Custody


Physical vs. Legal Custody

“Custody” has two separate facets in Louisiana: physical and legal. Physical custody refers to where the child actually stays. The parent who has the majority of physical custody is said to have domiciliary custody.

Legal custody refers to who has the right to make decisions concerning the child, particularly concerning “major life” decisions such as those involving education, religion, and medical care.

Joint custody is the most common kind of legal custody. It means that both parents have rights concerning the upbringing of the child. However, if there is a disagreement, the domiciliary parent’s choice has preference. The non-domiciliary parent can file with the court if they feel the other parent is being unreasonable. With joint custody, a parent also has a right to information necessary to exercise their decision-making rights. They should have unrestricted access to school and medical records, and know where the child is and how to contact the child and/or the other parent in an emergency.

Shared custody is a kind of physical custody where the parents have equal time. Sometimes this is done on, for example, a “7 & 7” schedule where the parents trade off physical custody every week. This kind of custody will greatly reduce child support. Shared custody is unusual.


Best Interest of the Child

When the court is considering custody claims between the two biological parents of a child; the first, and last, concern of the court is the child’s best interest. When trying to determine the best interest of the child, the court looks to the following factors found in Louisiana Civil Code Article 134:

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

(2) 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.

(3) The capacity and disposition 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 the desirability of maintaining continuity of that environment.

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

(6) The moral fitness of each party, insofar as it affects the welfare of 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 deems the child to be of sufficient age to express a preference.

(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.

(11) The distance between the respective residences of the parties.

(12) The responsibility for the care and rearing of the child previously exercised by each party.

Note that these factors are not exclusive. The judge can consider other factors, and can give more weight to some and less to others.


Visitation

Unless there is a good reason to restrict it, the non-domiciliary parent will be granted reasonable and liberal visitation. Usually this visitation is along the lines of every other weekend, half the holidays, and at least a few weeks in the summer.

Visitation can be restricted for good reason. Common restrictions include requiring supervision by a trusted third party, only exercising visitation in public, and restrictions on transfers of custody, such as transferring at a specific public place, in order to avoid problems.


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