For collateral relatives (i.e. relative who is not a parent), it can be enormously difficult to get custody. One way is through Article 136, which this article attempts to go review.
Louisiana family courts have a wide array of laws and statutes to look at when awarding custody of a child or children in a particular case that is not part of a divorce. One such source of authority is Louisiana Civil Code Article 136, entitled: “Award of Visitation Rights.”
Article 136 is somewhat complex, and deals with a variety of different situations where someone may or may not be granted visitation rights. For that reason, this essay will deal specifically with 136 section B, and more specifically with Section B, part (1).
In addition to considering the “best interests of the child” when awarding visitation rights to a relative or other non-blood family member, a family court will consider a handful of more specific factors. One such factor is B(1), which takes into account “the length and the quality of the relationship between the child and the relative.”
Sometimes it is easier to understand these provisions by using an example. Let us say that Bobby is an only child and his parents got a divorce: Marcia and Greg. Marcia is made by the court the custodial parent. Greg is incarcerated in jail. However, let us also say that Greg’s mother Alana is interested in having some visitation rights to see Bobby.
Alana wants to be able to see Bobby because she has been a good grandmother to him for all 14 years of Bobby’s life. Alana has evidence to suggest that she herself has spent more time with Bobby than either of his parents ever did. She makes a point to drive Bobby to school or to his friend’s houses whenever he needs a ride. She runs a local flower shop, and she has been letting Bobby work there to earn a little money for the past 2 years. Alana also has a lake house, which Bobby has visited every summer for two weeks for his whole life.
If Alana can convince a family court that the above reasons, in addition to any others, are good cause to give her some visitation rights to see Bobby, a court may agree – she may have to meet a different standard if, as part of their divorce, the court ordered a custody arrangement set. This is because she can likely demonstrate that her relationship to him has been lifelong and also very close; and furthermore Bobby’s life could potentially be worse without the support and love his grandmother has and continues to give him.
It is important to note that Article 136 section B(1) will not just give any grandparent or other non-parent relative visitation rights. Visitation rights are serious and legal decrees that stem from an official court proceeding. In the above example, if Alana prevails, she is entitled by law to see Bobby according to the terms of the visitation. For this reason, courts are sometimes wary to give visitation rights to just anybody. There must be a demonstrable “parent-like” presence on the part of the relative.
This article is written with the sole intention of providing information. It is not legal advice. Will Beaumont practices divorce law in Metairie and New Orleans, LA.
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