and other issues involved in raising the child.

How Does a Court Decide Who Gets Custody?

The court awards custody based upon the best interest of the child. The factors the court uses to determine the child's best interest include:

1. The love, affection and other emotional ties between each party and the child;

 2. The capacity of each party to give the child love, affection, and spiritual guidance, and to continue the education and rearing of the child;

 3. The capacity of each party to provide the child with food, clothing, medical care, and other material needs;

 4. The length of time the child has lived in a stable, adequate environment, and how desirable it is to continue to maintain that environment;

 5. The permanence, as a family unit, of the existing custodial home(s), or the proposed custodial home(s);

6. The moral fitness of each party, as far as it would affect the child;

7. The mental and physical health of each party;

8. The home, school, and community history of the child;

9. The reasonable preference of the child, if the court considers the child old enough to express a preference;

10. The willingness and ability of each party to encourage a close relationship with the child and the other parent; 

11. The distance between the residences of the parties;

12. The responsibility for care and rearing of the child each party had previously had;

The court may consider other factors as well.

Can the Parents Choose the Custody Arrangement Themselves?

In most cases, yes. The court will often give preference to the arrangement the parents choose. The court does not have to adhere to or follow the recommendation of the parents, if the court finds it is not in the best interest of the child to do so. Still, the court often follows the parents' recommendation. Should the court decide that the parents' recommendation is not in the best interest of the child, the court will fix custody.

What if the Parents Cannot Agree?

Should the parents not compromise after a prompting from the court, then the court will fix the custody arrangement.

If the Court Sets Custody, What Arrangement Does it Normally Choose?

To the extent that it is feasible and in the best interest of the child, the court will fix a joint custody arrangement unless there is some good cause to do otherwise.

What is Joint Custody?

Joint custody is an arrangement by which the time period that each parent has physical custody of the child is shared to assure the child has continuing and frequent contact with both parents. To the extent possible, the time will be shared equally. Under joint custody, the custodians are obligated to exchange information concerning the health, education, and welfare of the child and to communicate with each other in making decisions.

What if We Can't Share Time Equally?

As is often the case due to school and other obligations, the child may have to stay with one parent for more time than the other. In such cases, the court will award a domiciliary parent with whom the child will primarily reside. The domiciliary parent normally has legal custody as well. This allows the domiciliary parent to make all decisions affecting the child unless the court orders otherwise. All major decisions affecting the child are subject to review by the court if the other parent requests such a review.

What is Sole Custody?

If there is extremely strong evidence that it would be in the best interest of the child for one parent to have custody, the court will award custody to that parent. Once again, the court has a strong preference for joint custody.

Can the Court Give Custody to a Third Person?

If an award of joint or sole custody would substantially harm the child, the court may assign custody to another person with whom the child has lived in a wholesome and stable environment, or to any other person who can provide such an environment.

Are there Any Reasons Why the Court May Decide a Parent is Not Entitled to Custody?

The court will be prejudiced against a parent who has a history of family violence. This applies not only to violence directed toward the children, but violence against any family member living in the house with them. A history of family violence can mean even one incident of violence if there was serious injury. Other reasons may involve drug or safety concerns for the child.

Can I Modify the Custody Arrangement?

Yes, a parent can modify the custody arrangement. This is much more easily accomplished if the parents, rather than the court, set the first custody arrangement by mutual agreement. If the parents set custody by mutual agreement, they only have to prove a change in circumstances to the court to modify the arrangement.

However, if the parents could not agree, and the court set the custody order, then the parent seeking the modification must prove two points:

 a change in custody would be in the child's best interest, and

to continue custody as it is presently would be so harmful to the child as to justify a change, or that the harm to the child caused by a change will be outweighed by the advantages enjoyed by the child if the court allows the change.

To modify a court ordered custody arrangement is very difficult. Parents should keep this in mind when establishing their original custody arrangement and go to any length to compromise and develop their own arrangement.

 

 

 
TYPES OF CHILD CUSTODY LEGAL ARRANGEMENTS IN LOUSIANA
A Child Custody order is typically broken into two parts: 
A.        Physical/Actual Custody – As a general rule, the time spent with the child is divided between the parents in order to promote the shared care of the child and to see that the child has ongoing contact with both parents. The fixed times may vary depending on the type of custodial order. This physical custody is sometimes, in layman’s terms, be referred to as visitation.
B.        Legal Custody - the right or authority of a parent to make decisions that affect the child as the result of a court order. There are five primary types of legal custodial arrangements in Louisiana. The fifth, guardianship, is usually a juvenile proceeding and is not discussed here. The four common types are:
1.         Sole custody:  Where a parent is granted the sole right to make decisions that affect the minor child. A greater burden of proof is required. The non-custodial parent is only allowed to have visitation periods that may be supervised.  The non-custodial parent is still obligated to pay child support and typically retains the right to have access to the child’s school, medical, and dental records.
 2.        Joint Custody: If the parents are awarded joint custody, both parents retain legal custody. As a general rule, joint custody is presumed to be in the best interest of the child.  A domiciliary parent (with whom the child primarily resides) is usually designated and physical custodial periods are set out so that each parent can have physical custody of the child in a way that assures the child of frequent and continuing contact with both parents. When designated, the domiciliary parent typically has the authority (subject to review) to make decisions affecting the child. Either parent’s access to school, medical, and dental records is not affected by the designation. Child support is usually paid to the domiciliary parent.
3.         Shared custody:  Is a joint custody order where each parent has physical custody of the child for an approximately equal amount of time. A parent could be designated as the domiciliary parent and child support may or may not be owed.
4.         Split Custody:  A custody order where each parent is the sole custodial or domiciliary parent of at least one child that they both have. Child support may or may not be owed.
            Additionally, a parent who has the authority, can entrust someone else with the right to care for the child by means of a power of attorney document (not a court order). This document is referred to as a Custody by Mandate and is valid for one year or when revoked. 
Last Review and Update: Oct 07, 2014
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