Louisiana Child Custody 101
Yours, mine, and ours. Whose children are they anyway?
The time to make sure you don’t have to share your children with another person is before you have a baby with them. The children are not yours alone. They are children of both parents. Parental rights are not the only rights to consider. The children also have rights, including quality contacts and a deep relationship with both parents.
When a family unit breaks apart, whether the parents are married or not, the care and welfare of the minor children is of utmost importance. When the parents can put their animosity aside and work together to craft a plan to assure the children are cared for and have frequent and meaningful contact with both parents, the courts will approve the plan unless the court determines the plan is not in the children’s best interest. C.C. Art 132.
Unfortunately, we frequently see breakups where one or both of the parents are overly concerned with their own parental rights to the exclusion of the children’s rights or the parental rights of the other parent. Leaving the relationship, even on bad terms, however, does not diminish the leaving parent’s parental rights or the children’s right to the guidance of and access to both parents. When the parents are unable to work together to create and implement a custody plan, the court is forced to step in and craft a custody and visitation schedule that it feels is in the best interest of the children.
The court’s overriding concern is to protect the children from the conflict. C.C.Art. 131 The statute does not give Moms preference over Dads. Instead, Louisiana law appoints the judge asfiduciaryfor the children. This means the judge must “pursue actively that course of conduct which would be of greatest benefit for the child. It is the child’s mental, physical, material, and social wellbeing and health, which are the judge’s very purpose in child custody cases. He must protect the children from the harsh reality of the parents’ often bitter, vengeful, and typically highly emotional conflict.” Turner v. Turner, 455 So.2d 1374 (La. 1984) (Emphasis Added)
In the absence of an agreement between the parents, joint custody is mandated in Louisiana. Only by showing with clear and convincing evidence that joint custody is not in the child’s best interest will a court award custody to one parent over the other. “Joint Custody” means that the parents share the physical custody of the children of the marriage, subject to any joint custody plan. Joint custody obligates the parents to exchange information concerning the health, education, and welfare of the children; and unless otherwise allocated by the agreement of the parents or the order of the court, the parents must confer with each other in the exercise of decision-making rights, responsibilities and authority. See. C.C.Art.132, La.R.S. 9:335-336. Only if an award of custody to a parent would be detrimental to the child may the court consider awarding custody to a non-parent. C.C.Art.133.
A non-exhaustive list of factors the court will consider to determine the best interest of the child are found in C.C.Art.134:
- The love, affection, and other emotional ties between each parent and the child.
- The capacity and disposition of each parent to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
- The capacity and disposition of each parent to provide the child with food, clothing, medical care, and other material needs.
- The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
- The permanence, as a family unit, of the existing or proposed custodial home or homes.
- The moral fitness of each parent, insofar as it affects the welfare of the child.
- The mental and physical health of each parent.
- The home, school and community history of the child.
- The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
- The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent.
- The distance between the respective residences of the parents.
- The responsibility for the care and rearing of the child previously exercised by each parent.
After reading the above, you may wonder why you need a child custody attorney. The truth is, despite the clear mandates of the law, many parents are unable to put aside their animosity and do the right thing for their children. Instead they bitterly attempt to use the children to punish the other spouse. Many times they exaggerate the other’s parenting flaws and sometimes even make things up. This means you must counter the exaggerations and lies, not only with facts, but facts that are properly presented to the court for its consideration. This requires the thorough knowledge of the law, trial procedure and the rules of evidence possessed by a skilled child custody attorney. For example, a recent client came to us after the court awarded sole custody to the other parent and limited the client’s visitation to supervised only. The client, unrepresented at the original trial, had wonderful evidence showing the other parent as unfit, but did not know how to present the evidence to the court. A skilled child custody lawyer would have the evidence properly presented for consideration by the court. Instead, the evidence was never presented and a very bad result occurred.
When parents cannot put aside their differences and agree to a mutually beneficial plan, they will have to fight their battle out in court. A custody order issued after a trial is much harder to change later, even if circumstances change down the road. Therefore, while it is in everyone’s best interest to attempt to work through the issues of custody and visitation with the child’s best interest in mind, it is also necessary to properly prepare take the case to trial if necessary.
There are steps you can take to avoid a bitter fight, or minimize the damage if one is unavoidable. The first step is to engage the services of an experienced child custody attorney to educate you on how the law relates to the facts and circumstances of your case. That way you will know your options and negotiate from a position of strength. The child custody attorney will discuss and formulate a plan and then provide close monitoring and guidance to you as the case progresses.
Where an agreement can not be reached and trial is necessary, proper preparation of your case is essential to maximize your chances for a good outcome. Preparation takes not only time, but also planning, from the beginning of your case. Witnesses must be tracked down and interviewed, documents and other evidence gathered and properly authenticated for court use. A custodial evaluation might be required. You will need to be prepared to testify effectively. Proper trial preparation by a skilled child custody attorney enhances the chances that a good agreement can be reached, because only then can you negotiate from a position of strength.
When searching for a child custody attorney to handle your case, keep in mind that you case might not settle. You need a child custody attorney skilled at both settlement negotiation and in trial work. Ruston child custody attorney Shelley Goff at Goff and Goff Attorneys is uniquely suited to handle your custody case. She has represented both moms and dads in custodial disputes for over 25 years. She is a highly trained and experienced trial attorney, having successfully tried cases in state and federal courts, including jury trials, criminal trials, custody trials and cases where disgruntled spouses falsely accuse the other of child abuse. She is also a trained custody mediator and is listed on the registry of custody mediators in Louisiana.
If you need help with a child custody matter, please call us at 318-255-1760. We are here to help. Put Ruston child custody Attorney Shelley Goff’s 25 years of experience negotiating and litigating child custody cases to work for you.
Schedule a consulation to get started today.
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