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Understanding the Best Interest of the Child (Article)

Authored By: Lagniappe Law Lab

The Best Interest of the Child Standard

The standard used by Louisiana courts to decide child custody is called "the best interest of the child," or, when more than one child is at issue in a case, the best interest of the children. The idea is that the Court decides custody based on the child's needs above all other considerations. Sometimes this means that what the child needs requires a custody arrangement that is different from a parent's wishes for custody.

It is easiest to understand this when we think of parents who are unable to keep their child safe, fed, or clothed. We understand that it is sometimes better for the child to live with someone else. We can understand that the child might be emotionally upset by living with someone different than their mother, but the child's basic needs must come first.

The same type of balancing of the child's needs with the parents' abilities occurs each time a judge signs a custody order. Of course, each parent's abilities are different and each child's needs are different. The balance is to find the custody arrangement that is in the best interest of the child after considering their needs and the parents' circumstances.

Contested Custody Cases

When parents cannot agree on a custody arrangement, it is a contested custody case. This means that the Court will decide what the custody arrangement looks like: which parent is domiciliary, how much time each parent has with the children, and on what days. 

 

How the Best Interest of the Child Standard is Used by Judges

Joint custody is presumed to be in the best interest of the child. Except in cases involving a history of family violence, the Court considers all relevant factors in determining the best interest of the child. Even though the Court considers all relevant factors, there is a numbered list of "factors" that the law requires judges to consider: 

  1. The potential for the child to be abused, as defined by Children's Code Article 603, which shall be the primary consideration.
  2. The love, affection, and other emotional ties between each party and the child.
  3. The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
  4. The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
  5. The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
  6. The permanence, as a family unit, of the existing or proposed custodial home or homes.
  7. The moral fitness of each party, insofar as it affects the welfare of the child.
  8. The history of substance abuse, violence, or criminal activity of any party.
  9. The mental and physical health of each party. Evidence that an abused parent suffers from the effects of past abuse by the other parent shall not be grounds for denying that parent custody.
  10. The home, school, and community history of the child.
  11. The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
  12. The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party, except when objectively substantial evidence of specific abusive, reckless, or illegal conduct has caused one party to have reasonable concerns for the child's safety or well-being while in the care of the other party.
  13. The distance between the respective residences of the parties.
  14. The responsibility for the care and rearing of the child previously exercised by each party.

 

Louisiana judges use the “best interest of the child” standard to decide child custody arrangements.  The “best interest of the child” standard looks at the totality of the circumstances. This means that if you can think about the “best interest of the child” standard like a cake, then the factors are the ingredients. 

When baking a cake, we use more of certain things, like flour and sugar, and less of others, like butter or eggs. Some factors concern only the individual child. Others involve the parents or parties more than other factors.

When a cake is finished, most of the ingredients are unseen. But each ingredient is important to the finished cake. The cake itself is the result of the totality of the circumstances. 

 

Best Interest of the Child Factors

 

The Potential for the Child to Be Abused

The "potential for the child to be abused" is the primary consideration when deciding the best interest of the child. A child should be safe from abuse. Evidence that shows the potential for the child to be abused is greater when the child is in the custody of a certain person will make it less likely that the Court will give that person custody. Sometimes, the Court will award limited visitation or order other protective terms like supervised visitation.

 

Love, Affection, and Emotional Ties Between Each Party and the Child

Most parents love their children. Courts want to know about factor number 2: the love, affection, and other emotional ties between teach party and the child. If the child struggles with emotional attachment to a parent, that does not mean the Court will give that parent less custody time.

If emotional attachment is an issue in a custody case, a Court may order the parents or child to undergo an evaluation by a mental health professional. The parents could agree to have the child evaluated independently. Mental health professionals can provide strategies to parents and children for ways to build better emotional bonds. If a mental health professional conducts a court-ordered evaluation and recommends specific steps to improve the child's relationship with the parents, the Court might include those steps in a custody order.

 

Capacity and Disposition to Give the Child Support

The third factor is lengthy and hard to read. It considers the "capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child." Breaking this factor down makes it easier to understand.

Capacity and Disposition

Capacity comes from the word capable. A parent's capacity is what they are able to do. Is the parent able to give love, affection, and spiritual guidance? Is the parent capable of continuing the education and raising of the child?

Disposition is a person's inherent qualities of mind and character. It is like a parent's nature. Some people may naturally be more spiritual and willing to offer spiritual guidance. Some people do not have the patience to help with homework, but others may enjoy teaching.

Spiritual Guidance, Continuing Education, and Rearing of the Child

This third factor breaks down to the many different ways that parents watch over children, teach them, and care for them. Rearing of the child simply means to bring up and care for a child until they reach adulthood.

The law does not require parents to be spiritual. A parent should be willing and able to respond to a child who seeks spiritual guidance. Spiritual guidance can be teaching the child the difference between the truth and a lie, or how to follow "The Golden Rule," treating others the way you would want them to treat you.

The law does require minor children to attend school in most situations. A parent has the duty to make sure the child attends school or completes home-school or virtual assignments.

 

Capacity and Disposition to Provide for the Child's Welfare and Material Needs

The Court will consider the "capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs." Capacity is not limited to whether the parent can afford to buy these things. A parent may have the ability to purchase them, but not the disposition to do so.

A child should have access to food and clothes. Parents should provide for medical care, when it’s needed.  Evidence that a parent is unable or unwilling to provide the child with food or clothing, or take the child to the doctor when necessary, will weigh against that parent in the Court's custody decision.

 

History and Continuity of a Stable, Adequate Environment for the Child

The Court will consider the "length of time the child has lived in a stable, adequate environment, and the desirability of maintaining the continuity of that environment." A child needs a stable, adequate environment.  Courts want to keep children in this kind of environment. A change in the child's environment can be destabilizing for the child. In general, the Court will favor a custody arrangement that limits major changes in the child's environment.

 

Permanence, as a Family Unit, of the Custodial Home or Homes

The Court will consider "the permanence, as a family unit, of the proposed or existing custodial home or homes." This means a home with people the child has come to know as family. A family unit can include parents, step-parents, siblings, and other relatives who live in the home. Permanence refers to people who have lived together for a considerable length of time when the makeup of that family is not likely to change.

This factor does not mean that a parent cannot get remarried or that the family unit cannot grow. Courts do tend to look less favorably upon unmarried cohabitants. This is not a moral issue. Unmarried cohabitants reflect a less permanent family unit.

It’s important to remember that these factors are more serious when they have a greater potential to negatively impact the child’s life.  If people living in the child’s home are not part of the family, those people may be more likely to disrupt the child’s life.   

 

Moral Fitness of Each Party, Insofar as it Affects the Welfare of the Child

The law does not allow child custody orders to control a parent's lifestyle or choices. But, some factors consider the parent’s lifestyle and how it impacts the child’s environment. Courts consider whether a party's moral fitness (or unfitness) negatively impacts the child. A child may be affected by behaviors they see, hear, or witness. They may also be impacted by unintended consequences of a party's behavior.

 

The History of Substance Abuse, Violence, or Criminal Activity of Any Party

Sometimes, the parent's history has a minimal impact on the present issues of child custody. A parent’s history of substance abuse, violence, or criminal activity may be relevant if their current behavior has the potential to impact the child’s life negatively. 

 

The Mental and Physical Health of Each Party

If either parent’s mental or physical health impacts the child’s life, the Court needs to know.  Evidence that an abused parent suffers from the effects of past abuse by the other parent is not a reason for the Court to deny the abused parent custody.

 

The Home, School, and Community History of the Child

Courts want to know about the child’s home, school, and community history. 

 

The Reasonable Preference of the Child

Will the Court let the child choose? No.  But, the Court may consider the "reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference." This means the Court may consider the child’s choice, if the Court decides that the child is old enough to make a choice. There is no "legal age" at which a child can make a choice about custody.

The Court will give the child's preference stronger consideration if the choice is reasonable. In other words, the child needs to be able to state why they would prefer a certain custody arrangement.

 

Willingness and Ability to Support of the Child's Relationship with the Other Party

The Court will consider the "willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party." Basically, each parent should encourage the child to develop a relationship with the other parent in most cases. If the child "doesn't want to go," it's the parent's job to help the child understand why time with the other party is important.

There is an allowable exception when "objectively substantial evidence of specific abuse, reckless, or illegal conduct has caused one party to have reasonable concerns for the child's safety or well-being while in the care of the other party." This does not mean a parent thinks that the other party's behavior puts the child at risk. There must be a lot of proof of the other parent's specific acts of abuse or unsafe conduct.

 

The Distance Between the Respective Residences of the Parties

Courts consider the distance between the parents’ homes in deciding what the best custody arrangement is for the child. If the parents live close, the child may have more frequent custody or visitation with both parents. If the parents live farther away, the schedule may provide for less frequent exchanges, to limit the amount of time the child spends traveling between homes.

 

Responsibility for Care and Rearing of the Child Previously Exercised by Each Party

The Court will consider "the responsibility for care and rearing of the child previously exercised by each party." At home, which parent usually gives the child a bath? Which parent usually brings the child to school? Who makes sure the child’s homework is done?  These things are the responsibility exercised by each parent

 

No Single Factor is "Dispositive"

None of the factors listed or discussed above is the "most important" factor. The Court will not usually decide custody based on one specific factor. The Court will make a decision based on how all the factors combine, like ingredients in a cake,

Custody decisions are made on a case-by-case basis. This means that one factor might be more important in the Smiths’ case than the Jones’ case. 

These Court is not limited to the factors listed, either. A Court can consider all factors relevant to the child’s life in making its decision. Help the Court focus on the ingredients needed for your child to be their best!

Last Review and Update: Jun 30, 2020