Generally, custody issues are litigated in a divorce suit, a stand-alone custody suit, or a domestic violence protective order suit.1 The initial evaluation of a custody case should answer the following questions:
Which state and/or courts have jurisdiction and venue? Do not make the client wait for an appointment if Louisiana courts in your service area lack jurisdiction or venue. Determine jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and venue under the Code of Civil Procedure in the initial screening.2 Refer the client to the proper jurisdiction if necessary.
What is the client’s relationship to the child(ren)? Is the client a filiated parent, an unaffiliated biological parent, or a non-parent? Who are the legal, filiated parents of the child(ren)?
Which custody standard governs? The standard for obtaining custody varies depending on the parties and their litigation history.3
Parent v. Parent: Custody disputes between parents are decided under the “best interest of the children” standard. Joint custody must be awarded to the parents unless there a “history of family violence” or clear and convincing evidence that the children’s best interest requires an award of sole custody.4 In family violence cases, there is a statutory presumption that no parent who has a “history of perpetrating family violence” shall be awarded joint or sole custody.5
Parent v. Non-Parent: There is a threshold analysis the court must make when a non-parent is seeking custody. The non-parent must show that parental custody will cause substantial harm to the child. The non-parent’s burden of proof is clear and convincing evidence. Once this burden has been met, then the court will make a best interest of the child analysis.6
Modifications: Modifications of custody decrees (whether considered or consent) require a burden of proof that at a minimum, will require a material change of circumstances since the prior custody decree before the best interest of the child considerations are applied, also known as the Evans standard.7 If the prior custody judgment was a considered decree, the more arduous Bergeron standard will apply.8
Can the client meet the applicable custody standard? To evaluate a client’s legal problem, get as much information as possible from the client. Engage the client in conversation. Find out what is going on with the family. Often, one will discover information helpful to a client just by talking with the client. A person seeking a divorce may not volunteer that there has been family violence. Pry a bit. Ask questions, even ones outside the parameters of the particular problem for which you are consulted. Experienced attorneys will listen to what is said and what is not said.
Is there a “history of family violence?” If there is a history of family violence, the victim may have a strong case for sole custody and supervised visitation.9
Is the case meritorious? With experience, an attorney will acquire one of the most important skills in family law practice – what is known as “sixth sense”. Being able to evaluate an applicant’s account of their case, requires knowledge of the law and the ability to zero in on what could make or break the case. All this needs to be done in an expedient but competent manner that still assures that each client gets the consideration she deserves.
Ask the client about witnesses who can support the client’s version of the case facts. Get their names, addresses and phone numbers. Not only does this provide useful information for future proceedings, speaking to witnesses allows you to verify your client’s version of the facts. Find out what the client thinks the other party and that party’s witnesses will say about the client. Most experienced attorneys know that the “truth” usually lies somewhere in the middle. It is better to know the facts at the front end than to be surprised in court. Likewise, information about the client may be gleaned from the family’s contact with other organizations, e.g., Community Health Clinic, Child Protection, Support Enforcement Services, etc. Verify your client’s story with the child’s teachers and counselors. It is better to spend more time during intake or before you accept the client for services than to waste resources on a client whose case has little or no merit.
- 1A more comprehensive treatment of the unique laws and considerations applicable to custody disputes in the context of domestic violence, see Section 8 of this manual’s chapter on representing survivors of domestic violence.
- 2126 On venue, see La. C.C.P. art. 74.2. On UCCJEA jurisdiction, see Section 4.10.
- 3On these standards, see Section 4.2 and Section 4.4.
- 4La. C.C. art. 132.
- 5La. R.S. 9:364. For further discussion, see Section 8.3.2 of this manual’s chapter on representing survivors of domestic violence.
- 6La. C.C. art. 133.
- 7Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So. 2d 731. For further discussion of the standards for modification of custody orders, see Section 4.4.3 and Section 4.4.4.
- 8Bergeron v. Bergeron, 492 So. 2d 1193 (La. 1986).
- 9See La. R.S. 9:364. For further discussion, see Section 8 of this manual’s chapter on representing survivors of domestic violence.