Grandparents rights in Louisiana

As everywhere, grandparents rights in Louisiana are a complicated and tangled affair. I’ll do my best to explain the current situation. More information on grandparents rights in general and an explanation of many of these terms and legal concepts can be found on my website Caring Grandparents and in my book No Greater Loss.

About 30% of adults in the U.S. are grandparents, and the number of children living with their grandparents has markedly increased in the last 20 years – by as much as 50%. The 2010 census for Louisiana indicated that about 11% of children live with a grandparent – the 3^rd highest percentage in the U.S.

Civil Code Article 133 states the following:

If an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment.

Notice, this is not strictly or initially a “best interest” standard – in this instance, there has to be evidence of “substantial harm”. Article 134 does outline 12 factors that are useful in determining the child’s “best interest”, but this applies to disputes between parents.

The phrase “substantial harm” has been used interchangeably with the phrase “detrimental to the child.” Courts have held that substantial harm includes “parental unfitness, neglect, abuse, abandonment of rights and is broad enough to include ‘any other circumstances, such as prolonged separation of the child from its natural parents, that would cause the child to suffer substantial harm.”

When the conflict over custody is between a parent and a non-parent, the courts have held that the parent has the paramount right to custody and the only way to deprive the parent of that right is for “compelling reasons”.

The burden of proof is on the non-parent to show that granting custody to the parent would be detrimental to the child (result in substantial harm). If that burden is met, then the non-parent is required to prove that joint or sole custody to the non-parent is in the best interest of the child.  In other words, it is a “two-pronged test.”

First, the non-parent has to prove there has been substantial harm, then the non-parent has to prove that the requested circumstance services the child’s best interest. Louisiana law addresses the possible award of visitation rights to non-parents in Civil Code Article 136-B.

In this case, the law allows that “under extraordinary circumstances”, a relative (broadly defined) that is not granted custody may be granted “reasonable visitation rights” if the court finds that these rights would be in the child’s best interest.

The law is helpful here in outlining the following factors that the court is instructed to consider in determining best interest in this case. Please be aware that these factors are somewhat different than those applied in a custody dispute between parents:

• The length and quality of the prior relationship between the child and the relative
• Whether the child is in need of guidance, enlightenment, or tutelage which can best be provided by the relative.
• The preference of the child if he is determined to be of sufficient maturity to express a preference
• The willingness of the relative to encourage a close relationship between the child and his parent or parents.
• The mental and physical health of the child and the relative.

The phrase “extraordinary circumstances” usually includes the death of a parent, the interdiction of a parent, the incarceration of one parent, or “when a parent is addicted to a controlled dangerous substance.”

These Louisiana grandparents rights are all subject to change due to court and legislative moves.