La. C.C. art. 132 provides that if the parents do not agree on custody, the court must award joint custody. Joint custody must be awarded absent the parties’ consent to sole custody, a history of family violence or clear and convincing evidence that sole custody is in the child’s best interest. Proof of a “history of family violence” will generally preclude any custody award to the abuser.1
La. C.C. art. 133 allows a custody award to a non-parent only if parental custody would result in substantial harm to the child. In a custody dispute between a parent and non-parent, the best interest standard does not become an issue until there has been a threshold determination that custody to the parent would cause substantial harm to the child. The language of La. C.C. art. 133 does not require or allow joint custody with or between non-parents. However, the courts have upheld joint custody to the parent and non-parents where sole custody with the parent would cause substantial harm to the child.2
La. C.C. art. 134 lists the relevant factors for a court to consider in determining “best interest” in a custody dispute between parents.3
- 1For more information, see Section 8.3.2 of this manual’s chapter on representing survivors of domestic violence.
- 2Schloegel v. Schloegel, 584 So. 2d 344 (La. App. 4 Cir. 1991).
- 3For a discussion of these factors, see Section 4.5.