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Saturday, 9 January

How to Get Custody of Your Child

You should know the custody battle factors upon which your judge places specific emphasis. There is a truism that says “knowing the judge is better than knowing the law.”  Therefore, it behooves an attorney to know what a specific judge wants in the way of testimony and evidence. However, the judge shall consider all relevant factors in determining the best interest of the child. It is clear that the court’s decision has to be based on these or other factors otherwise it is legal error. See Bergeron v. Clark, 832 So.2d 327, 2002-493 (La. App. 3d Cir. 2002). Here are some factors on how to get custody of your child provided by the Civil Code are:

Factor #1:
The love, affection, and other emotional ties between each party and the child.

This factor often ties into Factor #12, prior responsibility for care of child. Evidence and testimony regarding the child’s relationship to your client should be presented. Witnesses can testify as to the character and quality of the interaction between the child and the parent based upon their personal observations. Review La.  C.E. Art. 701 regarding opinion testimony by lay witnesses.

Factor #2:
The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.

Testimony by teachers can be very helpful to your case. Also, our society values regular church attendance. If a party is active in his church, this information should be presented to the court, particularly, if the child is also involved in church activities. Once again, know your judge. Church attendance may be more important to some judges than others.

Factor #3:
The capacity and disposition of each party to provide the child with food, clothing, medical care and other material needs.

Our courts, as a general rule, do not decide custody based on a parent’s wealth. Boyd v. Boyd, 647 So. 2d 414 (La. App. 2d Cir. 1994) (one parent’s greater material wealth and better home is not a factor for consideration where the other home is adequate); Page v. Page, 673 So. 2d 1317 (La. App. 3d Cir. 1996). However, if a parent spends his available income on himself or frivolously at the expense of meeting the children’s needs, this information should be presented to the court. Most judges are swayed by prompt and adequate medical treatment and care provided to a child – especially a child who has special medical needs.

Factor #4:
The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.

Lee v. Lee, 766 So. 2d 723 (La. App. 2d Cir. 2000); Roberie v. Roberie, 749 So. 2d 849 (La. App. 2d Cir. 1999).

Factor #5:
The permanence, as a family unit, of the existing or proposed custodial home or homes.

These factors relate to the desire for stability and continuity in a child’s living environment. Thus, evidence regarding the length of time the child has been in one place, accessibility to extended family members, and the quality and safety of the child’s neighborhood are important to a custody case. A parent with a revolving door of significant others will be disadvantaged. Also, a parent’s frequent moves that disrupt the child’s education and social life should be brought out. Ask your client how long he has lived at his current address and where he has lived over the previous two years. Inquire about the residence(s) of the opposing party. Most judges will have concerns about a parent that has been moving from place to place.

Factor #6:
The moral fitness of each party insofar as it affects the welfare of the child.

When evaluating the moral fitness of the parents, the primary consideration is the child’s welfare. Thus, our courts have upheld custody awards to a mother whose past adulterous behavior did not have a detrimental effect on the children. Cleeton v. Cleeton, 383 So. 2d 1231 (La.1980); Lake v. Robertson, 452 So.2d 376 (La. App. 3rd Cir. 1984). This also holds true for continuing immorality that does not harm the child. Thus, the focus is on the detrimental effect of the parent’s illicit relationship. See Montgomery v. Marcental, 591 So. 2d 1272 (La. App. 3rd Cir. 1991); Patton v. Patton, 457 So. 2d 321 (La. App. 2nd Cir. 1984). An award of custody is not a tool to regulate human behavior. Its only object is the best interest of the child. Scott v. Scott, 665 So. 2d 760 (La. App. 1st Cir. 1995). Also, see the following cases for guidance: Peyton v. Peyton, 457 So. 2d 321 (La. App. 2nd Cir. 1984) which involved a gay parent. In this case, the court determined that there are four factors to consider in a sexual lifestyle case:

  •  Is the child aware of the relationship?
  •  Has sex play occurred in the child’s presence?
  •  Is the sexual conduct notorious, bringing embarrassment to the child?
  •  What effect has the conduct had on family home life?

In Montgomery v. Marcantel, 591 So. 2d 1272 (La. App. 3rd Cir. 1991), the court stated: “The moral fitness of the parties is only one of the eleven factors to be considered…A parent’s actions and attitudes toward sex outside of the marriage are but one aspect of moral fitness.” Noting that the girlfriend had no negative impact on the child and was an accepted member of the family, the court continued, “We recognize that in today’s society, conduct which would once have been scandalous is acceptable or perhaps even the norm…We are no longer willing to speculate on such matters.” The bottom line is that our courts are unwilling to use a custody award to regulate the parents’ behavior. For a contrary rule, see Lozes v. Lozes, 542 So. 2d 603 (La. App. 5th Cir. 1989); Crowson v. Crowson, 742 So.2d 107 (La. App. 2nd Cir. 1999) (extramarital affair is relevant evidence to determine best interest, but not material change of circumstances); Scott v. Scott, 665 So. 2d 760 (La. App. 1st Cir. 1995)( primary custody to a gay parent living with her partner rarely in child’s best interest); Weaver v. Weaver, 824 So. 2d 438 (La. App. 3rd Cir. 2002)

Factor # 7:
The mental and physical health of each party.

La. R.S. 9:331 provides that for good cause shown, the court may order mental health evaluations of the parties, the child, or all of the family to be conducted by a qualified mental health care provider selected by the parties or the court. In Matthews v. Matthews, 633 So.2d 342 (La. App. 1st Cir. 1993), the trial court was reversed for denying joint custody based solely on the opinion of a single doctor. The court may assess the costs of the evaluations as it determines is equitable (see endnote 12). La. R. S. 9:331.1 provides that for good cause shown, after a hearing, a party may be ordered to submit to drug testing.

Factor # 8:
The home, school, and community history of the child.

Evidence and testimony regarding the child’s involvement in school and extracurricular activities can be relevant to the issue of custody. For example, the circle of friends whom the child may have; the activities in which the child has participated; clubs of which the child is a member, exhibit to the court the child’s connection to his current custodial placement. A failure to involve the child in age and gender appropriate activities can be used against a parent. Most judges are swayed by how the child is doing in school and which parent is responsible for the performance.

Factor # 9:
The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.

Perhaps, the least persuasive Art. 134 custody factor, particularly, when the child is under 14 years of age, is the child’s preference. Courts take notice of the fact that the parent who can promise the children the most things often secures the children’s preference. Thus, unless the child is a teenager, who expresses a distinct preference and the court can evaluate the basis for such preference, this factor is not given much probative value. The jurisprudence has held that a child’s preference alone is insufficient to change custody. Perkins v. Perkins, 747 So.2d 785, 790 (La. App. 1st Cir. 1999), writ recalled as improvidently granted, 758 So.2d 141 (La. 2000); Montelone v. Montelone, 591 So.2d 1228, 1235 (La. App. 4th Cir. 1991). Often, a parent will be convinced that the children’s preference will determine the outcome of the case. Consequently, parents begin an emotional tug of war with the children in the middle. It is up to FAMILY LAW (290) the attorney to provide sound legal guidance in such situations. Thus, an attorney should think long and hard before hauling the children up to the courthouse and placing them in the middle of an emotionally charged, hotly contested custody dispute. Be absolutely sure that there is extremely good cause to do so. If such a decision is made, have the children situated away from the courthouse on standby until such time as their testimony is required. A person’s age alone, is not the test of whether that person shall be allowed to appear and present testimony. Rather, the test is whether that person has “proper understanding.” Whether the minor child has proper understanding, such that he will be allowed to testify, is a matter within the trial judge’s discretion. State v. Sharp, 338 So. 2d 654 (La. 1976). Refer to Watermeier v. Watermeier, 462 So.2d 1272 (La. App. 5th Cir. 1985) for the procedure that should be followed when a court interviews children. Many judges simply do not want to talk to the children. Thus, it is wise to discuss your plan to present minor children as witnesses with the court (with opposing counsel present, of course).

Factor # 10:
The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.

To many judges, this factor is of tremendous importance in determining the proper custodial placement of children. In fact, some judges have modified custody primarily due to the misconduct of the custodial parent and his attempt to undermine the child’s love and affection for the non-custodial parent. Our courts consider that changing custody from a non-cooperative, disruptive custodial parent to a blameless non-custodial parent can most surely be in the child’s best interest. This factor presents the opportunity for counsel to discuss with his client the importance of co-parenting. Referring your client to a cooperative parenting program contemporaneously with or shortly after instituting an original custody action may provide you with a strategic advantage. Certainly, the information provided to your client through such a program can be helpful to the family and to your successful management of the case. At the very least, your client will be perceived by the court as positive and proactive. Cases which discuss those problems arising when parties fail to cooperate include: Bergeron v. Bergeron, supra. Turner v. Turner, supra. Yelverton v. Yelverton, 621 So.2d 36 (La. App. 2nd Cir. 1993) Hendrick v. Hendrick, 660 So.2d 99 (La. App. 2nd Cir. 1995) Goodwin v. Goodwin, 618 So.2d 579 (La. App. 2nd Cir.1993) Larsen v. Polk, 841 So. 2d 992 (La. App. 5th Cir. 2003)

Factor # 11:
The distance between the respective residences of the parties.

In Stewart v. Stewart, 525 So. 2d 218 (La. App. 1st Cir. 1988) the court commented, While a great distance between the parents is not an absolute bar to joint custody, in this case the distance coupled with the animosity between the parties is sufficient to rebut the presumption that joint custody is in the best interest of the child. See Eiswirth v. Eiswirth, 500 So. 2d 817 (La. App. 1st Cir. 1986), writ denied 502 So. 2d 111 (La. 1987). Stewart was decided prior to the 1994 revision of La. C.C. Art. 133 which eliminated the presumption of joint custody. See also Lachney v. Lachney, 446 So. 2d 923 (La. App. 3rd Cir. 1984) wherein the court concluded that a joint custody arrangement was unworkable insofar as one party resided in South Carolina and the other in Louisiana.

Factor # 12:
The responsibility for care and rearing of the child previously exercised by each party.

This factor was added in 1994 to recognize what attorneys previously had always stressed in their case, that is, who has been the primary caretaker of the child. Thus, when meeting with your client, you should be concerned with your client’s history of caring for the child. In this regard, one should inquire as to who has been primarily responsible for such day to day activities as changing diapers, preparing meals, washing clothes, obtaining immunizations and medical and dental care, transporting the child to and from activities, disciplining the child, getting the child ready for bed, providing assistance with homework, etc. This has always been a very important consideration, despite being initially omitted from Article 134. The importance placed upon the “primary” parent by our courts and legislature has been criticized. Psychologist, R.A. Thompson, observed: Basic maintenance tasks like meal preparation, dressing, bathing, and chauffeuring can be readily assumed by either parent regardless of the level of his or her pre-divorce responsibility for these concerns. Many of these responsibilities are activities done for the child rather than with the child. The focus of a custody inquiry should properly be the meaning and significance of each parent’s relationship with the child. R.A. Thompson, The Role of the Father After Divorce, The Future of Children, 4, 210-35 (1994). Such critics contend that the emphasis on the primary caretaker: Ignores the quality of the relationship between the child and the primary caretaker in favor of counting hours and rewarding many repetitive, concrete behaviors. Further in accordance with this line of thinking, critics contend that the most important emotional and interactive behaviors promoting children’s development and psychological, social, and academic adjustment, such as love, acceptance, respect, encouragement of autonomy, learning, and self-esteem, moral guidance, and absence of abusive interactions are not considered. Kelly, J.B., The Determination of Child Custody, The Future of Children, 4, 121-42 (1994).