4.7.1 General Principles

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).