Child Custody Factors during Divorce

In the state of Louisiana there exists a body of law which governs the placement of children after a divorce.  Such issues revolve around what is known as “child custody”, or, more simply, which parent gets the child and under what conditions.

Most times, we hope that the parents can see the child on a somewhat equal arrangement.  This is not always the case.  There can be many different calculations to be made by a Louisiana family court as to the relative fitness of each parent to effectively rear the child.

In coming to grips with what is in the best interests of a particular child in a particular case, the divorce court will often turn to Article 134 of the Louisiana Civil Code.  This article gives twelve different criteria which the court might use in determining where custody should be affixed.

For the purposes of this essay, we will be dealing with one of these twelve criteria, number (7).  It explains that a court may consider “The mental and physical health of each party” when affixing custody.  By “party” the article means “parent.”  Some people might think it is fairly obvious that court would inquire into the parent’s mental and physical health before granting custody, but the issue is not always simple.  For example let’s say that a father of a child is bound to a wheelchair.  Should this disqualify him from becoming the custodial parent of that child on the basis of this disability alone?

Probably not.  If the father can display to the court that his handicap will in no way affect his ability to lovingly and supportively raise his child, than there should not be a problem.  But let’s take the example one step further: let’s say that the father is paralyzed from the neck down.  Does that bar him from being the custodial parent?

It most likely depends on the other facts at issue in the divorce.  For example, if the child is older and almost at the age of majority, a court would likely consider the father’s handicap less seriously than if the child was a newborn baby.  In another example, let’s say the mother has serious drug problems, and she is not in a position to care for herself, let alone a child.  Then a court might also consider the father a more appropriate custodial parent.

Like most divorce cases, these questions can be very fact intensive, and they are not easy to resolve in a general manner.  For example, if the paralyzed father had been living with his disability for ten years, and was very well adjusted to it, he could probably put forth a more compelling argument as to why nonetheless he should be the custodial parent, as opposed to a parent who had just suffered a serious disabling injury, and whose prognosis is more of an unknown to the court.  In either event, section (7) is yet another criteria for the court to consider in awarding custody.

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