Divorce Attorney Explanations: Sole Custody

Both parents usually have a say in the upbringing their child. Don’t get bullied by the other parent into thinking otherwise. If you need a divorce attorney for this issue, contact one who strives to inform clients on issues of law that may not be illuminated in the public light. This article seeks to extract such laws and bring them to the public forefront for everyone’s knowledge.

When discussing child custody, it is often assumed that the domiciliary parent has sole authority in determining the child’s upbringing. In D.R.S v. L.E.K 33 So.3d 428 (La. App. 3 Cir. 2010), the Louisiana Court of Appeal for the Third Circuit addresses this issue. In that case, the father filed a petition to determine paternity then subsequently filed a motion and order for rule of contempt and a motion for sole custody of the child. There were two central issues the court addressed, one of which was the trial court’s ruling that the mother of the child will have exclusive authority in determining the child’s religious upbringing. Id. at 433. Additionally, the appellate court reviewed the trial court’s ruling that the mother showed by clear and convincing evidencing that it is in the best interest of the child that she be awarded sole custody.

We will discuss both issues from the perspective of a divorce attorney. We will begin by examining the latter. In Louisiana, there is a presumption in favor of joint custody when determining child custody. In addition to this strenuous presumption, the burden of proof for a parent seeking sole custody is as significantly high. Specifically, a parent and/or the divorce attorney must show by clear and convincing evidence that it is in the best interest of the child for that parent to be awarded sole custody. The clear and convincing standard of proof requires more evidence than simply preponderance, but less evidence than that of beyond reasonable doubt.

In this case, the Third Circuit reviewed the trial court proceedings and determined that the lower court erred in awarding the mother sole custody of the child. The Court determined that both sides engaged in ‘vindictive behavior’, but the mother was more culpable of the two. Id. at 432. But perhaps the more important issue of why the appellate court reversed the trial court is that the trial court did not address why it would be in the best interest of the child for the mother to be awarded sole custody. Id. 432.

The Louisiana Civil Code expressly focuses the inquiry of custody on sole custody. Hence, in order to seek sole custody, a divorce attorney and/or the party must rebut the presumption of joint custody by making a showing by clear and convincing evidence that one parent should be awarded sole custody. See La. C. C. Art. 132. The appellate court held that the evidence did not sustain the trial court’s award. L.E.K. 33 So.3d at 432.

Lastly, the appellate court felt it necessary to address the trial court’s ruling granting the mother exclusive authority in determining the child’s religious upbringing. Id. at 433. The appellate court reversed the trial court’s ruling citing the Louisiana Children’s Code. Louisiana Children’s Code Article 116 (24) makes clearly that included in a parent’s residual rights is the right to determine religious affiliation. This means that both parents have a say in determining a child’s upbringing, including his religious direction. Hence, the trial court’s ruling was in direct violation of Louisiana Children’s Code Article 116 (24).

So what can we learn from this case? If you are seeking to be awarded sole custody of your child, you and/or your divorce attorney better be prepared to rebut the presumption of joint custody by showing by clear and convincing evidence that it is in the child’s best interest for you to be awarded sole custody.

The above is simply information on the law, not legal advice. Will Beaumont is an attorney in New Orleans, La.