Understanding Custody by Consent

About Consent Judgments When Parents Agree

If the parents can agree on a custody arrangement, it may be possible for the Court to enter a judgment of custody by consent. Custody by consent occurs when the Court approves an out-of-court negotiated agreement regarding the terms of child custody.

What the Court Considers When Approving Agreements

Before approving the parents' agreement, the Court will evaluate the terms of the custody agreement. In some situations, the Court may decline to approve the Consent Judgment, if it is not in the best interest of the child. 

History of Family Violence

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 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.

Best Interest of the Child

If parents can reach a custody agreement, the judge will review it and decide whether it is in the best interest of the child. If the judge decides that the schedule the parents agreed to is in the best interest of the child, the judge will order a "consent judgment" or "consent decree," establishing custody by consent. 

Presumption of Joint Custody

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.

Law and Public Policy Considerations

The agreement must be consistent with the law and public policy. The law and public policy in Louisiana requires that both parents have the opportunity to have a relationship with the child, in most situations. This means that the parents' agreement must allow them both to speak to the child (in person, on the telephone, or through FaceTime or other audiovisual calling). 

Meaningful Visitation Time

In most cases, custody orders should give both parents meaningful time with the child. How much time is meaningful might depend on the situation of the parents. In some cases, that could be a few hours after school on two or three days of the week or overnight visits every other weekend. In other cases, it might mean splitting overnight custody between the parents every few days throughout the week. 

Validity and Enforcement

A consent order is just as valid and enforceable as a court order following a trial because it demonstrates both the signed consent of the parties involved and the judge's approval. Parents can occasionally make changes to the custody schedule if they can both agree on the changes. For example, if one parent needs to switch a Tuesday night visit for a Wednesday night.