Non-Parents Custody Rights after Divorce

There are a large number of factors for a Louisiana family court to consider after divorce when they are contemplating awarding child custody and visitation rights to one or both parents.  Many of those considerations stem from what is written in the Louisiana Civil Code.  The Code possesses dozens of sections that describe the manner and methods for a court to come to a fair conclusion about what is in the best interests of the child.

One of these interesting Code articles is article 136, and specifically 136(B) (2).  Article 136(B) acknowledges that there may be “extraordinary circumstances” wherein a court will consider awarding a non-parent visitation rights subsequent to a divorce.  The code uses the word “extraordinary” because it is hesitant to allow the courts to just give visitation rights to anyone.  If someone other than the parent is to get legal visitation rights, there needs to be a compelling reason to effectuate that.

Article 136 (B)(2) asks a question about the non-parent relative who is applying for visitation.  Specially it asks “whether the child is in need of guidance, enlightenment, or tutelage which can best be provided by the relative.”

Let’s use for an example a child named Jack.  Jack’s mother and father divorce when Jack is 15.  His father dies shortly thereafter.  In a subsequent child custody hearing, the mother is granted sole custody of the child, and no one is awarded visitation rights. 

Now let us say that Jack’s father’s father, his grandfather, wants to have some visitation rights for Jack.  The grandfather believes that this would be in the best interests of Jack for a few different reasons.  Number one, Jack’s deceased father was a very avid outdoorsman, and it was a hobby that Jack himself had grown to love as he got older.  Before Jack’s father died, Jack and his grandfather went hunting and fishing at least once a month.  Every time they went they stayed at Jack’s grandfather’s cabin in the woods.  The three generations of father and son had many productive, loving, and positively developmental experiences together.

A court very well may give Jack’s grandfather some visitation rights in this scenario, even with no divorce because of the death of the grandfather’s son.  The grandfather clearly has been providing Jack with guidance and tutelage for Jack’s young adult life.  Furthermore, Jack and his grandfather share a family ritual that Jack’s surviving parent, his mother, most likely does not share like Jack’s father once did.  Also, since a court has to always consider the “best interests of the child” it would have to consider the fact that Jack would not be able to as regularly pursue his hobbies of hunting and fishing if he is not allowed to go to his grandfather’s cabin like he used to. 

Oftentimes arrangements like these can be worked out amicably without the court’s involvement.  For example, Jack’s mother very well may like that Jack goes to spend time with his grandfather once a month.  However, in the event that she does not, and she disallows Jack to even see his grandfather, than the grandfather may have a chance to overrule her determination as custodial parent, and his opportunity to do so would be in a Louisiana family court.

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