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.

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.

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.

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.