There are several different aspects of custody, including:
The term "legal custody" refers to a parent’s right to take part in the decision-making involved in raising a child. It includes topics like education choices (such as public school versus private school), significant medical decisions (for example, the need for non-emergency surgery), and the decision to provide religious instruction.
“Physical custody” relates to where a child is going to live.
With “joint legal custody,” both parents share in the decision-making process. If a court awards a parent “sole legal custody,” it means that parent alone will make the important decisions in a child’s life.
In a “joint physical custody” scenario, the child resides with both parents. The period of time the child stays with each parent can vary. The child might live with one parent a few days a week, and spend the rest of the week with the other. And it’s not unheard of for the child to live with each parent six months out of the year. Of course there are factors to consider, particularly the proximity of each parent to the child’s school.
With sole physical custody, a child resides full-time with one parent and may have visitation time with the other.
Louisiana’s custody law states its top priority very clearly: the court must do whatever is in the child’s best interest. In fact, this is the guiding principle in every state.
Most couples settle their divorce issues—including custody—before there’s a need for a trial. Louisiana law acknowledges this by providing that a court should accept a custody agreement reached by the parents, provided the court believes the agreement is in the child’s best interest.
If there’s no agreement, or if the court feels an agreement the parents reached doesn’t best serve the child, the law states that the court shall award joint custody. However, a court won’t provide for joint custody if it’s proven by “clear and convincing evidence” that the child would be better served by an award of sole custody. (In order to prove clear and convincing evidence, you need to show more than just a slight tilting of the scale in favor of one parent over the other.)
There’s a presumption in the law that the court won't grant sole or joint custody to a parent who has committed acts of domestic violence. And, in some cases, the court may determine that granting custody to either parent would result in substantial harm to the child. An example might be where both parents are suffering from debilitating, untreated drug addiction. In that scenario, the court can award custody to someone other than the parents, who is able to provide the child with a stable environment.
Just as with custody, visitation rights are controlled by the best interests of the child. Under normal circumstances, a parent to whom a court doesn’t grant custody (the “non-custodial” parent) is entitled to reasonable visitation rights. The circumstances of each case will determine what “reasonable” means.
A fairly standard visitation plan provides for non-custodial parents to see the children perhaps once or twice during the weekdays, and then have the children stay with them every other weekend. But this is not a hard-and-fast rule. There are any number of variations the parents can agree to or that the court can order.
Louisiana law makes it very clear, however, that a parent who has engaged in domestic violence will only be allowed to have “supervised” visitation with a child. This means the parent can only see the child in the presence of a court-approved third party. And this visitation is conditioned on the parent’s completion of a court-monitored domestic abuse intervention program, and proof that the parent isn’t abusing alcohol or drugs, and isn’t a danger to the child.
If a court finds by clear and convincing evidence that a parent has sexually abused a child, the court will prohibit any contact between the parent and child.
It’s important to note that the all-important “best interests of the child” isn’t some abstract concept. The law provides guidelines for judges to follow in making their decision. Some of the factors a judge will consider are:
Note also that the law permits the court to take the child’s preference into consideration. However, this is conditioned on the court determining that the child is old enough to express a preference. As a practical matter, the older the children, the more weight a judge is likely to give their wishes.
Custody and visitation are fluid issues, and the court maintains continuing jurisdiction (authority) over them after the divorce. Circumstances may change over time. If either parent feels that those changes warrant an alteration of a custody or visitation order, that parent can apply to the court for a modification.
Custody and visitation can be complex issues. Consider consulting an experienced divorce lawyer for guidance.