Custody FAQs

What does "custody" mean and what is a "custody order?"

Custody is the protective care or guardianship a person can have over their children. Custody can be broken into two categories:

i) Physical/Actual Custody -- time with the child is divided between the parents to promote shared care of the child and to see that the child has ongoing contact often with both parents;

ii) Legal Custody -- the right or authority of a parent or parents to make decisions about the child's upbringing. Typically, both parents retain legal custody (joint custody). Legal custody involves shared responsibilities for the child, including decisions about education, medical care, discipline, and other issues involved in raising the child.

Custody Order -- Issued by the court, a custody order sets the terms and conditions of a child's custody.

How does a court decide who gets custody?

The court awards custody based upon the best interest of the child. The court uses the many factors listed below to determine a child's best interest, and the Judge will decide which factors carry the most weight:

  1. The love, affection and other emotional ties between each party and the child;
  2. The capacity of each party to give the child love, affection, and spiritual guidance, and to continue the education and rearing of the child;
  3. The capacity of each party to provide the child with food, clothing, medical care, and other material needs;
  4. The length of time the child has lived in a stable, adequate environment, and how desirable it is to continue to maintain that environment;
  5. The permanence, as a family unit, of the existing custodial home(s), or the proposed custodial home(s);
  6. The moral fitness of each party, as far as it would affect the child;
  7. The mental and physical health of each party;
  8. The home, school, and community history of the child;
  9. The reasonable preference of the child, if the court considers the child old enough to express a preference;
  10. The willingness and ability of each party to encourage a close relationship with the child and the other parent;
  11. The distance between the residences of the parties;
  12. The responsibility for care and rearing of the child each party had previously had;

The court may consider other factors as well.

Can I get sole custody of my child?

Louisiana court prefer to have joint or joint/shared custody of the minor child. Usually the only way you can get sole custody is if the other parent is missing, in jail, on drugs, or abusive. If on drugs or abusive, even then it may still be joint custody, but with supervised visits. Courts look at the best interest of the child. Louisiana courts also wants the parents to co-parent. Meaning each keeps the other apprised of what is going on in the child's life. So, the domiciliary parent must inform the non-domiciliary parent of all school matters, medical matters and extracurricular activities. The non-domiciliary parent should also have access to all of the child's records - school and medical.

Does joint custody mean the child lives with both parents?

Not necessarily. The court usually designates one parent as a domiciliary parent, or the parent with whom the child primarily resides. In the event there is no domiciliary parent, the parents both have the same rights.

What is the difference between sole custody and joint custody?

Sole custody is when one parent has custody of the child and makes all legal decisions regarding his/her care without having to consult anyone else. The other parent may be awarded visitation rights to spend time with the child, but this is not a guarantee, and in certain cases the court may require that the visitation is supervised. If there is extremely strong evidence that it would be in the best interest of the child for only one parent to have custody, the court will award sole custody to that parent.

Joint custody is an arrangement by which the time period that each parent has physical custody of the child is shared to assure the child has continuing and frequent contact with both parents. To the extent possible, the time will be shared equally. Under joint custody, the custodians are obligated to exchange information concerning the health, education, and welfare of the child, and to communicate with each other in making decisions. The court has a strong preference for joint custody unless there are extenuating circumstances (i.e. domestic violence or substance abuse).

What types of cases include decisions about custody?

Child custody determinations are typically applied in cases dealing with divorce, abuse, when a parent dies, or when one parent is moving to another state. There are other situations where the court may decide custody as well.

Can parents make a custody arrangement without the court?

In most cases, yes. The court will often give preference to the arrangement the parents choose. The court does not have to adhere to or follow the recommendation of the parents if the court finds it is not in the best interest of the child to do so.

How does custody affect child support payments?

When one parent is awarded sole physical or legal custody, the other parent usually is required to fulfill his or her child support obligations by making payments to the custodial parent. The custodial parent is not typically required to pay child support because he or she meets his support obligation through the custody itself. When parents are awarded joint physical custody, their support obligations are based on how much money each parent earns and the percentage of time the child spends with each parent.

For more information on child support, click here.

What if I already have a custody order for my child that I want to change?

Parents can modify a custody arrangement, but this is much simpler if parents, rather than the court, set the first custody arrangement by mutual agreement. If the parents set custody by mutual agreement, they only have to prove a change in circumstances to the court to modify the arrangement. However, if the parents could not agree, and the court set the previous custody order, then the parent seeking the modification must prove two points:

  1. A change in custody would be in the child's best interest; and
  2. To continue the current custody arrangement would be so harmful to the child as to justify a change, or that the harm to the child caused by a change will be substantially outweighed by the advantages enjoyed by the child if the court allows the change.

To modify a court ordered custody arrangement is very difficult. Parents should keep this in mind when establishing their original custody arrangement and hopefully be able to compromise and develop their own arrangement.

Where should I file the petition to change a name?

The 21st Judicial District Court is located at 20180 Iowa Street in Livingston (for Livingston Parish); 369 Sitman Street in Greensburg (for St. Helena Parish); and 110 N. Bay Street in Amite (for Tangipahoa Parish). The offices are open 8am-4pm (closed between 12pm-1pm). For more information, including fees, you can call (225) 686-2216 (Livingston); (225) 222-4514 (Greensburg); and (985) 748-4146 (Amite).Please note that the Clerk of Court does not "notarize" documents, and you may need to visit a Notary Public beforehand.

Can I just use a provisional mandate for custody instead of filing a motion for custody?

Short answer - No. Why? Because the schools around here require a Judgment of Custody if you are not the parents of the minor child. The provisional mandate for custody is fine for medical. Doctors will accept it, but the schools will not. So, if you have a son, daughter, sibling, or friend who wants to give you custody of their child, you will need to go to court. Even if it is just for a short while. Once you are ready to have the child be returned to the natural parents, then another judgment has to be filed with the court. By the way, both parents must have notice of the change in custody.

What Factors are Considered in Determining Custody?

In any custody or visitation case, the court, upon its own decision, or the decision of any parent or party, or upon decision of the child, can hire an attorney to represent the child if the court decides such an appointment would be in the best interest of the child.

If there is a lack of agreement, or if the agreement is not in the best interest of the child, the court will grant joint custody. However, if custody in one parent is shown through clear and convincing evidence to serve the best interest of the child, the court will award sole custody to that parent.

Louisiana has a list of statutory factors that are considered by the court when determining a custody order. This list may include factors such as the child's age, the living situation of each parent, any history of abuse or neglect from either parent, etc. Although there is a statutory list of factors, consider other factors at its discretion depending on the particular circumstances of the case. In Louisiana, the court does consider the child's reasonable wishes when determining which parent wins custody. The judge may take the child's age, maturity, and judgement into consideration when considering the child's custody preference. But that is only one of many factors the judge uses to base his decision.

In my experience, it is ALWAYS best for the parents to figure out the custodial arrangements for the minor child/children than to have a judge determine it.

The information on this website is provided as a courtesy by the Louisiana State Bar Association and the 33rd Judicial District Court, Parish of Allen.