In Louisiana, the burden of proof for modifying custody depends on whether the original judgment was a consent judgment or whether it was a considered decree of the court. The leading cases are Evans v. Lungrin1 for consent judgments and Bergeron v. Bergeron2 for considered decrees.
A judgment reached by consent is a “stipulated judgment.” Modification of a consent judgment only requires proof of a material change in circumstances and that the proposed modification is in the child’s best interest (i.e., the Evans standard).3 In some circuits, the parties may stipulate in a consent judgment to the application of the higher Bergeron burden of proof for custody modification (i.e., the burden applicable to considered decrees).4 The circuits are also split as to whether the parties may stipulate in a consent judgment to a standard lower than the material change of circumstances recognized in Evans. Note that a provision in a consent judgment stating that the custody arrangement may be reviewed in the future does not necessarily make the judgment an interlocutory or interim custody judgment.
Sometimes, a consent judgment may be a “considered decree,” which triggers the Bergeron standard. In Cherry v. Cherry, the court found that a consent judgment entered after 3 days of trial testimony was a “considered” decree that required the Bergeron burden of proof for modification.2004-CA-0002 (La. App. 4 Cir. 2/2/05), 894 So. 2d 1208. However, in Poole v. Poole, another court found that a consent judgment entered after the second day of trial was a stipulated judgment and not “considered decree” and, thus, governed by the Evans “material change in circumstances” test rather than the Bergeron test.5