In order to protect children after divorce, Jefferson Parish required that divorcing couples with children attend counseling. The legality of this requirement was fairly weak. In the last few months, this requirement has been removed.
Social workers state that it is important for divorcing parents with children to go through counseling so that they are able to help their children through divorces. Judges in Jefferson Parish,
Louisiana, therefore, mandated counseling for all parents with children prior to them issuing a judgment of divorce.
Louisiana law (the code and jurisprudence) says nothing about such counseling being a requirement. The law states that a divorce shall be granted so long as the parties have lived separate and apart without reconciliation for the requisite period of time. Further, Louisiana’s jurisprudence has held that a court cannot make divorces contingent upon such counseling. This means that if a child custody determination has already been established, a court cannot mandate the completion of such counseling in order to get divorced.
There is a narrow loophole in the law, however, because there is nothing prohibiting a court from withholding a child custody determination pending the completion of such a counseling program. Apparently realizing this, Jefferson Parish felt sufficiently empowered to mandate this counseling contingent to a child custody judgment and not necessarily the divorce judgment.
This was problematic and unfair for two reasons. The first was that the Jefferson Parish Court did not enforce this counseling for couples who had never been married. The second reason was that this practice also went against the spirit of Louisiana’s divorce laws, if not a technical violation of the law.
Jefferson Parish is not alone in attempting to put its own rules on divorce. The difference, though, between what Jefferson Parish did with counseling and other parishes is that the other parishes simply put more evidentiary burdens to establish that a couple has indeed been living separate and apart continuously and without reconciliation for the requisite period of time. For instance, Orleans Parish requires an affidavit by one of the parties attesting to the separation, and Lafourche Parish sometimes requires two witnesses to testify.
Jefferson Parish would have had better legal justification had it been able to figure out a way to use the counseling as a way of establishing as evidence that the parties in fact desired to be divorced and that they had been living separate and apart long enough. The problem with using this legal jujitsu is that such a justification is far different from the reasoning behind the counseling which was better to protect children of divorces.
The non-legal reasoning was excellent, however, behind what Jefferson Parish was attempting to do. It is hard to imagine that anyone would be opposed to divorcing couples with children being opposed to getting counseling. Divorces can often be tremendously traumatic experiences, and it is not uncommon to hear people compare divorces with a death. Moreover, the counseling was hardly onerous, as it was simply one session, costing around twenty dollars.
Jefferson Parish did not make an official announcement that it was ending the practice, but it is easy to imagine that the threat of a suit could have provided the impetus to reevaluate ordering divorcing couples with children to have counseling. In the end, a practice of questionable validity, but good intentions, was scrapped.
The above material is intended for information purposes only. It is not intended as professional legal advice and should not be construed as such. Attorney Will Beaumont practices in New Orleans, La.
