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Child Custody

Original air date: September 25, 2012

Interview with Prof. Bobby Harges about Louisiana’s Child Custody Laws

Answering Viewer Questions about Child Custody with Prof. Bobby Harges

Professor Bobby Hughes discusses the processes and the different approaches used to resolve conflict in child custody cases in St. Tammany, Jefferson, and Orleans parishes.

The cheapest, and perhaps best way, to resolve child custody disputes is to have both parents negotiate their differences, write a signed contract, and bring the contract before the court. This contract will then become a consent decree that is legally binding to both parents.

A slightly more costly way is to use the process of mediation. The average cost of mediation is between $1,000 and $2,500 dollars. Mediation is a process in which parties agree to negotiate their differences with an individual trained in resolving disputes. This person is trained in law or mental health and is a licensed family law mediator. This person has undergone at least 40 hours of practice to obtain this qualification. The mediator will help to determine what is in the best condition of the child by using the same factors that the court does. These factors are those such as the ability to provide a stable environment, the ability to provide a loving relationship, the ability to provide financial support, and the ability to educate. Similar to an individual dispute resolution, the agreement is brought forth to the court and is entered as a consent decree. Again, this consent decree is legally binding.

The most costly, and perhaps most difficult scenario, is litigation before the court. The average litigated divorce is $40,000. Each parent pays approximately $20,000. The court will determine what is in the best interest of the child. Factors that court should not, under law, taken into consideration are factors such as race or sexual orientation.

All parishes in Louisiana operate under the same law. However, the procedure differs from parish to parish. St. Tammany parish uses three types of individuals in addition to judges. The first group is hearing officers who are experienced lawyers who sit as court employees. The second group is licensed social workers who serve as parenting coordinators and mediators. The third group is private mediators. Jefferson parish uses 4 hearing officers and 2 domestic commissioners in addition to judges. Orleans parish uses only 3 judges in family law but is exploring using mediators because their method has been so beneficial in the other two parishes.

Q1. Does a woman automatically receive custody of her child?

A1. No, a women does not automatically receive custody of her child. This question may make reference to the Tender Years Doctrine, a law no longer in effect, which stipulated that a mother de facto received custody of her child if the child in question was 5 years old or younger. Furthermore, Article 134 of the Civil Code explains that 12 factors such as love emotion and other ties, ability to educatie, physical distance between the parents, and preference of child if the court deems that the age of the child is sufficient determine the best interest of the child and, therefore, custody arrangements.

Q2.My ex is not following the orders in our custody agreement. Do I have to pay for the cost for the court to enforce it?

A2. The answer depends on the method which you take to resolve this dispute, your income, and the income of your ex. First, you could resort to mediation if both you and your ex are willing to negotiate. Then you would need to bring the new agreement to court and remember that it is legally binding. You and your spouse would agree to pay the fees of the mediator and of the court. If your income were to be llow, you may contact a pro-bono mediator who will do the job for no fee or little fee. You may find one through the Loyola Law Clinic or Pro-Bono Project. Secondly, you could resort to a lawyer and file a motion that the custody agreement be enforced. However, this process is extremely expensive. Again, you could resort to a pro-bono lawyer if your income is low. Last, you could hire a lawyer, file a motion for enforcement, and a sanction that your ex pay all fees. However, your ex may not be able to pay for the fees if his income is insufficient.

Q3. Does it hurt my case if I left my husband but let my kids stay with him? I stayed with my mom and left my children with him because there was no room for them.

A3. No. The court may actually see that this action was best for the children at the time.

Q4. What can I do if I receive a judgement that I think is unfair and biased?

A4. First, speak with your lawyer and obtain his opinion. If he agrees with you, appeal the decision or go to the judiciary committee.

The Top Three Things To Remember about Child Custody

1. Remember this question: “What is in the best interest in the child?”

2. It is best to hire court certified mediator for both matters of time and cost.

3. Child custody court procedures vary by parish.

Professor Buddy Hughes’s Lagniappe: if you have a dispute with your significant other, try to work it out yourselves.

Visit our episode archive to view our informative episode about child custody.

Custody and visitation disputes may arise in a variety of family law matters, including:

  • Divorce
  • Paternity actions
  • Custody modifications
  • Visitation modifications
  • Parental relocation disputes

During our episode about child custody we talked with special guest Bobby Harges, professor of law at Loyola University. Professor Harges talked about the high cost of divorce litigation and contested child custody battles. He noted the high percentage of parents who do not have legal representation during a divorce.

One method for reducing legal costs that has gained favor in recent years is mediation. A mediator is a neutral party. The mediator does not represent either party or offer legal advice, but the mediator can help facilitate resolutions to custody and visitation disputes. Mediation has enabled many parents to avoid protracted litigation, thus minimizing the emotional and financial costs of custody disputes.

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