One of the crucial decisions after divorce of a couple is regarding custody of children. If children are below the age of 18, they are financially and emotionally dependent on their parents.
In these circumstances and pursuant to Louisiana Civil Code Article 131, the court shall award custody of a child in accordance with the best interest of that child.
Courts often prefer joint custody (of both father and mother) as it is best for the child to have care of both parents even after divorce. Custody is to be provided to one parent if, for example, one parent wants to remarry or cannot bear the expenses of their children. In such case, courts have to examine different factors in which they can decide which parent would have to be the custodian of the child.
Louisiana family courts consider any factor applicable to a child's well-being and will, for the most part, give more importance to the elements that will influence the child's security and prosperity. A portion of these factors will matter depending on the child’s age, the child’s relationship with their siblings, the need for continuity in their schooling, health, personal growth, local area environment, and day-to-day life. Also, Louisiana courts will sometimes permit the child to express their inclination.
Third Party Guardianship
In some circumstances, if neither parent is capable of taking custody of their children, Louisiana courts have the right to assign any third party to take custody of the child. The third party is mostly a couple deprived of having children, so they adopt someone else's child. While Louisiana laws give the right to the children's biological parents to request the modification of custody, the proceedings are carried on by the court to further examine the best available custodian of children.
Key factors to examine in case of one-parent custody
Different factors might depend upon the guardianship, like which parent is bound to deal with the day-to-day physical, passionate, formative, instructive, and exceptional requirements of the child. The court will additionally consider which of the parents is bound to keep an adoring, steady, predictable, and supportive relationship with the child.
In Louisiana, some factors in deciding the custodial rights include:
(1) The potential for the child to be abused, as defined by Children's Code Article 603, which shall be the primary consideration.
(2) The love, affection, and other emotional ties between each party and the child.
(3) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(4) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(5) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(6) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(8) The history of substance abuse, violence, or criminal activity of any party.
(9) The mental and physical health of each party. Evidence that an abused parent suffers from the effects of past abuse by the other parent shall not be grounds for denying that parent custody.
(10) The home, school, and community history of the child.
(11) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(12) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party, except when objectively substantial evidence of specific abusive, reckless, or illegal conduct has caused one party to have reasonable concerns for the child's safety or well-being while in the care of the other party.
(13) The distance between the respective residences of the parties.
(14) The responsibility for the care and rearing of the child previously exercised by each party.
Why is the mother often preferred in case of one-parent custody?
This is a wrong perception, that is, that the mother is given preference over the father in all cases. Courts examine various factors through which they can pass judgement upon what is in the best interest of the child. Louisiana law states that both the father and the mother are treated in the same manner in terms of child custody and the court will decide which one is the best custodian of the child. So often, no discernment is observed among the father and the mother but there are some circumstances in which mothers are given advantage over fathers if and only if all the factors which courts need to examine are fulfilled.
A study shows that if the mother is qualified for a guardianship, then they have won custody of their child in almost seventy five percent of the separation cases. A significant number of these cases might have been founded on an authentic conviction that the mother is more qualified to raise the children. Additionally, frequently the mother is granted guardianship because the dad neglects to challenge it, due to their work commitments and not being at home all the time, or perhaps for other reasons.
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This information has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorney in connection with any specific situation under Louisiana law and the applicable state or local laws that may affect your legal rights.
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