5.3 Persons with Visitation Rights

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.