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.

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.

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.

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.

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.