4.5 Best Interest Factors

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)).