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).

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.

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

• 1See Kinship Care Subsidy Program (KCSP), La. Dep’t of Child. & Fam. Servs.

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.