How the Child’s Preference Could Affect the Argument by a Divorce Lawyer for a Non-Parent

Family courts across the country typically consider the best interests of the child when awarding custody in family law situations.  Louisiana is in this way not different.  That said, in Louisiana there are Civil Code articles that directly provide the court and a divorce lawyer with guidance on this task.

Article 136 is such a code article.  It deals with considering the best interests of the child when awarding parents and non-parents visitation rights to that child, when they do not have custodial rights.  In the case of non-parents, there must be “extraordinary circumstances” to permit a court to consider granting these individuals visitation rights.  Additionally, there are a handful of factors for a divorce lawyer to consider.

One such factor is (3), which states that “The preference of the child if he is determined to be of sufficient maturity to express a preference.”  This factor is important for a divorce lawyer because, if a court is trying to find out what is in the best interests of the child, and the child is of sufficient age and ability to explain his or her interests, than a court would be well-served by asking them their opinion!

Let’s use an example.  Say Angela is the only child and daughter of Mike and Stephanie.  Mike and Stephanie legally end their marriage, and shortly thereafter Mike dies in a car accident.

Before Mike died, he and his daughter would go his mother’s (Angela’s grandmother’s) house.  Angela’s grandmother and she were very close as a result.   Also, Angela’s grandmother is an immigrant, and she has preserved in her home the culture of her country of origin.  Her son Mike always thought that this culture would be good for Angela to experience growing up.  In fact, Angela’s trips to her grandmother’s house over the years made Angela capable of speaking another language.

After Mike’s death, let’s say that Stephanie did not want Angela going to her grandmothers any more.  She feels like it will only remind Angela of her father’s unfortunate death, and that it will depress her.  Also Stephanie is not of the same ethnicity of Mike or Mike’s mother, and she does believe Angela is better served by visiting her grandmother for cultural exchange.

If a divorce lawyer attempts to secure visitation rights to for Angela’s grandmother, a court may ask Angela her opinion.  Based on this example, we would assume that Angela would tell a court that she enjoys spending time with her grandmother, that she has taught her a lot, and that she would really like to continue seeing her in the future.  Let’s say that Angela tells the court, if it were up to her, she would like to see her grandmother as often or more than she has in the past.

If this is the case, a court would probably consider heavily permitting Angela’s grandmother to have visitation rights over the objection of Angela’s mother.  This would not at all mean that Angela’s grandmother would have custody of the child, but that only she is allowed reasonable time with her granddaughter like she has had in the past.

This article is written with the sole intention of providing information.  It is not legal advice.  Will Beaumont is a divorce lawyer in New Orleans, La.