In an attempt to make the best interests of the child a more tangible and objective concept, the Louisiana legislature has crafted a series of factors or criteria by which a judge may analyze a family law scenario and come to a determination about where to award custody of the child.  As previously noted, all of these factors are written with the spirit of “the best interests of the child” coursing through their legal veins.

One common factor involves the scholastic, personal, and community history of the child.  I think it is fairly easy to see how this factor could be of great importance when determining the best interests of the child.  If a young boy or girl has a great deal of friendships, school ties, or other social networks that they have been building up for many years, it simple would not square with justice to have them uprooted and placed with a parent who lives far away.

Yet another factor involves the mental and physical fitness of each parent who is asking for custody of the child.  Sometimes we may see a scenario in which one parent simply does not have the mental or physical tools to deal with a young person living in the home.  For example, there was a case a while back wherein the parent had just been involved in a vicious tractor trailer accident which rendered them nearly immobile.  That parent then got involved in a custody battle for his five children.  Each of the children was under ten years of age.  As you probably can imagine, a court would be hard-pressed to find that a man who had difficulty taking care of himself was in a good condition to care for five small children.

While sometimes the results may sound or appear to be harsh, remember that the best interests of the child are being served.  In that last example, it really would not be as safe or productive for those small kids to be living with a parent who could not attend to them in an emergency.  To take another example, let’s say that a parent is involved in an accident and as a result, their mental capacity is significantly diminished.  Would it be in the best interests of the child to ask that parent to take care of the child as though there were nothing wrong with them?  Of course, many people would agree that a parent needs to be mentally fit to raise the child.  If they are not, then their custody of the child should be reduced accordingly.

One very general and common mistake which I see couples making is failing to live separate and apart for the requisite time period under Louisiana law.  Depending on whether or not there are children from the marriage or not, a spouse who desires to be divorced must live ‘separate and apart’ from the other spouse for a period of either six months or a full year.  There are a couple different reasons for this, and I have went into those reasons in other articles.  Suffice to say that the politicians here in Louisiana want couples to think long and hard about getting divorced (albeit in different abodes!)

If you do not have children in the marriage, than you only need to live separate and apart for six months.  Sometimes this may be easier said than done.  Many times the spouses in a marriage may still long for each other physically and mentally, and in a very big way.  One must remember that if you give in to these urges and resume living with your spouse, than the period of time which you must wait before getting a divorce will have to start all over again.  When a couple has made it apparent that they are trying to live with one another again, courts in Louisiana consider this an act of “reconciliation.”

That said, keep in mind that going out for a drink with your soon to be ex-husband or ex-wife does not necessarily mean that the time limits will have to restart.  Similarly, going to visit them at their home, meeting them for dinner, or talking to them on the phone are all examples of things which probably would not trigger the aforesaid “reconciliation” provision.   If the court is going to find reconciliation took place, they will have to see something clearly more substantial at work between the two spouses.  For example, if one spouse moves back in with the other spouse for an extended period of time.  Another example might be if the two spouses stop living separate and apart in order to go on a trip to Paris France for a month and a half.  In these examples we see a sustained, explicit, and intentional act and intent which signifies the desire to still be with the other spouse for an extended period of time.

One of the most common things which may cause conflicts between spouses in a divorce and which you may prepare yourself before a divorce is to whom the children should go.  When a court awards custody or visitation to one parent or another or both, the court will likely consider a number of factors.  If you are thinking about ending your marriage, it may be a good idea to reflect upon how a court award of custody or visitation may affect your ability to see them and to spend time with them and to support them going forward into the future.

Yet another big consideration which a spouse contemplating ending their marriage may engage in with their divorce lawyer is one regarding personal finances.  In many marital arrangements, the spouses learn to depend on one another to a certain extent financial.  This is of course natural as the spouses are working together as a team to promote their family.  In other words, in some marriages the spouses are able to spend more money and live more lavishly because their personal is buttressed by the income or other earnings of their spouse. Projecting one’s future financial situation without the benefit of having another spouse’s additionally income is imperative before getting a divorce.   While this is true of a relationship whereby the parties are not married yet living and relying upon each other, it is often the case that when parties are married they are significantly more reliant upon the other.

If you take only one single thing away from the information provided herein, hopefully it is that a plan should be thought of prior to deciding to end the marriage.  This is a consequential decision that should not be taken lightly.  One caveat: if there is a domestic violence, there is no time to think of such a plan and assistance should be obtained a soon as possible.

But, having said that, making the financial and familial decisions ahead of time hardly seems not to be something that is both in your, your spouse’s, and your family’s best interests.  This is so because prior to engaging the court system, it is often easier and quicker if the former spouse’s understand and have a plan for how to move forward.

It is generally thought by a divorce attorney that community property terminates retroactively to the filing of a petition to end the marriage.  In other words, when the clerk accepts the petition for divorce, the community often terminates retroactively to that date, pursuant to Article 159.

There are a number of different types of divorces in the state of Louisiana.  The two most common are the types of divorces derived from Louisiana Civil Code 103.1 and 102.  These articles provide for an immediate end to your marriage by a divorce attorney or in proper person or pro se, upon the parties living separate for the requisite periods of time depending on whether there are children born of the marriage or not, or allow for the filing pending the requisite time having been met.

It can be important that community property terminate prior to the actual marriage terminating, hence the necessity of there being a provision in the law making the determination of the community property between married persons being retroactive to the date of filing for the divorce (please note that this does not mean that you can file to end your marriage and then many years later actually end the marriage and think that the community property did terminate several years prior.)

The policy behind this and what may help explain this policy further is that many times when a divorce attorney or spouse is trying to end their marriage that it can be adversarial between the spouses.  While it is unfortunate that such adversary is oftentimes taken out on the children of the marriage, it is also possible to have the community harmed by one of the spouses simply because of the filing to end the marriage.  While child custody is often dealt with summarily and quickly, community property divisions when done through the court systems in Louisiana, can be time consuming.

In short, the community property between the spouses ends when a petition to end the marriage is filed with a court of competent jurisdiction.  This is so even when the marriage does not end immediately.  As a side note, there can often be injunctions put into place by your divorce attorney or even on your own, with the court’s approval, ensuring, in part, that the community property is not alienated, however this does not terminate in and of itself community property, and so therefore there could be some incentive on one spouse to prolong a marriage for no other reason than economic gain.

This is probably a pretty obvious alternative for a court to consider when looking at where to award custody of a child.  Remember though, sometimes the testimony of a child cannot be relied on because, well, they’re a child!  Generally a court in Louisiana will not give the preference of a child much weight unless the child is at least fourteen years old.  This appears to be the threshold at which a court is willing to take the kid at their word.

This makes some sense too.  Remember that children are going through a multitude of emotional and physical changes as they grow older.  Sometimes this also includes a change in allegiances between one parent and the other.  Perhaps a daughter is very close with her mother from ages six to 12, but then decides that her father is cooler parent up until she turns sixteen.  Taking the testimony of a child in a custody matter can be a crap shoot for this very reason.  Also, the testimony of a very young child can be very unreliable for a whole host of other reasons.  Perhaps one of the parents committed some paltry offense that made his or her six year old hate her for the afternoon!

That said, if a child is “of age” and they have a convincing and compelling story as to why they would choose one parent over the other, you can bet that a court will likely consider this heavily.  In fact, one might argue that in the interests of compelling evidence the contrary, a court could hold the child’s opinion in higher regard than almost all other evidence.  This is because the overall duty of the Louisiana court system in these situations is to look out for “the best interests of the child.”  Many times the best interests of the child can be determined by asking the child him or herself.

If you find yourself in a custody battle, you should remember that these issues are not normally very black and white.  Typically there is more at issue than simply the opinion of the child.  To improve your chances of obtaining a result which you find favorable, consult with a trained Louisiana family lawyer.

Community property in Louisiana can sometimes lead to results that a New Orleans divorce lawyer may be able to predict.  Many of the things earned or bought—assuming they were purchased with community funds—will end up being community property.  This in turn will mean that the spouses will have equal ownership rights over the property.

Many times community property is “divided” by a divorce lawyer while the divorce is pending, while the actual value of the property has yet to be liquidated or dispersed.  This can mean that the spouses are still in possession of things which, technically, half of which belongs to the other spouse.  It is important to remember that because the other spouse will have a half ownership interest in a piece of community property, a spouse has a duty to make sure that that property is maintained in a reasonable manner—no matter how contentious the divorce may be.

Let’s use an example.  Let’s say David hired a divorce lawyer.  To meet the requirements of living separate and apart prior to divorce, Brenda moves out of the family home and into an apartment.  The family home is a house on Canal Street in New Orleans.  It was purchased after David and Brenda were married, and the source of funds to purchase the home was the incomes which the couples had received while working during the marriage.  Assuming no other complications, a divorce lawyer in New Orleans may probably consider it community property.

Now let’s say that while living separate and apart, Brenda starts dating a new guy.  David finds out and is absolutely furious.  One night he gets drunk and depressed at the house he used to share with Brenda.  He is so angry that he goes into the garage and grabs an axe, and proceeds to start hacking away at the inside of the house.  Over the course of the next three days, David does just about as much damage to that house as one man can do with an axe in three days.

Remember, David has a responsibility to maintain the house as community property, because half of its value belongs to Brenda.  Under Louisiana Civil Code article 2369.3, David can be held liable for any damage to the community property caused by his fault or neglect.  Because of the egregious damage he caused with the axe, it is probably likely that Brenda can have him found liable for damage caused to the value of her half of the community property.

Overall, there are four different types of tutorships in Louisiana: natural tutorship, tutorship by will, dative tutorship, and tutorship by the effect of law.  For the purposes of this article, we will only be discussing the last two: dative tutorship and tutorship by the effect of law.

Tutorship by the effect of law occurs when both of the child’s or children’s parents have passed away.  Additionally, it also requires that neither of the parents had stipulated in their will as to the tutorship of their child.  If they did in fact stipulate to that, then that is a tutorship by will and the child will probably end up with the person named by the deceased parent in their testament.

If the above circumstances do occur however, a court will most likely attempt to place the child with a tutor “by the effect of law.”  This means that the court will look to other relatives who might be qualified to act as the tutor for the child.  As you might imagine, likely candidates include grandparents, aunts and uncles, and even older (adult) siblings of the child.  There is a vetting process however, and there is no exact formula or computation that a court will make in deciding this point; it will generally consider the best interests of the child.

In the event that no tutor is named in the will and there are no available relatives to act as a tutor, then the last recourse of a court is to perform a dative tutorship.  This means that people other than the relatives of the child or children are now eligible to become the child or children’s tutor.  Again, a court will evaluate each candidate accordingly.  People are not just chosen at random; normally in this unfortunate event family friends and other potential tutors will come forward and suggest their candidacy to the court.

In addition to caring for the child, a tutor (whether dative or by the effect of law) may also be tasked with maintaining any inheritance that the child may have received as a result of the death of his or her parents.  Assuming that the will does not stipulate otherwise, the tutor will only have control over that inheritance until the child reaches the age of majority (18).  After that, the child will take possession of their inheritance entirely.

One type of tutorship in Louisiana is called “natural tutorship.” This refers to the situation where one parent dies. The tutorship is said to be “natural” because the rights and responsibilities flow naturally from the course of events. If one parent dies, the other parent becomes the tutor.
Another type of tutorship is called “tutorship by will.” This type of tutorship is conferred by a last will and testament of a parent. That parent may have thought about the possibility of dying, and decided to name a tutor for their child in their will in case. It is important to note that a surviving parent will become the natural tutor if there is surviving parent.

So what does a tutor do exactly? In a lot of ways, the same thing a parent would do (if it is in fact not the actual parent.) For example, let’s say that the last surviving parent dies, and leaves a provision in their will that the tutor of their child or children is to be their sister, the child or children’s aunt. Assuming that the aunt is not disqualified for some reason, she will then be charged with caring for the child. If the child is left with an inheritance, and the dispersal of that inheritance is not specifically provided for in the will, than the aunt will also be charged with administering that money or property to the child until the child reaches an age of majority.

Tutorships can be an important mechanism in ensuring that one’s children end up in a loving and caring environment should the parents die. If someone is drawing up a will, and they have children, it may be wise to insert a provision pertaining to a tutorship. If they do not, and there is no other surviving parent, then the court may affix a tutor according to the existence of other family members, or, if there are no qualified family members, according to the best interests of the child, as far as that is possible.

This article is informational, not legal advice.

The interdiction process is designed to give people who are no longer capable of making reasonable decisions about their well-being a chance to live life nonetheless. If that person is shown to be fully functional again, they may be able to petition a court to proclaim them no longer interdicted, and to get their rights back.

The authority to do so comes from Louisiana Civil Code article 379, which reads: “The court may modify or terminate a judgment of interdiction for good cause. Interdiction terminates upon death of the interdict or by judgment of the court.”

It is important to consider that, in Louisiana, there are two different types of interdiction: full interdiction and limited interdiction. This article will deal with their similarities and differences through the use of illustrative examples. As the reader can probably already tell from the two names, one type of interdiction involves the interdict giving up all their personal and property rights, and the other only involves a limited divestment of those same rights.

Take for example Terry. Terry was in a very serious car accident, and unfortunately she went into a coma. The coma lasted three months, and when she came out of it, she was in a vegetative state. Unable to communicate her wishes, Terry also seemed to manifest little to no reaction to the actions of others trying to communicate with her. Doctors project that Terry will be in this vegetative state for the remainder of her life. In this case, Terry’s family would be best served (and so would Terry for that matter) in moving to make her fully interdicted. This of course would mean that all Terry’s property rights, along with any personal rights divestible, would be given to a trusted family member or caretaker (called at law a “curator.”) This would clearly be the best option for all concerned, because Terry is incapable of acting out the basic requirements to life.

Now let’s say there is another person named Mark. Mark was born with a rare mental handicap. This handicap only allowed his brain to grow and develop to the intellectual equivalent of a thirteen year old. While Mark is able to hold a job at the local hardware store sweeping floors, he finds many of life’s basic challenges difficult. For example, Mark receives a monthly disability check for his illness, which is supposed to be spent towards medications and other medical care that prevents his disease from progressing further. However, four or five times in the past year, Mark has gotten the check and spent the money on other things. In this case, Mark’s family may try and get Mark to be a limited interdict. They might stipulate in that proceeding that Mark should be entitled to any money he makes from his job, but that a curator will be entrusted with receiving his disability check and administering it in a way that Mark gets the monthly care which he needs.

Limited interdict situations are far more complex for obvious reasons. The person who is proposed to be interdicted, like Mark, will probably have an opportunity to dispute the interdiction if he feels it is unjust or inappropriate. In that case, a court will make a determination based on the evidence whether it feels Mark can make reasonable decisions about his well-being vis a vis his medications and his illness.