Family Law

Family Law aetrahan Thu, 06/22/2023 - 13:54

Rebecca Kirk is a 1980 graduate of LSU’s Paul M. Herbert Law Center and a former legal services attorney. She currently practices family law at Diane A. Sorola & Associates in Lafayette, Louisiana.

Maggie Trahan Simar is the Family Court Hearing Officer for the 16th Judicial District Court Family Court, Parish of St. Martin. In this position, she hears and make recommendations on all family court litigation including custody, child support, community property, spousal support, non-support proceedings, and protective orders. She received her Bachelor of Arts in Broadcast Journalism from Louisiana State University and her JD from Louisiana State University Paul M. Hebert School of Law. In her spare time, she volunteers for many non-profit organizations in her community including the Junior League of Lafayette, Louisiana State Bar Association, Louisiana Bar Foundation, Lafayette Bar Association, Lafayette Bar Foundation, Krewe of Xanadu, and Maddie’s Footprints. She is also an active Editorial Board member on the Louisiana Bar Journal and a House of Delegates member for the 16th Judicial District. She is married with two children, Kade and Becca, who are currently attending LSU.  

Maggie would like to acknowledge the eight judges of the Sixteenth Judicial District with whom she feels honored to work beside to enhance the families in the judicial district. She also would like to acknowledge her mother, Mitzi, her father, Mike, and her stepmother, Debbie, for teaching her the value of hard work and compassion. Finally, she would like to thank her husband and children for their love, support ,and neverending laughs, and she wants her kids to know that she is very proud to be Kade and Becca’s mom!

Tobie Lynn Tranchina is an assistant clinical professor teaching the Family Law section at the Stuart H. Smith Law Clinic and Center for Social Justice at the Loyola University New Orleans College of Law. She has published on the area of non-parent visitation rights in the Loyola Journal of Public Interest Law. She authors the Family Law chapter of the Louisiana Practice Series Civil Practice Forms Book. Before joining the clinical faculty, she was a sole practitioner in the areas of family law, successions, and interdictions. She is also a qualified domestic mediator. She received her J.D. from Loyola University New Orleans College of Law in 2017 where she graduated magna cum laude, was a member of the Journal of Public Interest and a Student Practitioner in both the Children’s Rights and Family Law Sections of the Loyola Law Clinic.  She also received the 2017 Association for Women Attorneys New Orleans Outstanding Family Law Student Award.  Prior to entering law school, she was a Jefferson Parish Public School teacher.

The material in Sections 1, 2, 6, 7, and 8 of this chapter is current through April 26, 2022. The material is Sections 3, 4, 5, 9, and 10 of this chapter is current through June 21, 2023.

1 Fundamentals

1 Fundamentals aetrahan Thu, 06/22/2023 - 13:56

1.1 Procedural Considerations

1.1 Procedural Considerations aetrahan Thu, 06/22/2023 - 13:56

Family law is a very pleading-oriented and procedurally driven practice. The first impression our courts and adversaries form of us comes from the quality of our letters and pleadings. Do not delegate proofreading to support staff. Thoroughly read all documents and correct all errors. Careful proofreading will also enable you to double-check the content of your document to ensure the clear expression of argument. Make sure that the facts pled are sufficient to plead a cause of action and carry your burden of proof. 

Prior to filing any pleading, one should understand the appropriate procedures to follow in each matter. Consult the local rules for the parish of filing. For example, some districts or judges allow “mail in” divorces (with the requisite affidavits, etc.) while others require a court appearance, two witnesses, etc. Another issue may involve casting of costs to plaintiffs who are paupers. While the general rule is paupers may not have to pay advanced court costs, some may agree to absorb some or all of the costs, typically to “speed up” the process. Consult the district to ask these and other procedural questions. 

The Louisiana Code of Civil Procedure and Title 9 of the Revised Statutes (the Civil Code Ancillaries) contain a wealth of information that is often overlooked by practitioners. All too often, attorneys file for relief to which their clients are not entitled or that cannot be obtained by the process selected by the attorney. If a family law statute does not address a specific process, then look at Local Court Rules,1 Uniform Family Court Rules, Uniform District Court Rules, or the Code of Civil Procedure. Be sure your adversary is using procedure correctly. If not, file the proper exception(s) and a supporting memorandum as required by court rules. The exception may provide you with extra time or a strategic advantage. 

Too many attorneys do not have a working knowledge of the contents of the Code of Civil Procedure. It is a magical book! It is filled with content that can help you speed up your case or slow it down—whatever suits your needs. Sometimes, it can make a difficult case become a case that is much easier to resolve. In a legal services practice, one juggles cases to meet as much of the need for legal assistance as possible. The Code of Civil Procedure can provide practitioners with legitimate ways to delay one matter so the attorney can address another that may be more critical. 

Family courts may look at the larger picture and may excuse some procedural mistakes either because nobody “did it that way” or for reasons of judicial economy. Depending on where you are in the case, choose your battles in deciding how hard you need to press on the issue in order to win the war. 

Common mistakes include the improper cumulation of actions, failure to join parties needed for just adjudication, improper venue, failure to state a cause of action, improper service, and seeking a result over which the court does not have jurisdiction. Thus, a good starting point is to review the Code of Civil Procedure. Pay particular attention to the articles on venue, exceptions, written motions, and discovery. Read the articles particularly relevant to family law. For example, Title 4 of Book VII provides specific rules for ex parte orders of custody, Article 102 divorces, and other issues. 

An example of an improper cumulation of actions occurs when a reconventional demand to a summary proceeding requests relief that must be instituted by ordinary proceeding. For example, a client may file for a protective order pursuant to La. R.S. 46:2131–2143. The defendant may then file an Answer and Reconventional Demand wherein he not only answers the protective order petition but also reconvenes against the client for divorce. Insofar as the divorce action must be by an ordinary proceeding and the protective order by a summary proceeding, the reconventional demand may be improper because the delays for these hearings differ. Under La. C.C.P. arts. 464–465, courts have some discretion in these situations. Remind the court that the summary proceeding must be heard within the statutory delays and not simply continued to accommodate the delays for the ordinary proceeding. 

Another example is knowing the result of your client “agreeing” to a protective order or injunction and what that may do to later proceedings relating to divorce, custody, spousal support, and even community property.2 It would be malpractice not to know and understand the impact of agreeing to something that may negatively impact your client’s future litigation. This is particularly important in cases involving domestic violence, where distinct statutory regimes may apply and where the appropriate end goals of litigation may be different from those prevailing in family law cases where domestic violence is not an issue. Thus, an attorney should be familiar with the general statutory framework for domestic violence cases3 and be ready to involve the assistance of a specialist when taking on such cases.

The law in this area is fluid and is different across districts. Be sure that you review recent developments, attend CLEs regarding both substantive law and best practices, and consult with other attorneys for novel cases. It is essential and part of your obligation as a lawyer to know the law. Failure to do so may result in malpractice. 

To summarize: (1) know the Code of Civil Procedure and Civil Code as it pertains to your cause of action; (2) know and understand local rules, and, if something seems ambiguous, call someone (judge’s staff, the Hearing Officer, etc.); and (3) proofread all pleadings and letters before they are sent. Our courts are very quick to pass judgment based upon their perception of an attorney’s competence and attention to detail. Thus, it is important that you know what to file and how, when, and where to file it. With the advent of technology, there is no reason why you should not be able to access relevant law and practice information with the click of a mouse.

We can all agree that all lawyers, family lawyers included, have demanding and challenging workloads. It is the nature of our career choice. At least 50% of all case filings (a conservative estimate) in most of our state district courts are in family law and that percentage keeps rising. Many, if not most, of these cases involve self-represented litigants; in some courts, 70% of family cases have a self-represented litigant on one or both sides. Family law also makes up over 50% of all cases cumulatively handled by our Louisiana legal services programs. As family law changes and expands every year, it is crucial to maintain the highest standards of representation for our clients. 

  • 1These rules are available at the website of the Louisiana Supreme Court and are currently found here.
  • 2For a more detailed discussion of some of these issues, Section 3.5 of this manual’s chapter on representing survivors of domestic violence.
  • 3To that end, an attorney representing family law clients pro bono or through legal services should be familiar with the contents of this manual’s chapter on Louisiana domestic violence law.

1.2 Court Staff

1.2 Court Staff aetrahan Thu, 06/22/2023 - 14:02

It is as important to know the people who can help you present your case as it is to know the law. There is an old saying, “a good lawyer knows the law, a great lawyer knows how the judge thinks.” That truism can be extended to: “a great lawyer knows and is friendly with the staff of the clerk’s office, the judges, the district attorney, and DCFS/Support Enforcement Services.” Some attorneys are amazingly rude to employees of these offices. It takes no additional time to be cordial and friendly, and they may be of tremendous help to you and your clients. If an opportunity to help them presents itself, you should do so. Particularly in less populous rural parishes, what “goes around, will come around.” 

The clerk of court is not a part of the judge’s office. In most state courts, the clerk’s office and the judges’ chambers cannot share information in real time. This is especially true in judicial district courts that cover more than one parish. As a result of these limitations, the judge’s law clerk may not have the entire suit record when reviewing the most recent motion that you filed. 

Family court practice varies from parish to parish. About 70% of Louisiana’s district courts have Hearing Officers who help their district judges with their overwhelming family law dockets. In districts with Hearing Officers, the court order will typically require you to attend a Hearing Officer Conference (called an Intake Conference in some jurisdictions) before appearing before the judge. In courts without Hearing Officers, the district judge hears the entire case. The authorization for the use of Hearing Officers can be found at La. R.S. 46:236.5, et seq. 

It is important to consult the local rules of court to familiarize yourself with the process followed in each judicial district. Hearing Officers’ duties can vary significantly from parish to parish and can affect the how the attorney presents and ultimately litigates a family law case. For example, some districts allow Hearing Officers to take testimony for confirmations of divorce; some do not. Some districts use their Hearing Officers for child support enforcement hearings, and some use them for protective orders. Hearing Officer conference procedures (especially the requirement to exchange specific information by certain deadlines prior to the hearing officer conference) may also vary. It is important to know and understand these procedures because the Hearing Officer is usually the first person your client will encounter regarding their family law case. In some rural parishes, the Hearing Officer may be the only judicial staff your client sees. Thus, it is essential to be prepared, cordial, and communicative with Hearing Officers.

2 Special Considerations in Family Law Practice

2 Special Considerations in Family Law Practice aetrahan Thu, 06/22/2023 - 14:04

2.1 Variable Procedures

2.1 Variable Procedures aetrahan Thu, 06/22/2023 - 14:04

In Louisiana, family court practices vary from parish to parish. Hearing Officer procedures, in particular, often vary significantly.1 A court’s local rules regarding Hearing Officers and any other jurisdiction-specific procedures can be found on the court’s website or on the Louisiana Supreme Court’s website, where each jurisdiction has inserted its local rules.2

Attorneys and self-represented litigants need to know their local court rules and practices. This manual focuses on the common rules and procedures for family court cases. It does not discuss the unique rules or practices that a particular court may use. For those rules, be sure to have a working knowledge if you are in an unfamiliar jurisdiction because not to do so is a professional misstep that may subject you to ethical oversight.

  • 1For more information on Hearing Officers, see Section 1.2.
  • 2These rules are available at the website of the Louisiana Supreme Court and are currently found here.

2.2 Limited Representation

2.2 Limited Representation aetrahan Thu, 06/22/2023 - 14:07

Attorneys who handle family law cases know that they can drag on for years. Thus, you may want to think about modifying your retainer to include a limited scope of representation. This practice is becoming more common, even in larger firms. 

The scope of representation can be limited to immediate issues by using verbiage such as: “You agree that the scope of this representation is limited to the topics of obtaining a divorce, an initial custody decree, and the initial child support award. Issues such as community property allocations, spousal support, injunctions, or any other matter not contained in this retainer are not included in this representation. You are encouraged to seek outside legal advice if these are issues relating to your case.” 

You should also include your withdrawal language in your prayer, the proposed order, and any orders (or recommendations if your matter will be heard by a Hearing Officer) that result from the resolution of the case.

2.3 Domestic Violence

2.3 Domestic Violence aetrahan Thu, 06/22/2023 - 14:07

The plague of domestic violence in our society requires that family law practitioners consider domestic violence in all aspects of their representation. An attorney who handles family law cases should know how to identify domestic violence, the special laws that apply to domestic violence cases, and the basic principles of “safe lawyering” in domestic violence cases.1

A complete treatment of Louisiana’s laws surrounding domestic violence is found in the chapter of this manual devoted exclusively to that topic.2 Portions of this law are also discussed in this chapter where relevant.

2.4 In Forma Pauperis Procedures

2.4 In Forma Pauperis Procedures aetrahan Thu, 06/22/2023 - 14:09

Most legal services or pro bono clients cannot pay court costs.1 In some Louisiana parishes, the costs for a simple divorce, without any ancillary matters, can be more than $1,000 if a curator must be appointed for an absentee spouse. Fortunately, an indigent’s right to proceed without prepaying costs (filing fees) is protected by La. C.C.P. arts. 5181–5188. Common unlawful actions against pauper clients in family law matters include: 

  • Preventing a pauper client from filing a new suit or pleading because of unpaid court costs2  
  • Splitting court costs even though the pauper client prevailed3
  • Denying a pauper client a certified copy of the divorce judgment4
  • Charging a pauper client in a domestic violence case for a protective order or taxing her with the costs5
  • Charging curator fees to a pauper client6
  • Holding a client in contempt of court or assessing penalties for failure to pay costs when client lacks financial ability to pay7
  • Using the provision that attorney fees and court costs incurred before a divorce is granted are community obligations to cast the pauper client with costs8

Because it is not uncommon for courts to try to take such actions, be prepared to address the issue with the court and to point the judge to the proper statutes and caselaw.

  • 1For a more extensive discussion, see this manual’s chapter on IFP procedures.
  • 2See Hawkins v. Jennings, 97-1291 (La. App. 3 Cir. 3/6/98), 709 So. 2d 292.
  • 3Holloway v. Holloway, 2000-0173 (La. App. 3 Cir. 6/6/01), 787 So. 2d 600.
  • 4See Yarls v. Yarls, 2009-1173 (La. App. 4 Cir. 1/27/10), 30 So. 3d 1101; Carline v. Carline, 93-1505 (La. App. 1 Cir. 10/7/94), 644 So. 2d 835.
  • 5See Valius v. Valius, 2010-0870 (La. App. 4 Cir. 12/8/10), 53 So. 3d 655; Jimenez v. Jimenez, 05-645 (La. App. 5 Cir. 1/31/06), 922 So. 2d 672.
  • 6See Jones v. Jones, 297 So. 2d 198 (La. 1974).
  • 7See La. R.S. 13:4206.
  • 8See La. C.C. art. 2362.1(A); Malone v. Malone, 257 So. 2d 397 (La. 1972). Such costs and attorney fees can only be satisfied from community assets.

3 Divorce

3 Divorce aetrahan Thu, 06/22/2023 - 14:13

3.1 Grounds for Divorce

3.1 Grounds for Divorce aetrahan Thu, 06/22/2023 - 14:24

Articles 102 and 103 of the Louisiana Civil Code provide the grounds for no-fault and fault-based divorces in Louisiana. La. R.S. 9:307 provides the exclusive grounds for divorce in covenant marriages.1

Most divorce suits ask for a “no-fault” divorce based on the length of the spouses’ physical separation.2 Generally, the required separation period is 365 days if there are minor children of the marriage. If there are no minor children of the marriage, the required separation period is only 180 days.3 These time periods do not apply to a covenant marriage.

In Louisiana, there are four fault-based grounds that do not require a period of physical separation. These are found in La. C.C. art. 103(2)–(5):

(2) The other spouse has committed adultery.

(3) The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor.

(4) During the marriage, the other spouse physically or sexually abused the spouse seeking divorce or a child of one of the spouses, regardless of whether the other spouse was prosecuted for the act of abuse.

(5) After a contradictory hearing or consent decree, a protective order or an injunction was issued during the marriage against the other spouse to protect the spouse seeking the divorce or a child of one of the spouses from abuse.4

  • 1For a more complete discussion of covenant marriage, see Section 3.10.1.
  • 2La. C.C. arts. 102, 103(1).
  • 3La. C.C. art. 103.1.
  • 4La. C.C. art. 103.

3.2 Important Client Information

3.2 Important Client Information aetrahan Thu, 06/22/2023 - 14:31

3.2.1 Covenant Marriage

3.2.1 Covenant Marriage aetrahan Thu, 06/22/2023 - 14:31

Always determine if the client’s marriage was a covenant marriage. Most marriages are not covenant marriages. However, if your client has entered into a covenant marriage, special rules apply to trump the rules applicable to a divorce between spouses that have not entered into a covenant marriage.1

3.2.2 Physical Separation

3.2.2 Physical Separation aetrahan Thu, 06/22/2023 - 14:32

To obtain a no-fault divorce in Louisiana, the spouses must live separate and apart for either 180 or 365 days (depending on the presence or absence of minor children of the marriage).1 While an Article 102 divorce can be filed before the separation period has been completed (or even begun), an Article 103 divorce cannot be filed until the 180 or 365 days of separation have elapsed.

  • 1La. C.C. art. 103.1.

3.2.3 Intent to Be Divorced

3.2.3 Intent to Be Divorced aetrahan Thu, 06/22/2023 - 14:33

When preparing a divorce case, many practitioners focus primarily on establishing the physical separation period and overlook the need to also establish an intent to be divorced. Letters or actions may constitute proof of intent. The “intent” may be questionable if the other spouse works offshore or is in a jail, the military, or a hospital. According to the Supreme Court,

[E]vidence that the parties have not resided under the same roof for the statutorily required period, without more, is not sufficient to obtain a divorce under the statute. . . [F]rom the point in time that a party evidences an intention to terminate the marital association, when coupled with actual physical separation, the statutorily required separation period begins to run.1

  • 1Dunn v. Dunn, 53,665 (La. App. 2 Cir. 1/13/21), 309 So. 3d 969.

3.2.4 Minor Children

3.2.4 Minor Children aetrahan Thu, 06/22/2023 - 14:34

Determine whether there are children of the marriage that may trigger the longer separation period (365 days instead of 180 days).1 For an Article 103 divorce, the required period of separation must have elapsed before the divorce petition is filed.2 For an Article 102 divorce, the period must have elapsed before the Rule to Show Cause is filed.3

A “child born of the marriage” is a child conceived or born during the marriage of the child’s parents, adopted by them, or filiated in the manner provided by law.4 A child who is legitimated by marriage in accordance with La. C.C. art. 195 is a child of the marriage.

  • 1La. C.C. art. 103.1.
  • 2See id.
  • 3Id.
  • 4La. C.C. art. 3506(8).

3.2.5 Domestic Violence

3.2.5 Domestic Violence aetrahan Thu, 06/22/2023 - 14:36

During the marriage, did the other spouse physically or sexually abuse the spouse seeking the divorce or a child of one of the spouses? If so, your client can seek an immediate divorce as per La. C.C. art. 103(4) even if the abuser was not prosecuted. Divorce under this provision will require a contradictory hearing to prove the allegations of abuse made in the divorce petition.

Following a contradictory hearing or consent decree, was a protective order or injunction issued during the marriage against the other spouse to protect the spouse seeking the divorce or a child of one of the spouses from abuse? If so, your client can seek an immediate divorce as per La. C.C. art. 103(5).

A more extensive discussion is found in this manual’s chapter on Louisiana’s laws concerning domestic violence.1 The ancillary matters to divorce available under La. C.C. art. 103(4)–(5) will likely also be affected by the domestic violence, and an attorney in such cases is advised to seek the assistance, if possible, of a specialist in representing survivors of domestic violence. 

  • 1For that discussion, see Section 7 of this manual’s chapter on representing survivors of domestic violence.

3.2.6 Reconciliation

3.2.6 Reconciliation aetrahan Thu, 06/22/2023 - 14:37

An action for divorce is extinguished by the reconciliation of the parties.1 If reconciliation occurs, a divorce suit based on the prior separation period is defeated. Reconciliation is an affirmative defense to a divorce suit.

Reconciliation requires more than isolated incidents of sexual relations, cohabitation on a trial basis, or vacations together.2 It requires the mutual intent of both parties to reconcile and the actual resumption of living together as spouses. Mutual intent is a question of fact determined by the totality of the circumstances.3

  • 1La. C.C. art. 104. Reconciliation also terminates child custody orders entered in the extinguished divorce action. See Walkowiak v. Walkowiak, 32,615 (La. App. 2 Cir. 12/8/99), 749 So. 2d 855, 858 n.2; Dooley v. Dooley, 443 So. 2d 630 (La. App. 3 Cir. 1983).
  • 2Millon v. Millon, 352 So. 2d 325 (La. App. 4 Cir. 1977) (no reconciliation despite 6 acts of sexual intercourse); Woods v. Woods, 27,199 (La. App. 2 Cir. 8/23/95), 660 So. 2d 134 (cohabitation on a trial basis); Noto v. Noto, 09-CA-1100 (La. App. 5 Cir. 5/11/10), 41 So. 3d 1175 (vacation together).
  • 3Woods, 27,199, 660 So. 2d 134; Lemoine v. Lemoine, 97-1626 (La. App. 3 Cir. 7/1/98), 715 So. 2d 1244.

3.2.7 Privacy

3.2.7 Privacy aetrahan Thu, 06/22/2023 - 14:39

Although in this writer’s experience a rare occurrence, there is authority for hearings on divorce being conducted in chambers (if allowed by local rule). To request such a hearing the party must establish good cause or the parties’ mutual consent.1

  • 1La. R.S. 9:302.

3.2.8 Ancillary Matters

3.2.8 Ancillary Matters aetrahan Thu, 06/22/2023 - 14:40

In a divorce action, many ancillary issues may be decided by summary proceeding (i.e., a rule to show cause), and a Hearing Officer Conference may be mandatory before the court will enter a final judgment of divorce.1 Such issues may include injunctions against disposition or encumbrance of community property (La. R.S. 9:371); injunctions against abuse or harassment (La. R.S. 9: 361, 372, 372.1); custody (La. C.C. arts. 131–137); child support (La. C.C. arts. 141–142; La. R.S. 9:315–315.47); interim periodic spousal support (La. C.C. arts. 111, 113); final periodic spousal support (La. C.C. arts. 111, 112); use and occupancy of the family residence and use of community movables (La. R.S. 9:374); the right to remove personal property from the family residence (La. R.S. 9:373); and the right to seek a judgment of separation of property upon proof that the parties have lived separate and apart for 30 days or more (La. C.C. art. 2374).

  • 1La. C.C. art. 105.

3.3 Jurisdiction & Venue

3.3 Jurisdiction & Venue aetrahan Thu, 06/22/2023 - 14:41

3.3.1 Jurisdiction

3.3.1 Jurisdiction aetrahan Thu, 06/22/2023 - 14:41

A Louisiana court has jurisdiction to grant a divorce if one party is domiciled in Louisiana.1 Unlike in some states, there is no minimum residency requirement. Domicile is physical presence plus present intent to remain.2 There is a rebuttable presumption of domicile after 6 months of residency.3  If your client has been in Louisiana for less than 6 months, ensure that other proof of domicile exists such as a driver’s license, voter registration card, rental agreement, proof of home purchase, utility bills, etc. 

A servicemember who has been stationed at a military installation in Louisiana for 6 months and has resided in the parish where the divorce action is filed for at least 90 days prior to the filing of the action is considered a domiciliary of Louisiana and of the parish of the servicemember’s residence.4 As a general rule, a spouse of a servicemember should sue for divorce and military pension division in the servicemember’s state of domicile to avoid federal jurisdictional battles under 10 U.S.C. § 1408 and additional litigation expenses. The author suggests that you review the specific statutes and regulations applicable to those serving in our military.5

  • 1La. C.C.P. art. 10(A)(7). A Louisiana court with jurisdiction to render a divorce may still lack jurisdiction to decide custody, child support, spousal support, or property division. Subject matter jurisdiction over custody must exist under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). For a more complete discussion of this act, see Section 4.10. Child support or money and property judgments (in rem) require that the defendant have “minimum contacts” with the State of Louisiana or consent to jurisdiction in addition to jurisdiction pursuant to the Uniform Interstate Support Enforcement Act (UIFSA). La. Ch.C. art. 1301.1, et seq.; for further discussion of this act, see Section 6.22.
  • 2La. C.C. arts. 38–39, 45; Martin v. Robinson, 2020-0687 (La. App. 1 Cir. 8/6/20), 311 So. 3d 378, 381 (“A person’s domicile is his principal establishment wherein he makes his habitual residence and essentially consists of two elements, namely residence and intent to remain in place.”); see also Scaglione v. Juneau, 2010-CA-1109 (La. App. 4 Cir. 8/4/10), 45 So. 3d 191 (analyzing change in domicile).
  • 3La. C.C.P. art. 10(B).
  • 4La. C.C.P. art. 11.
  • 5For additional information on the unique requirements when dealing with servicemember litigants, see Servicemembers Civil Relief Act, 50 U.S.C § 3901, et seq.; Robert C. Lowe, Louisiana Divorce, 1 La. Prac. Divorce § 1:16; Mark Sullivan, The Military Divorce Handbook 426–27 (2006).

3.3.2 Venue

3.3.2 Venue aetrahan Thu, 06/22/2023 - 14:45

Venue for divorce is jurisdictional and may not be waived.1 A divorce obtained in a court of improper venue is an absolute nullity.2 An absolutely null divorce can render a second marriage invalid and affect community property and inheritance rights. An action for nullity based on a lack of jurisdictional venue may be brought at any time unless the defendant has acquiesced in the judgment.3

During intake, be sure to ask how long your client has lived in their current parish of residence. It is wise to double check your client’s domicile—especially in those parishes that overlap or zig- zag. An example in Acadiana is the town of Delcambre, which is in both Vermilion and Iberia parishes. One’s parish of residence there depends on one’s specific address. 

Venue should be pleaded in the petition. Venue is proper in the parish where plaintiff is domiciled, the parish where defendant is domiciled, or the parish of last matrimonial domicile.4 A verification of the venue allegations in an affidavit from the client affidavit will help protect you against malpractice for filing a divorce in a court of improper venue.

  • 1La. C.C.P. arts. 44, 3941.
  • 2La. C.C.P. arts. 44, 3941(B); In re Succession of Jones, 2008-1088 (La. App. 3 Cir. 3/4/09), 6 So. 3d 331.
  • 3La. C.C.P. art. 2002. A spouse acquiesces in the null divorce judgment if he remarries. Glover v. Glover, 09-1529 (La. App. 3 Cir. 5/5/10), 38 So. 3d 541.
  • 4La. C.C.P. art. 3941(A).

3.3.3 Strategic Considerations

3.3.3 Strategic Considerations aetrahan Thu, 06/22/2023 - 14:47

If several courts have venue, consider which court may be better for resolving your client’s various claims. Some courts are more expensive or have more onerous local rules or procedures. Another factor may be the judges’ propensities. For instance, judges on some courts may be inclined to exclude the category of “other extraordinary expenses” when computing child support or may favor awarding 50-50 custody in every case.

The humorous saying, “A good lawyer knows the law, a great lawyer knows the judge!” is true. A lawyer should know, in advance, the general philosophy a judge may possess regarding issues presented by the case. Judges are no different than anyone else. They often bring to the bench the lessons that life has taught them which gives them their point of view of the facts of a case. You should know the approach your judge takes to issues such as fault, child support, custody, final periodic spousal support, etc. This important information will assist you in better preparing your case for trial. 

3.4 Selecting the Type of Divorce

3.4 Selecting the Type of Divorce aetrahan Thu, 06/22/2023 - 14:48

There are several factors to consider in deciding whether to file for divorce under Article 102 or Article 103.

Under both articles, the divorce is initiated by the filing of a Petition for Divorce. The divorce petition under La. C.C. art. 103(1) is filed after the spouses have already been separated for the length of time required by Article 103.1. By contrast, an Article 102 divorce cannot be granted until the requisite time period has elapsed between service of the Petition for Divorce and filing of the Rule to Show Cause why the divorce should not be granted.

Generally, if the parties have already been separated continuously for the required period stated in La. C.C. art. 103.1, a spouse can obtain an “immediate” divorce. If the client’s goal is to obtain a divorce judgment as quickly as possible, then the client may want to file under Article 103(1). Article 103 divorces are usually simpler, faster, and cheaper. On the other hand, if the required separation period has not yet elapsed (and there are no grounds for a fault-based divorce under La. C.C. art. 103(2)–(5)), a client in need of immediate support, custody of the children, or use of community property should file an Article 102 divorce. The procedures for Article 102 divorces allow the court to issue some interim orders to ensure that a spouse or children will have basic support, a place to live, and a stable custodial arrangement. 

Some factors that may weigh in favor of an Article 102 divorce:

  • The client needs interim relief for support or custody. This is most often the motivating factor for filing under Article 102. 
  • The client needs, as soon as possible, the exclusive use of marital home or property such as a vehicle to get to and from work or use of monetary assets.1
  • The client needs an extended period of interim spousal support, which may be available for good cause depending on the facts.2
  • The client needs an immediate custody order due to a risk of kidnapping or flight.3
  • A child has been removed from Louisiana, and home state jurisdiction needs to be preserved.4
  • There is a concern that the other partner may be violating the fiduciary obligation to preserve the community property. An Article 102 divorce may allow for an earlier termination of the community property regime.5

Other factors may weigh against an Article 102 divorce:

  • The spouses have already lived separate and apart for much of the required waiting period. An Article 102 divorce requires that the time set in La. C.C. art. 103.1 elapse between the service of the Petition for Divorce and the filing of the Rule to Show Cause.
  • The requirement of a second filing (i.e., the Rule to Show Cause) increases the costs.
  • The required service of the final Rule to Show Cause may be expensive or impossible. Service on out-of-state defendants will require at least 30 days’ notice and may entail fees in the other state that can’t be waived for paupers.
  • If the other spouse is convicted of a felony after the marriage, there may be grounds for an Article 103 divorce.
  • The client plans to pursue support  via the Louisiana Department of Child Support Services. State assistance with obtaining child support is only available to parents that are divorced, separated, or were never married.6
  • Domestic violence is a factor in the divorce and obtaining a final divorce more quickly is in your client’s best interest.7
  • 1See La. R.S. 9:374 (G)(1).
  • 2La. C.C. art. 113.
  • 3See La. C.C.P. art. 3945.
  • 4On home state jurisdiction, see Section 4.10.5.
  • 5Community property is a complex area of law that is beyond the scope of this chapter as legal services and pro bono clients frequently do not have substantial community assets. For additional discussion, see Section 10.
  • 6Assistance is also available to certain non-parent caretakers of children.
  • 7For further discussion of divorce in the context of domestic violence, see Section 7 of this manual’s chapter on representing survivors of domestic violence.

3.5 Article 102 Divorce

3.5 Article 102 Divorce aetrahan Thu, 06/22/2023 - 14:51

3.5.1 General Principles

3.5.1 General Principles aetrahan Thu, 06/22/2023 - 14:51

An Article 102 divorce petition may be filed if the client cannot obtain an Article 103 divorce because the parties have not been living separate and apart for the period of time required by La. C.C. art. 103.1. A divorce may be filed under this article even if the parties are still living together. However, if the parties still reside together, the petition should be personally served on the defendant. Another option would be for the defendant to execute a waiver of service.

The petitioner may not obtain an Article 102 divorce judgment until the spouses have lived separate and apart continuously for the period specified in La. C.C. art. 103.1, which is 180 days after service of the petition or from the execution of a waiver of service if there are no minor children born of the marriage as of the date that the Rule to Show Cause is filed. If there are minor children of the marriage at the time the Rule to Show Cause is filed, the parties must have been living separate and apart continuously for 365 days since service or waiver. 

The divorce is obtained by filing a Rule to Show Cause after the required separation periods have elapsed. The required periods for an Article 102 divorce cannot be waived. A divorce suit under Article 102 is abandoned (dismissed) if the Rule to Show Cause is not filed within two years of service of the original petition or execution of the waiver of service.

A judgment of separation of property may be obtained while the separation period is running if your client contends that the other spouse is endangering the assets of the community through fraud, fault, neglect, or incompetence or by the disorder of the other spouse’s affairs.1

  • 1See La. C.C. art. 2374.

3.5.2 Pleading & Notice Requirements

3.5.2 Pleading & Notice Requirements aetrahan Thu, 06/22/2023 - 14:52

The requirements for an Article 102 divorce are:1

  1. A Petition for Divorce. Petitions for divorce under Article 102 must contain allegations of jurisdiction and venue and that the plaintiff wants a divorce. Your petition should also state that the parties did not contract a covenant marriage; that they have not reconciled since their physical separation; that the defendant is not a member of the military services of the United States or its allies; and the names and ages of any children, whether minor and major. The petition must be verified by the plaintiff’s affidavit. An attorney’s affidavit will not suffice.
  2. Physical separation (without reconciliation) for either 180 or 365 days after service of the divorce petition.
  3. Physical separation (without reconciliation) for either 180 or 365 days before the final Rule to Show Cause is filed.
  4. A Rule to Show Cause, with required affidavits, filed within 2 years of the service of the original divorce petition or execution of the waiver of service.

In addition to a certified copy of the divorce petition, a notice of the divorce petition must be served on the defendant. This notice is prepared and signed by the clerk of court.

La. C.C.P. art. 3957 provides that a defendant may expressly waive service of the Article 102 divorce petition and accompanying notice by written waiver executed after the filing of the petition and made a part of the record. If there is such a waiver, the required periods for separation (180 or 365 days) and for abandonment (two years) will run from the date of execution of the waiver. 

  • 1On the procedural rules unique to Article 102 divorces, see La. C.C.P. arts. 3951–3958.

3.5.3 Responsive Pleadings

3.5.3 Responsive Pleadings aetrahan Thu, 06/22/2023 - 14:53

If your client is the defendant, an Answer to an Article 102 divorce is not necessary. The Article 102 divorce can only be granted by a Rule to Show Cause, which cannot be filed for at least 180 or 365 days after service of the petition. However, a client who already has a divorce petition pending in another state or parish may have grounds to assert a lis pendens exception or to seek a stay and may want to file appropriate responsive pleadings. Affirmative defenses and jurisdictional objections may be asserted at the trial of the Rule to Show Cause. 

The standard res judicata rule that a party must raise all causes of action arising out of a transaction or occurrence that is the subject of litigation does not apply to actions for divorce under Articles 102 or 103, actions for determination of incidental matters such as custody, support or visitation, and community property partitions. Such claims historically have been assertable after the divorce action has been concluded by judgment. Of course, there are time limitations for the assertion of spousal support claims against the other spouse.

A defendant must file a Reconventional Demand to an Article 102 divorce to obtain ancillary relief for child or spousal support. The date of judicial demand will decide the retroactivity of any award of support. Also, a client who has grounds for immediate divorce under La. C.C. art. 103(2)–(5) may want to reconvene for divorce. However, if the client needs the initial filing date of the Article 102 divorce for termination of the community, you will need to complete the Article 102 divorce rather than reconvening for an Article 103 divorce. 

A spouse of a military servicemember may need to make an appearance in a divorce suit in order to protect the spouse’s rights to division of a military pension. A divorce judgment that does not reserve the right to partition the community could lead to the loss of the spouse’s community share of the servicemember’s military pension. In Louisiana, a spouse will have a right to part of the servicemember’s military pension if certain requirements are met.1

3.5.4 Rule to Show Cause

3.5.4 Rule to Show Cause aetrahan Thu, 06/22/2023 - 14:54

Under La. C.C.P. art. 3952, the Rule to Show Cause for an Article 102 divorce must allege:

  1. The initial petition for divorce was properly served on the defendant.
  2. 180 or 365 days (in accordance with La. C.C. art. 103.1) have elapsed since the date of service.
  3. The spouses have lived separate and apart continuously for the requisite period of time as per La. C.C. art. 103.1. 

Either party can move for the Rule. The Rule must be verified by an affidavit executed by the mover and proper service made all over again.1 A party in a 102 divorce action may expressly waive service of the Rule to Show Cause why a divorce should not be granted and the accompanying notice.2 The waiver must be a written waiver that has to be executed after the filing of the Rule to Show Cause and made part of the record.3

A 102 divorce judgment is absolutely null when less than the requisite period of time as per La. C.C. art. 103.1 has elapsed between service of the divorce petition or written waiver and filing of the Rule to Show Cause or when less than the requisite period of time as per La. C.C. art. 103.1 has elapsed between the date the parties commenced living separate and apart, if after the date of the filing of the petition, and the filing of the Rule to Show Cause. 

  • 1La. C.C.P. art. 3952.
  • 2La. C.C.P. art. 3957.
  • 3Id.

3.5.5 Evidence at the Show Cause Hearing

3.5.5 Evidence at the Show Cause Hearing aetrahan Thu, 06/22/2023 - 14:59

An Article 102 divorce requires proof that 180 or 365 days have elapsed from the service of the petition (or written waiver) and that the spouses have lived separate and apart continuously for at least 180 or 365 days prior to the rule to show cause.1

The Code of Civil Procedure provides the evidence that will establish the facts necessary for the divorce judgment to be awarded:

(1) The petition for divorce.

(2) One of the following evidencing service of the petition:

  • The sheriff’s return of service of the petition.
  • The sheriff’s return of service of the petition showing personal service on the defendant if the parties were living together at the time of the filing of the petition.
  • The return receipt when service is effectuated pursuant to R.S. 13:3204.
  • Waiver of the service of petition.

(3) The rule to show cause and the affidavit required by Code of Civil Procedure Article 3952.

(4) The sheriff’s return of service of the rule, or by a waiver of that service.

(5) The affidavit of the mover, executed after the filing of the rule, that the parties have lived separate and apart continuously for at least the requisite period of time, in accordance with Civil Code Article 103.1, prior to the filing of the rule to show cause and are still living separate and apart and that the mover desires to be divorced.2

To ensure that you have all the necessary documents to prove your client’s entitlement to an Article 102 divorce, use a checklist. Your court may have one of its own in its Local Rules of Court; alternately, you may choose to use the checklist used by the Family Division of the Fifteenth Judicial District Court.3 Checklists like this are an easy and convenient way to ensure that you have all of your evidence at the ready when it’s time to go to court and get your judgment. 

3.6 Article 103 Divorce

3.6 Article 103 Divorce aetrahan Thu, 06/22/2023 - 15:03

3.6.1 General Principles

3.6.1 General Principles aetrahan Thu, 06/22/2023 - 15:03

Article 103 contains the immediate causes for divorce. The no-fault basis requires that the parties have lived separate and apart continuously without reconciliation for the requisite period of time as per La. C.C. art. 103.1. The remaining grounds allow for an immediate fault-based divorce:

  • The other spouse has committed adultery. 
  • The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor.
  • During the marriage, the other spouse physically or sexually abused the spouse seeking divorce or a child of one of the spouses, regardless of whether the other spouse was prosecuted for the act of abuse.
  • After a contradictory hearing or consent decree, a protective order or an injunction was issued during the marriage against the other spouse to protect the spouse seeking the divorce or a child of one of the spouses from abuse.1

Note that under La. C.C. art. 103(5), a stepparent spouse can obtain an Article 103 divorce based upon obtaining a protective order or injunction filed for the purpose of protecting the stepchild from abuse by the spouse who is the child’s biological parent. 

  • 1Stay away orders instituted as a condition of release from prison or jail are considered protective orders for the purpose of protection from domestic violence. State v. Kumar, 46,056, p. 9 (La. App. 2 Cir. 3/2/11), 58 So. 3d 544, 551.

3.6.2 Adultery

3.6.2 Adultery aetrahan Thu, 06/22/2023 - 15:08

Adultery can be proven by direct, indirect, or circumstantial evidence.1 However, “if circumstantial evidence alone is relied upon, then the proof must be so convincing as to exclude any other reasonable hypothesis but that of guilt of adultery.”2

Many attorneys elect not to file for divorce based on adultery due to the additional expense of litigation. The attorney will often have to hire a private investigator or pursue testimony from the litigants’ friends who “don’t want to get involved.” Moreover, the length and cost of the trial can be prohibitive as such trials devolve into a he-said, she-said. 

  • 1Tidwell v. Tidwell, 49,512 (La. App. 2 Cir. 11/19/14), 152 So.3d 1045.
  • 2Id.

3.6.3 Felony Conviction

3.6.3 Felony Conviction aetrahan Thu, 06/22/2023 - 15:09

Conviction of a felony is another basis for immediate divorce.1 A divorce may be granted because of a spouse’s felony conviction even if the conviction is on appeal or the sentence is suspended.2 A guilty plea to a felony is a conviction that will entitle a spouse to an Article 103(3) immediate divorce.3 A felony conviction that predates the marriage is not cause for an immediate divorce.

  • 1La. C.C. art. 103(3).
  • 2Kitchen v. Kitchen, 480 So.2d 494 (La. App. 5 Cir. 1985).
  • 3Scheppf v. Scheppf, 430 So.2d 370 (La. App. 3 Cir. 1983).

3.6.4 Domestic Violence

3.6.4 Domestic Violence aetrahan Thu, 06/22/2023 - 15:10

Domestic violence is also grounds for an immediate divorce.1 This manual’s chapter on Louisiana’s laws concerning domestic violence contains detailed discussion, including practical and strategic considerations.2

  • 1 La. C.C. art. 103(4)–(5).
  • 2For this discussion, see Section 7 of this manual’s chapter on representing survivors of domestic violence.

3.6.5 The Divorce Petition

3.6.5 The Divorce Petition aetrahan Thu, 06/22/2023 - 15:11

Petitions for divorce under Article 103 must contain the following:

  1. Allegations of jurisdiction, domicile of the parties, and venue
  2. Name of defendant, where domiciled and of the age of majority
  3. Date and location of marriage and place of last matrimonial domicile 
  4. Legal grounds for the divorce
  5. Statement that the parties did not contract a covenant marriage
  6. Statement that the defendant is not a member of the armed forces of the United States or its allies
  7. Names, birthdates, and ages of children of the marriage, if any
  8. Requests for ancillary matters such as custody, child support, spousal support, injunctive relief, protective orders, exclusive use of community property (including, money from the community for necessary expenses such as food, housing if spouse is destitute, or exclusive use of the community vehicle if petitioner needs transportation to get to work, etc.), and return of personal property. The pleading may also request an injunction against disposal/encumbrance of community property or that a partition of community property be commenced.

If your client does not anticipate that the opposing party will actively contest the divorce, it is often in your client’s best interest to file a “plain vanilla” divorce petition. By doing so, you do not risk creating problems that may delay the relief the client is asking from the court. The author’s opinion is that you don’t start a fire where none exists. Practicing family law is not so much about winning as it is about mitigating the damage that divorce so often causes to the family, especially, the children. 

3.6.6 The Answer

3.6.6 The Answer aetrahan Thu, 06/22/2023 - 15:12

As part of the 2021 changes to the default judgment process, the legislature extended the time for filing an answer from 15 to 21 days after service.1 If the defendant filed a pre-answer exception, the time period for filing an answer following an overruling or deferral to the merits or following a sustaining of the exception and ordering an amended complaint was extended from 10 to 15 days.2 The law retained the provision allowing 30 days to answer when the plaintiff served a discovery request along with the petition.3

If an Answer (with or without an affirmative defense) has been filed, the divorce will have to be tried contradictorily against the defendant or the curator, as applicable. If the defendant does not file an answer, you may elect to seek a default judgment.4

  • 1La. C.C.P. art. 1001(A).
  • 2La. C.C.P. art. 1001(B).
  • 3La. C.C.P. art. 1001(A).
  • 4For a more complete discussion of obtaining a divorce by default judgment, see Section 3.7.

3.6.7 Summary Judgment

3.6.7 Summary Judgment aetrahan Thu, 06/22/2023 - 15:13

A standard motion for summary judgment may not be used to obtain a divorce judgment. However, a summary judgment or judgment on the pleadings may be granted in an Article 103(1) divorce where both parties are represented by counsel, an Answer has been filed, counsel for each party file a written joint stipulation of facts, request for judgment, and sworn verification by each party and a proposed judgment with a certificate that counsel and each party agree to the terms of the judgment.1

  • 1La. C.C.P. art. 969(B).

3.7 Divorce by Default Judgment

3.7 Divorce by Default Judgment aetrahan Thu, 06/22/2023 - 15:14

3.7.1 General Principles

3.7.1 General Principles aetrahan Thu, 06/22/2023 - 15:14

Some defendants elect not to answer a divorce petition filed under Article 103. An Article 103 divorce is an ordinary proceeding, which requires that the defendant answer. If the defendant fails to do so in the time set forth in La. C.C.P. art. 1001, the petitioner can take a default judgment against the defendant.1 For a court to grant a default judgment, the plaintiff must ”establish[] a prima facie case by competent and admissible evidence.”2

Because a defendant in a default judgment can be cast with costs, you should ask the court to assess the defendant with court costs. Remember to provide the address of the defendant to the clerk of court, who will need it to bill the defendant. 

3.7.2 Confirmation No Longer Required

3.7.2 Confirmation No Longer Required aetrahan Thu, 06/22/2023 - 15:15

Before the 2021 change in the default judgment articles, a petitioner seeking a default had to file and receive a preliminary default, then wait the required number of days, and then submit a default judgment. This procedure has been repealed.1

  • 1Acts 2021, No. 174, Sec. 6.

3.7.3 Affidavit or Hearing

3.7.3 Affidavit or Hearing aetrahan Thu, 06/22/2023 - 15:16

A default judgment ordinarily requires a hearing where the plaintiff will establish the prima facie case. In a divorce proceeding, this is typically done through the plaintiff’s oral testimony.

However, if the defendant does not file an answer to a petition under La. C.C. art. 103(1) or (5), your client may take up the divorce and the ancillary issues (e.g., custody) by default without having to go to court.1 To so, the plaintiff must submit:

  1. An affidavit specifically attesting to and testifying as to the truth of all of the factual allegations contained in the petition (i.e., an affidavit of correctness)
  2. The original and not less than one copy of the proposed default judgment
  3. A certification indicating the type of service made on the defendant and the date of service
  4. A certification by the clerk that the record was examined by the clerk, including the date of the examination, and a statement that no answer or other pleading has been filed2

The affidavit should also attest that the defaulting spouse is not in military service, that there are no minor children of the marriage and that neither spouse is pregnant, and that the marriage is not a convent marriage. Courts usually require a checklist or a certification form showing that the above requirements have been met.

In addition, if the defendant waives formal citation, service of process, all legal delays, notice of trial, and appearance at trial, the default judgment can be signed two days after the affidavit is filed.3 It is a good practice to include the specific issue on which the default is being taken in the waiver. The defendant’s affidavit may be prepared or notarized by any notary public.4

Be sure to check with the court before assuming that your judge will sign a default judgment prepared pursuant to La. C.C.P. art. 1702(F) as some judges insist upon the litigants appearing in open court. Some courts, even if allowing represented litigants to proceed by affidavit, will not allow a self-represented litigant to use the procedure to obtain a default judgment without going to court. Instead, the court will require the litigant to establish a prima facie case at a hearing. 

The affidavit attesting to the truth of the facts in the divorce petition needs to be executed as close as possible to the time when the divorce judgment is filed in order to assure that it is accurate. For example, the parties could have reconciled, opted into a covenant marriage or a wife could have become pregnant by a person not her spouse. Some courts may require the testimony of two corroborating witnesses (another reason to always read the local rules) and most will not allow the other spouse to be a corroborating witness. If the affidavit attesting to the truth of the divorce facts is presented to the court, it must render a divorce judgment on the affidavit or direct that a hearing be held on the divorce.

Custody can also be decided in a default judgment on the divorce petition. Any concerns that a judge may have as to the court’s duty to review the best interest factors in custody cases can be addressed by making sure that the petition, prayer, and the affidavit of correctness contain the relevant best interest factors as well as good cause for not having a custody implementation plan. Generally, assuming you have sufficient proof of service and the adverse party just hasn’t filed an answer or bothered to appear, the court will conclude that the non-responding parent has little interest in having custody of the children. The issue can be addressed later should the non-participating parent seek custodial rights.

In addition to the requirements to obtain a default judgment by affidavit for a no-fault divorce,5 the petitioner must also submit a certified copy of the protective order or injunction rendered after a contradictory hearing or consent decree.6

  • 1La. C.C.P. art. 1702(F)(1).
  • 2Id.
  • 3La. C.C.P. art. 1702(F)(2).
  • 4Id.
  • 5For these requirements, see Section 3.7.3.
  • 6La. C.C.P. art. 1702(F)(1).

3.7.4 Effect of Appearance or Attorney Contact

3.7.4 Effect of Appearance or Attorney Contact aetrahan Thu, 06/22/2023 - 15:22

If the party who fails to answer has made an appearance of record in the case, notice that the plaintiff intends to obtain a default judgment must be sent by certified mail to counsel of record for the party, or if there is no attorney of record, to the party, at least 7 days before a default judgment can be rendered.1

If an attorney for a party who fails to answer has contacted the plaintiff or his attorney, in writing, concerning the action after it has been filed, notice that the plaintiff intends to obtain a default judgment must be sent by certified mail to the party’s attorney at least 7 days before a default judgment may be rendered.2

Examples of an “appearance” include filing an exception or a motion for a continuance, filing a motion for an extension of time to answer, or attendance at the Hearing Officer Conference. An affidavit or certificate of service of the 7-day notice should be filed into the record.

  • 1La. C.C.P. art. 1702(A)(2).
  • 2La. C.C.P. art. 1702(A)(3); see id. cmt. 2021(a) (providing that notice may be sent electronically or any other type of writing and that if notice is not given, any default judgment shall be a nullity); First Bank & Trust v. Bayou Land & Marine Contractors, Inc., 12-CA-295 (La. App. 5 Cir. 10/30/12), 103 So. 3d 1148.

3.7.5 Interaction with Ancillary Matters

3.7.5 Interaction with Ancillary Matters aetrahan Thu, 06/22/2023 - 15:24

In many jurisdictions, the delays for answering a petition will expire before the date scheduled for the rule hearing on ancillary matters such as child support. Most judges will not permit you to proceed with a confirmation of default for the divorce if a rule was filed and the date for the rule hearing has not passed. 

Many defendants fail to answer the Petition for Divorce because Support Enforcement Services is already handling the client’s claim for child support. Both legal services attorneys and pro bono attorneys discover early on that some adverse parties are most concerned with the amount of child support they are going to be ordered to pay. Moreover, a defendant will often fail to file an answer in cases where custody is undisputed. In such cases, it is often better to defer the setting of a hearing on a Rule for support or other ancillary matters unless there are critical issues that need to be addressed immediately, such as a protective order, support, or use of the family home. 

Generally, after interviewing your client, you will know whether the lawsuit will be contested or whether your client will benefit from a rule hearing. At the initial interview, the attorney should identify the client’s real goal in suing for divorce. Is there mistreatment or violence in the marriage that would make obtaining a divorce or a protective order the primary goal? Is the client without means of support for herself and children, making support orders a top priority? Are the client and the children in need of safe shelter or a vehicle? Often, the client will need all these issues resolved. If so, it is important that the attorney get the client in front of the court as expeditiously as possible. 

Although some judges will require an oral hearing in all divorce proceedings whether they are with or without ancillary provisions, confirmation of maiden name and any reservation of community partition rights should be available via the affidavit procedure because they do not require evidence. 

Child support, sole custody, or permanent injunctive relief require prima facie evidence that supports the relief sought, which may require setting the matter for hearing. The use of the Hearing Officer Conference, if available, may also require that the ancillary matters be set as a summary proceeding. Some courts will not allow the ancillary matter of child custody in a divorce to be confirmed without a hearing because, in the absence of an agreement, the pleadings, affidavits, and evidence must support an award of child custody being made in accordance with the best interest factors of La. C.C. art. 134.1

  • 1Byrd v. Byrd, 621 So. 2d 124 (La. App. 2 Cir. 1993).

3.7.6 Notice of Judgment

3.7.6 Notice of Judgment aetrahan Thu, 06/22/2023 - 15:25

If the defendant was not personally served with the Petition for Divorce, notice of the judgment of divorce, which was obtained by default, must be served on the defendant by the sheriff.1 If the defendant was personally served with the divorce petition or the divorce was contested, the notice of judgment must be mailed by the clerk of court.2 Long-arm service of non-residents by certified mail or commercial courier qualifies as “personal service” for this notice-of-judgment rule. The notice of judgment is required to start the running of the 30-day appeal period.3 However, notice of judgment is no longer required in Article 103(1) divorces (i.e., those based on physical separation) when the defendant, as is common, waives notice of judgment when waiving service.

  • 1La. C.C.P. art. 1913(B).
  • 2La. C.C.P. art. 1913(C).
  • 3La. C.C.P. art. 3942(A).

3.7.7 Divorces Involving Servicemembers

3.7.7 Divorces Involving Servicemembers aetrahan Thu, 06/22/2023 - 15:26

There are some potential risks to the spouse of a service member or ex-service member in taking a default divorce judgment. If the court does not meet the federal requirements for jurisdiction,1 the spouse may be left with an unenforceable order as to the military pension. If the state that does have jurisdiction does not allow partition, the spouse could also be left without a remedy. Failure to expressly reserve jurisdiction over partition of the community may also cause problems for the spouse in the divorce jurisdiction or a foreign jurisdiction. If a service member files for a divorce, the spouse should make an appearance and either request a pension division or challenge jurisdiction.2

  • 110 U.S.C. § 1408(c)(4).
  • 2M. Sullivan, The Military Divorce Handbook 641, et seq. (2006).

3.8 Citation & Service Issues

3.8 Citation & Service Issues aetrahan Thu, 06/22/2023 - 15:28

3.8.1 General Principles

3.8.1 General Principles aetrahan Thu, 06/22/2023 - 15:28

Citation and service of the divorce petition and ancillary matters as well as service in general can be frustrating in family law actions. Self-represented litigants often struggle with Louisiana rules for service of process. There exist some avenues of assistance, although they are limited. For example, the local volunteer lawyer program may offer advice clinics or assist pro se litigants. Moreover, knowledgeable staff in the local clerk’s office may be able to assist. A litigant cannot obtain a default divorce or have a hearing on a rule for custody, support, etc., unless the adverse party has been properly noticed by service of the pleadings. Every time a rule is continued for lack of service, the court costs increase. This is just one more reason to check the court record prior to going to court.

You should check that the clerk has allowed sufficient time for the setting of any rule dates. For example, service on prisoners1 and non-residents2 can easily take 45 days or more to complete. A hearing (other than on a protective order) cannot be heard unless there is at least 30- day notice to a non-resident. If you need to subpoena third-party witnesses for the rule hearing, be aware that some judges will not enforce a subpoena unless it has been issued 30 days before the hearing.

Service of the citation must be requested on all named defendants within 90 days of commencement of the action.3 Failure to do so may result in an involuntary dismissal “unless good cause is shown why service could not be requested.”4

Citation and service of the divorce petition are made as described in the following sections. Similar rules apply for service of other pleadings. Refer to La. C.C.P. arts. 1312–1313 for the manner of service of pleadings filed after the original pleading.5

  • 1La. C.C.P. art. 1235.1; on serving incarcerated individuals, see Section 3.9.1.
  • 2On serving absent persons, see Section 3.9.2.
  • 3La. C.C.P. art. 1201(C).
  • 4La. C.C.P. art. 1672(C).
  • 5For instance, La. C.C.P. art. 1313 allows pleadings subsequent to the petition to be served by mail, delivery, or electronic means “except as otherwise provided by law.” The revision comments to Article 1313 describe some of these exceptions.

3.8.2 Waiver of Citation & Service

3.8.2 Waiver of Citation & Service aetrahan Thu, 06/22/2023 - 16:02

Citation is not required for Article 102 divorces and summary proceedings.1 A defendant may expressly waive citation and service by written waiver.2 Citation and service of the petition are required for Article 103 divorces.3 For a 103(1) divorce, the waiver must be by affidavit signed and filed after the petition is filed.4 The defendant must receive a certified copy of the petition.5 Check local court rules for any requirements for waivers of citation and service. If the matter is truly uncontested, you may be able to get around other time-consuming and costly methods of service, e.g., service of inmates and non-residents, and simply, obtain a written waiver from the adverse party. Some, if not most, prisons have in-house notaries who will notarize legal documents for its inmates. Call the prison and ask if they have a person on staff who notarizes legal documents. There is minimal cost, if any, to the prisoner, and it can expedite matters. 

  • 1La. C.C.P. arts. 1201, 3955.
  • 2La. C.C.P. arts. 3955(C), 3957.
  • 3La. C.C.P. art. 1201.
  • 4An affidavit is required because it is an out-of-court statement by the defendant waiving service. It must be filed after the petition is filed because the waiver cannot be executed until the defendant has received a certified copy of the petition. This ensures that the defendant is fully informed prior to executing the waiver.
  • 5La. C.C.P. art 1202.

3.8.3 Personal or Domiciliary Service by the Sheriff

3.8.3 Personal or Domiciliary Service by the Sheriff aetrahan Thu, 06/22/2023 - 16:04

Service on persons may be personal or domiciliary.1 Personal service is most often made at home (particularly in Article 102 divorce proceedings where the parties are still living together) or work. Domiciliary service requires service on a person of suitable age and discretion who resides in the adverse party’s house.2 Domiciliary service at a defendant’s former home, at a relative’s home, or on someone who does not live in his home will be insufficient service. 

  • 1La. C.C.P. art. 1231.
  • 2La. C.C.P. art. 1234.

3.8.4 Long-Arm Statute

3.8.4 Long-Arm Statute aetrahan Thu, 06/22/2023 - 16:08

If you know the address of an out-of-state divorce defendant, you must try to serve the defendant by certified mail under the Long-Arm Statute1 or by a method approved by the law of the non-resident’s state. 

A certified copy of the citation and petition in an Article 103 divorce or the notice, petition, and rule to show cause in an Article 102 divorce are sent by certified mail or commercial courier to the out-of-state defendant. Delivery of process by an authorized commercial courier may be a surer method of serving the defendant. A defendant’s failure to pick up certified mail delivered to the defendant’s current address does not defeat service. Service on an out-of-state defendant will eliminate the need to have an attorney appointed to represent the defendant per La. C.C.P. art. 5091, et seq.2

A private process server may also be used to effect long-arm service if appointed by the Louisiana court. However, use of a private process server for an out-of-state service may be impractical for two reasons: (1) the court can only appoint Louisiana residents, and (2) the process server’s oral testimony may be required if there is a challenge to the service. 

Except for matters filed under La. R.S. 46:2131, et seq., no contradictory motions and no default judgments, rules to show cause, or other summary proceedings may be had until 30 days after the affidavit of service is filed with the court as required by our Long-Arm Statute.3 The Affidavit of Service must be executed by the person who either (1) mailed the process to the defendant, including the return receipt signed by the defendant, or (2) executed by the person who actually delivered the pleadings/documents to the defendant reflecting the date, place, and manner of delivery. Remember that the 30-day delay for taking a default judgment does not begin to run until counsel files the Affidavit of Service into the record. 

The Affidavit of Long-Arm Service should strictly comply with La. R.S. 13:3205(1)–(3). The person who actually mailed the citation and petition must execute the Affidavit. If your administrative assistant mailed the process, the assistant must execute the Affidavit. Make sure that the Affidavit expressly states that a certified copy was mailed or delivered and contains all the information required by the particular subsection of La. R.S. 13:3205 under which service was effected. An Affidavit that merely states that the citation and petition were mailed is insufficient because it does not say that a certified copy was mailed.

  • 1See La. R.S. 13:3201–3207.
  • 2For additional discussion, see Section 3.9.2.
  • 3La. R.S. 13:3205.

3.8.5 Service by Private Process Server

3.8.5 Service by Private Process Server aetrahan Thu, 06/22/2023 - 16:10

On motion, the court must appoint a private process server when the sheriff does not make service within 10 days or is unable to make service. Proof of service may require oral testimony by the process server and/or an affidavit of service that states the place and method of service as would appear in a sheriff’s return. The court is limited to appointing non-party adult Louisiana residents.1

  • 1La. C.C.P. art. 1293.

3.9 Specific Procedural Situations

3.9 Specific Procedural Situations aetrahan Thu, 06/22/2023 - 16:11

3.9.1 Incarcerated Persons

3.9.1 Incarcerated Persons aetrahan Thu, 06/22/2023 - 16:11

Incarcerated persons are served by personal service on the warden or the warden’s designee. The warden or designee, in turn, must make personal service on the incarcerated person. Proof of service is made by filing the affidavit of the person serving the citation and pleadings on the incarcerated person into the record of the proceeding. The affidavit should indicate that the server was the warden’s designee, that personal service was made, and when service was made. La. C.C.P. art. 1235.1(D) allows for an alternative procedure when the warden fails to return the affidavit of personal service, which happens often. If the warden’s affidavit is not forthcoming, counsel should submit an affidavit to the court detailing the attempt to serve the pleadings in order to establish that service was made.1

Several days prior to the scheduled court appearance, the attorney should check with the jail/prison to ensure that the defendant/respondent is still incarcerated. Also, you should inquire about the process followed by that jail/prison to guarantee that the prisoner will be delivered to court timely for a scheduled appearance. Some local jails may only require a letter from the attorney; some may require a court order. The attorney should be prepared to submit an order for transport of the adverse party to the court for the hearing.

If a hearing is required in a case against a prisoner, some judges will require and rely on the plaintiff or mover to supply a Writ to Secure the Presence of the Defendant or Writ of Habeas Corpus Ad Testificandum for hearings. When setting court dates (Hearing Officer Conferences, rules, or trials), be mindful of the transportation expense involved (if possible, set all matters on one day after consulting with the judge’s law clerk) as some prisons can be located a meaningful distance from the court where your matter is pending.

Service on a defendant who is incarcerated in another state should comply with the same due process safeguards as required by La. C.C.P. art. 1235.1 or use the method for sheriff’s service under the other state’s law.2 Contact a local legal aid office for guidance on their state’s laws for service of prisoners. Most legal aid clients are paupers. Some sheriffs from other states will graciously honor a Louisiana pauper order. Other states will only honor a pauper order from their state courts, which, as a practical matter, can be impossible to obtain. 

Domestic violence perpetrators can be slippery and inclined to dodge service. Therefore, you may want to serve such defendants while they are still in jail/prison. 

  • 1See La. C.C.P. art. 1235.1(D).
  • 2See La. R.S. 13:3204(A).

3.9.2 Absent Persons and Curators

3.9.2 Absent Persons and Curators aetrahan Thu, 06/22/2023 - 16:13

If you cannot locate and serve a Louisiana defendant or serve a nonresident defendant by certified mail or other authorized means under the Long-Arm Statute, you will have to request appointment of a curator for the defendant under La. C.C.P. art. 5091 and make service on the curator. Note that you must try to serve a non-resident under the Long-Arm Statute1 before seeking appointment of a curator. Some clients will work harder to find an address for their spouse if you advise them as to the additional cost and delays for a curator divorce. A curator divorce can be null if the spouse is not an absentee or the spouse’s whereabouts are known.

In Peschier v. Peschier, the Supreme Court upheld annulment of a curator divorce 17 years after entry of the divorce judgment because the defendant was not an absentee and could have been readily located.2 Thus, a diligent search that includes public records, the internet, telephone book, relatives, last known address should be documented in your Motion to Appoint Curator. You should use Westlaw or Google for “people search.” Include language that a diligent search was made. In addition, your client should verify in the Motion that the client has no knowledge of the defendant’s whereabouts and reference how long it has been since the client has known the whereabouts of the adverse party. 

A curator may waive citation and accept service of process. Generally, indigents cannot afford the publication fees or the curator’s attorney fees. Many courts will accommodate indigent plaintiffs by appointing a pro bono curator who will not charge attorney fees. However, the curator will expect the newspaper publication fees to be paid. 

The divorce is tried contradictorily against the curator. Check with the judge’s law clerk as to the level of formality that the judge requires for taking up the divorce. By law, once the Answer has been filed and a reasonable amount of time elapsed (allowing for the curator to place ads, etc.) the matter should be set for trial. If the curator does not want to be present for the trial, ensure that the curator’s Waiver and “Note of Evidence” are in the record. The trial of a divorce against a curator usually consists of presenting a prima facie case for divorce by oral testimony as in a default judgment.

While a default can be obtained against the Curator for failure to file an answer, this is not encouraged. All courtesies should be accorded to the Curator prior to this drastic action. A default judgment granted when the Curator has filed a responsive pleading will be a nullity. 

Although court costs should be cast to the absentee defendant (and you should ask the court to do so in the judgment of divorce), some courts may attempt to cast the client with costs of the curator.3 As a practical matter, the curator’s fees are usually paid by the client or, if the client lacks the means, from funds maintained for that purpose by the legal services law firm or by the court’s volunteer lawyer program. 

  • 1See La. R.S. 13:3201–3207.
  • 2419 So. 2d 923 (La. 1982).
  • 3See Jones v. Jones, 297 So. 2d 198 (La. 1974) (holding that IFP litigants may obtain the services of a curator without prepaying the costs). For a more detailed discussion of IFP litigants’ eligibility for curator services, see Section 13 of the chapter on IFP procedures.

3.9.3 IFP Considerations

3.9.3 IFP Considerations aetrahan Thu, 06/22/2023 - 16:15

Indigent clients may be able to proceed without paying court costs as they accrue under Louisiana’s in forma pauperis procedure. These are discussed in more detail elsewhere in this manual.1

Because the clerk of court in most parishes wants to get paid, if an indigent client is assessed costs, this author generally recommends that they go to the clerk’s office and arrange to pay a de minimis monthly amount on the bill for costs. Depending on the court, doing so may avoid the clerk seeking a judgment against the client for unpaid court costs. This advice is always given with the understanding that paying the costs should not come before providing the basic necessities of food, shelter, clothing, and medicine for clients and their children.

In some cases, the ability of the Louisiana court to order “quasi in rem” decrees (e.g., costs) against the defendant who has had no minimum contacts with Louisiana and who has not subjected himself personally to the jurisdiction of the court, will not be possible. 

  • 1For a detailed discussion, see this manual’s chapter on IFP procedures. Section 8.2 of that chapter identifies some concerns specific to an IFP divorce proceeding.

3.10 Miscellaneous Topics

3.10 Miscellaneous Topics aetrahan Thu, 06/22/2023 - 16:16

3.10.1 Covenant Marriage

3.10.1 Covenant Marriage aetrahan Thu, 06/22/2023 - 16:16

After years of trying to make the divorce process easier for litigants, the Louisiana Legislature and its advisors decided that we needed to do more to preserve marriages. Thus, was created the covenant marriage, which, among other things, raises additional impediments to a relatively quick dissolution of a marriage.1 By statute, a covenant marriage is “a marriage entered into by one male and one female who understand and agree that the marriage between them is a lifelong relationship.”2 However, Louisiana couples have not embraced the concept of covenant marriage with much enthusiasm. In fact, in this writer’s experience, they are few and far between. 

Always ask clients whether they have contracted a covenant marriage. Proof that your client has contracted such a marriage can be established by obtaining a copy of the marriage license which will contain a declaration of their intent to enter into a covenant marriage pursuant to La. R.S. 9:273. If previously married parties have opted into a covenant marriage, this fact can be determined from the marriage certificate. La. R.S. 9:275 requires a notation of the parties’ intent to enter into a covenant marriage on the marriage certificate. A copy of the parties’ signed declaration of intent is attached to the marriage certificate.

In order to obtain a divorce, the spouses must first undergo counseling.3 After counseling has failed, the parties to a covenant marriage may obtain a judgment of divorce on specified grounds; a divorce on the grounds of living separate and apart is available, but requires a longer period of separation than in a non-covenant marriage.4 The Covenant Marriage Act also resurrected the legal regime known as separation from bed and board.5 La. R.S 9:307(B)(1)–(6) lists all the grounds for obtaining a judgment of separation from bed and board available after the parties undergo the mandated marital counseling. 

  • 1See La. R.S. 9:272–298. For statutes regulating divorce in a covenant marriage, see La. R.S. 9:307–309.
  • 2La. R.S. 9:272.
  • 3La. R.S. 9:307
  • 4La. R.S. 9:307(A).
  • 5La. R.S. 9:307(B).

3.10.2 Unlawful Marriages

3.10.2 Unlawful Marriages aetrahan Fri, 06/23/2023 - 13:32

A marriage contracted in the absence of a marriage ceremony or in the presence of an impediment (e.g., a previous undissolved marriage or consanguinity) is absolutely null.1  Such a marriage has no civil legal effects and need not be declared null by a court.2  Nevertheless, any interested person may bring an action for a judicial declaration of nullity.3  A petition for divorce cannot substitute for an action seeking a declaration of nullity.

Marriages that are absolutely null may still give rise to certain civil effects as to parties who entered into the marriage in good faith.4  Such putative marriages cannot be dissolved by a petition for divorce; dissolution must be obtained by a petition for a declaration of nullity of the marriage. In an action for a declaration of nullity of a putative marriage, the petitioner can be awarded the incidental relief available in a proceeding for divorce.5

  • 1La. C.C. art. 94.
  • 2See id.
  • 3Id.
  • 4La. C.C. art. 96.
  • 5La. C.C. arts. 151–152.

3.10.3 Same-Sex Marriage

3.10.3 Same-Sex Marriage aetrahan Fri, 06/23/2023 - 13:35

In Obergefell v. Hodges, the U.S. Supreme Court held that state bans on same-sex marriage violate both the Due Process and Equal Protection Clauses of the Fourteenth Amendment.1  Following Obergefell, the Louisiana Supreme Court issued a per curiam opinion confirming that Louisiana statutes in violation of Obergefell are unconstitutional.2  Accordingly, La. C.C. art. 86, which defines marriage as a legal relationship between a man and a woman, and La. C.C. art. 3520(B), which prohibits recognition of same-sex marriages performed in other states, are unconstitutional. Nevertheless, the Louisiana Law Institute has noted that there appears little motivation on the part of the Louisiana Legislature to amend the language of Louisiana statutes to conform to federal law in this area.3

3.10.4 Name Confirmation

3.10.4 Name Confirmation aetrahan Fri, 06/23/2023 - 13:36

Marriage does not change the legal name of either spouse. However, a married person may use the surname of either or both spouses.1  If, post-divorce, a woman seeks to return to the use of her maiden name, she may do so. To expedite the process, the divorce judgment can specifically contain language wherein the ex-spouse can declare her desire to return to her maiden name and the court can so order that she is permitted to do the same. Obtaining an order permitting a spouse to return to her family name can expedite the ex-spouse in changing legal documents such as a driver’s license or a Social Security card.2

4 Child Custody

4 Child Custody aetrahan Fri, 06/23/2023 - 13:38

4.1 Introduction

4.1 Introduction aetrahan Fri, 06/23/2023 - 13:38

4.1.1 Case Evaluation

4.1.1 Case Evaluation aetrahan Fri, 06/23/2023 - 13:38

Generally, custody issues are litigated in a divorce suit, a stand-alone custody suit, or a domestic violence protective order suit.1  The initial evaluation of a custody case should answer the following questions:

Which state and/or courts have jurisdiction and venue? Do not make the client wait for an appointment if Louisiana courts in your service area lack jurisdiction or venue. Determine jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and venue under the Code of Civil Procedure in the initial screening.2  Refer the client to the proper jurisdiction if necessary.

What is the client’s relationship to the child(ren)? Is the client a filiated parent, an unaffiliated biological parent, or a non-parent? Who are the legal, filiated parents of the child(ren)?

Which custody standard governs? The standard for obtaining custody varies depending on the parties and their litigation history.3

Parent v. Parent: Custody disputes between parents are decided under the “best interest of the children” standard. Joint custody must be awarded to the parents unless there a “history of family violence” or clear and convincing evidence that the children’s best interest requires an award of sole custody.4  In family violence cases, there is a statutory presumption that no parent who has a “history of perpetrating family violence” shall be awarded joint or sole custody.5

Parent v. Non-Parent: There is a threshold analysis the court must make when a non-parent is seeking custody. The non-parent must show that parental custody will cause substantial harm to the child. The non-parent’s burden of proof is clear and convincing evidence. Once this burden has been met, then the court will make a best interest of the child analysis.6

Modifications: Modifications of custody decrees (whether considered or consent) require a burden of proof that at a minimum, will require a material change of circumstances since the prior custody decree before the best interest of the child considerations are applied, also known as the Evans standard.7  If the prior custody judgment was a considered decree, the more arduous Bergeron standard will apply.8

Can the client meet the applicable custody standard? To evaluate a client’s legal problem, get as much information as possible from the client. Engage the client in conversation. Find out what is going on with the family. Often, one will discover information helpful to a client just by talking with the client. A person seeking a divorce may not volunteer that there has been family violence. Pry a bit. Ask questions, even ones outside the parameters of the particular problem for which you are consulted. Experienced attorneys will listen to what is said and what is not said.

Is there a “history of family violence?” If there is a history of family violence, the victim may have a strong case for sole custody and supervised visitation.9

Is the case meritorious? With experience, an attorney will acquire one of the most important skills in family law practice – what is known as “sixth sense”. Being able to evaluate an applicant’s account of their case, requires knowledge of the law and the ability to zero in on what could make or break the case. All this needs to be done in an expedient but competent manner that still assures that each client gets the consideration she deserves.

Ask the client about witnesses who can support the client’s version of the case facts. Get their names, addresses and phone numbers. Not only does this provide useful information for future proceedings, speaking to witnesses allows you to verify your client’s version of the facts. Find out what the client thinks the other party and that party’s witnesses will say about the client. Most experienced attorneys know that the “truth” usually lies somewhere in the middle. It is better to know the facts at the front end than to be surprised in court. Likewise, information about the client may be gleaned from the family’s contact with other organizations, e.g., Community Health Clinic, Child Protection, Support Enforcement Services, etc. Verify your client’s story with the child’s teachers and counselors. It is better to spend more time during intake or before you accept the client for services than to waste resources on a client whose case has little or no merit.

  • 1A more comprehensive treatment of the unique laws and considerations applicable to custody disputes in the context of domestic violence, see Section 8 of this manual’s chapter on representing survivors of domestic violence.
  • 2126 On venue, see La. C.C.P. art. 74.2. On UCCJEA jurisdiction, see Section 4.10.
  • 3On these standards, see Section 4.2 and Section 4.4.
  • 4La. C.C. art. 132.
  • 5La. R.S. 9:364. For further discussion, see Section 8.3.2 of this manual’s chapter on representing survivors of domestic violence.
  • 6La. C.C. art. 133.
  • 7Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So. 2d 731. For further discussion of the standards for modification of custody orders, see Section 4.4.3 and Section 4.4.4.
  • 8Bergeron v. Bergeron, 492 So. 2d 1193 (La. 1986).
  • 9See La. R.S. 9:364. For further discussion, see Section 8 of this manual’s chapter on representing survivors of domestic violence.

4.1.2 Settlement

4.1.2 Settlement aetrahan Fri, 06/23/2023 - 13:50

An attorney should never try a custody case without first pursuing settlement.1  Spend time with your client to ensure that the client understands that whatever result is truly in the children’s best interests will ultimately also end up being in the parents’ best interest. The client also faces the risk of having a stranger, the judge, decide what is in the children’s best interest, and the result may be contrary to the children’s best interest.

Encourage your clients to be reasonable. Turn down, not up, the heat between the parties. You will not only become a better “family” lawyer, but a better human being. If appropriate, recommend mediation as an alternative method of settling disputes.2  Let your “word be your bond.”

In evaluating your client’s case, do not make the mistake of only believing your client’s version of the facts. There are always two sides to every story. Respect the objectives and concerns of both parties. The practice of family law is not so much about winning or losing. Rather, it is doing as little damage as possible to children who are in a difficult, often traumatic, situation not of their making.

  • 1Cases involving domestic violence may require a different approach to settlement or foregoing settlement entirely. For a discussion of settlement in the context of domestic violence, see Section 4.11.3 of this manual’s chapter on representing survivors of domestic violence.
  • 2Mediation should not be used in domestic violence cases. See La. R.S. 9:363.

4.1.3 Screening for Family Violence

4.1.3 Screening for Family Violence aetrahan Fri, 06/23/2023 - 13:52

It is critical to identify whether there is a “history of family violence” against your client.1  If there is, your client will have a strong case for sole custody. The 2018 revisions to La. C.C. art. 134 have made the potential for a child to be abused the primary consideration in determining the child’s best interest. If there is a history of family violence, La. R.S 9:364 will govern the custody determination. La. R.S. 9:364 creates a very high bar for the abuser to get any custodial rights other than visitation. After proving completion of a treatment program and freedom from substance abuse, the abuser must still prove that the child’s best interest requires his participation as a custodial parent because the other parent has abandoned the child, suffers from mental illness, substance abuse, or “other circumstances” that affect the child’s best interest. The phrase, “other circumstances” refers to the preceding statutory terms in R.S. 9:364(B)(3), which all involve circumstances on the magnitude of parental unfitness. Thus, under the rule of ejusdem generis, “other circumstances” must be things like the preceding terms, which amount to parental unfitness. The term, “other circumstances” must be more than the best interest standard.

Many family violence victims are traumatized and intimidated. At an initial interview, they may tell you that they only want joint custody. As attorneys, we must respect the client’s objective. However, many victims will later change their minds and want sole custody. When they change their mind, it may be too late to amend the petition and it will require more filing fees and delay in the litigation. They may not remember that you told them about their right to sole custody. It is important to discuss with the client the advantages of sole custody. If they decide they only want joint custody, you should have them sign a statement acknowledging that you advised them of their right to sole custody and the various benefits of sole custody. It is well known that many abusers use custody litigation to continue their harassment of their victim.

  • 1If you identify a history of family violence, it is a good practice to involve an attorney with experience working with survivors of domestic abuse and familiar with the unique laws in this area, which differ from those applicable in other circumstances. Section 1 and Section 2 of this manual’s chapter on representing survivors of domestic violence provides extensive discussion of these issues.

4.1.4 Assembling Evidence

4.1.4 Assembling Evidence aetrahan Fri, 06/23/2023 - 13:53

In many jurisdictions, teachers, principals, or school counselors are persuasive witnesses. Our courts are invariably persuaded by disinterested third parties. Certainly, if a child is doing well in school and his teacher can testify that your client is involved in the child’s school activities and work, your client has a very good chance of being successful in court. Ask your client about his child’s school performance and school activities. Gather the names, phone numbers and addresses of potential witnesses. Note the specific areas of their anticipated testimony and how it relates to the Article 134 factors. Also, obtain documentary evidence that supports your client’s case.

Under La. C.E. art. 1101, the rules of evidence can be relaxed in child custody matters. Nonetheless, the judge may only allow proper evidence in order to assure fairness. Do not withhold testimony or documents you would like the court to hear or view just because they might be inadmissible under the normal rules of evidence. Submit to the court that the evidence is relevant, probative, and admissible. Sharing such “improper” evidence in pre-trial scheduling orders1  or discovery and giving an opportunity for the other side to refute it bolsters your argument to the court for the admission of evidence under Article 1101.

Social media, particularly Facebook, have become a fertile source of evidence for custody litigation. Warn your client against the use of social media during custody litigation. Postings on Facebook, Instagram, Twitter, and other social media may be discovered by the opposing party and used as evidence.

It is always best to ensure that your main witness testimony and documentary evidence are admissible and constitute proper evidence rather than relying on the chance that either the opposing party or the judge is inattentive. The court has the authority and the “gate keeping” duty to ensure that the decision is based on proper evidence.2  Medical reports need to be certified.3  Police reports are not admissible unless a proper foundation exists.4

Opinion testimony by lay witnesses is governed by La. C.E. art. 701. Lay witnesses may express an opinion only if the court concludes that the opinion is “rationally based on the perception of the witness.” If an expert is court appointed, calling the expert as a witness at trial or deposing the expert are options.5  Be careful in not stipulating to the report and waiving the right to cross examine the expert. If so, you will be stuck with the expert’s custody/mental health evaluation report, which is usually relied on by the court. In some custody cases, parties may hire their own expert witnesses. Review each aspect of the expert’s anticipated testimony with him. Suggest areas of inquiry that opposing counsel may pursue in cross-examination. Be sure that you are both on the same page. The test for qualifying an expert is whether the expert has specialized knowledge that can assist the court in understanding the evidence or in determining a fact in issue.6  Anticipate Daubert challenges to witnesses. A good resource for preparing your custody case with expert witnesses is Chapter 11 of Linda D. Elrod’s Child Custody Practice and Procedure. Other valuable resources for trial preparation include West’s Louisiana Code of Evidence Handbook, Lowe’s Louisiana Divorce, §§ 3.34-90, and Triche’s Handbook on Louisiana Family Law, Title 5, Evidence Commentary.

  • 1La. C.C.P. art. 1551.
  • 2See La. C.E. art. 403.
  • 3La. R.S. 13:3714.
  • 4See La. C.E. art. 803(8)(b).
  • 5See La. C.E. 706.
  • 6La. C.E. art. 702.

4.2 Standards for Awarding Custody

4.2 Standards for Awarding Custody aetrahan Fri, 06/23/2023 - 13:55

La. C.C. art. 132 provides that if the parents do not agree on custody, the court must award joint custody. Joint custody must be awarded absent the parties’ consent to sole custody, a history of family violence or clear and convincing evidence that sole custody is in the child’s best interest. Proof of a “history of family violence” will generally preclude any custody award to the abuser.1

La. C.C. art. 133 allows a custody award to a non-parent only if parental custody would result in substantial harm to the child. In a custody dispute between a parent and non-parent, the best interest standard does not become an issue until there has been a threshold determination that custody to the parent would cause substantial harm to the child. The language of La. C.C. art. 133 does not require or allow joint custody with or between non-parents. However, the courts have upheld joint custody to the parent and non-parents where sole custody with the parent would cause substantial harm to the child.2

La. C.C. art. 134 lists the relevant factors for a court to consider in determining “best interest” in a custody dispute between parents.3

  • 1For more information, see Section 8.3.2 of this manual’s chapter on representing survivors of domestic violence.
  • 2Schloegel v. Schloegel, 584 So. 2d 344 (La. App. 4 Cir. 1991).
  • 3For a discussion of these factors, see Section 4.5.

4.3 Pleadings for a Custody Claim

4.3 Pleadings for a Custody Claim aetrahan Fri, 06/23/2023 - 13:56

4.3.1 Required Pleadings

4.3.1 Required Pleadings aetrahan Fri, 06/23/2023 - 14:01

A custody determination may be sought by an original action for custody or by a Rule for Custody within a divorce or paternity lawsuit. An original action for custody only may be started by filing a petition for custody, i.e., a “Petition for Custody: Ordinary Proceeding.” The pleadings caption should be used to “flag” the Court’s attention to treat it as an ordinary proceeding. If there is already a pending ordinary action such as divorce, paternity suit, etc., a Rule for Custody may be filed as a summary proceeding within the ordinary proceeding.

When a custody action is instituted by a Petition for Custody, formal service and citation of the petition on the defendant is required (unless the defendant signs a waiver). Thereafter, the defendant is required to answer the petition within 21 days. If the defendant does not answer, the plaintiff may move for a default judgment. Obtaining the default judgment will require proof of prima facie case. If, instead, a custody rule is filed, the court will set a date for hearing of the rule, and the plaintiff must appear and prove the claim for custody at the hearing. The default procedures (reserved for ordinary proceedings) may not be used to obtain a custody judgment that is sought by a custody rule (summary proceeding). Some courts will require by local rule that ancillary matters be first set for a Hearing Officer Conference. It is best to contact the Hearing Officer’s office in the event there is a need to bypass the Conference or to make this request at the time of filing.

4.3.2 Pleading Standards

4.3.2 Pleading Standards aetrahan Fri, 06/23/2023 - 14:02

Louisiana has “fact pleadings.” Thus, you must specifically plead those facts necessary to obtain the relief requested. Also, in family law matters, you generally cannot get what you do not pray for. If you are seeking sole custody for your client, you must plead specific facts, which, if proven, would entitle your client to sole custody. You should pray for sole custody if the client has a case for sole custody and wants to pursue sole custody. Do not simply state that it is in the best interests of the children that your client be awarded sole custody. Rather, state the facts which clearly establish that an award of sole custody to your client is in the children’s best interest. If you seek a modification of custody, you must plead the grounds for modification. Failure to plead a change of circumstances subjects the custody pleading to a no cause of action exception.

An initial custody pleading should allege facts which establish custody jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJEA)1  and must attach an affidavit that provides the information required by La. R.S. 13:1821(A).2

  • 1La. R.S. 13:1801, et seq. For further discussion of the UCCJEA, see Section 4.10.
  • 2Note that this requirement may pose problems for domestic violence victims who should not have to disclose their specific address. Consider options for protecting the confidentiality of the victim’s address if necessary.

4.4 Burden of Proof

4.4 Burden of Proof aetrahan Fri, 06/23/2023 - 14:08

4.4.1 General Principles

4.4.1 General Principles aetrahan Fri, 06/23/2023 - 14:09

The burden of proof will vary in a child custody case depending on the history of the case, the parties to the case, and the kind of custody (sole or joint) being sought. First, you should identify the burden of proof applicable to your custody case.

4.4.2 Initial Custody Determination

4.4.2 Initial Custody Determination aetrahan Fri, 06/23/2023 - 14:10

If a custody dispute between parents has never been heard by a court, the burden of proof will only be the “best interest of child.” Best interest for domiciliary parent status is determined by the preponderance of the evidence. Best interest for sole custody is governed by the clear and convincing evidence standard.1  If the case is an initial dispute between parents and non-parents, the burden of proof is substantial harm to the child by clear and convincing evidence.2

  • 1La. C.C. art. 132.
  • 2La. C.C. art. 133.

4.4.3 Modification of Consent Judgment

4.4.3 Modification of Consent Judgment aetrahan Fri, 06/23/2023 - 14:12

In Louisiana, the burden of proof for modifying custody depends on whether the original judgment was a consent judgment or whether it was a considered decree of the court. The leading cases are Evans v. Lungrin1  for consent judgments and Bergeron v. Bergeron2  for considered decrees.

A judgment reached by consent is a “stipulated judgment.” Modification of a consent judgment only requires proof of a material change in circumstances and that the proposed modification is in the child’s best interest (i.e., the Evans standard).3  In some circuits, the parties may stipulate in a consent judgment to the application of the higher Bergeron burden of proof for custody modification (i.e., the burden applicable to considered decrees).4  The circuits are also split as to whether the parties may stipulate in a consent judgment to a standard lower than the material change of circumstances recognized in Evans. Note that a provision in a consent judgment stating that the custody arrangement may be reviewed in the future does not necessarily make the judgment an interlocutory or interim custody judgment.

Sometimes, a consent judgment may be a “considered decree,” which triggers the Bergeron standard. In Cherry v. Cherry, the court found that a consent judgment entered after 3 days of trial testimony was a “considered” decree that required the Bergeron burden of proof for modification.2004-CA-0002 (La. App. 4 Cir. 2/2/05), 894 So. 2d 1208. However, in Poole v. Poole, another court found that a consent judgment entered after the second day of trial was a stipulated judgment and not “considered decree” and, thus, governed by the Evans “material change in circumstances” test rather than the Bergeron test.5

  • 197-0541 (La. 2/6/98), 708 So. 2d 731.
  • 2492 So. 2d 1193 (La. 1986).
  • 3See Evans, 97-0541, 708 So. 2d 731.
  • 4On this higher burden, see Section 4.4.4.
  • 541,220 (La. App. 2 Cir. 3/22/06), 926 So. 2d 60.

4.4.4 Modification of Considered Decree

4.4.4 Modification of Considered Decree aetrahan Fri, 06/23/2023 - 14:18

If a court receives evidence of parental fitness, any resulting judgment of custody between parents will be a “considered decree,” and subsequent modifications will require a heavy burden of proof under the Bergeron standard. In Bergeron v. Bergeron,1  the Supreme Court, applying the doctrine of jurisprudence constante, articulated the burden of proof necessary to modify a considered decree of “permanent” custody as follows:

When a trial court has made a considered decree of permanent2  custody, the party seeking a change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change in environment is substantially outweighed by its advantages to the child.

While the heavy burden of proof is synonymous with Bergeron, the affirmation by the court of two other rules is often overlooked. These rules are the change-of-circumstances rule and the rule for appellate review (i.e., the determination of the trial judge in child custody matters is entitled to great weight, and the trial court’s discretion will not be disturbed on review in the absence of a clear showing of abuse).3  It is from the change-of-circumstance rule that the rule for the burden of proof for a consent judgment evolved among the circuit courts and as articulated in Hensgens v. Hensgens4  and recognized later by our supreme court in Evans v. Lungrin.5  The need for the set of rules was summed up by the Bergeron court as follows:

[M]ore harm is done to children by custody litigation, custody changes, and interparental conflict, than by such factors as the custodial parent’s post divorce amours, remarriage, and residential changes, which more often precipitate custody battles under liberal custody modification rules than conduct that is obviously harmful to the child, such as abuse or serious neglect, which justifies intervention to protect the child . . . .6        

The Bergeron heavy burden of proof is difficult to overcome. As recently noted by the Supreme Court, modification of considered decrees is awarded sparingly and is reserved for the most egregious offenses such as sexual molestation and physical abuse.7

The courts have applied Bergeron to a parent’s motion to modify a considered decree of permanent custody to a non-parent. Bergeron does not apply to a temporary custody award to a parent or non-parent. An interim or temporary custody judgment is subject to change until the issuance of the final permanent custody judgment.8

  • 1492 So. 2d 1193 (La. 1986).
  • 2The Supreme Court used the term “permanent” in Bergeron. Technically, however, there are no “permanent” custody decrees because they are always subject to modification.
  • 3Bergeron, 492 So. 2d at 1203.
  • 494-1200 (La. App. 3 Cir. 3/15/05), 653 So. 2d 48.
  • 597-0541 (La. 2/6/98), 708 So. 2d 731.
  • 6492 So. 2d at 1199.
  • 7For other examples of what constitutes a change in circumstances, see Silbernagel v. Sibernagel, 10-CA-267 (La. App. 5 Cir. 5/10/11), 65 So. 3d 724, 728 (long drive between parents’ homes no longer manageable); Lemoine v. Lemoine, 09-861 (La. App. 3 Cir. 12/16/09), 27 So. 3d 1062 (exacerbation of allergies by smoking and dogs was a change of circumstance); Beene v. Beene, 43,845 (La. App. 2 Cir. 10/22/08), 997 So. 2d 169 (impact on child’s emotional welfare from domestic violence against mother by her subsequent ex-husband). But see Kyle v. Leeth, 98 CA 0756 (La. App. 1 Cir. 11/6/98), 727 So. 2d 497 (absence of single mother from child’s home 75% of time was not a change of circumstance).
  • 8Riels v. Riels, 2004-0567, p. 4 (La. App. 4 Cir. 5/25/05), 905 So. 2d 361, 364.

4.4.5 Non-Parent Custody

4.4.5 Non-Parent Custody aetrahan Fri, 06/23/2023 - 14:22

The Louisiana Supreme Court has held that the Evans and Bergeron standards apply equally to non-parent custody cases under La. C.C. art. 133.1  Only if the judgment awarding custody to a non-parent is a considered decree will the heightened standard of Bergeron apply.

  • 1Tracie F. v. Francisco D., 2015-1812 (La. 3/15/16), 188 So. 3d 231.

4.5 Best Interest Factors

4.5 Best Interest Factors aetrahan Fri, 06/23/2023 - 14:23

After identifying the applicable burden of proof, review the 14 factors in La. C.C. art. 134 for determination of the child’s best interest. The court is required to consider and weigh these factors based on the evidence presented. These factors for custody determinations should provide you with an outline for your case preparation. When interviewing your client regarding a possible custody action, refer to these factors. Question your client and witnesses on each factor and identify documentary evidence that supports each factor in your client’s favor.

You should know the custody factors upon which your judge places greater emphasis. There is a truism that “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 must consider all relevant factors in determining the best interest of the child. It is legal error on the part of the court if the court’s decision does not articulate these or other factors relied upon.

Factor #1:The potential for the child to be abused, as defined by Children’s Code Article 603,

which shall be the primary consideration.” This is the only factor that has been assigned weight. All other factors are up to the discretion to the fact finder to weigh and balance.

Factor #2: “The love, affection, and other emotional ties between each party and the child.”

This factor often ties into Factor #14, prior responsibility for care of the 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 for opinion testimony by lay witnesses.

Factor #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.” Testimony by teachers can be very helpful to your case. If a party is active in 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 #4: “The capacity and disposition of each party to provide the child with food, clothing, medical care and other material needs.” Our courts, as a rule, do not decide custody based on a parent’s wealth. However, if a parent spends all 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 #5: “The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.” This is a strong factor.1

Factor #6: “The permanence, as a family unit, of the existing or proposed custodial home or homes.” This factor relates 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 how long your client has lived at your client’s current address and where your client has lived over the previous two years. Inquire about the residence(s) of the opposing party. Most judges will have concerns about a parent who has been moving from place to place. If your client has had to move frequently for economic or other reasons, be prepared to explain this to the court and what efforts your client is making to establish a more permanent residence.

Factor #7: “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. The focus is on the detrimental effect of the parent’s illicit relationship on the child. An award of custody is not a tool to regulate or punish human behavior. Its only object is the best interest of the child.

In Montgomery v. Marcantel, 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.”2  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.”3

Factor #8: “The history of substance abuse, violence, or criminal activity of any party.” This factor was added in the 2018 revision. This factor is likely to be very persuasive to most judges. If your client has a history of substance abuse, violence, or criminal activity, be prepared to show that those events were in the past and that your client is rehabilitated.

Factor #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.” This is a strong factor. La. R.S. 9:331 provides that for good cause shown, the court may order mental health evaluations of the parties, the child, or the entire family to be conducted by a qualified mental health care provider selected by the parties or the court.4  In Matthews v. Matthews,5  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.6  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 #10: “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 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 #11: “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 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.

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 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 sure that there is extremely good reason to do so. I would caution the attorney who does not have the child for a client against interviewing minor child(ren) or preparing the child to testify. 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 testimony will be allowed, is a matter within the trial judge’s discretion.

Watermeier v. Watermeier provides the procedure that should be followed when a court interviews children.7  In a Watermeier hearing, the parties are not present to hear the child’s testimony and the judge, not the attorneys, is the person questioning the child witness. While counsel for the parties can stipulate to their absence during the testimony taken by the judge in chambers, waiver of the recordation of testimony is not permitted.8

Factor #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.” 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 by attempting 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.9

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.10

The facilitation of the relationship between the child and the other party may include a party’s willingness to make travel arrangements and facilitate electronic communications that allow the child meaningful time with both parties and that minimize the negative impact of long-distance parenting on the child.11

Factor #13: “The distance between the respective residences of the parties.” In Stewart v. Stewart, 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.”12  Stewart was decided prior to the 1994 revision to Article 133 of the Civil Code, which eliminated the presumption of joint custody, but still supports the proposition that great distance may weigh against joint custody.13

Factor #14: “The responsibility for care and rearing of the child previously exercised by each party.” The responsibility for child rearing previously exercised by the parties may be evaluated by identifying which of them had primary responsibility during the marriage for the following duties concerning the child: (1) preparing and planning meals for the child; (2) bathing, grooming, and dressing the child; (3) purchasing, cleaning, and caring for the child’s clothes; (4) obtaining and providing medical care, including nursing and trips to physicians; (5) arranging for social interaction among the child’s peers after school, e.g., transporting the child to friends’ houses or to girl or boy scout meetings; (6) arranging alternative care, e.g., baby-sitting, day-care, etc.; (7) putting the child to bed at night, attending to the child in the middle of the night, waking the child in the morning; (8) disciplining the child, including teaching the child general manners and toilet training; (9) obtaining and providing education (religious, cultural, or social) for the child; and (10) teaching the child elementary skills, e.g. reading, writing and arithmetic.14

The factors enumerated in Article 134 are nonexclusive and merely illustrative. If you identify another relevant factor that does not fit neatly into any of the categories above, do not leave it out. It is for the court to determine its weight and relevance.

  • 1See Hobbs v. Hobbs, 42,353 (La. App. 2 Cir. 8/15/07), 962 So. 2d 1148; Lee v. Lee, 34,025 (La. App. 2 Cir. 8/25/00), 766 So. 2d 723.
  • 2591 So. 2d 1272 (La. App. 3 Cir. 1991).
  • 3Id.
  • 4For specific concerns regarding mental health testing in the context of domestic violence, see Section 8.8.2 and Section 8.8.4 of this manual’s chapter on domestic violence.
  • 5633 So. 2d 342 (La. App. 1 Cir. 1993).
  • 6In cases involving family violence, the mental health evaluation costs must be paid by the perpetrator. La. R.S. 9:367; La. R.S. 46:2136.1.
  • 7462 So. 2d 1272 (La. App. 5 Cir. 1985).
  • 8Weaver v. Weaver, 2001-1656 (La. App. 3 Cir. 5/29/02), 824 So. 2d 438.
  • 9For an overview of psychological literature on effects of separation, see Moreau & Ho, Child Custody Awards to Nonparents Under Article 146(B), 34 Loy. L. Rev. 51, 66–70 (1987).
  • 10See Angelette v. Callais, 2010-2279 (La. App. 1 Cir. 5/6/11), 68 So. 3d 1122 (no statutory requirement existed requiring a court to order mediation where parties cannot reach agreement on their own); Thibodeaux v. O’Quain, 2010-1266 (La. App. 3 Cir. 3/24/10), 33 So. 3d 1008 (“deliberate and willful alienation” of step-children by mother has a bearing on the weight given to this factor in the best interest analysis of her biological child).
  • 11La. C.C. art. 134 cmt. 2012 rev.
  • 12525 So. 2d 218 (La. App. 1 Cir. 1988).
  • 13See also Lachney v. Lachney, 446 So. 2d 923 (La. App. 3 Cir. 1984) (concluding that a joint custody arrangement was unworkable insofar as one party resided in South Carolina and the other in Louisiana).
  • 14La. C.C. art. 134 cmt. (i) (citing Garska v. McCoy, 278 S.E.2d 357, 363 (W. Va. 1981)).

4.6 Joint Custody Implementation Plan

4.6 Joint Custody Implementation Plan aetrahan Fri, 06/23/2023 - 14:34

If joint custody is awarded, unless there is good cause, a Joint Custody Implementation Plan (JCIP) must be submitted to the court.1  This requirement must be addressed even in cases of an uncontested 103(1) or 103(5) divorce by default without a hearing.

How do you get around the JCIP when the defendant will not show up or file an answer? You should plead that good cause exists where the defendant is an absentee, incarcerated, or out of state and served by the long arm statute as well as where the defendant has just been marginally (few visits a year) involved in the lives of the children. These facts should be crafted in your petition, prayer, affidavit of correctness, and the final judgment in support of a joint custody decree that contains the language of: “visitation as agreed to between the parties.”

Otherwise, the minimum requirements to qualify as an implementation order include parental time periods for physical custody and the allocation of legal authority and responsibility of the parents. Unless the parties agree otherwise or good cause exists not to, one parent should be named as the domiciliary parent. If older children are involved, it may be a good idea to have your client get their input on the implementation plan. Another recent development with custody plans is the non-designation of a domiciliary parent and close to a 50:50 shared physical custody plan (at least on paper). This shared plan would trigger Obligation Worksheet B and thus, a lower child support setting for the parent with the greater income. Nevertheless, a domiciliary parent should be named in a JCIP if it is clear that the parents will likely disagree on important decisions about the children, such as recreational activity, school issues, and discipline.2

It is imperative that all the parties sign off on the plan as it evidences the basis for an extrajudicial agreement between the parties. Making it an authentic act is not a bad idea.

The JCIP by itself is not the judgment, and the judgment must incorporate the JCIP. Rather than having two separate documents, it is acceptable to craft the judgment in such a manner so that the judgment and the JCIP are the same document.

There are different forms of agreements. A stipulation in “open court” – where the court is conducting hearings and the judge is on the bench – has the effect of an approved judgment of the Court and is effective at the conclusion of that approval. Prompting the judge to “swear the parties in and to have them acquiesce to the agreement” that has been read into the record is always good practice. A contempt on violation(s) of this stipulated judgment (even though a written one has not been presented and signed) is permissible. Our law gives effect to the parties’ oral stipulation when it is “recited in open court and susceptible of being transcribed from the record of the proceedings.”3

But many trial judges will not consider a contempt motion unless the consent judgment is reduced to writing. An extrajudicial agreement (outside open court) needs to be in writing and signed by all parties involved (attorneys included, if applicable). The agreement must be approved and signed by the court before it is adopted as the judgment of the court and for it to be effective.

  • 1La. R.S. 9:335.
  • 2Wolfe v. Hanson, 2006 CU 1434R (La. App. 1 Cir. 5/10/08), 991 So. 2d 13.
  • 3See Melanson v. Melanson, 94-884 (La. App. 5 Cir. 3/1/95), 652 So. 2d 114; McIntyre v. Becker, 2005-0257 (La. App. 4 Cir. 8/3/05), 918 So. 2d 40; La. C.C. art. 3072.

4.7 Non-Parent Custody

4.7 Non-Parent Custody aetrahan Mon, 06/26/2023 - 09:15

4.7.1 General Principles

4.7.1 General Principles aetrahan Mon, 06/26/2023 - 09:15

The burden of proof for a non-parent to obtain custody is much higher than the best interest standard that governs parental custody disputes. A parent has a paramount right to custody that can only be forfeited for compelling reasons.1  A non-parent must establish that the award of custody to “either parent would result in substantial harm to the child.”2  The short-term distress of returning a child to a parent does not constitute the severe detriment required for a custody award to non-parents.3  Furthermore, a parent’s custodial rights should not be defeated by a non-parent’s litigation delays to withhold a child.4  A parent’s poverty is not a reason to deny custody.5

If custody to the parents is denied, third parties with whom the child has lived in a wholesome and stable environment are preferred. However, if such a placement is not available, custody of the child may be awarded to a non-parent who meets both this higher burden of proof and can provide a stable and adequate environment for the child. Joint custody is not required. However, the court has discretion to order joint custody between a parent and non-parent.

If the mother of a child not filiated to his father dies, under La. C.C. 256, a court “shall give first consideration to appointment as tutor either of her parents or siblings who survive her, and secondly, the father, always taking into consideration the best interests of the child.” Per La. C.C.P. art. 4261, the tutor shall have custody of the minor.6  Thus, these articles combine to give a preference to the child’s maternal grandparents, uncles, and aunts in the unique situation where an unfiliated child’s mother dies before the child’s father acknowledges paternity.

  • 1Wood v. Beard, 290 So. 2d 675 (La. 1974).
  • 2La. C.C. art. 133.
  • 3Lewis v. Taylor, 554 So. 2d 163 (La. App. 2 Cir. 1989).
  • 4State v. Weber, 161 So. 2d 759, 766 (La. 1964).
  • 5Creed v. Creed, 647 So. 2d 1362 (La. App. 3 Cir. 1994).
  • 6See also In re Bogues, 236 So. 2d 665 (La. App. 2 Cir. 1970).

4.7.2 Illustrative Cases

4.7.2 Illustrative Cases aetrahan Mon, 06/26/2023 - 09:20

Cases discussing parent vs. non-parent custody disputes include:

Gill v. Bennett.1  Grandmother was not entitled to custody of child born out of wedlock, even though she had acted as child’s primary caretaker for a period of time and had been afforded status as child’s permanent guardian in an Indiana court prior to the child’s relocation to Louisiana, absent a showing that an award of custody to mother and father would have resulted in substantial harm to the child.

Rupert v. Swinford.2  Record supported finding that award of sole custody of child to father would cause substantial harm to child, and thus, trial court’s award of joint custody of father and maternal grandmother was not abuse of discretion, where there was testimony of father’s drug use, child had very close relationship with maternal grandmother with whom he had lived off and on for his entire life, and there was testimony that child had no regular meal times and kept late hours when staying with father.3

In re Melancon.4  The nonparent failed to allege a cause of action under La. C.C. art. 133 that allowed for an award of custody to a person other than a parent. Parent could not consent to joint custody with a non-parent. “In essence, the law today simply does not permit a parent to share custody with a non-parent without a showing of substantial harm to the child.”5

  • 12011-886 (La. App. 3 Cir. 12/7/11), 82 So. 3d 383.
  • 295-0395 (La. App. 1 Cir. 10/6/95), 671 So. 2d 502.
  • 3See also McKinley v. McKinley, 631 So. 2d 45 (La. App. 2 Cir. 1994); In re Landrum, 97-826 (La. App. 3 Cir. 12/10/97), 704 So. 2d 872; Dalferes v. Dalferes, 98 1234 (La. App. 4 Cir. 11/18/98), 724 So. 2d 805.
  • 42010-1463 (La. App. 1 Cir. 12/22/10), 62 So. 3d 759.
  • 5Id. at 764.

4.7.3 Kinship Care Subsidy Program (KCSP) Payments

4.7.3 Kinship Care Subsidy Program (KCSP) Payments aetrahan Mon, 06/26/2023 - 09:30

KCSP provides cash assistance of $450 per month for each eligible child who resides with a qualified relative other than a parent. The child must live in the home of one of the following qualified relatives (either biological or adoptive): grandfather or grandmother (extends to great-great-great), brother or sister (including half), uncle or aunt (extends to great-great), stepfather, stepmother, stepbrother, stepsister, first cousin, including first cousin once removed, and nephew or niece (extends to great-great), or the legal spouse of the above-listed relatives. The qualified relative must possess or obtain within 1 year of certification, either legal custody or guardianship or provisional custody by mandate of the eligible child who is living in the home. The State reserves the right to pursue child support against the parent(s), and this may be of some concern to a grandparent. The kinship program can substantially improve the economic welfare of the family. The availability of kinship payments put an even higher priority on legal custody for non-parent caretakers of neglected children.1

4.7.4 Transferring Custody

4.7.4 Transferring Custody aetrahan Mon, 06/26/2023 - 10:50

Parents may grant a provisional custody by mandate to another person to take care of their children.1  These mandates (notarial acts) may be effective for up to one year. La. R.S. 9:975 authorizes non-legal custodians to give legal consent to medical or educational services by affidavit.

A provisional custody by mandate cannot be used to change a child’s school district absent a change in the child’s actual residence. If a parent or a caregiver does not have legal custody, school districts where the demand for enrollment is great will invariably reject the Custody by Mandate and deny school admission. In such cases, a Voluntary Transfer of Custody (VTOC) or a Petition for Custody may be necessary.

A VTOC, while a juvenile court proceeding, can be filed either in juvenile or district court; the courts have concurrent jurisdiction.2  If a VTOC is filed in juvenile court, any future modifications take place in that court unless the case is dismissed. Please note that the client is the parent or party who has legal custody - not the caregiver. The caregiver may be the client if the caregiver seeks to file a Petition for Custody against the parent. Obviously, the burden of proof would be much higher and parental unfitness must be shown (child faced with substantial harm, etc.) in a contradictory hearing.3  In the typical VTOC case, the parent and the caregiver are on “the same page”. Since the filing is voluntary, someone will have to pay the court costs for the VTOC; because the judgment is typically signed without a hearing, however, the costs are low.

Caveat: It is important to know who your client is. The parties may have a “fallout” down the road and want modifications. Also, if feasible, both parents (if no legal custody order is in place) need to consent to the transfer. Sometimes the mother, under investigation by Office of Community Services, will seek to transfer the child. It is wise (for your own peace of mind) to inquire into the suitability and fitness of the person who will receive the child.

There are unique statutes applicable to members of the military. Louisiana Military Powers of Attorney are governed by La. R.S. 9:3861, et seq. La. R.S. 9:3861–3862 provides a statutory form of power of attorney for military personnel to authorize another person to have custody. La. R.S. 9:3879.1 identifies the powers possessed by the authorized agent.

  • 1La. R.S. 9:951.
  • 2See La. Ch.C. art. 1510, et seq.
  • 3For discussion of the requirements for an award of custody to a non-parent, see Section 4.7.

4.8 Ex Parte Custody

4.8 Ex Parte Custody aetrahan Mon, 06/26/2023 - 10:56

Article 3945 of the Code of Civil Procedure sets out the procedures required for an ex parte grant of custody. A party is not entitled to an ex parte order of temporary custody unless it is established from specific facts shown in a verified pleading or by a supporting affidavit that immediate and irreparable injury will result to a child or children before the adverse party or the party’s counsel can be heard in opposition. The applicant’s attorney must certify in writing either that efforts have been made to give the adverse party reasonable notice of the date and time the ex parte order is to be presented to the court or the reasons supporting the applicant’s claim that notice should not be required.

These ex parte orders expire automatically within 30 days of the signing of the order, but they can be extended for good cause shown for one period not to exceed 15 days. Further, the ex parte order must provide specific provisions for temporary visitation to the adverse party for not less than 48 hours during a 15-day period unless the verified petition or supporting affidavit clearly exhibits that the child would suffer immediate and irreparable harm should such visitation be ordered.

The order shall be endorsed with the date on which the ex parte order is signed and the date and hour that the rule to show cause is set. The rule hearing cannot be set more than 30 days after the signing of the ex parte order of temporary custody. Most importantly, failure to adhere to the provisions of Article 3945 makes the ex parte order unenforceable.

If the ex parte order of temporary custody is denied, La. C.C.P. art. 3945(F) requires the court to allocate the child’s time between the parents unless irreparable and immediate injury would result to the child.

Article 3945 does not apply to custody orders requested in a verified petition under the Domestic Abuse Assistance Act1  or the Post-Separation Family Violence Relief Act.2

A word of warning: always be absolutely truthful and candid to the court, particularly when requesting ex parte relief. Always provide the notice, necessary affidavits, and any other documents that support “irreparable injury”.

Do not rely on your client’s version of the facts or their certification of the petition. Here, as an officer of the court, you are required to search diligently for the truth – to the extent possible. Strictly comply with the law when seeking ex parte relief. If an opposing party filed or obtained an La. C.C.P. art. 3945 ex parte custody order without merit, you can use the order as an example of malice and proof that the adverse party is unlikely to facilitate a joint custody relationship.3

  • 1La. R.S. 46:2131, et seq.; La. Ch.C. art. 1564, et seq.
  • 2La. R.S. 9:361, et seq.
  • 3See C.C. art. 134(12). For additional discussion, see Section 4.5.

4.9 Relocation of a Child’s Principal Residence

4.9 Relocation of a Child’s Principal Residence aetrahan Mon, 06/26/2023 - 11:08

4.9.1 Application of the Relocation Statute

4.9.1 Application of the Relocation Statute aetrahan Mon, 06/26/2023 - 11:08

La. R.S. 9:355.1, et seq. govern relocation of a child’s principal residence. Relocation is defined as a change in the principal residence of a child for a period of sixty days or more, but does not include a temporary absence from the principal residence.1

In a custody case, you should always advise your client of the obligations under the relocation statute. Clients won’t know this law unless you tell them about it. The La. R.S. 9:355.2 relocation procedures apply if any of the following exist:

  • There is an intent to move out of state, regardless of the distance.
  • There is no custody order, and there is an intent to relocate the child’s principal residence to any Louisiana location that is more than 75 miles from the other parent’s domicile.
  • There is a custody order, and there is an intent to relocate the child’s principal residence to any Louisiana location that is more than 75 miles from the child’s principal residence at the time of the custody order.
  • The parties have an equal physical custody order or the child has no principal residence, and there is an intent to establish the child’s principal residence within the state that is more than 75 miles from the other party’s domicile.

Generally, in cases where the parties have equal physical custody (close to 50:50 and distinguished from shared custody2 ), a parent may not relocate the child’s residence without either the other parent’s express written consent or the court’s authorization after a contradictory hearing.3

  • 1La. R.S. 9:355.1(2).
  • 2See La. R.S. 9:355.1 cmt. (b) (providing that temporary absences of greater than 60 days, such as summer vacation, do not trigger the relocation statute).
  • 3La. R.S. 9:355.3(B).

4.9.2 Notice

4.9.2 Notice aetrahan Mon, 06/26/2023 - 11:10

If the relocation statute applies,1  a parent must notify the other parent of the proposed relocation unless the parents have entered into an express written agreement for the relocation or a domestic violence protective order is in effect.2  Note that the duty to notify the other parent applies even if there is no custody order. La. R.S. 9:355.4 requires notice to non-parents who have court ordered visitation. However, non-parents with only visitation orders may not object to the proposed relocation and may only seek a modification of the visitation schedule.3

Notice of a proposed relocation must be given not later than 60 days before the proposed relocation or 10 days after the relocating parent has knowledge of the information required for the relocation notice if the parent requesting relocation did not have sufficient information to give 60 days’ notice. Notice is by certified mail or commercial courier.4

The court may consider a relocation without prior notice as a factor in determining relocation and sufficient cause for paying reasonable expenses incurred by the person who is objecting. Be sure to advise clients of their duties to comply with the notice and approval requirements of La. R.S. 9:355.5 should they decide to relocate.

4.9.3 Objections

4.9.3 Objections aetrahan Mon, 06/26/2023 - 11:12

Unless a person has equal physical custody of the child under a court decree, a person opposed to the relocation must object within 30 days of receipt of the relocation notice.1  If an objection is made, the parent proposing relocation must initiate a summary proceeding for court approval of the relocation within 30 days of the receipt of the objection.2  If an objection is filed, court approval may only be granted after a contradictory hearing.3

The relocating parent has the burden of proving that the relocation is made in good faith and is in the child’s best interest.4  The court must consider the statutory factors in its determination of the best child’s best interest in a relocation proceeding; these are similar to, but not identical to, the Article 134 best interest factors for an award of custody.5

  • 1La. R.S. 9:355.7.
  • 2La. R.S. 9:355.9.
  • 3Id.
  • 4La. R.S. 9:355.10.
  • 5La. R.S. 9:355.14.

4.9.4 Illustrative Cases

4.9.4 Illustrative Cases aetrahan Mon, 06/26/2023 - 11:14

Gray v. Gray.1  The court concluded in allowing the relocation that there was no reason to retreat from the heightened Bergeron standard when a party seeks to modify a considered custody decree even in the context of a request for relocation.

Trahan v. Kingrey.2  The court denied relocation. Because the trial court failed to conduct any analysis of the mandatory factors, a de novo review by the court of appeal resulted in a change of domiciliary parent status as well.

Smith v. Holtzclaw.3  The court accepted the parties’ agreement as to relocation.

Perez v. Perez.4  The court allowed relocation. Although the trial court did not consider the relocation factors specifically, the findings were reasonable based upon the entire record. The dissent by Judge Keaty illustrates a detailed analysis of the relocation factors.

McLain v. McLain.5  The court denied relocation as neither the good faith nor the best interests tests were met. This is a good case that discusses some legitimate reasons for good faith relocation.

Quainoo v. Morelon-Quainoo.6  The court allowed relocation. Underemployment of objecting parent as well as good faith and best interest of relocating parent required reversal of trial court.

Gathen v. Gathen.7  This case discussed the evidentiary standards and concluded that the failure of the trial court to expressly analyze each factor in La. R.S. 9:355.14 was not legal error. But how do we know whether the trial court has considered all the enumerated factors? To ensure that the trial court has considered these 12 factors, it is always best to ask the judge for written reasons for judgments in all messy, complicated cases. La. R.S. 9:355.14 requires the court to consider the 12 enumerated factors with factor #12 being a catchall: “Any other factors affecting the best interest of the child.

  • 12011-CJ-548 (La. 7/1/11), 65 So. 3d 1247.
  • 22011-1900 (La. App. 1 Cir. 5/4/12), 98 So. 3d 347.
  • 346,278 (La. App. 2 Cir. 4/13/11), 62 So. 3d 345.
  • 42011-537 (La. App. 3 Cir. 2/29/12), 85 So. 3d 273.
  • 52007-0752 (La. App. 4 Cir. 12/12/07), 974 So. 2d 726.
  • 611-766 (La. App. 5 Cir. 4/10/12), 87 So. 3d 364.
  • 72010-2312 (La. 5/10/11), 66 So. 3d 1.

4.10 Uniform Child Custody Jurisdiction & Enforcement Act

4.10 Uniform Child Custody Jurisdiction & Enforcement Act aetrahan Mon, 06/26/2023 - 11:17

4.10.1 General Principles

4.10.1 General Principles aetrahan Mon, 06/26/2023 - 11:17

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applies to interstate and international custody disputes.1  The purpose of the UCCJEA is to avoid conflict and require cooperation and exchange of information among states regarding child custody matters. A court must have subject matter jurisdiction under the UCCJEA to make an initial child custody determination. The UCCJEA has been adopted by all fifty states. The UCCJEA also governs a court’s continuing jurisdiction over the custody dispute and jurisdiction to modify custody judgments.

The UCCJEA applies to all “child custody proceedings” in which legal custody, physical custody, or visitation with respect to a child is at issue. A “child custody proceeding includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights and protection from family violence, in which the custody or visitation issue may appear.”2  A “child custody proceeding” does not include adoption, authorization for medical care, juvenile delinquency, contractual emancipation, or Hague Convention enforcement actions.3

A child custody proceeding that pertains to an Indian child, as defined in the Indian Child Welfare Act, is not subject to the UCCJEA to the extent that it is governed by the Indian Child Welfare Act.4  The federal Parental Kidnapping Prevention Act governs full faith and credit for custody determinations and will preempt the UCCJEA where variances exist.5

  • 1La. R.S. 13:1801, et seq.
  • 2La. R.S. 13:1802(4).
  • 3Id.
  • 4La. R.S. 13:1804.
  • 528 U.S.C. § 1738A.

4.10.2 Interplay of UCCJEA & PKPA

4.10.2 Interplay of UCCJEA & PKPA aetrahan Mon, 06/26/2023 - 11:19

Both the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)1  and the federal Parental Kidnapping Prevention Act (PKPA)2  are legislative responses to jurisdictional problems posed by interstate child custody disputes. Both acts govern interstate child custody disputes. A custody judgment is only enforceable if the issuing court has jurisdiction under state law and the UCCJEA and complied with the PKPA.3  Conceptually, the UCCJEA is a jurisdictional statute that seeks procedurally to implement the PKPA, which is the federal full faith and credit law for child custody determinations.

The PKPA provides for the home state to have exclusive jurisdiction and for “continuing jurisdiction” by a court that made a child custody determination consistent with its provisions.4  The UCCJEA provides for exclusive jurisdiction by the home state and exclusive “continuing jurisdiction” by the court that made an initial child custody determination consistent with the UCCJEA.5

  • 1La. R.S. 13:1801, et seq.
  • 228 U.S.C. § 1738A.
  • 3See La. R.S. 13:1806.
  • 428 U.S.C. § 1738A(c)(2)(E). Only a prior action in an emergency jurisdiction state, which was otherwise consistent with the PKPA, would prime the home state. The PKPA definition of emergency jurisdiction supersedes any state law definition of emergency jurisdiction. Jones v. Jones, 456 So. 2d 1109, 1112 (Ala. Civ. App. 1984).
  • 5La. R.S. 13:1813–1814.

4.10.3 Personal Jurisdiction

4.10.3 Personal Jurisdiction aetrahan Mon, 06/26/2023 - 11:21

Personal jurisdiction is not required for the adjudication of child custody.1  The concept of personal jurisdiction is irrelevant to custody disputes. A court may decide custody without personal jurisdiction over a defendant. UCCJEA child custody jurisdiction is in the nature of subject matter jurisdiction, which can’t be waived. The lack of UCCJEA subject matter jurisdiction can’t be waived by an appearance.

  • 1La. R.S. 13:1813(C). Note that claims other than divorce and custody may also require “minimum contacts” with Louisiana in order for Louisiana courts to have personal jurisdiction. Atkins v. Atkins, 588 So. 2d 407 (La. App. 2 Cir. 1991).

4.10.4 Notice & Service of Process

4.10.4 Notice & Service of Process aetrahan Mon, 06/26/2023 - 11:22

The UCCJEA does not prescribe a special notice procedure for interstate custody disputes. Rather, it incorporates the Louisiana law on notice and service of process for non-residents or the law of the state where the non-resident lives.1  As a result, non-residents need to be notified and served under Louisiana’s Long-Arm Statute,2  which generally involves service by certified mail and 30 days’ notice before a hearing on a custody motion or rule except for family violence protective order actions under La. R.S. 46:2131, et seq.

  • 1La. R.S. 13:1808.
  • 2La. R.S. 13:3204–3205.

4.10.5 Home State Jurisdiction

4.10.5 Home State Jurisdiction aetrahan Mon, 06/26/2023 - 11:23

La. R.S. 13:1813(A) provides the exclusive jurisdictional basis for a Louisiana court to make an initial child custody determination. Under La. R.S. 13:1813(A)(1), the child’s home state will have exclusive jurisdiction to make an initial child custody determination. Thus, the home state trumps all other states, even if the custody suit in the other state was filed first.

The home state is the state in which the child lived with a parent or a “person acting as a parent” for at least 6 consecutive months prior to the commencement of a child custody proceeding. Both the UCCJEA and Louisiana law define commencement as the filing of the first pleading in a proceeding.1  A “temporary absence” of the child, parent, or person acting as a parent when they are away from the home state does not take away from the computation of this 6 consecutive month period.2  In case of a child under 6 months old, home state means the state in which the child lived from birth with a parent or person acting as a parent.3  The Louisiana UCCJEA further extends this “temporary absence” window when the parent or person acting as a parent who has had to evacuate with the child due to a disaster and is unable to return to Louisiana for an extended period. Louisiana would still be considered the home state if they had lived in Louisiana for at least 12 consecutive months prior to the initial custody proceeding.4

The first step in any interstate custody dispute is to determine the home state, if any. Most cases should have a home state, and exclusive jurisdiction will rest with the home state. The home state will have initial jurisdiction, which will exist even if a custody determination has been made in another state.

The determination of home state status should be relatively easy. Each litigant’s first pleading should contain an affidavit that discloses facts relevant to the determination of UCCJEA jurisdiction. Possible issues may arise for cases that involve a child under 6 months old or a child’s temporary absences from a state. If a child was born in state A, lived there for 2 months with a parent, and then relocated to state B for 3 months, state A would be the home state because state A is the only state where the child lived continuously from birth.

While the UCCJEA does not define “temporary absence,” it can be argued that a temporary absence that is greater than 6 months (unless there is a disaster exception or a clearly defined reason for being away from the home state such as vacation, school, etc.) would divest Louisiana from being considered the home state. Clearly, the UCCJEA permits home state jurisdiction when the “temporary absence” is within the 6-month window of the custody proceeding. Other states’ courts have looked at whether a state was the home state at any time within the prior 6 months. Thus, for example, if the custody suit was filed on July 1, the issue would be whether the state was the “home state” on the prior January 1, when the temporary absence commenced.

  • 1La. R.S. 13:1802(5).
  • 2La. RS. 13:1813.
  • 3La. R.S. 13:1802(7).
  • 4Id.

4.10.6 Significant Connections Jurisdiction

4.10.6 Significant Connections Jurisdiction aetrahan Mon, 06/26/2023 - 11:27

If there is no home state or if the home state has declined jurisdiction under La. R.S. 13:1819 or 1820, you must determine which state had “significant connections” jurisdiction under La. R.S. 13:1813(A)(2). “Significant connections” jurisdiction will not provide a court with initial jurisdiction under the UCCJEA if there is a home state.

For “significant connections” jurisdiction to exist, (1) the child and the child’s parents or the child and at least one parent or person acting as a parent must have a significant connection with the state other than mere physical presence and (2) substantial evidence must be available in the state on the child’s care, protection, training, and personal relationships. The child’s physical presence is not required for significant connections jurisdiction. The focus is on which state has substantial evidence as to the child’s care, protection, training, and relationships. If both states have “significant connections” jurisdiction, UCCJEA jurisdiction will lie with the first court in which a custody suit was filed.

4.10.7 Deferral Jurisdiction

4.10.7 Deferral Jurisdiction aetrahan Mon, 06/26/2023 - 11:27

If all courts having jurisdiction under the UCCJEA have declined jurisdiction because Louisiana is the more appropriate forum, Louisiana could have UCCJEA jurisdiction under La. R.S. 13:1803(A)(3).

4.10.8 Default or Vacuum Jurisdiction

4.10.8 Default or Vacuum Jurisdiction aetrahan Mon, 06/26/2023 - 11:28

The final jurisdictional basis is “default” or “vacuum” jurisdiction under La. R.S. 13:1813(A)(4). It exists when no court of any other state would have jurisdiction under the other bases for UCCJEA, i.e., home state, significant connections, or declination in favor of Louisiana.

4.10.9 Temporary Emergency Jurisdiction

4.10.9 Temporary Emergency Jurisdiction aetrahan Mon, 06/26/2023 - 11:28

Temporary emergency jurisdiction exists “if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.”1  Because the statute grants emergency jurisdiction in cases of abuse, it clarifies a Louisiana court’s authority to issue temporary orders to protect family violence victims who may have fled to Louisiana.

If a prior custody order exists, the judge must confer with the other state’s judge.2  Then, the court with temporary emergency jurisdiction must specify a reasonable time limit for the plaintiff to obtain an order from the state with proper La. R.S. 13:1813–1815 jurisdiction. The temporary emergency order will remain in effect until an order is obtained from the other state or the time limit expires.3

There is a mandatory duty for a Louisiana court to communicate with the other state’s judge if (1) the Louisiana court has been asked to make a custody determination under emergency jurisdiction and it is informed that a child custody proceeding or order exists in a state having La. R.S. 13:1813–1815 jurisdiction; or (2) if the Louisiana court has La. R.S. 13:1813–1815 jurisdiction and it is informed that another state has exercised emergency jurisdiction. The purpose of the communication is to resolve the jurisdiction, protect the safety of the parties and child, and determine the duration of the temporary custody order.4

  • 1 La. R.S. 13:1816(A).
  • 2La. R.S. 13:1816(D).
  • 3See La. R.S. 13:1816(C).
  • 4See La. R.S. 13:1816(D).

4.10.10 Proceedings in Other States

4.10.10 Proceedings in Other States aetrahan Mon, 06/26/2023 - 11:30

How does the court resolve jurisdiction when there is a proceeding in another state? Except for temporary emergency jurisdiction cases under La. R.S. 13:1816, the Louisiana court must examine the court documents and the parties’ La. R.S. 13:1821 affidavits to determine UCCJEA subject matter jurisdiction before hearing a custody case.1  This creates an independent, affirmative duty for the court to review and determine jurisdiction. If the Louisiana court finds that the other state’s court had UCCJEA jurisdiction, the Louisiana court must stay the Louisiana proceedings and communicate with the other state’s court.2  If the other state with UCCJEA jurisdiction does not determine that Louisiana is the more appropriate forum, the Louisiana court must dismiss the Louisiana proceeding.3

  • 1La. R.S. 13:1818.
  • 2Id.
  • 3Id.

4.10.11 Mandatory Inter-Court Communications

4.10.11 Mandatory Inter-Court Communications aetrahan Mon, 06/26/2023 - 11:34

Communications with another state’s court are mandatory only when (1) there are simultaneous custody proceedings; (2) a Louisiana court exercising temporary emergency jurisdiction under La. R.S. 13:1816 learns that a proceeding exists in another state; or (3) a Louisiana court with non-emergency UCCJEA jurisdiction learns that another state has assumed temporary emergency jurisdiction. A Louisiana court may communicate with another state on other jurisdictional matters, but it is not required to do so. As a practical matter, without communicating with the other court, it would be difficult for a court to evaluate the seventh and eighth factors of the analysis required by La. R.S. 13:1819 for evaluating a motion to decline jurisdiction on inconvenient forum grounds.

4.10.12 Motions to Decline Jurisdiction

4.10.12 Motions to Decline Jurisdiction aetrahan Mon, 06/26/2023 - 11:36

Under La. R.S. 13:1819, a Louisiana court may decline its UCCJEA jurisdiction at any time if it determines that it is an inconvenient forum and that another state is a more appropriate forum.1  A motion to decline may be raised at any time by any party, by the court on its own motion, or at the request of another court.2  Only the court with UCCJEA jurisdiction may decide if it is an inconvenient forum.3

The first inquiry under La. R.S. 13:1819 is whether it is appropriate for the court of another state to exercise jurisdiction.4  The court must allow the parties to submit “information” on this issue and shall consider 8 specific statutory factors.5  The use of “information” instead of “evidence” suggests that this issue may be decided on briefs, affidavits, and other information. There are few appellate opinions on this issue. Like any other factor analysis, it is fact intensive. Be prepared to plea with specificity the facts supporting each factor in your favor and provide evidentiary support when available.

Often, factors #1 and #2, domestic violence and the length of time that the child has resided outside of Louisiana, will be the major factors in the La. R.S. 13:1819 analysis. A Louisiana court with UCCJEA jurisdiction may decline in favor of the victim’s refuge state. The leading case on the domestic violence factor for an inconvenient forum analysis is Stoneman v. Drollinger.6

The UCCJEA does not require a Louisiana court with proper UCCJEA jurisdiction to communicate with the court of another state before it decides to decline jurisdiction to that court as a more appropriate forum.7  However, if the Louisiana court communicates with the other state’s court on a substantive matter, it must make a record of the communication.8  Furthermore, the parties must be informed of the communication and granted access to the record of the communication.9  Finally, if the parties are not able to participate in the inter-court communications, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.10

Under La. R.S. 13:1820, a Louisiana court must decline jurisdiction (except in limited circumstances) if the person seeking to invoke its jurisdiction has engaged in “unjustifiable conduct.” Unjustifiable conduct may include wrongful removal, retention, or concealment of the child. How does La. R.S. 13:1820 apply to a domestic violence victim who seeks refuge in Louisiana, possibly in violation of a custody decree? La. R.S 13:1820 says that mandatory declination of jurisdiction does not apply where domestic violence victim invoked temporary jurisdiction pursuant to La. R.S. 13:1816. In addition, the comments to § 208 of the model UCCJEA state that a domestic violence victim’s flight to another state in violation of a custody decree should not result in that state’s automatic dismissal of the victim’s custody suit. Rather, an inquiry should be made into whether the flight was justified under the circumstances.

  • 1La. R.S. 13:1819(A).
  • 2Id.
  • 3Id.
  • 4La. R.S. 13:1819(B).
  • 5Id.
  • 664 P.3d 997 (Mont. 2003).
  • 7For additional discussion, see Section 4.10.11.
  • 8La. R.S. 13:1810.
  • 9Id.
  • 10Id.

4.10.13 Exclusive Continuing Jurisdiction

4.10.13 Exclusive Continuing Jurisdiction aetrahan Mon, 06/26/2023 - 11:44

La. R.S. 13:1814 provides for exclusive continuing jurisdiction for the court that made an initial custody determination consistent with the jurisdictional rules of La. R.S. 13:1813–1815. This is a bright line test that should make it easy for courts to decide if continuing jurisdiction still exists.

If Louisiana had initial jurisdiction, its exclusive continuing jurisdiction lasts until a Louisiana court decides that neither the child nor the parent(s) or person(s) acting as parent(s) have a significant connection with Louisiana or the foreign state determines that the child, parent(s), and person(s) acting as parent(s) no longer reside in Louisiana. Similarly, Louisiana can’t assume jurisdiction if another state had initial jurisdiction consistent with La. R.S. 13:1813–1815 unless the other state declines jurisdiction or the Louisiana court finds that the child, parent(s), and person(s) acting as parent(s) no longer reside in the state that had exclusive continuing jurisdiction under the UCCJEA.

4.10.14 Modification of Prior Custody Determinations

4.10.14 Modification of Prior Custody Determinations aetrahan Mon, 06/26/2023 - 11:45

La. R.S. 13:1815 significantly restricts when a court may modify a custody determination made by another state. It prohibits Louisiana from assuming jurisdiction to modify merely because Louisiana is the home state at the time of the motion to modify is filed.

La. R.S. 13:1815 provides that, except as authorized in La. R.S. 13:1816 (temporary emergency jurisdiction), a Louisiana court may not modify a custody determination made by another state unless a Louisiana court has home state or significant connections jurisdiction and either (1) the court of the other state determines that it no longer has exclusive, continuing jurisdiction or that a Louisiana court would be a more convenient forum; or (2) a Louisiana court or the other state’s court determines that the child, parent(s), and person(s) acting as parent(s) no longer reside in the other state.

4.10.15 Enforcement Remedies

4.10.15 Enforcement Remedies aetrahan Mon, 06/26/2023 - 11:47

The UCCJEA does not require a foreign decree to be registered in order to be enforced. La. R.S. 13:1827 states that the other state’s decree may be registered in a Louisiana court by sending the Louisiana court a “letter or other document requesting registration” along with two copies (one must be certified) of the foreign judgment and other information. On receipt of the documents, the Louisiana court is supposed to file the foreign judgment and serve notice on the opposing party advising that party that the foreign judgment is immediately enforceable as a Louisiana judgment and that the party has 20 days to request a hearing to contest the validity of the registered foreign judgment.

The grounds to contest the foreign judgment are (1) lack of UCCJEA jurisdiction; (2) vacatur, stay, or modification of the foreign judgment by a court with UCCJEA jurisdiction; and (3) lack of notice of the foreign court proceeding in accordance with the standards of La. R.S. 13:1808. No other defenses are allowed. La. R.S. 13:1828 further provides that a Louisiana court may grant any relief available under Louisiana law to enforce a registered child custody determination made by a court of another state.

La. R.S. 13:1827 speaks of simply filing a “letter or other document” to register and confirm a foreign custody judgment or order. However, La. R.S. 13:1830 requires a verified petition for “expedited” enforcement of a foreign custody judgment or order when a party seeks immediate physical custody pursuant to the foreign custody decree. Interestingly, La. R.S. 13:1830(C) states that the hearing shall be heard on the next judicial day after service of the order directing the respondent to appear at a hearing.

La. R.S. 13:1835 mandates that a Louisiana court accord full faith and credit or enforce another state’s custody order where jurisdiction was exercised in “substantial conformity” or is consistent with the UCCJEA. La. R.S. 13:1805 allows for international application of the UCCJEA and treats the foreign country as if it were a state of the USA.1

Appeals from a final order in a proceeding to enforce a foreign custody determination must be expedited, and the Louisiana trial court is prohibited from staying an order enforcing the child custody determination pending appeal. Only the appellate court may issue a stay.2  Also, the U.S. Supreme Court has ruled that the PKPA (and thus, the UCCJEA) do not create an implied cause of action in federal court.3  Rather, the federal full faith and credit clause must be enforced in the state courts.

  • 1See Guzman v. Sartin, 2009-1677 (La. App. 1 Cir. 12/23/09), 31 So. 3d 426.
  • 2See La. R.S. 13:1836.
  • 3See Thompson v. Thompson, 484 U.S. 174 (1988).

4.10.16 Attorney Fees

4.10.16 Attorney Fees aetrahan Mon, 06/26/2023 - 14:29

La. R.S. 13:1834 strengthens and expands the prevailing party’s claims for attorney fees and other expenses in an UCCJEA enforcement proceeding. La. R.S. 13:1834 mandates the award of attorney fees unless the party from whom fees are sought establishes that the award would be “clearly inappropriate.” The comments to the model UCCJEA state that attorney fees may be inappropriate if an award would cause a parent and child to seek public assistance. The same rule for attorney fees and costs applies under La. R.S. 13:1820 for cases that are dismissed or stayed because a court declined jurisdiction because of a party’s unjustifiable conduct, e.g., removing the child to Louisiana to avoid the home state’s jurisdiction.
A wonderful resource for interstate custody questions is the Legal Resource Center on Violence Against Women, which provides technical assistance and training on interstate custody issues, including the UCCJEA.1

4.11 Other Federal Custody Laws

4.11 Other Federal Custody Laws aetrahan Mon, 06/26/2023 - 14:30

4.11.1 Indian Child Welfare Act

4.11.1 Indian Child Welfare Act aetrahan Mon, 06/26/2023 - 14:31

The Indian Child Welfare Act (ICWA)1  gives tribes a substantial role in matters concerning custody of Indian children. State courts must defer to tribal jurisdiction in child custody proceedings involving an Indian child for matters such as foster placement, termination of parental rights, and adoption. While the ICWA is not triggered for custody and divorce proceedings, it is nevertheless wise to be cautious if a matter is pending in tribal court of the child is an “Indian Child” as defined by the Act.

  • 125 U.S.C. §§ 1901–1963.

4.11.2 International Parental Kidnapping Act

4.11.2 International Parental Kidnapping Act aetrahan Mon, 06/26/2023 - 14:33

The International Parental Kidnapping Act (IPKA) makes it a crime to remove a child from the United States or retain a child under the age of 16 years (who has been in the United States) outside the United States with intent to obstruct the lawful exercise of parental rights.1  Under the laws of the United States and many foreign countries, if there is no custody decree prior to abduction, both parents may be considered to have equal legal custody of their child. Even though both parents may have custody of a child, it still may be a crime for one parent to remove the child from the United States against the other parent’s wishes. It may be necessary to include express language in the custody degree that prohibits a child from traveling abroad without permission of the other parent or that of the court.2

  • 118 U.S.C. § 1204, et seq.
  • 2For more information, see Bureau of Consular Affairs, U.S. Dep’t of State, Prevention Tips,Travel.State.Gov.

4.11.3 Uniform International Child Abduction Prevention Act

4.11.3 Uniform International Child Abduction Prevention Act aetrahan Mon, 06/26/2023 - 14:35

The Uniform International Child Abduction Prevention Act provides for measures and orders for the prevention of child abduction.1

  • 1La. R.S. 13:1851, et seq.; see Mohsen v. Mohsen, 2008-1703 (La. App. 1 Cir. 12/23/08), 5 So. 3d 218.

4.11.4 Hague Convention

4.11.4 Hague Convention aetrahan Mon, 06/26/2023 - 14:36

The Hague Convention is a civil procedure for parents seeking the return of or access to their children. As a civil law mechanism, the parents, not the governments, are parties to the legal action. The countries that are parties to the Convention have agreed that a child who is habitually resident in one party country and who has been removed to or retained in another party country in violation of the left-behind parent’s custodial rights shall be promptly returned to the country of habitual residence. The Convention can also help parents exercise visitation rights abroad.

There is a treaty obligation to return an abducted child below the age of 16 if application is made within 1 year from the date of the wrongful removal or retention, unless one of the exceptions to return apply. If the application for return is made after 1 year, the court may use its discretion to decide that the child has become resettled in the new country and refuse to order return of the child. In any case, a court may refuse to order a child returned in several circumstances:

  • There is a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation in his or her country of habitual residence.
  • If the child objects to being returned and has reached an age and degree of maturity at which the court can take account of the child’s views. The treaty does not establish at what age children reach this level of maturity; that age and the degree of weight given to children’s views varies from country to country.
  • If the return would violate the fundamental principles of human rights and freedoms of the country where the child is being held.

Legal services attorneys may handle Hague Convention cases for a financially eligible person even if that person is not a U.S. citizen or lawful alien. Attorney fees may be recoverable under Article 26 of the Convention1  or the UCCJEA. The United States Central Authority for the Hague Convention will support any attorney handling a convention case with technical assistance and attorney mentoring.

  • 122 U.S.C. § 9007.

4.11.5 Uniform Enforcement of Domestic Violence Protective Orders Act

4.11.5 Uniform Enforcement of Domestic Violence Protective Orders Act aetrahan Mon, 06/26/2023 - 14:38

The Uniform Enforcement of Domestic Violence Protective Orders Act seeks to make interstate enforcement of protective orders more uniform. While many states have enacted it, Louisiana has not.

4.12 Additional Louisiana Custody Laws

4.12 Additional Louisiana Custody Laws aetrahan Mon, 06/26/2023 - 14:38

You should have a working knowledge of other custody related statutes:

La. C.C. art. 135 provides for custody hearings to be closed to the public at the court’s discretion.

La. R.S. 9:351 provides access to a parent of a minor child’s medical, dental, and school records regardless of the custodial status of the parent.

La. R.S. 9:359, the Military Parent and Child Custody Protection Act, prohibits any final order modifying custody or visitation order until 90 days after the termination of deployment, allows a service member to testify by affidavit or electronic means, and provides for other matters.

La. R.S. 9:291 allows suits between spouses for support and custody without a divorce being filed. Parties need to be living separate and apart. A custody order issued prior to a divorce would be void if the parties reconciled.1

La. R.S. 9:341 provides for restricted visitation for a parent where the parent has been guilty of physical abuse or sexual abuse or exploitation or has permitted such abuse/exploitation.

La. R.S. 9:342 provides for the posting of a bond to secure compliance with a visitation order on motion of a party or on the court’s own motion.

La. R.S. 9:343 provides a procedure for the issuance of a civil warrant directing law enforcement to return a child to a custodial parent when the non-custodial parent retains the child in violation of an existing custody/visitation order.

La. R.S. 9:345 provides for the appointment of an attorney to represent a minor child in custody/visitation proceedings. Such appointment may be made by motion of the court, parent, any party, or the child. The statute also sets forth those factors which the court should consider in determining if such an appointment serves the best interest of the child.

La. R.S. 9:346 provides an action for failure to exercise or allow visitation, custody, or time rights pursuant to a court ordered schedule. La. R.S. 13:4611(1)(d)–(e) address punishment for contempt of court.

In contested custody cases where there is protracted discovery, motions, evidentiary issues, or a convoluted set of facts and issues, it may be essential to move for a “Pre-Trial and Scheduling Conference Order” pursuant to your Court’s Local Rule or La. C.C.P. art. 1551. This allows you to eliminate many of the grey areas and to address discovery material and other issues before the trial. It also gives you an opportunity to educate the court as well as to narrow down the issues in the case.

  • 1See Dooley v. Dooley, 443 So. 2d 630 (La. App. 3 Cir. 1983).

5 Visitation

5 Visitation aetrahan Mon, 06/26/2023 - 14:40

5.1 Distinguishing Visitation & Custody

5.1 Distinguishing Visitation & Custody aetrahan Mon, 06/26/2023 - 14:40

Visitation is the time that a parent spends with a child. Custody is the right to make decisions about a child’s life, such as where the child goes to school or what doctor the child sees. A person can have visitation rights with a child even if that person does not have custody rights.

Laypersons (and even some lawyers and judges) use the terms custody and visitation interchangeably. It is a misnomer to state that non-domiciliary parents have “visitation.” They have “physical custody” during their assigned custodial periods. Only non-custodial relatives and third parties have visitation. However, at times a client may only want “visitation,” but if the client is a parent, the client likely wants to give the other parent domiciliary status and to have only a set custodial plan for time with the child. In addition, the statutes sometimes use the word “visitation” interchangeably with “custodial time.”

5.2 Common Visitation Issues

5.2 Common Visitation Issues aetrahan Mon, 06/26/2023 - 14:41

Common visitation issues are:

  • Initial establishment of visitation in a divorce, custody, or paternity action
  • Supervision or restriction of visitation because of family violence, parental unfitness, or physical or sexual abuse
  • Modification or change of visitation
  • Relocation of the domiciliary parent and need to adjust visitation
  • Contempt for violation of visitation orders
  • Access of non-parent relatives to visitation

Sometimes, a client may present for an intake asserting that the other parent is seeking “custody” when what is actually being sought is visitation. When counsel explains the difference, this may satisfy the issue and put the client in a more amicable mindset. Thus, it is essential to know the difference between custody and visitation.

5.3 Persons with Visitation Rights

5.3 Persons with Visitation Rights aetrahan Mon, 06/26/2023 - 14:42

Generally, a non-custodial parent has a right to visitation unless a court finds that visitation would not be in the child’s best interest.1  The parent’s right to visitation is more than a “species of custody;” it has an independent statutory basis in La. C.C. art. 136.2  A parent is entitled to reasonable visitation and custody unless that arrangement would seriously endanger the child’s physical, mental, moral, or emotional health.3

The presumption in favor of a parent’s right to custody may only be overcome by clear and convincing evidence.4  “[A] parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would not be in the best interest of the child.”5  However, if a parent has physically abused a child or has a history of perpetrating family violence, that parent is limited to supervised visitation until completing a court-monitored domestic abuse intervention program.6  A parent who has sexually abused a child is denied visitation until completion of a treatment program for sexual abusers; any visitation granted thereafter may be subject to restrictions.7

There have been many recent cases in which the amount of visitation (and custody) is an essential point of dispute. This is mainly because La. R.S. 9:355(A)(2)(b) provides that to the “extent it is feasible” and in the child’s best interest, “physical custody of the children shall be shared equally.” Courts have interpreted this to mean equal custodial time.8  Nevertheless, one should always remember that equal sharing does not work in every situation, and it will only be ordered if it is in the child’s best interest.

Under certain circumstances, grandparents and other non-parent relatives may be awarded visitation.9  In addition to finding that visitation is in the best interest of the child, certain other requirements must be met before visitation may be awarded to these relatives.

  • 1La. C.C. art. 136(A).
  • 2La. C.C. art. 136 cmt. b.
  • 3Main v. Main, 19-503, p. 9 (La. App. 5 Cir. 2/19/20), 292 So. 3d 135, 143.
  • 4La. C.C. art. 132 (“I[f] custody in one parent is shown by clear and convincing evidence to serve the best interests of the child, the court shall award custody to that parent.”).
  • 5La. C.C. art. 136.
  • 6La. R.S. 9:341(A), 364(E). The abuse or history of family violence must be found by a preponderance of the evidence.
  • 7La. R.S. 9:341(B), 364(F). The sexual abuse must be found by clear and convincing evidence.
  • 8Hunt v. Hunt, 95-502 (La. App. 3 Cir. 10/4/95), 664 So. 2d 460.
  • 9These provisions are discussed more fully in Section 5.9.

5.4 Procedural Posture for Visitation Orders

5.4 Procedural Posture for Visitation Orders aetrahan Mon, 06/26/2023 - 14:44

Generally, visitation is decided in a divorce or custody lawsuit. Interim and temporary (only during the duration of the protective order) visitation may be decided in a domestic violence protective order lawsuit. However, a visitation order in a protective order case is time-limited and may need to be finalized in a divorce or custody lawsuit.1  A court that has jurisdiction and venue to decide custody may set or restrict visitation at the trial or on the hearing of a motion to determine custody and visitation. Litigation costs can be minimized if the parties amicably work out a visitation schedule. In interstate custody disputes, a Louisiana court may not have jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to modify a custody (or visitation) determination of another state’s court. Nonetheless, a Louisiana court without UCCJEA jurisdiction to modify may issue a temporary order enforcing or implementing the visitation schedule or visitation provisions of a child custody determination made by another state.2

  • 1For further discussion of this point, see Section 5.1.2 of this manual’s chapter on representing survivors of domestic violence.
  • 2For further discussion of the UCCJEA, see Section 4.10.

5.5 Court Authority over Visitation

5.5 Court Authority over Visitation aetrahan Mon, 06/26/2023 - 14:45

The courts have vast discretion to regulate and supervise visitation to protect a child’s best interest or a parent’s rights. In addition to a court’s general authority under La. C.C. art. 136, other statutes may restrict or affect visitation. Generally, these statutes involve family violence, physical abuse, sexual abuse, neglect, criminal misconduct, failure to visit a child, or repeated interference with the other parent’s visitation.1  A court may order supervised visitation to protect the child even when a specific statutory restriction on visitation is not applicable.2  Drug use may justify supervised visitation until the using parent provides proof of drug rehabilitation.3

For good cause shown, a court may require a party to post a bond to ensure compliance with a visitation order and to indemnify the other party for any costs incurred.4  A bond may be proper when a party fails to comply with a court-ordered visitation schedule or fails to return the child at the end of his visitation period.5  A court also has the power to order a bond to prevent international abduction.6

Failure to comply with visitation orders may subject a party to contempt, attorney fee sanctions, and even modification of the custody or visitation order.7  Absent good cause, neither parent may interfere with the other parent’s visitation, custody, or time rights.8

  • 1La. C.C. art 136, 136.1, 137; La. RS. 9:341, 364.
  • 2See, e.g., Coleman v. Coleman, 47,080, p. 11 (La. App. 2 Cir. 2/29/12), 87 So. 3d 246, 254.
  • 3See Main v. Main, 19-503, p. 16 n.29 (La. App. 5 Cir. 2/19/20), 292 So. 3d 135, 148 n.29.
  • 4La. R.S. 9:342.
  • 5Id.
  • 6La. R.S. 13:1858(D)(2).
  • 7La. R.S. 9:346.
  • 8La. C.C. art. 136.1.

5.6 Modifying Visitation Orders

5.6 Modifying Visitation Orders aetrahan Mon, 06/26/2023 - 14:49

Generally, visitation may be changed if a change is in the child’s best interest and especially when the child is very young at the time of the original decree and subsequent changes are needed as the child grows.

However, courts have not been consistent in articulating the distinction between visitation by non-custodial parents under La. C.C. art. 136 and custodial time that arises from joint custody. The term “custody” is usually broken down into two components: physical or “actual” custody and legal custody.1  While custody and visitation both involve physical custodial time, they are not the same and must be analyzed independently.

The result of the inconsistency has been confusion over the standard for modifying visitation orders. It appears that the high Bergeron standard for modification of custody orders does not apply to changes in visitation.2  In fact, Acklin v. Acklin holds that best interest of the child is the standard in modification-of-visitation cases.3  Similarly, Mosley v. Mosley addressed whether a change in circumstances is a requisite precondition to modifying visitation.4  The court said no because visitation changes are “not so substantial as to require” said change in circumstance.5

Nevertheless, the Bergeron standard will apply where there is a request for increased visitation that significantly changes the amount of physical custody. Consequently, it appears that a court may not use “adjustment of visitation” to circumvent the Bergeron test for custody modification in these cases.6

  • 1Evans v. Lungrin, 97-0541, p. 10 (La. 2/6/98), 708 So. 2d 731, 737; see also Davis v. Davis, 2021-663, p. 3–­4 (La. App. 3 Cir. 2/2/22), 333 So. 3d 1252, 1254.
  • 2See Section 4.4.4 for a discussion of Bergeron.
  • 3Acklin v. Acklin, 29,193 (La. App. Cir. 2/26/97), 690 So. 2d 869.
  • 4Mosley v. Mosley, 499 So. 2d 106 (La. App. 1 Cir. 1986); see also Carpenter v. McDonald, 2019-0961 (La. App. 2 Cir. 11/15/19), 290 So. 3d 679.
  • 5Mosley, 499 So. 2d at 109.
  • 6See Bennett v. Bennett, 95-152 (La. App. 3 Cir. 5/31/95), 657 So. 2d 413; see also Hebert v. Hebert, 2018-499 (La. App. 3 Cir. 3/27/19), 269 So. 3d 831.

5.7 Restrictions on Visitation

5.7 Restrictions on Visitation aetrahan Mon, 06/26/2023 - 14:53

In addition to restrictions on visitation in cases of family violence1  or when visitation is not in the best interest of the child, other statutes allow a court to deny visitation or order that it be supervised.

Under La. C.C. art. 137, if a child is conceived because of a felony rape, the parent committing the felony rape may not be awarded visitation. The Children’s Code goes further, authorizing termination of parental rights under these circumstances.2  If a parent has died at the hands of a relative by blood or affinity who acted intentionally and criminally, La. C.C. art. 137(B) specifically allows for denial of visitation to that relative. The burden of proof for the criminal misconduct is preponderance of evidence.3

La. R.S. 9:346 creates an action for failure to exercise or to allow visitation, custody, or time rights pursuant to a court ordered schedule; it also provides a cause of action to sue for interference with visitation.4  This is the legislature’s attempt to encourage the non-custodial parent to exercise visitation. Courts are also specifically authorized to find a parent in contempt for violation of a visitation order; they may impose a $500 fine and up to three months imprisonment.5  Courts may also require the custodial parent to allow “make up” time to replace the missed days due to a parent’s contemptuous denial of visitation and can also order parenting education classes.6

  • 1For further discussion, see Section 5.8 of this chapter and Section 8 of the chapter on representing survivors of domestic violence.
  • 2La. Ch.C. art. 1015(9).
  • 3La. C.C. art. 137(B).
  • 4This principle derives from La. C.C. art. 136.1 (“Neither parent shall interfere with the visitation, custody or time rights of the other unless good cause is shown.”).
  • 5La. R.S. 13:4611(1)(d).
  • 6La. R.S. 13:4611(1)(e).

5.8 Domestic Violence & Visitation

5.8 Domestic Violence & Visitation aetrahan Mon, 06/26/2023 - 14:55

Family violence is common in many divorce and custody actions handled by legal aid attorneys. Special laws apply to visitation in family violence cases to protect the victims.1  Visitation orders should be drafted to minimize harm to the abused parent and the children. Provisions should be specific and clear so that conflict between the parties is minimized. Specific times should be set for visitation. The term “reasonable visitation” should never be used in family violence cases. Exchanges for visitation should be structured to minimize harm. Exchanges may need to be conducted by third parties and/or in public places, including police stations.

Family violence includes assault, stalking, physical abuse, and sexual abuse.2  “History of perpetrating family violence” means either more than one incident or one incident that results in serious bodily injury.3  If a history of family violence if proven, there is a presumption against granting the abuser custody.4  In Ford v. Ford, the court held that visitation could not be awarded until the “history of family violence” allegations were fully litigated.5

Under La. R.S. 9:341(A), if a court finds physical abuse by a preponderance of the evidence, the court may allow only supervised visitation between the abusing parent and abused child until the parent has completed a domestic violence intervention program.6  Enrollment is not sufficient; the program must be completed.7  Unsupervised visitation may be allowed following completion of the program only if the abusing parent proves that visitation is in the best interest of the child and would not cause physical, emotional, or psychological damage to the child.8  If visitation is awarded, the court may order restrictions, including continued supervision.9

Even if supervised visitation is awarded while an abuser is participating in the intervention program, you should be able to bring the matter back into court to stop the supervised visitation if the abuser has stopped participating without completing the program. Ineffective treatment programs may also be challenged in a hearing on a request for unsupervised visitation.

Under La. R.S. 9:366(B), an abuser’s “court ordered visitation” must be terminated upon violation of an injunction or protective order as defined in La. R.S. 9:362(5). The legislative history of R.S. 9:366(B) makes it clear that the legislature intended to eliminate the courts’ power to allow visitation for violators of injunctions.10  However, many trial courts refuse to permanently terminate all visitation by the abuser despite this express statutory mandate.

Under La. R.S. 9:364(F), if the court finds by clear and convincing evidence that a parent has sexually abused his or her child, the court must prohibit all visitation (supervised or unsupervised) between the parent and the children (not just the abused child). Thereafter, supervised visitation may be allowed but only when the court finds by a preponderance of the evidence, after a contradictory hearing, that the parent has completed a treatment program for sexual abusers and that supervised visitation would be in the child’s best interest.11  If sex abuse is proven and a protective order entered, visitation is suspended until the child turns 18 or a contradictory hearing to modify is had.12

  • 1For a more thorough discussion of visitation in the context of domestic violence, see Section 8 of this manual’s chapter on representing survivors of domestic violence.
  • 2La. R.S. 9:362(4).
  • 3La. R.S. 9:364(A).
  • 4Id.
  • 501-387 (La. App. 3 Cir. 10/17/01), 798 So. 2d 316.
  • 6Morrison v. Morrison, 97 CA 0295 (La. App. 1 Cir. 9/19/97), 699 So. 2d 1124.
  • 7Becker v. Becker, 613 So. 2d 275 (La. App. 3 Cir. 1993); see also Hicks v. Hicks, 98-1527 (La. App. 3 Cir. 5/19/99), 733 So. 2d 1261.
  • 8La. R.S. 9:341(A).
  • 9Id.
  • 10Compare Act 1091 of 1992 with Act 888 of 1995 and Act 750 of 2003.
  • 11La. R.S. 9:341(B).
  • 12La. Ch.C. art. 1570(F).

5.9 Non-Parent Visitation

5.9 Non-Parent Visitation aetrahan Mon, 06/26/2023 - 15:24

Non-parent custody is decided under La. C.C. art. 133. Three other provisions also control non-parent visitation. The first is found in the adoption articles in the Children’s Code.1  As that issue does not often arise in the context of general family law practice, it will not be further discussed.

The second provision, La. R.S. 9:344, allows visitation by grandparents and siblings if the parents are married and have not filed for divorce or are living together and one of the parents is deceased, incarcerated, or interdicted, but only if the visitation serves the child’s best interest.2  If the married parents have lived apart for six months, grandparents and siblings can seek visitation in “extraordinary circumstances,” which includes a finding that a parent is abusing a controlled dangerous substance.3

The third provision is Article 136 of the Civil Code, which allows two classes of non-parents to obtain visitation, but only if the child is of a non-married couple or the parents are married and have filed for divorce. The first class consists of grandparents, who may be awarded visitation only if it serves the best interest of the child.4  The other consists of “any other relative” or a former stepparent or step-grandparent, but only under extraordinary circumstances and after a finding that visitation is in the child’s best interest.5  “Extraordinary circumstances” include a parent’s abuse of a controlled dangerous substance.6  The key to these cases is determining if the parents are married and not filing for divorce. If so, this article may not be used to establish visitation, as the courts presume parents have the primary right to dictate visitation for their children.

The person seeking visitation must actually be a grandparent. Thus, if paternity is not yet established, you should tread lightly. However, at least one case has allowed a non-filiated grandparent to sue to obtain blood testing. Ultimately, paternity was proven, and the grandparent was given visitation.7

In cases of non-parental visitation, the best interest of the child is determined by the factors in La. C.C. art. 136(D),8  which differ from the “best interest” factors applicable to custody determinations.9  These factors are:

  • The parent’s fundamental constitutional right to decide the care, custody, and control of their children along with the presumption that fit parents act in their children’s best interest
  • The length and quality of the prior relationship between the child and the relative

•    Whether the child is in need of guidance, enlightenment, or tutelage which can be provided by the relative

•    The child’s preference if the child is mature enough

•    The mental and physical health of the child and the relative

In visitation cases, a court may appoint an attorney to represent the child if that is in the child’s best interest;10  a hearing on this issue is required in actions arising under La. C.C. art. 136(B).11

When deciding whether to appoint an attorney, the court must consider whether the proceeding is intense, whether the attorney representing the child could give significant information relative to the case, whether either parent can provide a stable home, and whether there are conflicting interests between the child and the parent(s), along with any other relevant factor.12

In the pivotal case of Troxel v. Granville, the United States Supreme Court held that a court must presume that “fit parents act in the best interests of their children” and therefore must accord “special weight to parents’ decisions and objections regarding request for third-party visitation.” Parenting was determined to be a fundamental right, abridgement of which required proper due process.13  In interpreting Troxel and its progeny, Louisiana’s grandparent visitation laws have been found to pass constitutional muster.14  The non-parent has the burden of proving that visitation or a modification of the visitation order would be reasonable and is in the child’s best interest.15

  • 1See La. Ch.C. art. 1264, et seq.
  • 2La. R.S. 9:344(A)–(C).
  • 3La. R.S. 9:344(D).
  • 4La. C.C. art. 136(B)(1).
  • 5La. C.C. art. 136(B)(2).
  • 6Id.
  • 7Matter of Tuccio, 95-0302 (La. App. 2 Cir. 11/16/95), 665 So. 2d 531; see also Knisely v. Knisely, 2005-1015 (La. App. 3 Cir. 3/1/06), 924 So. 2d 423.
  • 8La. C.C. art. 136(D); La. R.S. 9:344(D).
  • 9See La. C.C. art. 134.
  • 10La. R.S. 9:345.
  • 11La. C.C. art. 136(C).
  • 12La. R.S. 9:345(A).
  • 13530 U.S. 57, 68–70 (2000).
  • 14See Broussard-Scher v. Legendre, 10-1164 (La. App. 3 Cir. 3/23/11), 60 So. 3d 1290; see also Droddy v. Porter, 2019-0633 (La. App. 1 Cir. 12/27/19), 292 So. 3d 925.
  • 15See Barry v. McDaniel, 2005-2455 (La. App. 1 Cir. 3/24/06), 934 So. 2d 69.

5.10 Military Service

5.10 Military Service aetrahan Tue, 06/27/2023 - 13:59

What happens if visitation is impossible due to military service? The Revised Statutes allow for make-up time when a parent is on active duty, training, drill, or any other special orders.1  The court may award “compensatory visitation,” but only upon a parent’s request and only if it serves the child’s best interest.2  This does not apply in the case of a finding of physical or sexual abuse.3  Under the Servicemembers Civil Relief Act, any military member on active duty may obtain a stay of both child support and custody matters.4  If the servicemember affirmatively requests the stay, the court must grant it; otherwise, the stay is discretionary.5

  • 1La. R.S. 9:348.
  • 2La. R.S. 9:348(B).
  • 3La. R.S. 9:348(C).
  • 450 U.S.C. app. § 522(a)–(b).
  • 550 U.S.C. app. § 522(b)(1).

5.11 Cases Granting Visitation

5.11 Cases Granting Visitation aetrahan Tue, 06/27/2023 - 14:01

In Broussard-Scher v. Legendre, the grandmother was granted visitation where the parents and child lived in the grandmother’s house after leaving the birth hospital, the parents returned to their apartment a week later and the child stayed with grandmother, grandmother was the primary caregiver for the child, and the court-appointed expert testified that extraordinary circumstances existed and that it was in the best interest of the child to award the grandmother visitation.1

In Ray v. Ray, the court granted visitation rights to the paternal aunt because the father was dead, the paternal grandfather was absent, the child had lived with the paternal aunt, and other factors all of which presented “extraordinary circumstances.” This case was decided under Article 136 rather than La. R.S. 9:344 due to the lack of the requisite familial relationship between the child and the plaintiff, but the definition of extraordinary circumstances is a good one for actions under either statute.2

In Wood v. Wood, grandparent visitation of one weekday per month was upheld because the father also was awarded more substantial visitation in Utah. The court determined that as the non-domiciliary parent’s time increases, any potential grandparent visitation may decrease due to the courts’ preference to give parents time with their children.3

In Babin v. Babin, visitation was granted to the maternal grandmother, allowing her to spend 4 hours every 3 weeks with her deceased daughter’s minor children.4  An issue on appeal was whether the trial court erred as a matter of constitutional law by refusing to require a threshold showing of “serious circumstances” to justify the court’s intervention in the parent/child relationship. The appellate court ruled that the grandmother did not have to show extraordinary circumstances to get visitation. Rather, the special factors listed in the statute supplied the legal basis for visitation. The court held that the length and quality of the relationship enjoyed with her grandchildren prior to her daughter’s death, the fact that the visitation awarded was not significantly intrusive upon the children’s relationship with their father, and the restriction that the grandmother was not to diminish the father’s authority over the children or to undermine his ability to raise the children as he saw fit, all served to support the conclusion that visitation was in the grandchildren’s “best interest.”5

In Vincent v. Vincent, the court found that the maternal grandmother had a cause of action for visitation when the mother was incarcerated.6

  • 110-1164 (La. App. 3 Cir. 3/23/11), 60 So. 3d 1290.
  • 294-1478 (La. App. 3 Cir. 5/3/95), 657 So. 2d 171.
  • 3Wood v. Wood, 2002-0860 (La. App. 9/27/02), 835 So. 2d 568; see also Beebe v. Delcambre, 2016-17 (La. App. 3 Cir. 6/1/16), 194 So. 3d 1214.
  • 42002-0396 (La. App. 1 Cir. 7/30/03), 854 So. 2d 403.
  • 5See also Garner v. Thomas, 2008-1448 (La. App. 4 Cir. 5/28/09), 13 So. 3d 784.
  • 698-1346 (La. App. 1 Cir. 6/25/99), 739 So. 2d 920.

5.12 Cases Denying Visitation

5.12 Cases Denying Visitation aetrahan Tue, 06/27/2023 - 14:08

In Shaw v. Dupuy, the court held that the parties’ inability to communicate or agree on many issues did not amount to the extraordinary circumstances required by La. C.C. art. 136(B)(2) to support a visitation award to the non-custodial relatives.1

In Flack v. Dickson, the appellate court held:

[E]xtraordinary circumstances did not exist to support granting paternal grandparents visitation rights to minor child and there was no allegation or evidence that the child’s mother was unfit or did not adequately provide for the child, nor was there any showing that the mother’s decision regarding the paternal grandparents’ visitation was detrimental to the child and, in any event, record did not indicate that such visitation would serve child’s best interest.2

In Henry v. Henry, visitation was denied although the step-grandparent provided proof of extraordinary circumstances because she had been the primary caregiver for the two-year-old at issue. The court denied visitation because it found visitation would not be in the child’s best interest.3

In McCarty v. McCarty, the grandmother was denied visitation rights where parents were married, not involved in divorce, custody, or neglect litigation, and the child had not lived for an extended period with the grandmother.4

In Lingo v. Kelsay, the maternal grandparents were denied visitation as the parents were married, not involved in marital litigation, and objected to the grandparents’ visitation.5

In Galjour v. Harris, visitation was denied to the uncle and aunt since there were no extraordinary circumstances under La. C.C. art. 136 and no right of action under R.S. 9:344.6  The court granted visitation to the maternal grandparents. The court held that grandparents do not have to prove “extraordinary circumstances” in order to obtain visitation with their grandchildren when their child is dead, interdicted, or incarcerated.

  • 12006-0546 (La. App. 1 Cir. 2/9/07), 961 So. 2d 5.
  • 22003-5 (La. App. 3 Cir. 4/30/03), 843 So. 2d 1261.
  • 397-0366 (La. App. 1 Cir. 11/7/97), 704 So. 2d 793.
  • 4559 So. 2d 517 (La. App. 2 Cir. 1990).
  • 594-1038 (La. App. 3 Cir. 3/1/95), 651 So. 2d 499.
  • 62000-2696 (La. App. 1 Cir. 3/28/01), 795 So. 2d 350.

6 Child Support

6 Child Support aetrahan Tue, 06/27/2023 - 14:11

6.1 Introduction

6.1 Introduction aetrahan Tue, 06/27/2023 - 14:11

La. C.C. art. 237 mandates that parents provide their children with the necessities of life, which are limited to food, shelter, clothing, and basic or essential health care. Obviously, then, before child support can be ordered, the child must be filiated to the parent.

In a divorce proceeding, the court can award either interim or final child support, but interim support may be awarded only if a demand for final support is pending. An action for child support can also be brought if the parties are physically separated without the need for divorce to be pled.

Child support is determined by the needs of the child and the means of the parents.1  These are determined by applying the federally mandated child support guidelines found at La. R.S. 9:315, et seq. The guidelines use the parents’ incomes to determine the appropriate amount of child support. La. R.S. 9:315.20 prescribes Worksheets A and B for the calculation of the support obligation. Worksheet A is for joint, sole, or split custody.2  Worksheet B is for shared custody.3  A court may deviate from the child support guidelines if applying them would not be in the child’s best interest or would be inequitable to the parties.4  The party advocating for a deviation from the guidelines bears the burden of proof.5  If the court deviates from the presumptive guidelines, it must give reasons for the deviation.6  The reasons must include the amount required under a mechanical application of the guidelines.7  If the court reviews the parties’ stipulation for child support, it must review the adequacy of the stipulated amount under the child support guidelines.8

Either party may raise child support without it being specifically pleaded, and the court may hear and determine the issue if all parties consent.9  However, a word of caution, unless you have plenty of time in a child support proceeding to fully discuss custody and visitation, your client may be best served by filing an additional and separate custody petition.

After reading the child support statutes, you should read and understand the case law on these child support issues: voluntary underemployment or unemployment, extraordinary medical expenses, private school tuition, federal tax credit for daycare, assignment of the tax dependency deduction, expense sharing, adjustments to child support due to time spent with the non-domiciliary parent, extra judicial agreements, deviation from the guidelines, retroactivity, contempt, income assignment, child support suspension for incarcerated defendants, child support for adult children with disabilities, and the calculation of gross income.

Always remember that the court has the primary obligation to act as gatekeeper to make sure the child support obligation is in the child’s best interest. Even consent judgements should be presented to the court to ensure that the guidelines amount was determined and that all parties understand the mandated obligation.

  • 1La. C.C. art. 141.
  • 2On split custody, see Section 6.9.
  • 3On shared custody, see Section 6.11.
  • 4La. R.S. 9:315.1(B)(1).
  • 5See La. R.S. 9:315.1(A) (establishing a rebuttable presumption that the amount of child support under the guidelines is the proper amount of support).
  • 6La. R.S. 9:315.1(B)(1).
  • 7Id.
  • 8La. R.S. 9:315.1(D).
  • 9La. R.S. 9:356.

6.2 State Assistance in Obtaining Child Support

6.2 State Assistance in Obtaining Child Support aetrahan Tue, 06/27/2023 - 14:21

A custodial parent can get help from the Louisiana Department of Children and Family Services (DCFS), Child Support Enforcement Services (SES), in establishing and enforcing child support. In addition to establishing new orders, DCFS can enforce orders of other Louisiana jurisdictions as well as those rendered out of state (under UIFSA or URESA).1

If the custodial parent receives Medicaid, the Kinship Care Subsidy Grant, or FITAP, these services are free. Other custodial parents may receive these services for a $25 fee. Parents may apply for the state’s child support enforcement services online and can download a paper application from the webpage of the DCFS/SES.2

If the children or the client are receiving FITAP or the Kinship Care Subsidy Grant, the enforcement and collection of child support will have been assigned to the State by the custodian.3  Thus, you are not able to pursue child support without getting the State to relinquish the assignment or to make them a party to the proceedings because the DCFS is a party in interest necessary for “just adjudication.” Although the DCFS/SES system is extremely backlogged, child support is a vital economic benefit to necessitous clients and should not be overlooked as an option. However, do not expect a quick resolution if your client chooses this option.

6.3 Child Support Worksheet A

6.3 Child Support Worksheet A aetrahan Tue, 06/27/2023 - 14:23

The following sections provide a step-by-step guide for properly filling out Obligation Worksheet A.1  Worksheet A is for child support in sole and joint custody arrangements.2  It does not apply to “shared custody,” which is joint custody where each party has physical custody for approximately equal time.3  It must be used in a particular manner in “split” custody arrangements in which the parties have two or more children, and each parent has sole custody or is the domiciliary parent of at least one of those children.4  For simplicity of presentation, this manual proceeds as if the case requires use of Worksheet A. The principles of determining the amounts of income and expenses to be entered onto the worksheet generally apply even if Worksheet B is used.

  • 1Find a copy of Worksheet A here.
  • 2La. R.S. 9:315.8.
  • 3La. R.S. 9:315.9 (requiring use of Worksheet B for shared custody).
  • 4La. R.S. 9:315.10.

6.4 Gross Income

6.4 Gross Income aetrahan Tue, 06/27/2023 - 14:24

6.4.1 Definition

6.4.1 Definition aetrahan Tue, 06/27/2023 - 14:25

Gross income includes, but is not limited to, salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, recurring monetary gifts, annuities, capital gains, social security benefits (in some circumstances), worker’s compensation benefits, allowances for housing and subsistence from military pay and benefits (BAH and BAS), unemployment insurance benefits, disability insurance benefits, and spousal support received from a pre-existing spousal support obligation.1

Note that gifts and lottery proceeds are not included as “gross income.” Previously, lottery proceeds were specifically excluded from gross income. However, the law has been amended and lottery proceeds are no longer specifically excluded. Thus, such proceeds may be counted as income. Depending upon the size and character of gifts, they may be considered by the court under La. R.S. 9:315.1 as a basis for a deviation from the guidelines.

Gross income also includes expense reimbursements or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business, if these reimbursements or payments are significant and reduce the parent’s personal living expenses.2  These types of payments may include, but are not limited to a company car, free housing, or reimbursed meals. The court may also consider as income the benefits a party derives from expense sharing or other sources.3  In computing expense sharing with another spouse, it is inappropriate to consider the income of another spouse, except to the extent that such income is used directly to reduce the costs of a party’s actual expenses.4

  • 1La. R.S. 9:315(C)(3).
  • 2Id.
  • 3La. R.S. 9:315(C)(5)(c).
  • 4Id.

6.4.2 Self-Employment

6.4.2 Self-Employment aetrahan Tue, 06/27/2023 - 14:28

Gross income also includes gross receipts minus ordinary and necessary expenses required to produce income from self-employment, rent, royalties, proprietorship of a business, joint ownership, partnership, or closely held corporation.1  Ordinary and necessary expenses do not include amounts allowable by the IRS for the accelerated component of depreciation expenses or investment tax credits or any other business expenses determined by the court to be inappropriate for determining gross income for the purposes of calculating child support.2

It may be difficult to imagine how this works in practice. Proving income for self-employed persons is difficult without the necessary documentation. Thus, the first course of action is to request (informally or through discovery) tax returns, profit-and-loss statements, or other documentation. To be excluded from income, the expenses must be “ordinary and necessary” in the course of business, and they must be required to produce that income; they must not be personal. Further, the burden is on the self-employed person to prove that the expenses are necessary to produce income.3  If the defendant is alleging expenses associated with starting up a company, the defendant must have documentary proof; something more than testimony is required.4  Additionally, La. R.S. 9:315.1.1 addresses redirected income, payments made to the obligor from a company in which the obligor has an ownership interest, and deferred income. Most cases do not have these issues, but you should be familiar with this article, just in case.

  • 1La. R.S. 9:315(C)(3)(c).
  • 2Id.
  • 3Hensgens v. Hensgens, 2019-485 (La. App. 3 Cir. 12/18/19), 287 So. 3d 795.
  • 4Bailey v. Bailey, 2019-644 (La. App. 3 Cir. 3/11/20), 297 So. 3d 58.

6.4.3 Exclusions

6.4.3 Exclusions aetrahan Tue, 06/27/2023 - 14:30

Gross income does not include child support received by the parent, benefits received from public assistance programs including FITAP, SSI, food stamps, and disaster assistance benefits, per diem allowances which are not subject to federal income taxation, and extraordinary over-time or income attributed to seasonal work regardless of the percentage of gross income when, in the court’s discretion, inclusion would be inequitable.1

  • 1La. R.S. 9:315(C)(3)(d).

6.5 Voluntary Unemployment or Underemployment

6.5 Voluntary Unemployment or Underemployment aetrahan Tue, 06/27/2023 - 14:30

6.5.1 When Applicable

6.5.1 When Applicable aetrahan Tue, 06/27/2023 - 14:30

A party cannot avoid child support obligations through voluntary unemployment or underemployment. If a party has made only “token” job hunting efforts with few results, has applied only for work within a preferred field, and has not considered or pursued other career options, the courts are inclined to base the party’s income not on the lower amount of current earnings, but rather upon the party’s earning potential.1

Analysis of voluntary unemployment or underemployment is generally a question of good faith. Good faith is a factual issue to be determined by the court. A parent whose change in circumstances is due to voluntary termination of employment may obtain reduction in child support payments by showing all of the following:

  1. A change in circumstances occurred.
  2. The voluntary change in circumstances is reasonable and justified.
  3. The parent is in good faith and not attempting to avoid the child support obligation.
  4. The change in employment will not deprive the child of continued reasonable financial support.2

In virtually every case in which a parent’s voluntary unemployment or underemployment is found to be in good faith, our courts have recognized extenuating circumstances beyond the parent’s control that influenced and necessitated the voluntary change of employment. Courts have generally allowed a reduction in child support where parents were returning to school with hopes of increasing their salary or leaving employment (and seeking other employment) due to a business’ financial difficulty or a strained working relationship or to start a new business. In almost every case, our courts noted that the unemployment or underemployment was a short-term sacrifice that could lead to a long-term benefit.

  • 1Gould v. Gould, 28,996 (La. App. 2 Cir. 1/24/97), 687 So. 2d 685; see also Glover v. Glover, 28,493 (La. App. 2 Cir. 6/26/96), 677 So. 2d 659.
  • 2La. R.S. 9:315.1(A).

6.5.2 When Not Applicable

6.5.2 When Not Applicable aetrahan Tue, 06/27/2023 - 14:33

The projection of an income for a voluntarily underemployed or unemployed individual is not applicable if:

  • The party is unemployable.1
  • The party is incapable of employment.2
  • The unemployment exists without fault or neglect of the party.3
  • The party is physically or mentally incapacitated.4
  • The party is actually caring for a child of the parties under the age of 5.5

Note that the child must be a “child of the parties.” Other children do not exempt a parent from being considered voluntarily underemployed or unemployed.

  • 1La. R.S. 9:315(C)(5)(b).
  • 2Id.
  • 3Id.
  • 4La. R.S. 9:315.11(A)(1).
  • 5Id.

6.5.3 Calculating Income

6.5.3 Calculating Income aetrahan Tue, 06/27/2023 - 14:34

In determining gross income for calculating support, one may look at a party’s actual gross income if the party is employed to full capacity or may look to potential income if the party is voluntarily unemployed or underemployed.1

If a party is voluntarily underemployed or unemployed, child support is calculated based on the party’s income earning potential, i.e., the amount of income a person is capable of earning based on career choice, education, and skill level.2  In voluntary unemployment or underemployment cases, our courts will usually use the wage earned by the party prior to voluntary underemployment or unemployment as the best estimate of the obligated party’s potential income. If that is not feasible, a court may also use the most recently published Louisiana Occupational Employment Wage Survey.3

The amount of the basic child support obligation obtained by use of the provisions for voluntary unemployment or underemployment cannot exceed that amount that the party paying child support would have owed had no determination of the payee’s income potential been made.4

In the absence of evidence of income earning potential, there is a rebuttable presumption that a party could earn income equal to the amount that could be earned for 32 hours per week of work at the prevailing minimum wage.5  It may seem frustrating to litigate a case for a minimum amount of income; however, small amounts may be essential to low-income clients.

These types of cases present themselves often. Remember that your standard of appeal is manifest error.6  Appellate courts do not want to get into the weeds of calculating income unless they must. Therefore, the more information you can get into the court record to prove your argument, the better.

  • 1La. R.S. 9:315(C)(5)(a)–(b).
  • 2La. R.S. 9:315.11(A)(1).
  • 3See La. R.S. 9:315.1.1(B); see also La. R.S. 13:3712.1 (requiring a court to accept a copy of a self-authenticating report from the Department of Labor, or from any state or reporting agency, as prima facie proof of its contents).
  • 4See La. R.S. 9:315.11(B).
  • 5La. R.S. 9:315.11(A)(2).
  • 6La. R.S. 9:315.17.

6.5.4 Cases

6.5.4 Cases aetrahan Tue, 06/27/2023 - 14:37

Voluntary unemployment and underemployment issues have been frequently litigated, so there is a substantial body of caselaw available.

In Mayo v. Crazovich, the obligor left his unstable cementing business to enter the upholstery business to improve his financial condition. The court determined that if a voluntary change of circumstances is reasonable, justified, and in good faith without the intent to avoid the child support obligation, the obligor will not be deemed to be voluntarily underemployed even if the new business fails to turn a profit despite the obligor’s diligent effort.1

In Saussy v. Saussy, the obligor was fired from his employment through no fault or neglect of his own. Thereafter, he obtained another job that paid significantly less than his prior employment. His failure to apply for jobs in which he could reach his previous earning potential was not deemed to be voluntary underemployment insofar as the loss of income was deemed temporary. Also, the father in this case testified and the court accepted his testimony that with the change of employment he had more time to spend with his children. The court stated that a father’s children benefit not only by the money he is able to earn, but also by the presence of his company, and nowhere does the law require that a parent work 60 to 70 hours per week to the detriment of his children’s right to his company.2

In Koch v. Koch, the father sought to reduce his child support obligation by alleging that he had a significant decrease in income. The court determined that he was voluntarily underemployed because he worked approximately 70 hours per week, without compensation, for a company of which he was a one-third owner. The court determined that he had made several voluntary choices regarding investments of assets that resulted in loss of income. He was not entitled to rely on his bad investment decisions to reduce his child support obligation.3

In Lewis v. Lewis, the court stated that losing a job due to a medical illness could not be defined as voluntary and explained that voluntary unemployment must be brought about by an obligor’s “own fault or neglect.”4

In Hutto v. Kneipp, the father, a pastor, left full-time employment and a part-time job to enter the ministry. The court determined that Rev. Kneipp was in bad faith, noting the time frame in which he resigned from his prior employment coincided with the child support award. The court determined that the obligor was voluntarily underemployed and that his income earning potential must be considered in calculating his child support obligation. The court also determined that it was appropriate to calculate Rev. Kneipp’s income based solely on his prior full-time position rather than both of his former positions because “he was not in the habit of holding a second job when he had a permanent full-time position in the past” and because the minor difference in the child support awards would not deprive the child of reasonable support.5

In Greene v. Greene, the court determined that the mother was voluntarily underemployed insofar as she had quit her job in an attorney’s office to take a lower paying job so that she could spend more time at home with her children, all of whom were over the age of five years. The court concluded that the mother’s higher rate of pay should be utilized in calculating the obligor’s child support.6  Consistent with Greene, the court in Toups v. Toups reasoned that a wife with a history of full-time employment, but who, at the time of trial, was only employed part-time by her current husband, could be imputed income at her current part-time salary plus minimum wages up to full-time.7

  • 1621 So. 2d 120 (La. App. 2 Cir. 1993); see also Lauve v. Lauve, 2008-0076 (La. App. 4 Cir. 8/20/08), 6 So. 3d 184.
  • 293-1303 (La. App. 3 Cir. 6/15/94), 638 So. 2d 711; see also Walden v. Walden, 2000-2911 (La. App. 1 Cir. 8/14/02), 835 So. 2d 513.
  • 397-1600 (La. App. 4 Cir. 4/22/98), 714 So. 2d 63; see also State, Dep’t of Soc. Servs. v. Swords, 2008-0580 (La. App. 3 Cir. 11/5/08), 996 So. 2d 1267.
  • 42018-0378 (La. App. 4 Cir. 10/3/18), 255 So. 3d 1216.
  • 5627 So. 2d 802 (La. App. 2 Cir. 1993).
  • 693-789 (La. App. 3 Cir. 3/2/94), 634 So. 2d 1286.
  • 797-0620 (La. App. 1 Cir. 4/8/98), 708 So. 2d 849; see also Lewis v. Lewis, 616 So. 2d 744 (La. App. 1 Cir. 1993); Leonard v. Leonard, 615 So. 2d 909 (La. App. 1 Cir. 1993).

6.6 Expense Sharing

6.6 Expense Sharing aetrahan Tue, 06/27/2023 - 14:42

The court may also consider as income the benefits a party derives from expense sharing or other sources.1  In determining the benefits of expense sharing, the court cannot consider the income of another spouse, regardless of the legal regime under which the remarriage exists, except to the extent that such income is used directly to reduce the cost of the party’s personal expenses.2

What the court is looking for in this type of case is how much the new spouse reduces the litigant’s personal and living expenses. For example, if a mother is married to a new husband and that husband contributes $5,000.00 towards the mother’s living expenses, the court may (but is not required to) impute some or all of that $5,000.00 to mother as gross income. Here is a primitive analysis: Determine the income of the spouse for whom expense sharing is to be calculated. Examine that spouse’s expenses for herself only. Thereafter, subtract the spouse’s net income from her expenses. The balance of her expenses not covered by her net income is the amount “shared” by her current spouse. This amount may be added to her income.

In Greene v. Greene, the court held that any contribution to expenses shared by the parties and their new spouses, such as a car loan, credit card debt, cable television, or rental insurance is includable as income.3

In Wollerson v. Wollerson, the court addressed the issue of what information is discoverable from a second spouse. The appeals court upheld an order compelling the second wife to disclose information from her personal checking account insofar as it was one of the few ways that the former wife could determine the second wife’s contribution to the husband’s expenditures. The appellate court ordered the trial court to conduct an in camera inspection of the checking account information to determine the relevancy of the records requested.4

  • 1La. R.S. 9:315(C)(5)(c).
  • 2Id.
  • 393-789 (La. App. 3 Cir. 3/2/94), 634 So. 2d 1286; see also Kern v. Kern, 2000-1126 (La. App. 4 Cir. 4/25/01), 786 So. 2d 193; Shaw v. Shaw, 30,613 (La. App. 2 Cir. 6/24/98), 714 So. 2d 906.
  • 429,183 (La. App. 2 Cir. 1/22/97), 687 So. 2d 663.

6.7 Second Jobs & Overtime

6.7 Second Jobs & Overtime aetrahan Tue, 06/27/2023 - 14:44

The issue of second jobs comes up frequently in the child support arena often as a defense to an action brought by the obligee-parent to modify the child support award in light of obligor-parent’s increased income.1  The law allows the court to consider the deviation grounds, particularly if the obligor takes the second job to provide for another family.2  The obligor bears the burden of proving the second family’s expenses.3

  • 1La. R.S. 9:315.12.
  • 2See La. R.S. 9:315.1(B)(1), .12.
  • 3La. R.S. 9:315.12.

6.8 The Calculation

6.8 The Calculation aetrahan Tue, 06/27/2023 - 14:45

6.8.1 Preexisting Obligations (Lines 1a-b & 2)

6.8.1 Preexisting Obligations (Lines 1a-b & 2) aetrahan Tue, 06/27/2023 - 14:45

In computing monthly adjusted gross income on the child support worksheet, one should subtract any pre-existing child support obligations established by judgment from a litigant’s monthly gross income. To be deductible, the obligation must result from an actual court order, not an extrajudicial agreement. The burden is on the party seeking the reduction to provide the court order so that it can be property assessed. The first child support/spousal support judgment obtained will always be pre-existing, even if it has been subsequently modified; the modification does not change the “pre-existing” character of the judgment.

At times, a defendant may raise the argument that they are caring for a child or children not of these parties and seek a deviation. Courts have consistently required explanation of those expenses, but this deviation is discretionary and can only be made if it is not harmful to the best interest of the child of the current proceeding or would be inequitable to the parties.1  If the court allows this deviation, it must give specific reasons.2

After subtracting either or both of these obligations from a litigant’s monthly gross income, one arrives at the monthly adjusted gross income to be entered on Line 2 of the Child Support Worksheet.

  • 1La. R.S. 9:315.1(B)(1).
  • 2Bell v. Jackson, 2018-1075, p. 9 (La. App. 1 Cir. 5/31/19), 278 So. 3d 382, 388–89.

6.8.2 Combined Monthly Adjusted Gross Income (Line 3)

6.8.2 Combined Monthly Adjusted Gross Income (Line 3) aetrahan Tue, 06/27/2023 - 14:46

To obtain this figure, add the monthly obligations of each parent found on Line 2.

6.8.3 Percentage Share of Income (Line 4)

6.8.3 Percentage Share of Income (Line 4) aetrahan Tue, 06/27/2023 - 14:47

To arrive at this percentage, divide each party’s monthly adjusted gross income (Line 2) by the total of the parties’ adjusted gross income (Line 3).

6.8.4 Basic Child Support Obligation (Line 5)

6.8.4 Basic Child Support Obligation (Line 5) aetrahan Tue, 06/27/2023 - 14:47

This requires reference to the schedule of basic child support obligations contained in La. R.S. 9:315.14.

If the amount of the combined income falls between the guidelines, one figures the exact child support by extrapolation as in the following example:

Assume the combined income of the parties is $2,093. Thus, the income amount falls between $2,050 and $2,100. The child support for two children at $2,050 is $562. The child support for two children at $2,100 is $575. To arrive at the proper child support amount for $2,093, one should do the following calculations. $575 - $562 = $13. Subtract $2,050 from $2,093 = $43. Multiply 43 x 2 = 86. Now, multiply $13 x .86 = $11.18. Add $11.18 to $562 = $573.18. $573.18 is the basic child support obligation. This number should be placed on Line 5.

6.8.5 Childcare Costs (Line 5a)

6.8.5 Childcare Costs (Line 5a) aetrahan Tue, 06/27/2023 - 14:48

Per La. R.S. 9:315.3, the net childcare costs are determined by applying the Federal Credit for Child and Dependent Care Expenses provided in IRS Form 2441 to the total or actual childcare costs. The form may be downloaded from and is available for children aged 13 or younger. This is an addition to the basic child support obligation. Be mindful that your client must produce some sort of proof and that a statement from an in-home provider usually needs further substantiation.

6.8.6 Child’s Health Insurance Premium Cost (Line 5b)

6.8.6 Child’s Health Insurance Premium Cost (Line 5b) aetrahan Tue, 06/27/2023 - 14:52

Child support includes medical support. Per La. R.S. 9:315.4, the court may order one of the parties to maintain health insurance for the child. In determining which party should be required to maintain such insurance, the court considers each party’s insurance policy and the parties’ work history, personal income, and other resources.

When health insurance is provided by the payor parent, a credit must be given to that parent in the amount of the premium. Thus, after one enters in the premium amount, this amount is then subtracted from the payor parent’s child support obligation on Line 8 of Worksheet A to obtain the Recommended Child Support Order.

Health insurance premiums added to the Basic Child Support Obligation do not include any amount paid by an employer or any amounts paid for coverage of persons other than the child. If more than one dependent is covered by health insurance that is paid through a lump sum dependent coverage premium and not all such dependents are the subject of the guidelines calculation, the coverage is pro-rated among the dependents covered before being entered onto the worksheet.

A Qualified Medical Child Support Order (QMCSO) may also be sought, especially if the State is involved.1  The QMCSO is an order of the court that provides for child support or health care benefit coverage to a qualified dependent (child) of a participant (parent) in a group health plan. In all cases where the child is on a medical card, the Louisiana DCFS is an indispensable party to any QMCSO being entered. Per the subrogation of rights that parents sign when they get public benefits, DCFS is a party and must be served.

Sometimes both parents provide health insurance. This comes up most often if one parent changes jobs frequently and loses the private insurance. The other parent then obtains private insurance so as to allow coverage to continue without lapse. In this situation, the court has the discretion to give credits to both parties or to only one—the one with the obligation to provide the insurance.

  • 1See 29 U.S.C. § 1169; La. R.S. 46:236.8.

6.8.7 Extraordinary Medical Expenses (Line 5c)

6.8.7 Extraordinary Medical Expenses (Line 5c) aetrahan Tue, 06/27/2023 - 14:53

Per La. R.S. 9:315.5, by court order or consent of the parties, extraordinary expenses incurred on behalf of the child shall be added to the basic child support obligation. Most courts will impute expenses in proportion to the parties share of gross income.

Extraordinary medical expenses are defined as “unreimbursed medical expenses which exceed two hundred fifty dollars per child per calendar year.”1  These expenses include, but are not limited to, reasonable and necessary costs for dental treatment, orthodontist, asthma treatments, physical therapy, and treatment for chronic health problems or professional counseling or psychiatric therapy for diagnosed mental disorders not covered by medical insurance.2

Some courts may not add these expenses into the obligation, despite the mandatory language. If it is a regularly occurring expense, it may be included; however, because these expenses “reset” each year (and for each child), there is generally not a set cost that is incurred each month. Thus, some courts may exclude the expenses with guidance to keep records of the expenses as they occur. Once the $250 is reached, the parent incurring the cost must notify the other parent that the expenses have been reached. Thereafter, the parties share in proportion to their percentage share of the total obligation.

An example may clarify the application of this provision. By June 1, Mother has expended $1000.00 in medical expenses for child #1. She alerts Father (in writing) that the expenses were incurred and provides documentation of invoices and payments in full. Once this occurs, Father must begin (either by reimbursement to mother or via direct payment to the provider) sending his proportionate share. If Father has 75% of the total support obligation, the calculation looks like this:

$1000.00 less $250 = $750.00.

$750.00 * 75%=$562.50 owed to Mother or to the provider

Also remember that the other parent may have also incurred medical expenses for the child. In that case, the other parent may offset the amount due by their proportionate share of the expenses incurred. To continue the above example, Mother has provided the $1000.00 in expenses above. Father’s share is $562.50. However, Father also has $500.00 in expenses he has paid in the same year. Thus, Father is entitled to an offset of 25% of the expenses he paid ($562.50 less 25% or $140.63). His obligation at that point in time would be $421.88 owed to Mother or the provider.

As these calculations can get complex, a spreadsheet is always helpful. Just make sure your client has explanations of benefits, invoices, and proof of payment in order to litigate this claim.

  • 1La. R.S. 9:315.5.
  • 2La. R.S. 9:315(C)(8).

6.8.8 Extraordinary Expenses (Line 5d)

6.8.8 Extraordinary Expenses (Line 5d) aetrahan Tue, 06/27/2023 - 14:54

Per La. R.S. 9:315.6, by court order or consent of the parties, certain other expenses incurred on behalf of the child may be added to the basic child support obligation. Private or special elementary or secondary school tuition, books, and supplies may be included provided that the school is necessary to meet the needs of the child.1  Transportation expenses to get the child from one party to the other may be included on this line.2  These expenses may also include extracurricular recreational activities such as dancing lessons, baseball, or gymnastics, but the activities have to “enhance the health, athletic, social, or cultural development of the child.”3  The parent seeking to include the expense(s) has the burden of proof.4

In Guillory v. Ventre, the court compared what the private school can provide the child to what public schools can provide to address the same educational need.5  Private school tuition can be added to the basic child support obligation where the children had always attended private school and the family always had adequate income to pay for such tuition.6  Another instance is when the parties have agreed to private schooling prior to separation or prior to the matter coming to court.7  But the party attempting to include the expense should provide evidence of the child’s educational need or the historical context for the child’s attendance.8

  • 1La. R.S. 9:315.6(1). Although older cases required a “particular educational need,” the statute was amended in 2001 to require only that the schooling meet “the needs of the child.” Short v. Short, 11-CA-3 (La. App. 5 Cir. 10/25/11), 77 So. 3d 405.
  • 2La. R.S. 9:315.6(2).
  • 3La. R.S. 9:315.6(3).
  • 4See Basile v. Basile, 2004-25 (La. App. 3 Cir. 5/12/04), 872 So. 2d 1274.
  • 5610 So. 2d 1056 (La. App. 3 Cir. 1992).
  • 6See Valure v. Valure, 96-1684, p. 2 (La. App. 1 Cir. 6/20/97), 696 So. 2d 685, 687.
  • 7La. R.S. 315.6 (allowing inclusion of private school expenses “[b]y agreement of the parties”).
  • 8Valure, 96-1684, p. 2; 696 So. 2d at 687.

6.8.9 Extraordinary Adjustments (Child’s Income) (Line 5e)

6.8.9 Extraordinary Adjustments (Child’s Income) (Line 5e) aetrahan Tue, 06/27/2023 - 14:57

Per La. R.S. 9:315.7, a child’s income may be used to reduce that child’s basic needs and thus may be deducted from the basic child support obligation. However, this provision does not apply to income earned by a child while he/she is a full-time student, regardless of whether such income was earned during a summer or holiday break.1  Also, public benefits (e.g., FITAP food stamps, or other means-tested programs) received by a child are not included.2  Any lump sum payments received by the child are credited to outstanding arrears; however, this can only be done after an evidentiary hearing.3

Although placed in the provision for deductions based on a child’s income, Social Security Disability benefits “received by a child due to the earnings of a parent shall be credited as child support to the parent upon whose earning record it is based, by crediting the amount against the potential obligation of that parent.”4  This provision “require[s] the court to credit the social security benefits to the parent’s child support obligation, rather than deduct[] the benefits from the basic child support obligation as income of the child benefitting both parents under Section A.”5  The credit is given not against the ultimate child support order, but rather against the potential child support obligation of the disabled parent.6  Thus, if the child receives Social Security Disability benefits based on a disabled parent’s earnings history, a credit is given against that parent’s potential obligation (as determined after multiplying the basic child support obligation by that parent’s percentage of income).7  Thus, the credit is given after the calculation that produces the result to be entered on Line 7 of Worksheet A is complete. Note that the custodial parent may directly receive the benefits from the government on behalf of the child, regardless of which parent is disabled.8

Barrett v. Barrett illustrates the treatment of disability benefits paid to a child based on a disabled parent’s earnings history.9  Mr. Barrett was blinded after being shot in the face while hunting. Subsequently, Mr. and Ms. Barrett divorced. At that time, their three children were receiving social security benefits of $498 per month due to Mr. Barrett’s disability; this was paid to Ms. Barrett. The court computed the basic child support obligation as $915 per month. Based on the parties’ incomes, Mr. Barrett owed 54% of the total child support obligation, which amounted to $494.10. Because $498 is greater than $494.10, applying the credit resulted in Mr. Barrett owing no additional child support.

  • 1La. R.S. 9:315.7(B).
  • 2La. R.S. 9:315.7(C).
  • 3La. R.S. 9:315.7(E).
  • 4La. R.S. 9:315.7(D) (emphasis added).
  • 5Barrett v. Barrett, 20-266, p. 8 (La. App. 5 Cir. 2/24/21), 314 So. 3d 1023, 1032.
  • 6State ex rel. Dep’t of Child. & Family Servs. v. Peters, 2014-1800 (La. App. 1 Cir. 6/5/15), 174 So. 3d 1200.
  • 7Barrett, 20-266, p. 8, 314 So. 3d at 1032 (applying rule to nondomiciliary parent); Peters, 2014-1800, 174 So. 3d 1200 (applying rule to potential obligation of domiciliary parent).
  • 8See Cloud v. Dean, 2015-297, pp. 9–10 (La. App. 3 Cir. 12/16/15), 181 So. 3d 936, 943.
  • 920-266 (La. App. 5 Cir. 2/24/21), 314 So. 3d 1023.

6.8.10 Total Child Support Obligation (Line 6)

6.8.10 Total Child Support Obligation (Line 6) aetrahan Wed, 06/28/2023 - 09:33

Per La. R.S. 9:315.8, the total child support obligation is computed by adding together the basic child support amount (Line 5), the net childcare costs (Line 5a), the cost of health insurance premiums (Line 5b), extraordinary medical expenses (Line 5c), and other extraordinary expenses (Line 5d) less the child’s income (Line 5e), if applicable.

6.8.11 Each Party’s Child Support Obligation (Line 7)

6.8.11 Each Party’s Child Support Obligation (Line 7) aetrahan Wed, 06/28/2023 - 09:33

Per La. R.S. 9:315.8(C), each party’s child support obligation is determined by multiplying the total child support obligation by the percentage each party’s income bears to the combined monthly adjusted gross income (Line 4) expressed as a decimal.

6.8.12 Direct Payments (Line 8)

6.8.12 Direct Payments (Line 8) aetrahan Wed, 06/28/2023 - 11:29

Direct payments are those made by the noncustodial parent on behalf of the child for work-related net childcare costs, health insurance premiums, extraordinary medical expenses, or extraordinary expenses provided as adjustments to the schedule. Per La. R.S. 9:315.8(D), this amount is deducted from the child support obligation owed by the non-custodial parent.

6.8.13 Adjustment for Time with Non-Domiciliary Parent

6.8.13 Adjustment for Time with Non-Domiciliary Parent aetrahan Wed, 06/28/2023 - 11:29

At times, you may have a client that has more than every other weekend (or some other variation of a standard custody order). For example, if a mother has custody every other weekend, plus a day during the week, all holiday breaks and summer, this amounts to nearly 150 days out of the year. The child support guidelines allow for credits in the case of parents who have more than a “standard” every other weekend custodial plan.

In cases of joint custody, the court “shall consider the period of time spent by the child with the non-domiciliary party as a basis for adjustments to the amount of child support to be paid during that period of time.”1  If, under a joint custody order, the person ordered to pay child support has physical custody of the child for more than 73 days, the court may order a credit to the child support obligation.2  It is not mandatory for a court to grant this credit.3  How much custodial time is necessary to constitute a “day” is determined by the court but must be at least 4 hours of physical custody.4  The burden of proof is on the person seeking the credit.5

Do the Louisiana Child Support Guidelines automatically allow for a deviation based solely on the amount of time a non-domiciliary parent spends with a child? No. In Guillot v. Munn, the Supreme Court ruled that an automatic deviation is not allowed.6  According to the court,

[T]he party urging a reduction in the child support obligation based on the amount of time spent with the child must bear the burden of proving that he or she exercises shared custody or extraordinary visitation with the child, that the extra time spent with the non-domiciliary parent results in a greater financial burden on that parent and a concomitant lesser financial burden on the domiciliary parent, and finally, that the application of the guidelines would not be in the child’s best interest or would be inequitable to the parties.7

A possible argument that may succeed in this situation is the so-called “11/12ths rule.” For example, if the parents are joint custodians and the mother has the children for the 9 months of the school year and the father has the children for the 3-month summer school-vacation period, the court may give the non-domiciliary parent a break on his child support. At the same time, the court recognizes that the domiciliary parent’s expenses do not substantially decrease just because the children are not in the home during the summer. Thus, one would initially calculate monthly child support as usual for the payor parent. This amount is then multiplied by 11 months and then divided by 12. Thus, payor parent gets credit for one month of support in recognition of the summer custodial time with the children. Remember, findings of the trial court cannot be disturbed absent manifest error, and appellate courts give great deference to those findings. Therefore, if this method would benefit your client, be sure to have the judgment lay out this calculation.

Several cases illustrate the application of this adjustment. In Nixon v Nixon, the court determined that where custody of two children was split between the parents with both children living with the father during the summer months, the support obligation should be first determined separately for the number of children in the domiciliary custody for each parent.8  The amount of child support each parent owes the other is next calculated by multiplying the owed support obligation by the parent’s proportionate share of the combined adjusted income. The amounts the parties owe each other is then offset. After Mr. Nixon’s support obligation was proportioned over 12 months, he owed only $98.47 per month.9

In In re Birkenstock, the children spent 50% of the time with their mother and 50% of their time with the father, and the father wanted his child support obligation reduced from $755 to $377.50. The trial court reduced his obligation to $500 stating, “there is no hard and fast rule to determine just how much to reduce the child support obligation based on percentage of time the children live with either parent.”10

In Falterman v. Falterman, the court held that adjustments to child support do not have to be made in proportion to the amount of time the children spend with the non-domiciliary parent. Here, the children spent 40% of their time with their father during the school year and 60% of their time with him during the summer months. The court found that the children’s ongoing expenses provided by the mother were unaffected during the time the children were with their father and refused to reduce support for the time spent with their father.11

In Temple v. Temple, the court determined that “the statute . . . merely requires that the court consider time spent with the non-domiciliary parent but does not require that the court make an adjustment for this time.”12

Calhoun v. Calhoun states that the court is not obligated to make adjustments and give credits. There are no rules for this reduction based on the amount of time spent with ether parent. It is always discretionary with the court, but a wise practitioner should know this statute if they are defending a child support case.13

  • 1La. R.S. 9:315.8(E)(1).
  • 2La. R.S. 9:315.8(E)(2).
  • 3Id.
  • 4Id.
  • 5La. R.S. 9:315.8(E)(4).
  • 61999-2132 (La. 3/24/00), 756 So. 2d 290.
  • 7Id.
  • 825,481 (La. App. 2 Cir. 1/19/94), 631 So. 2d 42; see also Berry v. Berry, 2000-0617 (La. App. 3 Cir. 11/2/00), 772 So. 2d 318.
  • 9See also Jones v. Jones, 38,790 (La. App. 2 Cir. 6/25/04), 877 So. 2d 1061 (considering the relative time spent with each parent under La. R.S. 9:315.8(E)).
  • 1095-586 (La. App. 5 Cir. 12/13/95), 666 So. 2d 1168; see also Atkinson v. Atkinson, 2016-0759 (La. App. 4 Cir. 2/15/17), 212 So. 3d 631.
  • 1197-192 (La. App. 3 Cir. 10/8/97), 702 So. 2d 781.
  • 1294-1244 (La. App. 3 Cir. 3/15/95), 651 So. 2d 466.
  • 1352,915 (La. App. 2 Cir. 8/14/19), 316 So. 3d 1209.

6.8.14 Recommended Child Support Order (Line 9)

6.8.14 Recommended Child Support Order (Line 9) aetrahan Wed, 06/28/2023 - 11:40

Per La. R.S. 9:315.8(D), the payor parent owes the total child support obligation less any court-ordered direct payments in Line 8. However, La. R.S. 9:315.14 requires a minimum child support award of $100 per month except in shared or split custody as provided in R.S. 9:315.9–.10. If the obligor has a medically documented disability that limits the obligor’s ability to meet the mandatory minimum, the court may set an award of less than $100.

When a client is on SSI, SSI is not included in gross income.1  In State v. Duncan,2  the court recognized the statutory prohibition against counting SSI as income. This is an exception to the mandatory minimum award, and, as always, courts may deviate.

  • 1La. R.S. 9:315(C)(3)(d)(i).
  • 22010-0426 (La. App. 1 Cir. 10/29/10), 2010 WL 4273103.

6.9 Shared Custody (Worksheet B)

6.9 Shared Custody (Worksheet B) aetrahan Wed, 06/28/2023 - 11:41

At times, parents may have an actual shared custody judgment. Shared custody means a joint custody order in which each parent has physical custody of the child for an approximately equal amount of time.1  In that event, Obligation Worksheet B at 9:315.20 is the form to use.2  The calculation is based on a formula that first requires that the basic child support obligation be multiplied by 1.5 to approximate the duplication of costs, such as housing, food, and transportation, incurred by both parents who have physical custody for approximately one-half of the year.3  Then, the adjusted basic child support obligation is divided between the parents in proportion to their respective adjusted gross incomes to obtain each parent’s theoretical child support obligation.4  Next, each parent’s obligation is cross-multiplied by the actual percentage of time the child spends with the other parent.5  The parent owing the greater amount pays the difference to the other parent as support,6  after deducting each parent’s proportionate share of any direct payments made to third parties for the child.7

It may happen that the domiciliary parent in a shared custody order makes more than the non-domiciliary parent. Greene v. Greene states that there is nothing preventing a higher-earning parent who is also named domiciliary parent from paying support to the other parent.8  The court found that La. R.S. 9:315.9 does not preclude payment to a non-domiciliary parent in a shared custody situation.9

  • 1La. R.S. 315.9(A)(1).
  • 2La. R.S. 9:315.9.
  • 3La. R.S. 9:315.9(A)(2).
  • 4Id.
  • 5La. R.S. 9:315.9(A)(3).
  • 6La. R.S. 9:315.9(A)(7).
  • 7La. R.S. 9:315.9.
  • 819-528 (La. App. 5 Cir. 5/28/20), 296 So. 3d 1239.
  • 9Id.

6.10 Split Custody (Worksheet A)

6.10 Split Custody (Worksheet A) aetrahan Wed, 06/28/2023 - 11:44

Under La. R.S. 9:315.10, split custody means that each parent is the sole custodial or domiciliary parent of at least one child of the parties to whom support is due. Each parent completes Worksheet A for the children in the other parent’s primary custody.1  Then each parents’ theoretical obligation is subtracted, and the parent owing the greater amount as reflected in the two worksheets, owes the difference to the other parent as a child support obligation.2

  • 1La. R.S. 9:315.10(A)(2), (B).
  • 2La. R.S. 9:315.10(A)(4). For a greater explanation, see Monica Hof Wallace, Primer on Child Custody in Louisiana, 65 Loy. L. Rev. 1 (2019).

6.11 Deviation from the Guidelines

6.11 Deviation from the Guidelines aetrahan Wed, 06/28/2023 - 11:50

The guidelines are mandatory and give rise to a rebuttable presumption that the amount calculated under them is the proper amount for a child support award.1  Courts may deviate from the guidelines if their application would not be in the children’s best interest or would be inequitable to the parties.2  The specific reasons for the deviation, as well as the amount required under a mechanical application of the guidelines, must be stated. La. R.S. 315.1(C) provides examples of some of the common reasons for a deviation, including many of the issues discussed above.

  • 1La. R.S. 9:315.1(A).
  • 2La. R.S. 9:315.1(B)(1).

6.12 Income Exceeding the Guidelines

6.12 Income Exceeding the Guidelines aetrahan Wed, 06/28/2023 - 11:53

Occasionally, you may have a case with an adverse party whose income is either “off the guidelines” or combined with your client’s income results in an amount that is “off the guidelines.” Extrapolation should not be used. The courts should review evidence of the actual needs and lifestyle of the child and issue an order that is in the child’s best interest.1  Also, the court may order that any or all of the excess award (i.e., that exceeding the maximum child support) be placed into a “trust for the educational or medical needs of the child.” This trust terminates at age 24 unless the parties agree otherwise.2

  • 1See Allie v. Allie, 11-292 (La. App. 3 Cir. 11/30/11), 80 So. 3d 644; Dejoie v. Guidry, 2010-1542 (La. App. 4 Cir. 7/13/11), 71 So. 3d 1111; Harang v. Ponder, 2009-2182 (La. App. 1 Cir. 3/26/10), 36 So. 3d 954; Earle v. Earle, 43,925 (La. App. 2 Cir. 12/3/08), 998 So. 2d 828.
  • 2La. R.S. 9:315.13 (B)(2).

6.13 Personal Injury Settlements & Awards

6.13 Personal Injury Settlements & Awards aetrahan Wed, 06/28/2023 - 11:57

Your client or the obligor may have a settlement or be in negotiations to settle a personal injury claim. DCFS typically sends liens to attorneys whom the agency knows to be representing a child support obligor in a personal injury suit. The document is called a “Notice of Assignment of Lump Sum Payments,” and attorneys are required to comply with the assignment upon resolution of the claim. The law specifically allows DCFS to intercept lump sum payments to satisfy child support obligations.1

  • 1State v. Heard, 2020-0708 (La. App. 1 Cir. 2/15/21), 322 So. 3d 283 (applying La. R.S. 46:236.3).

6.14 Incarcerated Defendants

6.14 Incarcerated Defendants aetrahan Wed, 06/28/2023 - 14:31

Recent legislation has taken a parent’s incarceration into account. Child support obligations are suspended if an obligor has been sentenced to 180 days or more, with or without hard labor.1  If DCFS is providing services, the agency is charged with monitoring release and re-instituting support after the obligor is released.2  DCFS is also allowed to petition the court to continue the award beyond the original termination date, if the parent is released prior to the child’s emancipation.3  If the parent is released after the child emancipates, the custodial parent or child may petition the court to establish an award for the period of the suspension of the obligation as long as the petition is made within twenty-four months after the parent’s release.4

  • 1La. R.S. 9:311.1(A).
  • 2La. R.S. 9:311.1(C).
  • 3La. R.S. 9:311.1(G)(3)(a)(i).
  • 4La. R.S. 9:311.1(G)(3)(b).

6.15 Termination

6.15 Termination aetrahan Wed, 06/28/2023 - 14:33

La. R.S. 9:315.22(A) explains when a child support order terminates. If there is a “per child” order (X shall be paid for child 1, X shall be paid for child 2), upon majority of the eldest child, support terminates as to that child.

However, most support orders are in globo, meaning they are not specific to a child. In that situation, the order terminates upon the youngest child reaching majority.1  The defendant/obligor may request a reduction upon each child reaching the age of majority, but it will not be automatic. There must be a request to the court.

The age of majority for child support purposes is when the child is no longer a full-time student in secondary school, has reached 19 years old, or is no longer dependent on a parent, whichever occurs first.2

  • 1La. R.S. 9:315.22(B).
  • 2La. R.S. 9:315.22(C).

6.16 Adult Children with Disabilities

6.16 Adult Children with Disabilities aetrahan Wed, 06/28/2023 - 14:35

If there is a child of the parties that is unmarried and “incapable of self-support” due to an ongoing intellectual or physical disability and that disability arose prior to age 18, child support can continue forever (or as long as the disability manifests).1  However, this disability must not be caused by substance abuse or addiction issues.2

Similarly, if the child has a “developmental disability” as defined in La. R.S. 28:451.2, the award may continue until age 22, provided the child is a full-time student in secondary school.3

  • 1La. R.S. 9:315.22(E).
  • 2Id.
  • 3La. R.S. 9:315.22(D).

6.17 Modification

6.17 Modification aetrahan Wed, 06/28/2023 - 14:36

In Stogner v. Stogner,1  the Louisiana Supreme Court issued a decision on modification of child support judgments. Stogner made two important holdings. The first was that the appellate court had erred in requiring a “substantial change” in circumstances instead of a simple change as provided in the prior Civil Code Article 142 and La. R.S. 9:311. The law was changed in 2001 to require “a material change,” thus overruling Stogner in this regard.

The second Stogner holding was that even a stipulated or consent judgment regarding child support must be reviewed by the court for the adequacy of the stipulated amount in light of the child support guidelines. If a stipulated amount differs from the guidelines, the court must give specific oral or written reasons for deviating from the guidelines. This holding is still good law. Thus, to modify a prior judgment of child support, allege a “material change” in circumstances for your client from the previous award date to the new filing. If a consent judgment is reached, ensure that the child support amount is consistent with the child support guidelines and satisfies Stogner.

What is a “material change” in circumstances of the parties? The statute says that the change must have occurred between the date of the prior award and the time of filing the motion to modify.2  Otherwise, the statute and jurisprudence do not define “material change” for private child support actions. Parties typically argue a change in the parties’ income, increased expenses, or a change in time spent with the child. If the state brought the child support action, a material change exists when strict application of the child support guidelines will result in a 25% change in the child support award.3  It is important that the record for the original award be supported by each party’s Obligation Worksheet. Without such documentation, it is difficult to determine whether a material change has occurred since the prior award.

Parties can temporarily modify child support extrajudicially by agreement. The agreement must meet the requirements of a contract, and the evidence must establish that the parties have agreed to waive or modify court-ordered payments.4  Also, the agreement must foster continued support of the child and not interrupt the child’s maintenance or otherwise work to the child’s detriment.5

La. R.S. 9:315.1(D) states that the court may require the parties to provide the proof that is otherwise mandated by R.S. 9:315.2(A), which provides that “the parties shall provide to the court a verified income statement. . . .” The author’s position is that to comply with Stogner, the mandatory review expected of the court can only be meaningful if the consent judgment is submitted in compliance with La. R.S. 9:315.2(A), i.e., together with supporting documentation of the parties’ income and not just a worksheet. Otherwise, the absurd result would follow that the parties could collude and submit any amount, whether real or self-serving, to the court on a worksheet and receive court approval.

  • 198-3044 (La. 7/7/99), 739 So. 2d 762.
  • 2La. R.S. 9:311(A).
  • 3La. R.S. 9:311(C).
  • 4Dubroc v. Dubroc, 388 So. 2d 377, 380 (La. 1980); Trisler v. Trisler, 622 So. 2d 730, 731 (La. App. 1 Cir. 1993).
  • 5Dubroc, 388 So. 2d at 380.

6.18 Retroactivity

6.18 Retroactivity aetrahan Wed, 06/28/2023 - 14:39

Per La. R.S. 9:315.21, except for good cause shown, a judgment awarding, modifying, or revoking an interim child support judgment is retroactive to the date of judicial demand. A judgment that initially awards or denies final child support is effective as of the date the judgment is signed and terminates an interim child support judgment as of that date.1

Ensure that any interim support obtained is based on the correct amount that your client is owed based on substantiated income.2  Interim amounts that are not based on verified income usually arise in the context of Hearing Officer conferences or protective order hearings. Be mindful that if an interim award is ordered, you have the obligation to resolve the matter by obtaining a final award. Make sure the final judgment disposes of all issues and is final, pursuant to La. C.C.P. art. 1915(B), or you may not get relief if you have to appeal the order.3

A situation may arise in which interim child support is awarded at a lower amount based on insufficient documentation and later a “proper” higher final child support order is issued by the court. Are you stuck with the interim support order which “shortchanged” your client? Possibly.

It would be much wiser to ensure that an interim order is correctly set based on verified income. If the interim amount is estimated, then the interim order should provide for and be contingent upon a modification and contain a retroactivity clause prior to the final support being set. This is allowed pursuant to La. R.S. 9:315.21(A). This modification of the interim order allows the client to be “reimbursed” because the modified order will be retroactive to the date of original interim award. Good cause to deviate from the general rule in La. R.S. 9:315.21(A) is provided by the fact that the interim order was only estimated and not set at the correct level. This two-prong approach resolves the anomaly created by the various provisions and serves the practical intent and implementation of the retroactivity statute for interim support orders.

In Vaccari v. Vaccari, the Louisiana Supreme Court blessed this procedure.4  The court noted that failing to make an award based on fraudulent or mistaken representations of income “creates a perverse incentive for parties in divorce proceedings to falsely report their income and means in the hope of paying as little as possible in interim support.”5  According to the court, “[i]f good cause exists, the final judgment can be retroactive to the date of judicial demand even though there is an interim child support judgment in place.”6  The burden of proving good cause is on the party to whom support is owed.7

  • 1La. R.S. 9:315.21(B).
  • 2See Stogner v. Stogner, 98-3044 (La. 7/7/99), 739 So. 2d 762.
  • 3Burford v. Burford, 2018-0558 (La. App. 4 Cir. 11/28/18), 259 So. 3d 1086.
  • 42010-2016, pp. 7–8 (La. 12/10/10), 50 So. 3d 139, 143–44.
  • 5See id. at p. 8, 50 So. 3d at 144.
  • 6See id.
  • 7See Shaw v. Shaw, 46,993 (La. App. 2 Cir. 2/29/12), 87 So. 3d 235.

6.19 Hearing Officers

6.19 Hearing Officers aetrahan Wed, 06/28/2023 - 14:42

The Hearing Officer statute originally provided for Hearing Officers to facilitate calculations for the court in support matters. As a result of changes to the statute and by local rule, Hearing Officers can now play a greater role in all family law matters. They now may hear “divorce and issues ancillary to divorce proceedings, all child-related issues such as paternity, filiation, custody, visitation and support in non-marital cases; all protective orders . . .; and enforcement of orders in any of these matters, including contempt of court.”1  They may also “administer oaths, compel the attendance of witnesses, order blood and tissue tests for the determination of paternity,” “issue bench warrants for failure to respond to summons,” “take testimony,” and “fine and punish direct contempt of court.”2

The process is simple. Hearing Officers make recommendations to the court in just about all family law matters.3  Attorneys must be very careful to ensure that any recommendations are based on competent evidence (sworn testimony, affidavits, etc.). Specifically, the Hearing Officer’s findings of facts and recommendations must include (1) a statement of what has been plead; (2) the officer’s findings of fact; (3) the officer’s findings of law based on the pleadings and facts; and (4) a proposed judgment resolving the claims made.4

Clients must participate in the process or, at the very least, approve any stipulations to resolve the issues. The impetus is on you and your client to give the information to the Hearing Officer. Failure to do so may allow a court to dismiss or delay your Hearing Officer conference (check your local rules). Do not hesitate to appeal the “recommendations” by filing an objection within the delays allowed by your local rule. If you fail to do so, the recommendations become a final judgment.5

  • 1La. R.S. 46:236.5(C)(1).
  • 2La. R.S. 46:236.5(C)(4).
  • 3La. R.S. 46:236.5(C)(3).
  • 4La. R.S. 46:236.5(C)(5).
  • 5La. R.S. 46:236.5(C)(7).

6.20 Tax Deductions

6.20 Tax Deductions aetrahan Wed, 06/28/2023 - 15:55

Federal and state tax dependency deductions are frequently just “handed out” to the non-domiciliary parent (typically the child support obligor). However, the disposition of these deductions is governed by La. R.S. 9:315.18, and you should raise this issue if giving the dependency deduction to the non-domiciliary parent is detrimental to your client. This part of the child support law creates much litigation, so care should be made to ensure each parent has the rights to which they are entitled.1

Under 9:315.18(A), the domiciliary parent is the default claimant. A non-domiciliary parent has the right to request the ability to take the deduction only if the non-domiciliary parent’s obligation exceeds 50% of the total obligation.2  However, it is not automatic. There must be a contradictory motion filed, findings that the non-domiciliary parent is not in arrears, and findings that the right to claim the child would substantially benefit the non-domiciliary parent without significantly harming the domiciliary parent.

Further, the court is now mandated (after January 1, 2021) to specify the years in which each parent is entitled to claim the child and to require the domiciliary party to sign necessary documentation.3  If the deduction is awarded to the non-domiciliary parent, the domiciliary parent will need to sign IRS Form 8332, relinquishing the exemption. If it is not signed by the domiciliary parent, there is nothing that the IRS will do.

The party seeking to have the dependent tax deduction taken away from a domiciliary parent has the burden of proving that no child support arrearages are owed and that it would substantially benefit the non-domiciliary party without significantly harming the domiciliary party.4  Incorrectly, but as a practical matter, the onus is usually placed on the domiciliary parent. So be ready to argue either significant harm to your client or that the obligor is in arrears.

The Child Tax Credit, which is an offset against tax liability, goes with the dependency exemption and cannot be separately assigned by the court.5  The Household and Dependent Care Credit, Head of Household status, and the Earned Income Credit are all defined and determined by the Internal Revenue Code. They follow the domiciliary parent and may not be reallocated by the court.

  • 1For additional discussion, see Section 9.4 and Section 10.9 of this manual’s chapter on tax law.
  • 2La. R.S. 9:315.18(B)(1).
  • 3La. R.S. 9:315.18(B)(2).
  • 4State v. Landry, 2007-1013 (La. App. 3 Cir. 1/30/08), 975 So. 2d 157
  • 5See I.R.C. § 24(c)(1)(A).

6.21 Enforcement

6.21 Enforcement aetrahan Wed, 06/28/2023 - 15:58

Child support awards may be enforced by income assignment, contempt, motion for arrearages, recordation of judgment against motor vehicles, suspension of licenses, and interception of tax refunds, among other devices.1  The court must, except for good cause shown, award attorney fees when it renders an arrearages judgment.2  An arrearages judgment may also be filed with the Office of Motor Vehicles to create a privilege on the payor’s motor vehicle.3

To obtain relief for your client in the form of payments, you may file a rule for contempt, which can be a summary proceeding.4  Contempt of court for child support may involve punishment pursuant to La. R.S. 13:4611. Punishment may include incarceration. While La. R.S. 13:4206 does provide that the inability to pay is a defense to contempt for failure to pay a money judgment, this is often overlooked. In Turner v. Rogers, the U.S. Supreme Court held that due process requires “safeguards” for pro se indigents in civil contempt cases.5  Safeguards required before incarceration can be ordered include clear notice that the ability to pay is a critical issue in a civil contempt hearing, a form or affidavit to elicit the indigent’s financial circumstances, and an express finding by the court that the person to be punished by incarceration has the ability to pay.6

Do not hesitate to use the administrative suspension of certain licenses if the other side plays games and does not pay child support.7  In many cases, you may want to advise the client to contact support enforcement – especially if tax refunds or interstate enforcement becomes necessary. An action to make child support arrearages executory has a prescriptive period of 10 years.8  Each payment of child support made pursuant to the judgement ordering support interrupts prescription.9  Finally, a judgment recognizing arrearage becomes a judicial mortgage; however, it will prescribe in 10 years from the date of the judgement unless revived and reinscribed.10

  • 1La. R.S. 9:315.30, et seq.
  • 2La. R.S. 9:375(A).
  • 3La. R.S. 9:4790.
  • 4La. R.S. 13:4611; see George v. Nero, 02-1140 (La. App. 3 Cir 3/5/03), 839 So. 2d 1085; see also McCartney v. McCartney, 2014-396 (La. App. 3 Cir. 10/1/14), 149 So. 3d 894.
  • 5564 U.S. 431 (2011).
  • 6La. R.S. 46:236.6.
  • 7See La. R.S. 9:315.40, et seq.
  • 8See La. C.C. art. 3501.1.
  • 9La. R.S. 13:4291(A)(1).
  • 10La. R.S. 46:4291(A)(2).

6.22 Interstate Support Orders

6.22 Interstate Support Orders aetrahan Wed, 06/28/2023 - 16:02

Interstate support (child and spousal) orders are governed by the Uniform Interstate Family Support Act (UIFSA), which lays out the basis for a court to have subject matter jurisdiction to enforce and modify support orders across state lines.1  The UIFSA attempts to limit modification jurisdiction to just one state at a time once there is an existing child support award issued.2  Note that while personal jurisdiction is not necessary in divorce and custody matters, support matters require it for full faith and credit.3

  • 1La. Ch.C. art. 1301.1, et seq.
  • 2See Jurado v. Brashear, 2000-1306 (La. 3/19/01), 782 So. 2d 575 (discussing UIFSA).
  • 3La. Ch.C. art. 1306.11(A)(1)(c).

6.23 Intrastate Support Orders

6.23 Intrastate Support Orders aetrahan Wed, 06/28/2023 - 16:03

Intrastate support (child and spousal) orders are governed by La. C.C.P. arts. 2785, et seq. Surprisingly, this law is rarely invoked, and there are no reported appellate decisions. The law mandates an elaborate registration and approval process before courts other than the one that rendered the support order can make modifications. La. C.C.P. art. 74.2 allows the party receiving the support to seek modification in the parish of the party’s domicile. Therefore, it appears that in cases where the domicile is different from that of the rendering parish, the original order must be registered in the new parish prior to any modification action. The statutes for intrastate registration of support orders for modification and enforcement are not venue provisions.1  Venue for support modification must be determined under La. C.C.P. art. 74.2.

  • 1See Scurria v. Griggs, 40,327 (La. App. 2 Cir. 12/21/05), 917 So. 2d 1215.

7 Spousal Support

7 Spousal Support aetrahan Wed, 06/28/2023 - 16:11

7.1 Importance of Support

7.1 Importance of Support aetrahan Wed, 06/28/2023 - 16:11

Sometimes, a client may ask you about “alimony,” now known as spousal support. There are two different types of spousal support: interim support, which runs generally from filing until 180 days following divorce, and final periodic support, which typically begins when interim ends. Articles 111–117 of the Civil Code govern spousal support.

One might not think it valuable to seek spousal support for indigent clients, particularly if the former spouse does not have substantial means. However, in doing so, you may well obtain additional financial help for your client. It is time and resource intensive to go through bills and documents with your clients, but it is your obligation to present a full picture to the court as to income and expenses. Additionally, where income differentials are extreme, the payor spouse may agree to pay certain bills, including health insurance premiums and other necessary expenses, without actually giving the claiming spouse money. This is allowable and may be in your client’s best interest, so assess the claim appropriately after obtaining all necessary income, expense, and standard of living documentation. At times, particularly with health insurance, it is desirable to continue this coverage, regardless of the income of the claiming spouse. It is all a part of your due diligence in assessing the claims of your client.

7.2 Interim Spousal Support

7.2 Interim Spousal Support aetrahan Wed, 06/28/2023 - 16:12

The purpose of interim spousal support is to maintain the status quo of the parties without unnecessary economic dislocation during the process of obtaining a divorce. The amount of support is based on the claimant’s needs, the other party’s ability to pay, child support obligations, and the parties’ standard of living during the marriage.1

The burden of proof for interim spousal support is on the claiming spouse. The claiming spouse must lack sufficient income to maintain the standard of living enjoyed while residing with the payor spouse during the marriage. A claimant’s fault does not preclude an award of interim support.2

An award of interim spousal support is within the trial court’s discretion and will not be disturbed on appeal absent a clear abuse of discretion.

  • 1La. C.C. art. 113(A).
  • 2Scurria v. Griggs, 40,327 (La. App. 2 Cir. 12/21/05), 917 So. 2d 1215.

7.3 Final Periodic Spousal Support

7.3 Final Periodic Spousal Support aetrahan Wed, 07/05/2023 - 11:30

7.3.1 Freedom from Fault

7.3.1 Freedom from Fault aetrahan Wed, 07/05/2023 - 11:32

A spouse may be granted final periodic spousal support when that spouse has been free from fault in the dissolution of the marriage and does not possess sufficient means for support.1  To preclude final periodic spousal support, fault must rise to the level of a previously existing ground for a fault-based legal separation or divorce.2  The misconduct must not only be of a serious nature, but must also be an independent contributing or proximate cause of the breakup of the marriage.3  The most common types of fault include adultery, habitual intemperance, cruel treatment, abandonment, and public defamation.4

La. C.C. art. 111 provides that a party must be free from fault “prior to the filing of a proceeding to terminate the marriage,” as opposed to prior to the rendition of the divorce judgment. This situation may arise if your client has committed adultery (or other fault ground) after the filing of the divorce petition but before the divorce is rendered. Based on the language of the statute, the claiming spouse may still claim final spousal support. Thus, for example, a party may file an Article 102 divorce and thereafter commit adultery without losing eligibility for final support.

Reconciliation that follows misconduct that constitutes “fault” nullifies the prior fault.5  Conduct caused by mental illness is also excused and will not bar final support provided that the mental illness preceded the misconduct.6  In these cases, expert medical testimony on the mental illness and the causal relationship to the misconduct is highly recommended, but not required.

The burden to prove disqualifying fault should lie with the non-claiming spouse because that fault is a defense to the obligation to pay support. But courts have held that for a claimant spouse to be entitled to final support, a spouse must affirmatively prove freedom from fault.7  Thus, it appears that a claimant needs to put on some evidence that he or she was a “good” spouse.

If the court issues a fault-based divorce under La. C.C. art. 103(2)­–(5) or if the court determines that a spouse or child of the parties was a victim of domestic violence, a presumption of entitlement to final spousal support is created.8  Again, if domestic violence is an issue, make sure you do an adequate job of explaining the relief available to your client and consider involving a specialist in this area of law.9

  • 1La. C.C. art. 112(A).
  • 2Terry v. Terry, 2006-1406, p. 4 (La. App. 3 Cir. 3/28/07), 954 So. 2d 790, 794.
  • 3Id. at p. 5, 954 So. 2d at 794.
  • 4Allen v. Allen, 94-1090, p. 8 (La. 12/12/94), 648 So. 2d 359, 362.
  • 5Doane v. Benenate, 95-0953, p. 3 (La. App. 4 Cir. 2/15/96), 671 So. 2d 523, 525.
  • 6Id. at pp. 4–5, 671 So. 2d at 525.
  • 7See, e.g., Hutson v. Hutson, 39,901, p. 6 (La. App. 2 Cir. 8/9/05), 908 So. 2d 1231, 1235.
  • 8La. C.C. art. 112(C).
  • 9For further discussion, see Section 7.3 of the chapter on representing survivors of domestic violence.

7.3.2 Factors

7.3.2 Factors aetrahan Wed, 07/05/2023 - 11:36

Our courts must consider all relevant factors when determining the entitlement, amount, and duration of final support.

Factors to consider include the parties’ incomes, means, earning capacity, assets (and their liquidity), financial obligations, child custody, health and age, the duration of the marriage, and the tax consequences to the parties.1  These factors should be considered by the court whenever it makes or modifies a final spousal support award. The principal factor is the parties’ relative financial positions. Final periodic support has been compared to a “pension,” and courts have traditionally applied it conservatively to cover only the basic “necessities of life.”2

There is a trend in our courts to award “rehabilitative support” that terminates after a specific period. The revision comments to Article 112 explains that the word “duration” in the article “permits the court to accord rehabilitative support and forms of support that terminate after a set period of time.”3  Hence, factors such as length of the marriage, education, ability to work, and health are important considerations.

Final spousal support cannot be set for an amount of more than one-third the net income of the obligor spouse.4  However, if the claiming spouse or child of the parties is a victim of domestic violence at the hands of the payor spouse, the court may award an amount greater than one-third of the payor’s net income.5

  • 1La. C.C. art. 112(B).
  • 2See Faucheux v. Faucheux, 11-939, p. 7 (La. App. 5 Cir. 3/27/12), 91 So. 3d 1119, 1124.
  • 3La. C.C. art. 112 cmt. c
  • 4La. C.C. art. 112(D).
  • 5Id.

7.4 Income Determination

7.4 Income Determination aetrahan Wed, 07/05/2023 - 11:38

For an award of interim spousal support, the court looks to the net incomes of the spouses and their reasonable expenses. Thus, if you are preparing an affidavit of income and expenses for your client (the claiming spouse), be sure that you list every expense your client had during the marriage, currently has, or may have in the future. For example, if your client has been forced to move in with relatives due to the physical separation of the parties, be sure to include in the affidavit anticipated expenses for housing, utilities, food, tax on the support, etc., so that the court will fully appreciate your client’s actual expenses. Clearly, the standard of living during the marriage did not include the spouse living with relatives.

However, be cautious. If an expense is only “anticipated” and not actually incurred, the court may want proof of the amount and a reasonable estimate of when it will be incurred. For example, if a claimant spouse is planning on moving from the relatives’ home, and the apartment and utilities will be $1000.00, the court should not consider that expense until it is actually incurred (or a short time before it is incurred). The new apartment is a condition precedent to including the expenses.

On the income side, be sure not to “hide” income, including second jobs and/or rental incomes. Interim spousal support is calculated on net income, so if defending against a claim for interim spousal support, be sure to include all taxes (Medicare, social security, federal, state, and any other obligatory tax) as well as “reasonable and necessary” business expenses. Generally, these expense calculations are made at the discretion of the court, but a basis must be given, so provide evidence of these costs to encourage the court to deduct them from a client’s income.

As with child support gross income, if the obligor refuses to submit income information, the court may impute income pursuant to the wage survey assessment.1  The calculation of income is virtually identical for both spousal and child support, except that spousal support is determined on net, rather than gross income.2  A paying spouse may exclude from net income spousal support payments made to another spouse, but cannot exclude child support payments.3

As with everything else, document your client’s directives in the case file or have the client “sign off” on the decision. If your client is on SSI, spousal support may cause problems with her SSI and Medicaid eligibility. Additionally, although spousal support (interim and final) was an included deduction prior to the 2019 revision to the federal Tax Code, it is no longer deductible by the payor. Likewise, the payee no longer has to claim it as income. However, if the order is prior to 2017, support payments may still be deductible for the obligor and included in income for the obligee.4  Consult a tax professional for more advice.

  • 1La. R.S. 9:326(C).
  • 2La. R.S. 9:326.
  • 3La. R.S. 47:59.
  • 4Pub. L. No. 115-97, § 11051.

7.5 Retroactivity, Prescription, & Peremption

7.5 Retroactivity, Prescription, & Peremption aetrahan Wed, 07/05/2023 - 11:40

An award of spousal support is retroactive to the judicial demand date.1  This applies to any initial setting, modification, or termination, but the court can also fix a retroactive date, upon good cause shown.2

The right to claim the obligation of spousal support is subject to a peremptive period of 3 years following the signing of the divorce or the day a judgment terminating a previous judgment of spousal support is signed, if the previous judgement was signed in an action commenced either before the signing of the judgment of divorce or within 3 years thereafter.3  What about a payor who voluntarily pays support? The law further clarifies that in this situation, the peremption occurs three years following the last voluntary payment by payor.4

The right to obtain a judgment for arrearages for spousal support has a liberative prescriptive period of 5 years.5  Note that if the obligation to pay was a conventional one, prescription for arrearages would be 10 years.6  The prescriptive period for an action on arrearages for spousal support is also shorter than the one applicable to actions for arrearages of child support,7  so be mindful of your time calculations.

  • 1La. R.S. 9:321.
  • 2Id.
  • 3La. C.C. art. 117.
  • 4La. C.C. art. 117(3).
  • 5La. C.C. art. 3497.1.
  • 6See La. C.C. art. 3499.
  • 7See La. C.C. art. 3501.1.

7.6 Modification & Termination

7.6 Modification & Termination aetrahan Wed, 07/05/2023 - 11:42

Interim and final support can be modified when there is a material change in circumstance and terminated when it becomes unnecessary, but remarriage of the payor spouse is not grounds for modification or termination.1

Both forms of support terminate upon the remarriage of the claiming spouse, the death of either party, or a judicial determination that the claiming spouse has cohabitated with another person in the “manner of married persons.”2  Obviously, this is a fact-specific determination. If your client intends to introduce evidence of such cohabitation, be sure that you provide evidence to the court beyond your client’s allegations. To terminate support, the cohabitation cannot be merely a casual romantic relationship. Proof could be witness testimony that they call each other “husband and wife,” bills going to the payor’s residence that are in the romantic partner’s name, or other such evidence.

Except for good cause shown, an award of interim support terminates 180 days after the divorce judgment.3  “Good cause” has not been defined by our courts and must be determined on a case-by-case basis. An example of “good cause” might be the claimant’s disability or a situation in which the claimant is prevented from seeking employment due to circumstances beyond the claimant’s control. Another example might be where the payor spouse is unduly delaying the community property partition to starve the other spouse.

The prior law, providing that interim support awarded while a claim for final support was pending terminated when final support judgment was rendered, has been repealed. Final spousal support obligations now begin only after any interim support obligation has terminated.4

Unlike interim spousal support, which cannot be waived in advance by the parties, the parties can modify, waive, or terminate a right to final periodic spousal support by an authentic act, an act under private signature duly acknowledged, or judicial declaration.5

  • 1La. C.C. art. 114.
  • 2La. C.C. art. 115.
  • 3La. C.C. art. 113(A).
  • 4La. C.C. art. 113(B).
  • 5La. C.C. art. 116.

7.7 Enforcement

7.7 Enforcement aetrahan Wed, 07/05/2023 - 11:44

Sometimes, payors do not pay. The remedy is to file for contempt of court and request an Income Assignment Order, which is an appropriate enforcement vehicle for both spousal and child support awards. Garnishment under a writ of fieri facias would apply. The maximum income that can be seized for spousal support is 40% of the obligor spouse’s disposable earnings, while for child support, the maximum is 50%.1  There is contrary caselaw out there that a wise practitioner should know about. In January v. January, the Third Circuit held that, unlike child support, spousal support awards cannot be enforced through income assignment.2

Spousal support may be made executory. In an action to make arrears executory for past-due support payments, a court must award attorney fees and costs to the prevailing party.3

  • 1La. R.S. 13:3881.
  • 294-882, 94-883 (La. App. 3 Cir. 2/1/95), 649 So. 2d 1133.
  • 3La. R.S 9:375.

8 Paternity, Filiation, & Name Changes

8 Paternity, Filiation, & Name Changes aetrahan Wed, 07/05/2023 - 11:46

8.1 Children Born During Marriage

8.1 Children Born During Marriage aetrahan Wed, 07/05/2023 - 11:47

The request for services in this area of the law has increased greatly. It is important to have the necessary affidavits or information available for our clients and a working knowledge of the various statutes to know what options the client may have.1

It is important to remember your presumptions in dealing with paternity. Under Louisiana law, the husband of the mother is presumed to be the father of a child born during or within 300 days from termination of the marriage.2

However, if a child is presumed to be the child of the mother’s husband (the “legal father”) but is actually the child of another man (the “biological father”), then a situation of “dual paternity” arises. Louisiana is the only state that allows for “dual paternity.” This situation typically presents itself when the mother seeks child support from the legal father, but DNA testing determines that he is not the biological father. The legal father has several mechanisms by which he can “pull in” a biological father. 

The first is for the legal father to file a disavowal action under La. C.C. art. 187. If the legal father successfully proves that he is not the biological father by clear and convincing evidence,3  this action extinguishes his legal obligations to the child. However, if the legal father does not disavow timely (within 1 year of the child’s birth or of the point when he knew or should have known he was not the child’s father, whichever occurs later), the presumption of paternity is irrebuttable.4  In a disavowal action, the court must appoint an attorney to represent the child.5  If the presumed father is successful, existing child support orders are terminated, but he remains liable for any arrearages prior to the date of filing the disavowal action.6

Second, if the mother has married the biological father and he has acknowledged the child by authentic act, she may bring a contestation action to prove that her former husband is not the biological father and that her current husband is the father.7

The third mechanism alleviates the need for disavowal or contestation actions. Under La. C.C. art. 190.1, the mother, the legal father, and the biological father can execute a “three-party acknowledgment of paternity,” provided that the biological father’s paternity is shown 99.9% probable via a DNA test. There is a peremptive time period of 10 years from the child’s birth for execution of this acknowledgment.8  This acknowledgment can be revoked within 60 days under La. R.S. 9:392(A)(7)(2) or annulled under La. C.C.P. art. 2001 for vices of form or substance.

Finally, even if the legal father objects, the biological father may file an avowal action under La. C.C. art. 198. This action is subject to strict peremptory periods.

  • 1A useful guide provided by the Department of Health and Hospitals can be found here.
  • 2La. C.C. art. 185.
  • 3Id.
  • 4La. C.C. art. 189.
  • 5La. C.C.P. art. 5091.1.
  • 6La. R.S. 9:402.
  • 7La. C.C. art. 191.
  • 8La. C.C. art. 190.1.

8.2 Children Born Outside of Marriage

8.2 Children Born Outside of Marriage aetrahan Wed, 07/05/2023 - 11:52

A child born outside of marriage is not filiated to any man. A biological father can execute a formal acknowledgment under La. R.S. 9:392. That acknowledgment is enough to prove paternity, both in support and custody proceedings.1  Although old law provided that “signing the birth certificate” (or more likely being named on the birth certificate) constituted acknowledgment, this is no longer the case.2  A man can revoke the acknowledgment within 60 days of signing.3

If a man acknowledges a child born outside of marriage (with the mother’s consent) and marries the mother, a legal presumption of paternity is created and can only be undone by filing a disavowal action, not by mere revocation of the acknowledgment.4  Regardless of whether he marries the mother, a man may also bring an avowal action under La. C.C. art. 198 to establish his paternity of a child born outside of marriage.

A child, or more likely the child’s mother, can institute a paternity action to establish the paternity of a biological father.5  Other than in succession matters, this action may be brought at any time.6  This action is also available even if the child is presumed to be the child of another man.7

La. R.S. 40:34 adopts a paternity establishment procedure for child support purposes only. If a man is noticed and fails to contest the identification, or a blood test is done and he does not contest those results, there is a limited presumption of paternity created for child support purposes.8

If, as a result of a paternity action or a child support enforcement proceeding, a man is adjudicated to be the father of a child, but it is later determined that he is not, he can move under La. R.S. 9:399.1 to vacate the judgment. This petition must be served on the original parties and on DCFS if enforcement services are being provided.9  This must be brought within 2 years of the judgment of paternity or 2 years from when the adjudicated father should have known of the paternity action, whichever occurs first.10

  • 1La. R.S. 392.1.
  • 2See La. C.C. art. 196 cmt. 2016(b).
  • 3La. R.S. 9:392(A)(7)(a).
  • 4La. C.C. art. 195.
  • 5La. C.C. art. 197.
  • 6Id.
  • 7Id.
  • 8La. R.S. 40:34.
  • 9La. R.S. 9:399.1(A).
  • 10Id.

8.3 Other Relevant Provisions

8.3 Other Relevant Provisions aetrahan Wed, 07/05/2023 - 11:56

La. C.C.P. art. 74.1 provides for venue in filiation and child support actions. Jurisdiction over nonresidents is provided for in La. Ch.C. art. 1302.1.

La. R.S. 9:396 and La. R.S. 9:398.2 allow a court to order blood or tissue test for determining paternity.

La. R.S. 34.2 provides the rules for determining what surname may be placed on a child’s birth certificate.

La. R.S. 13:4751, et seq. provide the procedures for changing a minor’s name. This requires filing a petition to be tried contradictorily against the district attorney. A new birth certificate is issued.

La. R.S. 40:46 allows for a new birth certificate to be issued with a new surname when there is a judgment of filiation.

9 Adoption

9 Adoption aetrahan Wed, 07/05/2023 - 11:56

9.1 General Principles

9.1 General Principles aetrahan Wed, 07/05/2023 - 11:57

There are several types of adoptions under Louisiana law. Our law recognizes agency adoptions,1  private adoptions,2  intrafamily adoptions,3  international adoptions,4  and adult adoptions.5  The laws governing adoptions differ depending on the type of adoption. Insofar as most adoptions handled by legal services attorneys are usually intrafamily adoptions, this manual will concentrate on these types of adoptions.

Louisiana courts have long held that “laws providing for adoption must be given a strict construction as they are in derogation of the natural right of a parent to his child.”6  This strict construction leads to two significant problems with most adoptions filed with our courts. First, attorneys fail to provide the type of notice to parents required by law within the time frames required by law. Second, attorneys fail to submit the necessary pleadings in proper form with content conforming to our adoption laws.

  • 1See La. Ch.C. arts. 1198–1220.
  • 2See La. Ch.C. arts. 1221–1242.
  • 3See La. Ch.C. arts. 1243–1257.
  • 4See La. Ch.C. arts. 1281.1–1285.17.
  • 5La. C.C. art. 212.
  • 6In re Ackenhausen, 154 So. 2d 380, 383 (La. 1963) (citing Green v. Paul, 31 So. 2d 819 (La. 1947)).

9.2 Jurisdiction

9.2 Jurisdiction aetrahan Wed, 07/05/2023 - 14:14

A court exercising juvenile jurisdiction has exclusive original jurisdiction in adoption proceedings pursuant to Titles XI (surrender of parental rights for purposes of adoption) or XII (agency, private, and intrafamily adoption) of the Louisiana Children’s Code.1  In Caddo, East Baton Rouge, Jefferson, and Orleans Parishes, the juvenile court has exclusive jurisdiction.2  In all other parishes, district, parish, and city courts have exclusive original jurisdiction, which is concurrent when their territories overlap.3

  • 1See La. Ch.C. art. 303(7).
  • 2La. Ch.C. art. 302(1).
  • 3La. Ch.C. art. 302(2)–(4).

9.3 Petitioners

9.3 Petitioners aetrahan Wed, 07/05/2023 - 14:20

There has been a clear trend to broaden the category of relatives who may seek an intrafamily adoption. Under La. Ch.C. art. 1243, the following persons may petition for an intrafamily adoption:

A. A stepparent, stepgrandparent, great-grandparent, grandparent, or collaterals within the twelfth degree may petition to adopt a child if all of the following elements are met:

  1. The petitioner is related to the child by blood, adoption, or affinity through the mother of the child or through a father who is filiated to the child in accordance with the Civil Code.
  2. The petitioner is a single person over the age of eighteen or a married person whose spouse is a joint petitioner.
  3. The petitioner has had legal or physical custody of the child for at least six months prior to filing the petition for adoption.


  1. When the spouse of the stepparent or one joint petitioner dies after the petition has been filed, the adoption proceedings may continue as though the survivor was a single original petitioner.
  2. When a petitioner is the grandparent of a child and the petitioner’s spouse is the stepgrandparent of the child and that spouse files an authentic act requesting that the blood relative grandparent petitioner be allowed to file or complete the adoption proceedings as the sole petitioner, then any court of competent jurisdiction may grant the adoption in the same manner as if the grandparent was a single petitioner. Any petitioner and stepgrandparent filing a petition pursuant to this Paragraph shall be required to undergo the background check provided for in Article 1243.2.

9.4 Records Check

9.4 Records Check aetrahan Wed, 07/05/2023 - 14:22

Once a petitioner files for adoption, the court must immediately issue two orders:

(1) That the local sheriff or the office of state police, Louisiana Bureau of Criminal Identification and Information, conduct a records check for all federal arrests and convictions and all state arrests and convictions for each of the prospective adoptive parents. Prospective adoptive parents shall submit a set of fingerprints to the sheriff or the office of state police.

(2) That the department conduct a records check for validated complaints of child abuse or neglect in this or any other state in which either of the prospective adoptive parents has been domiciled since becoming a major, involving either prospective adoptive parent.1

These orders must be accorded priority, and the responding agency must “provide a certificate indicating all information discovered, or that no information has been found.”2

  • 1La. Ch.C. art. 1243.2(A).
  • 2La. Ch.C. art. 1243.2(C).

9.5 Parental Consent

9.5 Parental Consent aetrahan Wed, 07/05/2023 - 14:23

In general, parents must consent to the adoption of their child.1  A parent can execute an authentic act consenting to the adoption of his or her child in an intrafamily adoption.2  In the case of adoption by a petitioner married to the parent, the parent must join in the petition if the child was born outside of marriage.3  But, if the child was born of marriage, the parent married to the stepparent petitioner may consent by authentic act.4

However, consent is not required if the following can be proven by clear and convincing evidence:

B. When a petitioner authorized by Article 1243 has been granted custody of the child by a court of competent jurisdiction and any one of the following conditions exists:

  1. The parent has refused or failed to comply with a court order of support without just cause for a period of at least six months.
  2. The parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months.

C. When the spouse of a stepparent petitioner has been granted sole or joint custody of the child by a court of competent jurisdiction or is otherwise exercising lawful custody of the child and any one of the following conditions exists:

  1. The other parent has refused or failed to comply with a court order of support without just cause for a period of at least six months.
  2. The other parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months.5

Be wary of a client who states that because no father is listed on the birth certificate, she does not know who the father is. It may take some “prodding” and an explanation of the inherent problems of due process before you get a name(s). It is always a safer practice to have a curator appointed when the biological father’s identity is known, but his whereabouts are unknown.6

  • 1See La. Ch.C. art. 1193.
  • 2La. Ch.C. art. 1244(A).
  • 3La. Ch.C. art. 1244(C).
  • 4La. Ch.C. art. 1244(B).
  • 5La. Ch.C. art. 1245.
  • 6See La. Ch.C. art. 1250. For further discussion of curator proceedings in the divorce context, see Section 3.9.2.

9.6 Service Requirements

9.6 Service Requirements aetrahan Wed, 07/05/2023 - 14:26

La. Ch.C. art. 1247, which references La. Ch.C. arts. 1133, 1134, 1136–1143, sets forth the requirements for service on parents and includes specific text that must be included in the notice. Only if the noticed person files an answer in opposition of the adoption will that person have an opportunity to oppose the adoption in court.1  Note that different notices should be provided to an alleged father (where there is no formal acknowledgment, legitimation, filiation order, or presumption of paternity) versus an adjudicated legitimate father.2

Read carefully and comply with the provisions of Article 1247 to the letter. Even if one parent has signed an Act of Consent to Adoption, the other parent must be served with a Notice of the Filing of Petition of Adoption along with a copy of that petition, unless service has been waived.3  All Social Security Numbers contained within the petition or its exhibits should be redacted from copies sent to the person(s) served with notice.4

La. Ch.C. arts. 1248–1249 provide specific methods and time frames for service on resident and nonresident parents. The attorney for the adoptive parent must serve, either personally or domiciliary, on a resident parent no later than 30 days prior to the hearing on the adoption petition.5  Service on a nonresident parent must be by registered mail return receipt requested, postage prepaid, or by commercial carrier as defined in R.S. 13:3204(D), at the address listed in the petition, not less than 30 days prior to the hearing on the adoption petition.6

La. Ch.C. art. 1250 provides for the appointment of a curator ad hoc upon whom service shall be made if service cannot be made on the parent under Articles 1248 or 1249.7

  • 1La. Ch.C. art. 1247(A).
  • 2La. Ch.C. art. 1247(B).
  • 3La. Ch.C. art. 1247(A).
  • 4See La. Ch.C. art. 1248(B), 1249(B). Although the Children’s Code only permits but does not require redaction of social security numbers, it is nevertheless a good practice that attorneys should follow.
  • 5La. Ch.C. art. 1248(A).
  • 6La. C.C. art. 1249(A).
  • 7See also La. Ch.C. art. 1251 (identifying the curator’s duties). For further discussion of curator proceedings in the divorce context, see Section 3.9.2.

9.7 Intervention

9.7 Intervention aetrahan Wed, 07/05/2023 - 14:29

Intervention in the proceedings may be by motion and a showing of good cause and is limited to persons having a substantial caretaking relationship with the child for 1 year or longer, or any other person that the court finds to be a “party in interest.”1  In the latter case, the intervenor’s role is limited to presenting evidence as to the best interests of the child.2

  • 1La. Ch.C. art. 1254(A)–(B).
  • 2La. Ch.C. art. 1254(C).

9.8 Home Study

9.8 Home Study aetrahan Wed, 07/05/2023 - 14:30

DCFS may not conduct a home study for intrafamily adoptions unless ordered by the court.1  Nevertheless, most courts will want a home study. Check with DCFS prior to your hearing date to ensure that the home study was completed.

  • 1La. Ch.C. art. 1252.

9.9 Hearing

9.9 Hearing aetrahan Wed, 07/05/2023 - 14:31

There are specific time frames for the setting of the hearing on an adoption petition.1  Thus, it is helpful to the clerk and the court if your order complies with these time frames. The court must hear the petition within 60 days if there is no opposition or within 90 days if there is opposition.2  This time may be extended up to 60 days for good cause or reduced to a minimum of 15 days with written approval of DCFS and the petitioner.3

La. Ch.C. art. 1253 requires that the court consider specific facts and evidence:       

  1. Any motion to intervene which has been filed.
  2. Any other issues in dispute.
  3. The confidential report of the department, if any.
  4. The report of any criminal records concerning the petitioner, including the nature of the offenses, the number of offenses, and the length of time between the offenses and between the last offense committed and the petition for intrafamily adoption. The existence of a criminal record of the petitioner shall not be automatic grounds for the court to refuse to grant an intrafamily adoption.
  5. The report of any validated complaints of child abuse or neglect concerning the petitioner.
  6. The testimony of the parties.4

Remember to bring the child or children to court with you. If the child is 12 years of age or older, the court must solicit and consider the child’s wishes regarding the adoption.5  However, even when the children are younger, most judges like the children present. You may also want to bring a camera to memorialize the occasion for the family.6  Of all the good work family law attorneys do in court, this may be one of the most fulfilling moments in court for everyone.

After the adoption hearing, the court may enter a final decree of adoption or it may deny the adoption.7  The “basic consideration” is the child’s best interest.8  In cases in which either the child’s grandparents or a parent married to a stepparent petitioner has already been granted custody, there is a rebuttable presumption that the adoption is in the child’s best interest.9

  • 1La. Ch.C. art. 1253(A).
  • 2Id.
  • 3Id.
  • 4La. Ch.C. art. 1253(B).
  • 5La. Ch.C. art. 1253(C).
  • 6Be sure to remind the family that the court may not allow nonattorneys to bring in a camera or cell phone.
  • 7La. Ch.C. art. 1255(B).
  • 8Id.
  • 9La. Ch.C. art. 1255.

9.10 Native American Children

9.10 Native American Children aetrahan Wed, 07/05/2023 - 14:34

A child who is of Native American ancestry may be subject to the Indian Child Welfare Act (ICWA) and not subject to state court jurisdiction.1  Because ICWA can be complex and the consequences of a placement made in violation of ICWA severe for children and families, it is always a good practice to inquire whether a child is of Native American ancestry before filing an adoption petition.

9.11 Caselaw

9.11 Caselaw aetrahan Wed, 07/05/2023 - 14:35

In re R.E.1  – Sets out the notice requirements for natural fathers consistent with due process; discusses the burden of proof on natural fathers to affirmatively show efforts to preserve his opportunity to establish his parental rights; confirms that state must prove by clear and convincing evidence its allegations if seeking to terminate parental rights.

In re Miller2  – Statutory presumption that stepparent adoption in the best interest of the child did not apply where natural father had joint custody.

In re Bordelon3  – Adoption of child over incarcerated mother’s objections.

Leger v. Coccaro4  – Court held that adoption by stepfather was not in the child’s best interest. This appears to be a “bad” case where the appellate court engages in speculation about the mother’s current marriage and problems that may arise in that marriage. The appellate court noted the father’s failure to provide financially for the child, and curiously, seemed to be influenced more by the concern shown by the paternal relatives as opposed to the interest exhibited by the father.

Anderson v. Ramer5  – Concluded that father had failed to provide “significant” child support insofar as he was in arrears for about $10,000, exclusive of interest, at the time the adoption petition was filed.

Myers v. Myrick6  – La. Ch.C. art. 1245 allows adoption without a parent’s consent in certain circumstances where the parent has “refused or failed to visit, communicate, or attempt to communicate with the child.” Although Hayes v. Mangham had held that compliance with support obligations must be “significant” in order to render La. Ch.C. art. 1245 inapplicable,7 the Second Circuit declined to extend that reasoning to visits and communication.

German v. Galley8  – Concluded that father’s payment of 21% of the child support owed in previous year was significant enough to prevent application of statute allowing for adoption of child without parental consent.

In re G.E.T.9  – Grandparents sought to adopt. Court found that the grandparents failed to prove that natural parents presented a risk of physical or psychological harm to the child and failed to meet their burden of proving the adoption was in the best interest of the child.

Tutorship of Shea10  – Grandparent adoption permitted where grandparents were awarded the sole custody of the child in tutorship proceedings, and father’s consent not needed as he failed to provide significant support for 1 year.

W.P.H. for Adoption of A.A.B.11  – Due to severity of terminating the parent-child relationship, intrafamily adoption statutes are strictly construed in favor of the biological parent and against the stepparent seeking to adopt.  

  • 194-CK-2657, 94-CK-2596, 94-CK-2663 (La. 11/9/94), 645 So. 2d 205.
  • 295 CA 1051, 95 CA 1052 (La. App. 1 Cir. 12/15/95), 665 So. 2d 774.
  • 395-1194 (La. App. 3 Cir. 3/6/96), 670 So. 2d 67.
  • 498-202 (La. App. 3 Cir. 4/29/98), 714 So. 2d. 770.
  • 527,469 (La. App. 2 Cir. 9/27/95), 661 So. 2d 584.
  • 634,970 (La. App. 2 Cir. 5/17/01), 787 So. 2d 546.
  • 7375 So. 2d 103 (La. 1979).
  • 898-197 (La. App. 3 Cir. 7/17/98), 712 So. 2d 1034.
  • 9529 So. 2d 524 (La. App. 1 Cir. 1988).
  • 10619 So. 2d 1236 (La. App. 3 Cir. 1993).
  • 112022-141 (La. App. 3 Cir. 10/12/22), 349 So. 3d 1120.

10 Community Property

10 Community Property aetrahan Wed, 07/05/2023 - 14:36

Most legal services clients will have very little in the way of community property, and clients with significant community assets are generally able (and should be advised) to secure market-rate representation by attorneys experienced in the law of community property. The substantive and procedural law of community property can be complex, and the consequences for misapplying it can be severe for clients.

However, there are two major considerations regarding community property that any attorney working in family law should be aware of for purposes of client counseling. First, the filing of a petition for divorce allows the parties to seek a judgment of separation of property (subject to various caveats and time requirements).1  The timing of a petition for a judgment of separation of property may have a significant impact on a client’s rights in relation to the former community property. Second, the community includes not only community assets, but also community obligations;2  the balance between the two may have strategic implications in any given case.

Provided there are no countervailing considerations, it is generally advisable to include an appropriate request for partition of the community in the divorce petition even if you will not represent the client in later partition proceedings. This can be accomplished via an allegation in the petition such as “The spouses have acquired community property during the existence of the marriage, and they desire that the community of acquets and gains be partitioned in accordance with La. R.S. 9:2801.” The prayer should also request relief related to the partition in language such as:

Petitioner prays that after due and proper proceedings had, that there be judgment herein partitioning the community of acquets and gains formerly existing between the parties, and adjudicating any and all other claims arising from the former community or the former matrimonial regime, including but not limited to claims for reimbursements, an accounting in accordance with La. C.C. art. 2369, and for contributions to education or training of the defendant pursuant to La. C.C. art. 121.3

The judgment of divorce should also contain language terminating the community of acquets and gains as of the date of the filing of the petition upon which the divorce was granted.4

  • 1See La. C.C. arts. 2374–2375.
  • 2See La. C.C. art. 2359, et seq.
  • 3This suggested language and that of the allegation are taken from materials provided by the Honorable David A. Blanchet of the 15th Judicial District Court that were incorporated into the 2013 edition of this manual.
  • 4See La. C.C. art. 159.

11 Additional Resources

11 Additional Resources aetrahan Wed, 07/05/2023 - 14:42

Another useful guide to custody determinations in Louisiana with substantial citations to relevant caselaw is Monica Hof Wallace, A Primer on Child Custody in Louisiana, 65 Loy. L. Rev. 1 (2019).