Can Children Express Preference in Louisiana Custody Proceedings?

When parents separate, one of their hardest tasks is deciding on a child custody arrangement for their children. Both parents may believe they know what's best when it comes to custody, and each child may have an opinion as well. In many states, judges will consider not only the parent's desires but the child's custodial preferences as well.

This article will explain how a child's preference affects custody in Louisiana.

Louisiana Custody Basics

When parents ask the court to develop a custody plan for their family, the judge will determine both where the child will reside throughout the year, and which parent should have a say over significant issues affecting the child. Physical custody refers to where the child will live and which parent will be responsible for the child's day-to-day activities.

Legal custody refers to each parent's right to have an opinion over important issues impacting the child. Common legal custody decisions include a child's educational and religious upbringing, major medical decisions, and in many cases, a child's residence location.

The judge can award either type of custody to one or both parents, or a combination of both. For example, it is common for courts to allocate custodial responsibilities to one parent (sole physical custody) while permitting both to have a say regarding legal custody issues (joint legal custody.) However, if parents can work together, and the child will benefit, judges may also award joint physical and joint legal custody.

On the other hand, if one parent has a history of abuse or neglect, the court may allocate all parental responsibilities to the other parent (sole physical and sole legal custody.) (La. Civ. Code Ann. Art. § 132.)

The court will evaluate each case individually before deciding how to allocate parenting responsibilities.

Overview of Custody Decisions in Louisiana

The court will decide child custody in all cases where the parents can't agree on a custody arrangement themselves. In Louisiana, the law requires judges to consider a number of factors to determine what's in the child's best interest, including each of the following:

• the potential for child abuse by either parent
• the love, affection, and other emotional ties between each parent and the child
• each parent's ability to provide the child with love, affection and spiritual guidance
• each parent's ability to provide the child with food, clothing, medical, and other material needs
• each parent's ability to continue the child's education and raise the child
• how long the child has lived in a stable environment, and the need to keep the child's environment the same
• the stability of each parent's home
• each parent's moral fitness, to the extent it affects the child's wellbeing
• each parent's mental and physical health
• the child's home, school, and community
• each parent's willingness to facilitate a positive relationship between the child and the other parent
• the distance between the parents' homes
• each parent's history of caring for the child, and
• the child's preference if the child is old enough and mature enough to form an opinion. (La. Civ. Code Ann. Art. § 134 (A).)

After evaluating all the factors, the judge will create a parenting plan for the family. If the court awards physical custody to only one parent, the judge will award the other parent visitation.

To read more information about the best interest factors, see The Best Interests of the Child: Factors Judges May Consider in Deciding Custody.

When Will the Court Consider a Child's Preference?

Louisiana courts don't have a specific age when they must consider a child's preference. Each judge must determine, on a case-by-case basis, whether a child is mature enough to have a meaningful opinion. Some judges have stated that a 5-year-old child is too young to have an opinion on custody and won't consider such a young child's opinion at all. If the child is at least 12 years old, courts will usually give the child's preference some weight.

Courts don't have to follow a child's custodial preference. The court decides how much weight to give each child's opinion by considering the rationale behind the child's preference. For example, if a 12-year-old boy prefers to live with his father because his mother is strict, and his father isn't, the court may not give weight to the child's preference. If the father can't provide basic necessities, has a history of domestic violence, or otherwise can't provide for the child, the judge will not award him custody. Judges will also be wary of following the child's preference when it appears that one parent has manipulated the child.

Judges are also interested in the reasons a child prefers one parent over the other. For example, if a daughter prefers her mother because she buys more lavish gifts or lets her eat fast food every day, the court isn't likely to give that opinion much weight. Courts are also careful not to give much weight to a child's custodial preference based on temporary emotions or whims. The judge is more likely to consider the child's opinion on factors like the child's relationship with each parent and that parent's involvement in the child's education or social activities.

Do Children Have to Testify About Their Custodial Preferences in Court?

Louisiana judges typically won't require a child to state a custodial preference in court. Instead, the court will ask the parents to consent to an in-chambers interview between the judge and child. If the parents agree, the interview takes place outside of the presence of the parents, although the parents' attorneys may be present. The court reporter must be present to record the interview, or the court can't use it when deciding custody.

Judges in some custody cases will appoint a mental health professional to evaluate the child. The mental health professional prepares a report for the court detailing any relevant information, including the child's preference—which is another way to get a child's custodial preference without putting the child through the stress of testifying in the courtroom. (La. Rev. Stat. Ann. § 9:331.)

Visitation in Louisiana

In most families, a child will benefit from having a continuing and meaningful relationship with both parents. In Louisiana, the law recognizes the child's right to time with each parent. (La. Civ. Code Art. § 136.1.) That said, there is a presumption that it is not in the child's best interest to have visitation with a parent who is guilty of domestic or family violence.

If the court denies a parent visitation, that parent can overcome the presumption by demonstrating they are no longer a risk to the child. (La. Rev. Stat. Ann. § 9:364)

If there's no history of abuse, the court must grant a non-custodial parent visitation rights with the child. (La. Civ. Code Art. § 136 (A).) When deciding what schedule will benefit the child, the judge will evaluate both what's in the child's best interest. A common schedule may include overnight visits on alternating weekends and holidays with longer periods of visitation during summer and school breaks.

Parents must follow the court-ordered schedule, and neither can interfere with the other's scheduled time with the children. (La. Civ. Code Art. § 136.1)

Modifying Custody or Parenting Time

As time goes by, it's normal for circumstances to change in the family. A parent may have the opportunity for a better job in another state, and the child may be growing and becoming more involved with extracurricular activities, or one parent may not be complying with the current order.

If your current orders aren't working, either parent can file a formal request (motion) for the court to review and (possibly) modify the orders. The court favors stability for children, so it takes a request for modification seriously. The requesting parent must demonstrate that, since the last order, there is a significant change of circumstances making the current arrangement obsolete. If the court agrees that a review is necessary, the judge will evaluate the best interest factors before creating a new custody arrangement.

As with all custody decisions, if both parents agree to change a visitation schedule or custody order, the court will approve it if it's in the child's best interest.