What You Should Know About Custody

At its simplest, custody is the responsibility for care. Legal custody has two parts: (1) physical custody and (2) authority. Legal custody comes in five types: (1) joint, (2) shared, (3) split, (4) sole, and (5) guardianship.

Joint, shared and split custody usually refer to arrangements between parents. Sole custody refers to situations when one parent gets custody, while the other parent has limited rights. Guardianship contemplates non-parent custody of a child, including foster care and institutionalization.

Physical Custody and Authority Over the Child

Physical custody is the responsibility for the physical supervision and care of a child. It means being in charge of where the child goes, who they are with, what they do, and what happens to them. During a parent's physical custody time, the parent is in charge of the child's body.

The law favors splitting physical custody time between both parents on a 50/50 basis, if possible. This physical custody schedule attempts to encourage shared care of the child.

For many reasons, 50/50 division of physical custody is not always possible. When it's not, the child should have close, frequent, and ongoing contact with both parents.

Authority is the responsibility for decisions about the child. This might include decisions about the physical custody of the child. Authority contemplates decisions like where the child will go to school or church. It also includes decisions like which sports or programs the child participates in. Medical care and discipline decisions are also part of parental authority.

The law favors dividing authority between both parents as well. Joint custody is when parents share approximately equal physical custody and authority.

Joint, Shared, Split, and Sole Custody

Joint, shared, and split custody describe the different ways to divide custody. Physical custody and decision-making authority differ between each type of custody. The differences are described below.

Joint custody involves an approximately equal physical custody schedule. It also involves both parents making decisions together. The law requires, in most cases, that the Court choose one "domiciliary" parent. 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.

Physical Custody

Approximately equal physical custody can be flexible. Instead of 50/50, it could be 45/55 or 30/70. Parents who can agree can tailor their physical custody schedule to their needs. Courts can tailor the schedule to the child's needs.

Domiciliary Parent

The domiciliary parent is the one with whom the child lives most of the time. The domiciliary parent has the duty to discuss decisions with the other parent. If the parents do not agree, the domiciliary parent gets to make most decisions.

If the non-domiciliary parent disagrees with a major decision, they can ask the Court to review it. Major decisions might include changing schools, major medical care, or religious instruction.

Shared Custody

In shared custody, the parents split physical custody equally. The Court can divide the decision-making authority in an order. In some cases, the parents can agree to make all major decisions together.

Split Custody

Split custody can be unusual. It involves different custody arrangements for individual children in a family. One parent may have physical custody of one child for a different amount of time than the other. For example, a dad may have domiciliary custody of a son, while a mom has domiciliary custody of a daughter.

Or, one parent may have full decision-making authority related to one child. These cases usually involve special circumstances. One parent may have better skills to manage the needs of a child with a disability, for example.

Sole custody

Sole custody means one parent gets all, or almost all, physical custody.  The other parent is only allowed to have periods of visitation, and those are sometimes supervised.  The sole custodian parent also gets all authority to make decisions.

The non-custodial parent is still obligated to pay child support.  Usually, the non-custodial parent still has the right to access the child's school, medical, and dental records.

Courts should only award sole custody when its in the best interest of the child. An award of sole custody requires clear and convincing evidence. Clear and convincing evidence is a high standard.

No. If parents can agree, and their agreement is in the best interest of the child, the Court can accept it. The law does not allow such an agreement when there has been a history of family violence.

Otherwise, the law favors joint custody, unless it is not in the best interest of the child. This is the presumption of joint custody. To overcome the presumption, there is a burden to show that joint custody is not in the child's best interest.

The burden of proof describes who must convince the Court. It also measures how strong the evidence must be. The person asking the Court to decide against a legal presumption has the burden. In general, a person asking the Court to decide a case in their favor has the burden.

The most common measure of strength of evidence is the preponderance standard. The preponderance is a "more likely than not" level. Using a 100-yard football field as a scale, a preponderance of the evidence is anything past the 50-yard line.

The greatest burden of proof is "beyond a reasonable doubt," and it is only used in criminal cases. Think of beyond a reasonable doubt as a definite touchdown.

The clear and convincing standard is between. It is more than halfway, but not quite definite touchdown. It should be enough to convince a reasonable person with no personal interest.

Judges use Louisiana Civil Code article 134. Article 134 says judges have to consider all relevant factors in their decision. It also lists fourteen specific factors to consider. No one factor is the most important, but some may be more important than others.

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.
 

It depends. In most cases, yes. If there is no history of family violence, the court will give preference to the arrangement the parents choose. The Court does not have to accept the agreement of the parents if the Court finds it is not in the best interest of the child to do so. Should the Court decide that the parents' recommendation is not in the best interest of the child, the Court will fix custody.

Yes. 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.

A parent who has legal 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.  It is valid for one year or until it is revoked. 

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.