Visitation is the time that a parent spends with a child. Custody is the right to make decisions about a child’s life, such as where the child goes to school or what doctor the child sees. A person can have visitation rights with a child even if that person does not have custody rights.

Laypersons (and even some lawyers and judges) use the terms custody and visitation interchangeably. It is a misnomer to state that non-domiciliary parents have “visitation.” They have “physical custody” during their assigned custodial periods. Only non-custodial relatives and third parties have visitation. However, at times a client may only want “visitation,” but if the client is a parent, the client likely wants to give the other parent domiciliary status and to have only a set custodial plan for time with the child. In addition, the statutes sometimes use the word “visitation” interchangeably with “custodial time.”

Common visitation issues are:

• Initial establishment of visitation in a divorce, custody, or paternity action
• Supervision or restriction of visitation because of family violence, parental unfitness, or physical or sexual abuse
• Modification or change of visitation
• Relocation of the domiciliary parent and need to adjust visitation
• Contempt for violation of visitation orders
• Access of non-parent relatives to visitation

Sometimes, a client may present for an intake asserting that the other parent is seeking “custody” when what is actually being sought is visitation. When counsel explains the difference, this may satisfy the issue and put the client in a more amicable mindset. Thus, it is essential to know the difference between custody and visitation.

Generally, a non-custodial parent has a right to visitation unless a court finds that visitation would not be in the child’s best interest.1  The parent’s right to visitation is more than a “species of custody;” it has an independent statutory basis in La. C.C. art. 136.2  A parent is entitled to reasonable visitation and custody unless that arrangement would seriously endanger the child’s physical, mental, moral, or emotional health.3

The presumption in favor of a parent’s right to custody may only be overcome by clear and convincing evidence.4  “[A] parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would not be in the best interest of the child.”5  However, if a parent has physically abused a child or has a history of perpetrating family violence, that parent is limited to supervised visitation until completing a court-monitored domestic abuse intervention program.6  A parent who has sexually abused a child is denied visitation until completion of a treatment program for sexual abusers; any visitation granted thereafter may be subject to restrictions.7

There have been many recent cases in which the amount of visitation (and custody) is an essential point of dispute. This is mainly because La. R.S. 9:355(A)(2)(b) provides that to the “extent it is feasible” and in the child’s best interest, “physical custody of the children shall be shared equally.” Courts have interpreted this to mean equal custodial time.8  Nevertheless, one should always remember that equal sharing does not work in every situation, and it will only be ordered if it is in the child’s best interest.

Under certain circumstances, grandparents and other non-parent relatives may be awarded visitation.9  In addition to finding that visitation is in the best interest of the child, certain other requirements must be met before visitation may be awarded to these relatives.

• 1La. C.C. art. 136(A).
• 2La. C.C. art. 136 cmt. b.
• 3Main v. Main, 19-503, p. 9 (La. App. 5 Cir. 2/19/20), 292 So. 3d 135, 143.
• 4La. C.C. art. 132 (“I[f] custody in one parent is shown by clear and convincing evidence to serve the best interests of the child, the court shall award custody to that parent.”).
• 5La. C.C. art. 136.
• 6La. R.S. 9:341(A), 364(E). The abuse or history of family violence must be found by a preponderance of the evidence.
• 7La. R.S. 9:341(B), 364(F). The sexual abuse must be found by clear and convincing evidence.
• 8Hunt v. Hunt, 95-502 (La. App. 3 Cir. 10/4/95), 664 So. 2d 460.
• 9These provisions are discussed more fully in Section 5.9.

Generally, visitation is decided in a divorce or custody lawsuit. Interim and temporary (only during the duration of the protective order) visitation may be decided in a domestic violence protective order lawsuit. However, a visitation order in a protective order case is time-limited and may need to be finalized in a divorce or custody lawsuit.1  A court that has jurisdiction and venue to decide custody may set or restrict visitation at the trial or on the hearing of a motion to determine custody and visitation. Litigation costs can be minimized if the parties amicably work out a visitation schedule. In interstate custody disputes, a Louisiana court may not have jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to modify a custody (or visitation) determination of another state’s court. Nonetheless, a Louisiana court without UCCJEA jurisdiction to modify may issue a temporary order enforcing or implementing the visitation schedule or visitation provisions of a child custody determination made by another state.2

• 1For further discussion of this point, see Section 5.1.2 of this manual’s chapter on representing survivors of domestic violence.
• 2For further discussion of the UCCJEA, see Section 4.10.

The courts have vast discretion to regulate and supervise visitation to protect a child’s best interest or a parent’s rights. In addition to a court’s general authority under La. C.C. art. 136, other statutes may restrict or affect visitation. Generally, these statutes involve family violence, physical abuse, sexual abuse, neglect, criminal misconduct, failure to visit a child, or repeated interference with the other parent’s visitation.1  A court may order supervised visitation to protect the child even when a specific statutory restriction on visitation is not applicable.2  Drug use may justify supervised visitation until the using parent provides proof of drug rehabilitation.3

For good cause shown, a court may require a party to post a bond to ensure compliance with a visitation order and to indemnify the other party for any costs incurred.4  A bond may be proper when a party fails to comply with a court-ordered visitation schedule or fails to return the child at the end of his visitation period.5  A court also has the power to order a bond to prevent international abduction.6

Failure to comply with visitation orders may subject a party to contempt, attorney fee sanctions, and even modification of the custody or visitation order.7  Absent good cause, neither parent may interfere with the other parent’s visitation, custody, or time rights.8

• 1La. C.C. art 136, 136.1, 137; La. RS. 9:341, 364.
• 2See, e.g., Coleman v. Coleman, 47,080, p. 11 (La. App. 2 Cir. 2/29/12), 87 So. 3d 246, 254.
• 3See Main v. Main, 19-503, p. 16 n.29 (La. App. 5 Cir. 2/19/20), 292 So. 3d 135, 148 n.29.
• 4La. R.S. 9:342.
• 5Id.
• 6La. R.S. 13:1858(D)(2).
• 7La. R.S. 9:346.
• 8La. C.C. art. 136.1.

Generally, visitation may be changed if a change is in the child’s best interest and especially when the child is very young at the time of the original decree and subsequent changes are needed as the child grows.

However, courts have not been consistent in articulating the distinction between visitation by non-custodial parents under La. C.C. art. 136 and custodial time that arises from joint custody. The term “custody” is usually broken down into two components: physical or “actual” custody and legal custody.1  While custody and visitation both involve physical custodial time, they are not the same and must be analyzed independently.

The result of the inconsistency has been confusion over the standard for modifying visitation orders. It appears that the high Bergeron standard for modification of custody orders does not apply to changes in visitation.2  In fact, Acklin v. Acklin holds that best interest of the child is the standard in modification-of-visitation cases.3  Similarly, Mosley v. Mosley addressed whether a change in circumstances is a requisite precondition to modifying visitation.4  The court said no because visitation changes are “not so substantial as to require” said change in circumstance.5

Nevertheless, the Bergeron standard will apply where there is a request for increased visitation that significantly changes the amount of physical custody. Consequently, it appears that a court may not use “adjustment of visitation” to circumvent the Bergeron test for custody modification in these cases.6

• 1Evans v. Lungrin, 97-0541, p. 10 (La. 2/6/98), 708 So. 2d 731, 737; see also Davis v. Davis, 2021-663, p. 3–­4 (La. App. 3 Cir. 2/2/22), 333 So. 3d 1252, 1254.
• 2See Section 4.4.4 for a discussion of Bergeron.
• 3Acklin v. Acklin, 29,193 (La. App. Cir. 2/26/97), 690 So. 2d 869.
• 4Mosley v. Mosley, 499 So. 2d 106 (La. App. 1 Cir. 1986); see also Carpenter v. McDonald, 2019-0961 (La. App. 2 Cir. 11/15/19), 290 So. 3d 679.
• 5Mosley, 499 So. 2d at 109.
• 6See Bennett v. Bennett, 95-152 (La. App. 3 Cir. 5/31/95), 657 So. 2d 413; see also Hebert v. Hebert, 2018-499 (La. App. 3 Cir. 3/27/19), 269 So. 3d 831.

In addition to restrictions on visitation in cases of family violence1  or when visitation is not in the best interest of the child, other statutes allow a court to deny visitation or order that it be supervised.

Under La. C.C. art. 137, if a child is conceived because of a felony rape, the parent committing the felony rape may not be awarded visitation. The Children’s Code goes further, authorizing termination of parental rights under these circumstances.2  If a parent has died at the hands of a relative by blood or affinity who acted intentionally and criminally, La. C.C. art. 137(B) specifically allows for denial of visitation to that relative. The burden of proof for the criminal misconduct is preponderance of evidence.3

La. R.S. 9:346 creates an action for failure to exercise or to allow visitation, custody, or time rights pursuant to a court ordered schedule; it also provides a cause of action to sue for interference with visitation.4  This is the legislature’s attempt to encourage the non-custodial parent to exercise visitation. Courts are also specifically authorized to find a parent in contempt for violation of a visitation order; they may impose a $500 fine and up to three months imprisonment.5  Courts may also require the custodial parent to allow “make up” time to replace the missed days due to a parent’s contemptuous denial of visitation and can also order parenting education classes.6

• 1For further discussion, see Section 5.8 of this chapter and Section 8 of the chapter on representing survivors of domestic violence.
• 2La. Ch.C. art. 1015(9).
• 3La. C.C. art. 137(B).
• 4This principle derives from La. C.C. art. 136.1 (“Neither parent shall interfere with the visitation, custody or time rights of the other unless good cause is shown.”).
• 5La. R.S. 13:4611(1)(d).
• 6La. R.S. 13:4611(1)(e).

Family violence is common in many divorce and custody actions handled by legal aid attorneys. Special laws apply to visitation in family violence cases to protect the victims.1  Visitation orders should be drafted to minimize harm to the abused parent and the children. Provisions should be specific and clear so that conflict between the parties is minimized. Specific times should be set for visitation. The term “reasonable visitation” should never be used in family violence cases. Exchanges for visitation should be structured to minimize harm. Exchanges may need to be conducted by third parties and/or in public places, including police stations.

Family violence includes assault, stalking, physical abuse, and sexual abuse.2  “History of perpetrating family violence” means either more than one incident or one incident that results in serious bodily injury.3  If a history of family violence if proven, there is a presumption against granting the abuser custody.4  In Ford v. Ford, the court held that visitation could not be awarded until the “history of family violence” allegations were fully litigated.5

Under La. R.S. 9:341(A), if a court finds physical abuse by a preponderance of the evidence, the court may allow only supervised visitation between the abusing parent and abused child until the parent has completed a domestic violence intervention program.6  Enrollment is not sufficient; the program must be completed.7  Unsupervised visitation may be allowed following completion of the program only if the abusing parent proves that visitation is in the best interest of the child and would not cause physical, emotional, or psychological damage to the child.8  If visitation is awarded, the court may order restrictions, including continued supervision.9

Even if supervised visitation is awarded while an abuser is participating in the intervention program, you should be able to bring the matter back into court to stop the supervised visitation if the abuser has stopped participating without completing the program. Ineffective treatment programs may also be challenged in a hearing on a request for unsupervised visitation.

Under La. R.S. 9:366(B), an abuser’s “court ordered visitation” must be terminated upon violation of an injunction or protective order as defined in La. R.S. 9:362(5). The legislative history of R.S. 9:366(B) makes it clear that the legislature intended to eliminate the courts’ power to allow visitation for violators of injunctions.10  However, many trial courts refuse to permanently terminate all visitation by the abuser despite this express statutory mandate.

Under La. R.S. 9:364(F), if the court finds by clear and convincing evidence that a parent has sexually abused his or her child, the court must prohibit all visitation (supervised or unsupervised) between the parent and the children (not just the abused child). Thereafter, supervised visitation may be allowed but only when the court finds by a preponderance of the evidence, after a contradictory hearing, that the parent has completed a treatment program for sexual abusers and that supervised visitation would be in the child’s best interest.11  If sex abuse is proven and a protective order entered, visitation is suspended until the child turns 18 or a contradictory hearing to modify is had.12

• 1For a more thorough discussion of visitation in the context of domestic violence, see Section 8 of this manual’s chapter on representing survivors of domestic violence.
• 2La. R.S. 9:362(4).
• 3La. R.S. 9:364(A).
• 4Id.
• 501-387 (La. App. 3 Cir. 10/17/01), 798 So. 2d 316.
• 6Morrison v. Morrison, 97 CA 0295 (La. App. 1 Cir. 9/19/97), 699 So. 2d 1124.
• 7Becker v. Becker, 613 So. 2d 275 (La. App. 3 Cir. 1993); see also Hicks v. Hicks, 98-1527 (La. App. 3 Cir. 5/19/99), 733 So. 2d 1261.
• 8La. R.S. 9:341(A).
• 9Id.
• 10Compare Act 1091 of 1992 with Act 888 of 1995 and Act 750 of 2003.
• 11La. R.S. 9:341(B).
• 12La. Ch.C. art. 1570(F).

Non-parent custody is decided under La. C.C. art. 133. Three other provisions also control non-parent visitation. The first is found in the adoption articles in the Children’s Code.1  As that issue does not often arise in the context of general family law practice, it will not be further discussed.

The second provision, La. R.S. 9:344, allows visitation by grandparents and siblings if the parents are married and have not filed for divorce or are living together and one of the parents is deceased, incarcerated, or interdicted, but only if the visitation serves the child’s best interest.2  If the married parents have lived apart for six months, grandparents and siblings can seek visitation in “extraordinary circumstances,” which includes a finding that a parent is abusing a controlled dangerous substance.3

The third provision is Article 136 of the Civil Code, which allows two classes of non-parents to obtain visitation, but only if the child is of a non-married couple or the parents are married and have filed for divorce. The first class consists of grandparents, who may be awarded visitation only if it serves the best interest of the child.4  The other consists of “any other relative” or a former stepparent or step-grandparent, but only under extraordinary circumstances and after a finding that visitation is in the child’s best interest.5  “Extraordinary circumstances” include a parent’s abuse of a controlled dangerous substance.6  The key to these cases is determining if the parents are married and not filing for divorce. If so, this article may not be used to establish visitation, as the courts presume parents have the primary right to dictate visitation for their children.

The person seeking visitation must actually be a grandparent. Thus, if paternity is not yet established, you should tread lightly. However, at least one case has allowed a non-filiated grandparent to sue to obtain blood testing. Ultimately, paternity was proven, and the grandparent was given visitation.7

In cases of non-parental visitation, the best interest of the child is determined by the factors in La. C.C. art. 136(D),8  which differ from the “best interest” factors applicable to custody determinations.9  These factors are:

• The parent’s fundamental constitutional right to decide the care, custody, and control of their children along with the presumption that fit parents act in their children’s best interest
• The length and quality of the prior relationship between the child and the relative

•    Whether the child is in need of guidance, enlightenment, or tutelage which can be provided by the relative

•    The child’s preference if the child is mature enough

•    The mental and physical health of the child and the relative

In visitation cases, a court may appoint an attorney to represent the child if that is in the child’s best interest;10  a hearing on this issue is required in actions arising under La. C.C. art. 136(B).11

When deciding whether to appoint an attorney, the court must consider whether the proceeding is intense, whether the attorney representing the child could give significant information relative to the case, whether either parent can provide a stable home, and whether there are conflicting interests between the child and the parent(s), along with any other relevant factor.12

In the pivotal case of Troxel v. Granville, the United States Supreme Court held that a court must presume that “fit parents act in the best interests of their children” and therefore must accord “special weight to parents’ decisions and objections regarding request for third-party visitation.” Parenting was determined to be a fundamental right, abridgement of which required proper due process.13  In interpreting Troxel and its progeny, Louisiana’s grandparent visitation laws have been found to pass constitutional muster.14  The non-parent has the burden of proving that visitation or a modification of the visitation order would be reasonable and is in the child’s best interest.15

• 1See La. Ch.C. art. 1264, et seq.
• 2La. R.S. 9:344(A)–(C).
• 3La. R.S. 9:344(D).
• 4La. C.C. art. 136(B)(1).
• 5La. C.C. art. 136(B)(2).
• 6Id.
• 7Matter of Tuccio, 95-0302 (La. App. 2 Cir. 11/16/95), 665 So. 2d 531; see also Knisely v. Knisely, 2005-1015 (La. App. 3 Cir. 3/1/06), 924 So. 2d 423.
• 8La. C.C. art. 136(D); La. R.S. 9:344(D).
• 9See La. C.C. art. 134.
• 10La. R.S. 9:345.
• 11La. C.C. art. 136(C).
• 12La. R.S. 9:345(A).
• 13530 U.S. 57, 68–70 (2000).
• 14See Broussard-Scher v. Legendre, 10-1164 (La. App. 3 Cir. 3/23/11), 60 So. 3d 1290; see also Droddy v. Porter, 2019-0633 (La. App. 1 Cir. 12/27/19), 292 So. 3d 925.
• 15See Barry v. McDaniel, 2005-2455 (La. App. 1 Cir. 3/24/06), 934 So. 2d 69.

What happens if visitation is impossible due to military service? The Revised Statutes allow for make-up time when a parent is on active duty, training, drill, or any other special orders.1  The court may award “compensatory visitation,” but only upon a parent’s request and only if it serves the child’s best interest.2  This does not apply in the case of a finding of physical or sexual abuse.3  Under the Servicemembers Civil Relief Act, any military member on active duty may obtain a stay of both child support and custody matters.4  If the servicemember affirmatively requests the stay, the court must grant it; otherwise, the stay is discretionary.5

• 1La. R.S. 9:348.
• 2La. R.S. 9:348(B).
• 3La. R.S. 9:348(C).
• 450 U.S.C. app. § 522(a)–(b).
• 550 U.S.C. app. § 522(b)(1).

In Broussard-Scher v. Legendre, the grandmother was granted visitation where the parents and child lived in the grandmother’s house after leaving the birth hospital, the parents returned to their apartment a week later and the child stayed with grandmother, grandmother was the primary caregiver for the child, and the court-appointed expert testified that extraordinary circumstances existed and that it was in the best interest of the child to award the grandmother visitation.1

In Ray v. Ray, the court granted visitation rights to the paternal aunt because the father was dead, the paternal grandfather was absent, the child had lived with the paternal aunt, and other factors all of which presented “extraordinary circumstances.” This case was decided under Article 136 rather than La. R.S. 9:344 due to the lack of the requisite familial relationship between the child and the plaintiff, but the definition of extraordinary circumstances is a good one for actions under either statute.2

In Wood v. Wood, grandparent visitation of one weekday per month was upheld because the father also was awarded more substantial visitation in Utah. The court determined that as the non-domiciliary parent’s time increases, any potential grandparent visitation may decrease due to the courts’ preference to give parents time with their children.3

In Babin v. Babin, visitation was granted to the maternal grandmother, allowing her to spend 4 hours every 3 weeks with her deceased daughter’s minor children.4  An issue on appeal was whether the trial court erred as a matter of constitutional law by refusing to require a threshold showing of “serious circumstances” to justify the court’s intervention in the parent/child relationship. The appellate court ruled that the grandmother did not have to show extraordinary circumstances to get visitation. Rather, the special factors listed in the statute supplied the legal basis for visitation. The court held that the length and quality of the relationship enjoyed with her grandchildren prior to her daughter’s death, the fact that the visitation awarded was not significantly intrusive upon the children’s relationship with their father, and the restriction that the grandmother was not to diminish the father’s authority over the children or to undermine his ability to raise the children as he saw fit, all served to support the conclusion that visitation was in the grandchildren’s “best interest.”5

In Vincent v. Vincent, the court found that the maternal grandmother had a cause of action for visitation when the mother was incarcerated.6

• 110-1164 (La. App. 3 Cir. 3/23/11), 60 So. 3d 1290.
• 294-1478 (La. App. 3 Cir. 5/3/95), 657 So. 2d 171.
• 3Wood v. Wood, 2002-0860 (La. App. 9/27/02), 835 So. 2d 568; see also Beebe v. Delcambre, 2016-17 (La. App. 3 Cir. 6/1/16), 194 So. 3d 1214.
• 42002-0396 (La. App. 1 Cir. 7/30/03), 854 So. 2d 403.
• 5See also Garner v. Thomas, 2008-1448 (La. App. 4 Cir. 5/28/09), 13 So. 3d 784.
• 698-1346 (La. App. 1 Cir. 6/25/99), 739 So. 2d 920.

In Shaw v. Dupuy, the court held that the parties’ inability to communicate or agree on many issues did not amount to the extraordinary circumstances required by La. C.C. art. 136(B)(2) to support a visitation award to the non-custodial relatives.1

In Flack v. Dickson, the appellate court held:

[E]xtraordinary circumstances did not exist to support granting paternal grandparents visitation rights to minor child and there was no allegation or evidence that the child’s mother was unfit or did not adequately provide for the child, nor was there any showing that the mother’s decision regarding the paternal grandparents’ visitation was detrimental to the child and, in any event, record did not indicate that such visitation would serve child’s best interest.2

In Henry v. Henry, visitation was denied although the step-grandparent provided proof of extraordinary circumstances because she had been the primary caregiver for the two-year-old at issue. The court denied visitation because it found visitation would not be in the child’s best interest.3

In McCarty v. McCarty, the grandmother was denied visitation rights where parents were married, not involved in divorce, custody, or neglect litigation, and the child had not lived for an extended period with the grandmother.4

In Lingo v. Kelsay, the maternal grandparents were denied visitation as the parents were married, not involved in marital litigation, and objected to the grandparents’ visitation.5

In Galjour v. Harris, visitation was denied to the uncle and aunt since there were no extraordinary circumstances under La. C.C. art. 136 and no right of action under R.S. 9:344.6  The court granted visitation to the maternal grandparents. The court held that grandparents do not have to prove “extraordinary circumstances” in order to obtain visitation with their grandchildren when their child is dead, interdicted, or incarcerated.

• 12006-0546 (La. App. 1 Cir. 2/9/07), 961 So. 2d 5.
• 22003-5 (La. App. 3 Cir. 4/30/03), 843 So. 2d 1261.
• 397-0366 (La. App. 1 Cir. 11/7/97), 704 So. 2d 793.
• 4559 So. 2d 517 (La. App. 2 Cir. 1990).
• 594-1038 (La. App. 3 Cir. 3/1/95), 651 So. 2d 499.
• 62000-2696 (La. App. 1 Cir. 3/28/01), 795 So. 2d 350.