In Louisiana, the law is clear regarding married spouses when they get a divorce as to who has rights to a child and who gets paid child support.

But what happens if mommy and daddy were never married?  And what happens if mommy gets a new boyfriend who raises the child?  Under these situations, the law gets a bit muddy.

Assuming for a moment that mommy and daddy, who never get married, have two kids and then split up, who gets custody?  The answer is “it depends.”  In the best interests of the child, the court will look at several factors to determine which party should be given custody and what restrictions (if any) should apply.

Joint custody is the most common form of custody where one parent has “domiciliary custody” and the other parent gets “visitation.”

Everyone knows at least one horror story of a court awarding custody to one parent who later abuses that power and authority or uses the children as weapons to hurt the other parent.  In Louisiana the Legislature has actively attempted to remove any sex based preference so that Moms no longer automatically get custody with dads forced to pay child support and get the legendary “every other weekend” visitation.  However, the Courts have been slow to adopt such a progressive attitude and, generally speaking, moms still get domiciliary custody more often than fathers and dads are still forced into the “every other weekend” routine.

Why? Because the factors that are analyzed seem heavily weighted to which parent can put in the most time with the child during the day.  So, a dad who works from 7am to 3pm is, in our experience, more likely to get custody of the child than the dad who works from 1pm to 9pm.  However, if mom is unemployed, she can spend all day with the kids, and thus her chances of getting domiciliary custody of the child is greater than Dads!  Even is she is unemployed by choice and fully capable of getting a job!

Interestingly, even where both Mom and Dad work the same shift, the court has, in our experience, continued to give mom domiciliary custody and forced dad into an every other weekend routine.

But…what happens if mom gets a NEW boyfriend and HE raises the child, and then mom and new boyfriend break up?  Does the new boyfriend have a right to custody or visitation?  The answer is…generally…NO.  While there is always a chance that, under unusual circumstances, the court will grant the new boyfriend some level of visitation, the Court has routinely stated that decisions of a biological parent will be assumed to be in the best interests of the child and, absent evidence to the contrary, will stand.

Of course the good news for the new boyfriend, is that he likely will not be required to pay child support.

Louisiana courts can rule for different types of custody besides just “joint” custody.  In Louisiana, there is also “Shared” custody, “Split” custody, and of course “Sole” Custody.

Shared custody is where parents have the children 1/2 the time.  This can be implemented with a “Week on – Week off” plan or something similar where mom and dad alternate what week they have the kids.  This plan is especially effective when both parents are getting along, live pretty close to the kids’ school and have similar schedules.

Split custody is where there are two or more kids and one child lives with mom and one child lives with dad.  Generally, this is seen more often in households where the children are teenagers and can make choices regarding which parent they want to stay with.  Indeed, one particular case, Wages v. Wages, the Court decided that 15 year old child could decide which parent he wanted to live with. They said, “In a case such as this, where the parents are equally balanced vis a vis the factors set forth in article 134, the preference of a mature and grounded teenager such as Jon is certainly entitled to great weight.”

Sole custody is exactly what it sounds like…one parent has all the rights to the child and the other parent has no choice or voice in the upbringing of the child.  Sole custody is generally NOT in the best interests of the child and the court will harshly analyze any parent who alleges they should have sole custody.  If you are going to demand sole custody…make sure you have PROOF of serious damage to the child from the other parent or a great reason why that parent should not have access to the child.  This office has never witnessed a grant of Sole custody that wasn’t accompanied by substantial amounts of evidence.

The importance of which type of custody is put into place is important because it goes along with child support.

Sole and Joint custody versus Split and Shared custody have very different calculations for child support and can mean the difference of thousands of dollars in cash payments made from one parent to the other.


For More Information on Family Law Contact New Orleans Divorce Lawyer Harold E. Weiser III today.