Louisiana Custody

Custody

The custody process

How will a judge make a decision about custody?

Custody is determined according to what the judge considers to be in the child’s best interests.¹

If the parents agree who is to have custody, the court will award custody according to their agreement unless:

one of the parents has committed family violence or domestic abuse; or
the child’s best interests require a different custody arrangement.²

If the parents do not agree or if their agreement is not in the child’s best interests, the court will award custody to the parents jointly unless:

one of the parents has committed family violence or domestic abuse; or
there is strong evidence that custody to only one parent is better for the child in which case that parent will get custody.²

When making a decision about the child’s best interests, the judge will consider all relevant factors, including but not limited to:

the potential for the child to be abused, which is the most important consideration for the judge;
love, affection, and other emotional ties between each parent and the child;
the ability of each parent to support the emotional, educational, and material needs of the child;
the length of time the child has lived in a stable environment, and the desirability of staying within that environment;
the stability of the existing or proposed custodial home(s);
the moral fitness of each parent and how it affects the child’s well-being;
any history of substance abuse, violence, or criminal activity of the parties;
the mental and physical health of each party; however, evidence that an abused parent suffers from the effects of past abuse by the other parent is not a reason to deny that parent custody.
the home, school, and community history of the child;
the reasonable preference of the child, if the judge thinks the child is old enough to give a preference;
the willingness of each parent to encourage a close and continuing relationship between the child and the other parent except when substantial evidence of specific abusive, reckless, or illegal behavior causes a parent to have reasonable concerns for the child’s safety or well-being while in the care of the other parent;
the distance between the homes of the parents; and
the previous role and responsibility of each parent regarding caring for and raising the child.³

If it is proven that one parent has abused the other, the fact that the abused parent suffers from the effects of the abuse cannot be grounds for denying that parent custody.⁴

¹ LA C.C. Art. 131
² LA C.C. Art. 132
³ LA C.C. Art. 134(A)
⁴ LA C.C. Art. 134(A)(9)

Can a non-parent get custody?

If it is proven that giving joint custody or sole custody to either parent would result in substantial harm to the child, the judge will give custody to another person who is able to provide a stable living environment.¹

¹ LA C.C. Art. 133

How abuse affects the custody process

Can a parent who committed family violence or domestic abuse get custody?

In Louisiana, the judge will assume that any parent who has a history of family violence should not be awarded sole or joint custody. A “history of family violence” can be multiple incidents of family violence or it can be a single incident of family violence that caused serious physical injury. Family violence includes, but is not limited to, the following acts:

physical abuse;
sexual abuse; and
any offense listed in the Criminal Code of Louisiana (except negligent injuring and defamation) that is committed by one parent against the other parent or against any of the children.¹

In addition, the judge will assume that any parent who has a history of domestic abuse should not be awarded sole or joint custody. Domestic abuse includes, but is not limited to, the following acts:

physical abuse;
sexual abuse; and
any physical or non-physical offense listed in the Criminal Code of Louisiana, except negligent injury and defamation, that is committed by one family member, household member, or dating partner against another, or committed by an adult against his/her parent or grandparent.²

However, the abusive parent may be able to convince the judge that s/he should get custody if the abusive parent can prove all of the following:

the parent has successfully completed a court-monitored domestic abuse intervention program after the last instance of abuse;
the parent is not abusing drugs or alcohol; and
the parent’s participation as a custodial parent is required for the child’s best interest because:
- the non-abusive parent is:
  - absent;
  - mentally ill;
  - abusing drugs; or
- there are other circumstances that negatively affect the child.³

If the judge finds that both parents have a history of family violence, custody will be given to the parent who is less likely to continue to commit family violence as long as s/he completes a court-monitored domestic abuse intervention program. If necessary to ensure the child’s safety, custody may instead be given to a non-parent as long as that the person would not allow the child to see the violent parent except as ordered by the court.⁴

If your child was conceived as a result of rape, see If my child was conceived as a result of rape, can the offender get any rights to my child? for more information.

¹ LA R.S. 9:364(A); 9:362(4)
² LA R.S. 9:364(A); 46:2132(3)
³ LA R.S. 9:364(A)
⁴LA R.S. 9:364(B)

Can a parent who committed family violence or domestic abuse get visitation?

If the other parent was abusive to you, your children, or to another household member, it’s possible that the abusive parent can only get supervised visitation. Specifically, an abusive parent would only be eligible for supervised visitation in any situation in which:

the parent has a “history of family violence,” as defined by law, against any household member;
the parent subjected any of his/her children or step-children to family violence, as defined by law, or domestic abuse, as defined by law; or
the parent had the ability to prevent another person from committing family violence or domestic abuse against his/her children or step-children but s/he “willingly permitted” it to happen.¹

The parent cannot get the supervised visitation, however, until s/he proves at a court hearing that s/he successfully completed a court-monitored domestic abuse intervention program since the last incident of domestic violence or family abuse. At the hearing, the judge will also consider the following when deciding whether or not to grant supervised visitation:

evidence of the abusive parent’s current mental health condition;
the possibility that the abusive parent will again subject his/her children, step-children, or other household member to family violence or domestic abuse;
the possibility that the abusive parent would “willingly permit” such abuse to any of his/her children or step-children despite having the ability to prevent it;
whether the abusive parent proved that:
- visitation would be in the best interest of the child; and
- visitation would not cause physical, emotional, or psychological damage to the child.¹

¹LA R.S. § 9:341(A)

Can a parent who sexually abused my child, or another child, get custody?

In Louisiana, the judge will assume that any parent should not be awarded sole or joint custody if s/he:

subjected any of his/her children, step-children, or any household member to sexual abuse, which is defined as committing any of the following:
the parent had the ability to prevent another person from committing sexual abuse against his/her children or step-children but s/he “willingly permitted” it to happen.²

However, the sexually abusive parent may be able to convince the judge that s/he should get custody if the abusive parent can prove all of the following:

the parent has successfully completed a treatment program designed for sexual abusers after the last instance of abuse;
the parent is not abusing drugs or alcohol; and
the parent’s participation as a custodial parent is required for the child’s best interest because:
- the non-abusive parent is:
  - absent;
  - mentally ill;
  - abusing drugs; or
- there are other circumstances that negatively affect the child.³

If your child was conceived as a result of rape, see If my child was conceived as a result of rape, can the offender get any rights to my child? for more information.

¹LA R.S. §§ 9:364(A); 14:403(A)(4)(b)
²LA R.S. § 9:364(A)
³ LA R.S. § 9:364(B)

Can a parent who sexually abused my child, or another child, get visitation?

If the other parent sexually abused you, your children, or another household member, it’s possible that the abusive parent can only get supervised visitation if s/he requests visitation in court. Specifically, a sexually abusive parent would only be eligible for supervised visitation in any situation in which a judge finds “clear and convincing evidence” that:

the parent subjected any of his/her children, step-children, or any household member to sexual abuse, which is defined as committing any of the following:
the parent had the ability to prevent another person from committing sexual abuse against his/her children, step-children, or a household member but s/he “willingly permitted” it to happen.²

The parent cannot get the supervised visitation, however, until s/he proves at a court hearing that s/he successfully completed a treatment program designed for sexual abusers. The parent can have no contact or visitation, however, before s/he proves that s/he successfully completed the treatment program. At the hearing, the judge will also consider the following when deciding whether or not to grant supervised visitation:

evidence of the abusive parent’s current mental health condition;
the possibility that the abusive parent will again subject his/her children, step-children, or other household member to sexual abuse in the future, either by personally committing the abuse or by “willingly permitting” someone else to do it; and
whether the abusive parent proved that:
- visitation would be in the best interest of the child; and
- visitation would not cause physical, emotional, or psychological damage to the child.²

¹LA R.S. §§ 9:341(B); 14:403(A)(4)(b)
²LA R.S. § 9:341(B)

If my child was conceived as a result of rape, can the offender get any rights to my child?

If your child was conceived through a “sex offense” as defined in section 15:541(subsection 24) of the law, the offender who committed the offense cannot get any visitation rights or contact with your child.¹

If there was an actual criminal conviction against the offender of a “sex offense” that resulted in the conception of your child, then this conviction could be grounds to legally terminate the offender’s parental rights.² Whereas usually the state files to terminate someone’s parental rights, in this case, you have the right to file the termination of parental rights petition in court yourself. If the offender’s rights are terminated, it will result in the loss of custody, visitation, contact, and other parental rights of the offender regarding the child. However, the child would still keep any inheritance rights that could come from the offender.³

¹ LSA-C.C. Art. 137(A)
²LSA-C.C. Art. 1015.1
³LSA-C.C. Art. 1004.1

Additional information and links

Should I start a court case to ask for supervised visitation?

If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request, although this may depend on your situation.

However, if there is no current court case, please get legal advice before you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.

In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.

In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to LA Finding a Lawyer to seek out legal advice.

Where can I find out more information about custody in Louisiana?

The following links may be helpful:

For information about grandparent’s custody and visitation rights, you can read the resource guide published by the Governor’s office of Elderly Affairs.
The Louisiana State Bar Association has information about custody in their divorce brochure, including information about the factors a judge will consider when determining what custody arrangement is in the child’s best interests.
LouisianaLawHelp.org has additional links with Louisiana-specific custody information.

Please note that WomensLaw.org has no relationship with these organizations and does not endorse their services. We provide these links for your information only.

If I move to a new state, can I transfer my child custody case there?

After a final custody order is issued, there may come a time when you and your children move to a different state. For information about how to request to transfer the custody case to a new state, please go to the Transferring a custody case to a different state section in our general Custody page. However, it’s important to keep in mind that you may likely first need to get permission from the court or from the other parent to move your children out of state. Please talk to a lawyer to make sure your plans to move don’t violate your custody order or your state’s parental kidnapping laws.

Legal Information: Louisiana