Note:

Changes in the laws, rules and regulations since the 2001 edition of the LSBEP Directory and Statutory Reference book appear in boldface type in this 2002 edition.

Custody of Children Pending the Litigation, La. Civ. Code art. 131 (West, 1992)

Art. 131. Custody of children pending the litigation

         A. If there are children of the marriage whose provisional custody is claimed by both husband and wife, the suit being yet pending and undecided, custody shall be awarded in the following order of preference, according to the best interest of the children:

                (1) To both parents jointly. The court shall, unless waived by the court for good cause shown, require the parents to submit a plan for implementation of the custody order, or the parents acting individually or in concert may submit a custody implementation plan to the court prior to issuance of a custody decree. A plan of implementation shall allocate the time periods each parent shall enjoy physical custody of the children and the legal authority, privileges and responsibilities of the parents. The plan may also include such considerations as the following:

                        (a) Designation of the child’s legal domicile.

                        (b) Rights of access-and communication between the respective parents and the child or children.

                        (c) Child support.

                                 (i) An award of joint custody shall not eliminate the responsibility for child support. Each parent shall be responsible for child support based on the needs of the child and the actual resources of each parent. If a parent would otherwise be unable to maintain adequate housing for the child and the other parent has sufficient resources, the court may order modified support payments for a portion of housing expenses even during a period when the child is not residing in the home of the parent receiving support. An order of joint custody, in and of itself, shall not constitute grounds for modifying a support order.

                                 (ii) In addition, a provision for child support shall consider the impact of any dependency exemption granted to a parent by provisions of any revenue law and shall allocate such exemption to either parent. In the event that for any tax year such allocation is not maintained by the taxing authorities, then the parent who receives the benefit of the exemption for such tax year shall not be considered as having received payment of a thing not due as defined in Chapter I of Title V of Book III of this Code.

                        (d) Any other matter deemed in the best interest of the child or children.                     

         (2) To either parent. In .making an order for custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child or children frequent and continuing contact with the noncustodial parent, and shall not prefer a parent as custodian because of that parent’s sex or race. The burden of proof that joint custody would not be in a child’s best interest shall be upon the parent requesting sole custody.

                (3) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment.

                (4) To any other person or persons deemed by the court to be suitable and able to provide an adequate and stable environment.

         B. Before the court makes any order awarding custody to a person or persons other than a parent without the consent of the parents, it shall make a finding that an award of custody to a parent would be detrimental to the child and the award to a nonparent is required to serve the best interest of the child. Allegations that parental custody would be detrimental to the child, other than a statement of that ultimate fact, shall not appear in the pleadings.

         C. There shall be a rebuttable presumption that joint custody is in the best interest of a minor child.

                (1) However, the parents may agree to an award of custody to one parent.

                (2) The presumption in favor of joint custody may be rebutted by a showing that it is not in the best interest of the child, after consideration of evidence introduced with respect to all of the following factors:

                        (a) The love, affection, and other emotional ties existing between the parties involved and the child.

                        (b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his religion or creed, if any.

                        (c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care, and other material needs.

                        (d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

                        (e) The permanence, as a family unit, of the existing or proposed custodial home or homes.

                        (d) The moral fitness of the parties involved.

                        (g) The mental and physical health of the parties involved.

                        (h) The home, school, and community record of the child.

                        (i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.

                        (j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.

                        (k) The distance between the respective residences of the parties.

                        (l) Any other factor considered by the court to be relevant to a particular child custody dispute. However, the classification of persons according to race is neither relevant nor permissible.

                (3) For the purpose of assisting the court in making a determination whether an award of joint custody is appropriate, the court may direct that an investigation be conducted.

         D. For purposes of this Article, “joint custody” shall mean the parents shall, to the extent feasible, share the physical custody of the children of the marriage. In making an award of physical custody, the court shall consider, among other things, the factors enumerated in Paragraph (C)(2). Joint custody shall also mean that the parents shall enjoy the natural cotutorship of such children in accordance with Article 250, subject to the plan of implementation effected pursuant to Paragraph A of this Article. Physical care and custody shall be shared by the parents in such a way as to assure a child of frequent and continuing contact with both parents. An award of joint custody obligates the parties to exchange information concerning the health, education, and welfare of the minor child; and, unless allocated, apportioned, or decreed, the parents or parties shall confer with one another in the exercise of decision-making rights, responsibilities, and authority.

         E. Any order for joint custody, or any plan of implementation effected pursuant to Paragraph A of this Article, may be modified or terminated upon the petition of one or both parents or on the court’s own motion, if it is shown that the best interest of the child requires modification or termination of the order. The court shall state in its decision the reasons for modification or termination of the joint custody order if either parent opposes the modification or termination order.

         F. Any order for the custody of a minor child of a marriage entered by a court in this state or in any other state, subject to jurisdictional requirements, may be modified at any time to an order of joint custody in accordance with the provisions of this Article.

         G. A custody hearing may be held in private chambers of the judge.

         H. In a custody or visitation proceeding, an evaluation may be ordered on the motion of either party. The evaluation shall be made by a mental health professional agreed upon by the parties or selected by the court. The court may apportion the costs of the investigation between the parties and shall order both parties and the children to submit to and cooperate in the evaluation, testing, or interview by the mental health professional. The mental health professional shall provide the court and both parties with a written report. The mental health professional shall serve as the witness of the court subject to cross-examination by either party. For the purposes of this Article, “mental health professional” means a psychiatrist or a person who possesses a Master’s degree in counseling, social work, psychology, or marriage and family counseling.

         I. In any custody or visitation proceeding, the court, on its own motion or the motion of either party, may require the parties to mediate their differences. The court may order the costs of mediation to be paid in advance by either party or both parties jointly. The court may apportion the costs of the mediation between the parties if agreement is reached on custody or visitation. If mediation concludes without agreement between the parties, the costs of mediation shall be taxed as costs of court. The mediator may be selected by the parties or, upon their failure to agree upon a mediator, may be selected by the court. The mediation shall be conducted and the mediator shall be qualified in accordance with R.S. 9:351 et seq.

         J. Notwithstanding any other provision of law, access to records and information pertaining to a minor child, including but not limited to medical, dental, and school records, shall not be denied to a parent because the parent is not the child’s custodial parent.