5.6 Modifying Visitation Orders

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.