5.9 Non-Parent Visitation

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.