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Trinity Private Investigators Specialize in Louisiana Child Custody Matters

TEN STEPS TO HELP WITH YOUR CHILD CUSTODY CASE

Custody Factors  La. C.C. Art. 134

You should know the custody factors upon which your judge places

specific emphasis. There is a truism that says "knowing the judge is better

than knowing the law." Therefore, it behooves an attorney to know what a

specific judge wants in the way of testimony and evidence. However, the

judge shall consider all relevant factors in determining the best interest of

the child. It is clear that the court's decision has to be based on these or

other factors otherwise it is legal error. See Bergeron v. Clark, 832 So.2d

327, 2002-493 (La. App. 3d Cir. 2002). The factors provided by the Civil

Code are:

Factor #1: The love, affection, and other emotional ties between each party

and the child.

This factor often ties into Factor #12, prior responsibility for

care of child. Evidence and testimony regarding the child's relationship

to your client should be presented. Witnesses can testify

as to the character and quality of the interaction between the child

and the parent based upon their personal observations. Review La.

C.E. Art. 701 regarding opinion testimony by lay witnesses.

Factor #2: 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.

Testimony by teachers can be very helpful to your case. Also,

our society values regular church attendance. If a party is active in

his church, this information should be presented to the court, particularly,

if the child is also involved in church activities. Once

again, know your judge. Church attendance may be more important

to some judges than others.

Factor #3: The capacity and disposition of each party to provide the child

with food, clothing, medical care and other material needs.

Our courts, as a general rule, do not decide custody based on

a parent's wealth. Boyd v. Boyd, 647 So. 2d 414 (La. App. 2d Cir.

1994) (one parent's greater material wealth and better home is not

a factor for consideration where the other home is adequate); Page

v. Page, 673 So. 2d 1317 (La. App. 3d Cir. 1996). However, if a

parent spends his available income on himself or frivolously at the

expense of meeting the children's needs, this information should be

presented to the court. Most judges are swayed by prompt and adequate

medical treatment and care provided to a child - especially a

child who has special medical needs.

Factor #4: The length of time the child has lived in a stable, adequate environment,

and the desirability of maintaining continuity of that

environment.

Lee v. Lee, 766 So. 2d 723 (La. App. 2d Cir. 2000); Roberie v.

Roberie, 749 So. 2d 849 (La. App. 2d Cir. 1999).

Factor #5: The permanence, as a family unit, of the existing or proposed

custodial home or homes.

These factors relate to the desire for stability and continuity in

a child's living environment. Thus, evidence regarding the length

of time the child has been in one place, accessibility to extended

family members, and the quality and safety of the child's neighborhood

are important to a custody case. A parent with a revolving

door of significant others will be disadvantaged. Also, a parent's

frequent moves that disrupt the child's education and social life

should be brought out. Ask your client how long he has lived at his

current address and where he has lived over the previous two years.

Inquire about the residence(s) of the opposing party. Most judges

will have concerns about a parent that has been moving from place

to place.

Factor #6: The moral fitness of each party insofar as it affects the welfare

of the child.

When evaluating the moral fitness of the parents, the primary

consideration is the child's welfare. Thus, our courts have upheld

custody awards to a mother whose past adulterous behavior did not

have a detrimental effect on the children. Cleeton v. Cleeton, 383 So.

2d 1231 (La.1980); Lake v. Robertson, 452 So.2d 376 (La.App. 3rd

Cir. 1984). This also holds true for continuing immorality that does

not harm the child. Thus, the focus is on the detrimental effect of

the parent's illicit relationship. See Montgomery v. Marcental, 591

So. 2d 1272 (La. App. 3rd Cir. 1991); Patton v. Patton, 457 So. 2d

321 (La. App. 2nd Cir. 1984). An award of custody is not a tool to

regulate human behavior. Its only object is the best interest of the

child. Scott v. Scott, 665 So. 2d 760 (La. App. 1st Cir. 1995). Also,

see the following cases for guidance:

Peyton v. Peyton, 457 So. 2d 321 (La. App. 2nd Cir. 1984)

which involved a gay parent. In this case, the court determined that

there are four factors to consider in a sexual lifestyle case:

• Is the child aware of the relationship?

• Has sex play occurred in the child's presence?

• Is the sexual conduct notorious, bringing embarrassment to

the child?

• What effect has the conduct had on family home life?

In Montgomery v. Marcantel, 591 So. 2d 1272 (La. App. 3rd

Cir. 1991), the court stated: "The moral fitness of the parties is only

one of the eleven factors to be considered…A parent's actions and

attitudes toward sex outside of the marriage are but one aspect of

moral fitness." Noting that the girlfriend had no negative impact on

the child and was an accepted member of the family, the court continued,

"We recognize that in today's society, conduct which would

once have been scandalous is acceptable or perhaps even the

norm…We are no longer willing to speculate on such matters." The

bottom line is that our courts are unwilling to use a custody award

to regulate the parents' behavior. For a contrary rule, see Lozes v.

Lozes, 542 So. 2d 603 (La. App. 5th Cir. 1989); Crowson v. Crowson,

742 So.2d 107 (La. App. 2nd Cir. 1999) (extramarital affair is relevant

evidence to determine best interest, but not material change of

circumstances); Scott v. Scott, 665 So. 2d 760 (La. App. 1st Cir.

1995)( primary custody to a gay parent living with her partner

rarely in child's best interest); Weaver v. Weaver, 824 So. 2d 438 (La.

App. 3rd Cir. 2002)

Factor # 7: The mental and physical health of each party.

La. R.S. 9:331 provides that for good cause shown, the court

may order mental health evaluations of the parties, the child, or all

of the family to be conducted by a qualified mental health care

provider selected by the parties or the court. In Matthews v.

Matthews, 633 So.2d 342 (La. App. 1st Cir. 1993), the trial court

was reversed for denying joint custody based solely on the opinion

of a single doctor. The court may assess the costs of the evaluations

as it determines is equitable (see endnote 12). La. R. S.

9:331.1 provides that for good cause shown, after a hearing, a party

may be ordered to submit to drug testing.

Factor # 8: The home, school, and community history of the child.

Evidence and testimony regarding the child's involvement in

school and extracurricular activities can be relevant to the issue of

custody. For example, the circle of friends whom the child may

have; the activities in which the child has participated; clubs of

which the child is a member, exhibit to the court the child's connection

to his current custodial placement. A failure to involve the

child in age and gender appropriate activities can be used against a

parent. Most judges are swayed by how the child is doing in school

and which parent is responsible for the performance.

Factor # 9: The reasonable preference of the child, if the court deems the

child to be of sufficient age to express a preference.

Perhaps, the least persuasive Art. 134 custody factor, particularly,

when the child is under 14 years of age, is the child's preference.

Courts take notice of the fact that the parent who can

promise the children the most things often secures the children's

preference. Thus, unless the child is a teenager, who expresses a

distinct preference and the court can evaluate the basis for such

preference, this factor is not given much probative value. The

jurisprudence has held that a child's preference alone is insufficient

to change custody. Perkins v. Perkins, 747 So.2d 785, 790 (La. App.

1st Cir. 1999), writ recalled as improvidently granted, 758 So.2d 141

(La. 2000); Montelone v. Montelone, 591 So.2d 1228, 1235 (La. App.

4th Cir. 1991).

Often, a parent will be convinced that the children's preference

will determine the outcome of the case. Consequently, parents begin

an emotional tug of war with the children in the middle. It is up to

FAMILY LAW

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the attorney to provide sound legal guidance in such situations.

Thus, an attorney should think long and hard before hauling the

children up to the courthouse and placing them in the middle of an

emotionally charged, hotly contested custody dispute. Be

absolutely sure that there is extremely good cause to do so. If such

a decision is made, have the children situated away from the courthouse

on standby until such time as their testimony is required. A

person's age alone, is not the test of whether that person shall be

allowed to appear and present testimony. Rather, the test is

whether that person has "proper understanding." Whether the

minor child has proper understanding, such that he will be allowed

to testify, is a matter within the trial judge's discretion. State v.

Sharp, 338 So. 2d 654 (La. 1976).

Refer to Watermeier v. Watermeier, 462 So.2d 1272 (La. App.

5th Cir. 1985) for the procedure that should be followed when a

court interviews children. Many judges simply do not want to talk

to the children. Thus, it is wise to discuss your plan to present

minor children as witnesses with the court (with opposing counsel

present, of course).

Factor # 10: The willingness and ability of each party to facilitate and

encourage a close and continuing relationship between the child

and the other party.

To many judges, this factor is of tremendous importance in

determining the proper custodial placement of children. In fact,

some judges have modified custody primarily due to the misconduct

of the custodial parent and his attempt to undermine the child's

love and affection for the non-custodial parent. Our courts consider

that changing custody from a non-cooperative, disruptive custodial

parent to a blameless non-custodial parent can most surely be in

the child's best interest.

This factor presents the opportunity for counsel to discuss

with his client the importance of co-parenting. Referring your

client to a cooperative parenting program contemporaneously with

or shortly after instituting an original custody action may provide

you with a strategic advantage. Certainly, the information provided

to your client through such a program can be helpful to the family

and to your successful management of the case. At the very least,

your client will be perceived by the court as positive and proactive.

Cases which discuss those problems arising when parties fail

to cooperate include:

Bergeron v. Bergeron, supra.

Turner v. Turner, supra.

Yelverton v. Yelverton, 621 So.2d 36 (La. App. 2nd Cir. 1993)

Hendrick v. Hendrick, 660 So.2d 99 (La. App. 2nd Cir. 1995)

Goodwin v. Goodwin, 618 So.2d 579 (La. App. 2nd Cir.1993)

Larsen v. Polk, 841 So. 2d 992 (La. App. 5th Cir. 2003)

Factor # 11: The distance between the respective residences of the parties.

In Stewart v. Stewart, 525 So. 2d 218 (La. App. 1st Cir. 1988)

the court commented,

While a great distance between the parents is not an absolute

bar to joint custody, in this case the distance coupled with the animosity

between the parties is sufficient to rebut the presumption

that joint custody is in the best interest of the child. See Eiswirth

v. Eiswirth, 500 So. 2d 817 (La. App. 1st Cir. 1986), writ denied 502

So. 2d 111 (La. 1987).

Stewart was decided prior to the 1994 revision of La. C.C. Art.

133 which eliminated the presumption of joint custody. See also

Lachney v. Lachney, 446 So. 2d 923 (La. App. 3rd Cir. 1984)

wherein the court concluded that a joint custody arrangement was

unworkable insofar as one party resided in South Carolina and the

other in Louisiana.

Factor # 12: The responsibility for care and rearing of the child previously

exercised by each party.

This factor was added in 1994 to recognize what attorneys previously

had always stressed in their case, that is, who has been the

primary caretaker of the child. Thus, when meeting with your

client, you should be concerned with your client's history of caring

for the child. In this regard, one should inquire as to who has been

primarily responsible for such day to day activities as changing

diapers, preparing meals, washing clothes, obtaining immunizations

and medical and dental care, transporting the child to and

from activities, disciplining the child, getting the child ready for

bed, providing assistance with homework, etc. This has always

been a very important consideration, despite being initially omitted

from Article 134.

The importance placed upon the "primary" parent by our

courts and legislature has been criticized. Psychologist, R.A.

Thompson, observed:

Basic maintenance tasks like meal preparation, dressing,

bathing, and chauffeuring can be readily assumed by either parent

regardless of the level of his or her predivorce responsibility for

these concerns. Many of these responsibilities are activities done

for the child rather than with the child. The focus of a custody

inquiry should properly be the meaning and significance of each

parent's relationship with the child. R.A. Thompson, The Role of

the Father After Divorce, The Future of Children, 4, 210-35 (1994).

Such critics contend that the emphasis on the primary caretaker:

Ignores the quality of the relationship between the child and

the primary caretaker in favor of counting hours and rewarding

many repetitive, concrete behaviors. Further in accordance with

this line of thinking, critics contend that the most important emo-

tional and interactive behaviors promoting children's development

and psychological, social, and academic adjustment, such as love,

acceptance, respect, encouragement of autonomy, learning, and

self-esteem, moral guidance, and absence of abusive interactions

are not considered. Kelly, J.B., The Determination of Child Custody,

The Future of Children, 4, 121-42 (1994).

Quick resources on Child Custody:

http://www.custodysource.com/

Louisiana Child Custody Forum:

http://www.force-la.com/

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