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How Does The Court Determine Child Custody?

Another issue in getting divorced or breaking up is the matter of child custody or visitation of minor children. This issue is a sensitive topic and a grave concern for everybody involved. Generally, family courts grant orders that focus on the phrase “best interest of the child” regarding child custody and visitation matters regarding minor children. 

Given the complex application of the law in the child custody orders, the guidance of a reputable family attorney well-versed in child custody matters is valuable to ensure that your child’s best interest is honored in court. 

What Does the Term “Best Interest of the Child” Mean? 

The term “best interest of the child” is the bottom line in every child custody matter. This phrase means that the court is first to put what is best for the minor children given the circumstances of the case. To determine the child’s best interest, the court assesses the facts of the case and the factors listed by the Louisiana Civil Code 134. 

What Factors Does The Family Court Consider to Determine Child Custody?

The Louisiana Civil Code 134 enumerates the essential factors the family court evaluates and considers to determine a proper child custody order that would serve the child’s best interest. 

The following factors that the family court must consider and assess to determine how to grant a child custody order that would reflect the best interest of the child are as follows: 

  1. The first consideration for the family court is to assess the disposition of the child to be abused in each parent’s custody, as defined by Children’s Code Article 603.
  2. Potential to continually foster love, affection, and other emotional ties between each parent and the child.
  3. The ability and disposition of each parent to give the child love, affection, and spiritual guidance and to continue to provide education and rearing of the child.
  4. The ability of each parent to provide the child with their essential needs such as food, clothing, medical care, and other material necessities.
  5. The ability of the child to continue living in a stable environment. 
  6. Potentially allow the child to have permanence or resemblance of permanence in their living environment by living in the custodial home.
  7. The moral fitness of each parent as it relates to and affects the welfare of the child or children. 
  8. The mental capacity and physical health of each parent.
  9.  The connection of the home, school, and community to the child.
  10. The court may consider the child’s preferences if they are of sufficient age and maturity to express their desires. 
  11. Assess whether each parent is willing and able to facilitate and encourage a close and continuing relationship between the child and the other parent. 
  12. The distance between each parent’s residence. 
  13. Determine how each parent has previously provided care and rearing to the child. 

How Does the Family Court Determine Child Custody or Visitation When There is a History of Family Violence? 

The family court could prohibit custody of a child or limit visitation between a parent and children in child custody cases that involve documented history of family violence, domestic abuse, or sexual abuse. These limitations and prohibitions, as stated in the law, are as follows: 

  • The family court would prohibit visitation between the abusive parent and abused child until such parent can prove that any visitation would not cause physical, emotional, or psychological harm to the child. If visitation is granted, the court shall order such restrictions, conditions, and safeguard needed to minimize any risk of injury to the child. Moreover, all costs related to complying with this rule are charged to the abusive parent. 
  • A parent whose visitation rights have been subsequently authorized as restricted visitation by the court shall not remove the child from the court’s jurisdiction except if they can show good cause and have obtained prior approval from the court. 
  • The presumption is a parent who has a history of committing family violence shall not be awarded sole or joint custody of a child. This presumption shall be overcome by a preponderance of the evidence if the abusive parent: 
    • Has completed a treatment program; and
    • Not abusing alcohol or any drug; and 
    • If it is in the child’s best interest that the parent actively participates as a custodial parent if the other parent is absent, suffers from mental illness, substance abuse, or other similar circumstances. 
  • If both parents have a history of committing family violence, the court shall grant custody solely to the parent who is less likely to continue committing family violence. More so, the court will require the custodial parent to complete a treatment program before granting custody of the child. If necessary for the child’s best interest, the court may award custody to a suitable third person who would not allow access to a violent parent unless ordered by the court. 
  • The court shall only allow supervised child visitation with a parent that has a history of committing family violence provided that the said parent has completed a mandated treatment program. The said parent could only be allowed an unsupervised visit by the court if they can show by a preponderance of the evidence that the abusive parent has:
    • Completed a treatment program; and
    • Not abusing alcohol or drugs; and 
    • Poses no danger to the welfare of the child; and
    • Unsupervised visitation is in the child’s best interest. 
  • The court shall not allow any visitation or contact between a parent that has sexually abused their child until the court finds by a preponderance of the evidence in a contradictory hearing that the abusive parent has:
    • Completed a treatment program specifically designed for sexual abusers; and
    • Supervised visitation is in the child’s best interest.

 

Note that the family court may only find a “history of family violence or domestic abuse” in a case if a reported incident resulted in serious bodily injury or if they find a recurring incident of such violence in the family. 

Child custody matters are handled in a highly-personalized manner by basing the court’s determination on the facts of the case, and the factors listed above are assessed on a case-by-case basis. This strategy ensures that the court is closely applying the factors listed by the law to the child’s best interest. Having a reputable family law attorney can help you understand the factors assessed by the court to help you bring forth your child’s best interest within the law’s definition. 

If you or a loved one is a party to a child custody case, you need a dependable family lawyer well-versed in the rules of child custody law. Our highly experienced family lawyers are here to guide and help you in your case. Please call us at (225) 963-9638, or you can click here to contact us for a consultation. Our dependable family lawyers can help you assess your situation, represent your claim, and answer any concerns you may have regarding your case. 

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