Making sure that your child is not having visitation with someone who is prohibited by Article 137 can be important. This article seeks to give more of an understanding of this.
When considering which parent should get custody of the child, Louisiana family courts can look to a number of different sources of authority. Many of the rules and regulations on this issue can be found in Louisiana Civil Code articles. The article which this essay concerns is Article 137. The title of Article 137 reads: “Denial of visitation; felony rape; death of a parent.”
One simple outcome of Article 137 is that a divorce attorney can urge a court that a parent who engages in the criminal act of rape, and thereafter produces a child, shall not have any rights vis a vis that child’s custody. To put it another way, let’s say that Parent A and Parent B cross paths in a dark alley, and Parent A rapes Parent B. Parent B later gives birth to a child. Because the crime of rape is so reprehensible, a family court can and most likely will refuse to give Parent A any rights whatsoever to see the child.
This probably seems like a fair and just outcome to most people. Article 137 deals with another situation where one parent may be precluded from ever seeing their child based on maleficent acts.
If Parent A and Parent B have a child, and then, five years later, they hire a divorce attorney to end the marriage. In the course of the divorce proceedings, Parent B dies mysteriously. The death is deemed a murder by the local police, and the DA’s office in that parish prosecutes Parent A for the murder of Parent B. It is then determined in a separate criminal trial that Parent A is in fact guilty of the murder.
If a family court is considering awarding custody to the surviving parent in this case, Article 137 makes it all but impossible for that parent to gain custody, and article 137 specifically as much. A divorce attorney could also seek to have that parent’s rights terminated pursuant to a code article in Louisiana’s Children Code.
In our previous hypothetical, Parent B was convicted beyond a reasonable doubt of being guilty of the crime of murder of Parent A. This standard of proof is a higher standard than that required by article 137, and so a court will not grant custody. It should be noted however, that the standard of proof in article 137 is actually lower than that of a criminal trial; it is the “by the preponderance of the evidence” standard. This means that there could be a situation where the surviving parent is not in fact found guilty in a criminal proceeding for causing the murder of the other parent, but who will nonetheless not get custody of the child or children.
This way, a family court can ascertain whether or not a surviving parent should get custody without having to wait for a criminal case to be brought. This facilitates the speedy placement of the child into a loving and safe home. Many times, this can take place in anticipation of a criminal trial.
This article is written with the sole intention of providing information. It is not legal advice. Will Beaumont is a divorce attorney in New Orleans.
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