The guide is meant to help someone who is not represented by a lawyer understand the general rules and procedures of a civil court case in Louisiana. It is not a complete guide to the law nor does it discuss every issue or aspect of the law that may affect your case.
This information is not meant to replace State laws or Court Rules. The purpose of this guide is to give general information and make it easier to represent yourself in court. You have a right to represent yourself in court, but it comes with the responsibility to follow certain court rules and procedures.
The guide will help you establish or modify custody by:
Answering questions on custody in the "Frequently Asked Questions" section below;
Preparing forms for you on custody in the "Forms Available" section;
Explaining the steps for custody in the "Instructions" section attached to the form;
Giving you more information about how to proceed with your case while delaying court fees in the "Related Articles" section; and
Helping you find a lawyer in the "Community Resources" section.
*In order to file with the Clerk of Court, forms must be printed out and filled in completely. If you are unable to do this, or do not have access to a printer, you can visit your local library for assistance. For more assistance locating a library, click here.
FREQUENTLY ASKED QUESTIONS ABOUT
CUSTODY IN LOUISIANA
1. What does "custody" mean and what is a "custody order?"
Custody is the protective care or guardianship a person can have over their children. Custody can be broken into two categories:
i) Physical/Actual Custody -- time with the child is divided between the parents to promote shared care of the child and to see that the child has ongoing contact often with both parents;
ii) Legal Custody -- the right or authority of a parent or parents to make decisions about the child's upbringing. Typically, both parents retain legal custody (joint custody). Legal custody involves shared responsibilities for the child, including decisions about education, medical care, discipline, and other issues involved in raising the child.
Custody Order -- Issued by the court, a custody order sets the terms and conditions of a child's custody.
2. How does a court decide who gets custody?
The court awards custody based upon the best interest of the child. The court uses the many factors listed below to determine a child’s best interest, and the Judge will decide which factors carry the most weight:
1. The love, affection and other emotional ties between each party and the child;
2. The capacity of each party to give the child love, affection, and spiritual guidance, and to continue the education and rearing of the child;
3. The capacity of each party to provide the child with food, clothing, medical care, and other material needs;
4. The length of time the child has lived in a stable, adequate environment, and how desirable it is to continue to maintain that environment;
5. The permanence, as a family unit, of the existing custodial home(s), or the proposed custodial home(s);
6. The moral fitness of each party, as far as it would affect the child;
7. The mental and physical health of each party;
8. The home, school, and community history of the child;
9. The reasonable preference of the child, if the court considers the child old enough to express a preference;
10. The willingness and ability of each party to encourage a close relationship with the child and the other parent;
11. The distance between the residences of the parties;
12. The responsibility for care and rearing of the child each party had previously had;
The court may consider other factors as well.
3. Can parents make a custody arrangement without the court?
In most cases, yes. The court will often give preference to the arrangement the parents choose. The court does not have to adhere to or follow the recommendation of the parents if the court finds it is not in the best interest of the child to do so.
4. What types of cases include decisions about custody?
Child custody determinations are typically applied in cases dealing with divorce, abuse, when a parent dies, or when one parent is moving to another state. There are other situations where the court may decide custody as well.
5. What is the difference between sole custody and joint custody?
Sole custody is when one parent has custody of the child and makes all legal decisions regarding his/her care without having to consult anyone else. The other parent may be awarded visitation rights to spend time with the child, but this is not a guarantee, and in certain cases the court may require that the visitation is supervised. If there is extremely strong evidence that it would be in the best interest of the child for only one parent to have custody, the court will award sole custody to that parent.
Joint custody is an arrangement by which the time period that each parent has physical custody of the child is shared to assure the child has continuing and frequent contact with both parents. To the extent possible, the time will be shared equally. Under joint custody, the custodians are obligated to exchange information concerning the health, education, and welfare of the child, and to communicate with each other in making decisions. The court has a strong preference for joint custody unless there are extenuating circumstances (i.e. domestic violence or substance abuse).
6. Does joint custody mean the child lives with both parents?
Not necessarily. The court usually designates one parent as a domiciliary parent, or the parent with whom the child primarily resides. In the event there is no domiciliary parent, the parents both have the same rights.
7. What if I already have a custody order for my child that I want to change?
Parents can modify a custody arrangement, but this is much simpler if parents, rather than the court, set the first custody arrangement by mutual agreement. If the parents set custody by mutual agreement, they only have to prove a change in circumstances to the court to modify the arrangement. However, if the parents could not agree, and the court set the previous custody order, then the parent seeking the modification must prove two points:
1. A change in custody would be in the child's best interest; and
2. To continue the current custody arrangement would be so harmful to the child as to justify a change, or that the harm to the child caused by a change will be substantially outweighed by the advantages enjoyed by the child if the court allows the change.
To modify a court ordered custody arrangement is very difficult. Parents should keep this in mind when establishing their original custody arrangement and hopefully be able to compromise and develop their own arrangement.
8. How does custody affect child support payments?
When one parent is awarded sole physical or legal custody, the other parent usually is required to fulfill his or her child support obligations by making payments to the custodial parent. The custodial parent is not typically required to pay child support because he or she meets his support obligation through the custody itself. When parents are awarded joint physical custody, their support obligations are based on how much money each parent earns and the percentage of time the child spends with each parent.
For more information on child support, click here.
9. Where should I file the petition to change a name?
The 33rd Judicial District Court Clerk of Court’s office is located at 400 West 6th Avenue in Oberlin, on the first floor of the courthouse. The office is open 8:00am-4:30pm, and accepts both cash and checks. For more information, including fees, you can call 337-639-4351. Please note that the Clerk of Court does not “notarize” documents, and you may need to visit a Notary Public beforehand.
10. What if I cannot afford to pay the filing fee?
Article 5181 of the Louisiana Code of Civil Procedure provides: “an individual who is unable to pay the costs of court because of his poverty and lack of means may prosecute or defend a judicial proceeding in any trial or appellate court without paying the costs in advance or as they accrue or furnishing security therefore.”
If you cannot afford the filing fee, then you can file an affidavit with the court to proceed in forma pauperis (IFP). Not only must you swear and prove to the court that you cannot afford to pay the filing fees, but you will also need a witness who knows you to swear to the court that you can’t afford to pay the filing fees. The Louisiana Supreme Court provides an IFP affidavit for use in the district courts. If allowed to proceed IFP, you will not have to pay the filing fees in advance. The fees will be assessed by the judge at the end of the case though, and if you lose your case the court may assess the fees to you.
NOTE THAT AN APPROVED IFP APPLICATION DOES NOT MEAN YOU WILL NEVER HAVE TO PAY THE FEES.
An approved IFP application means that your case can move forward before you pay the fees, but that you will still have to pay court fees at a later date.
If you have little or no income, it is likely that you qualify for either a no-fee or low-fee attorney from one of the legal aid organizations in the state. Please click here for more information