4.7.4 Transferring Custody

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.