The Louisiana Supreme Court puts even greater power in the hands of trial courts concerning child relocation during or after divorce.
Louisiana family law was modified by the highest court in the state last week by a ruling on a child custody relocation statute. This decision held that it is not necessary for a court to expressly show that it considered each of the twelve factors when deciding whether a child may relocate across state lines or more than one hundred and fifty miles from the child’s residence.
This decision is monumental for two reasons. Firstly, relocation issues are frequent and any change in the law or how it is applied will have an impact for a lot of people. Secondly, this ruling should stop a lot of challenges to initial trial court determinations by removing a technical challenge by a divorce lawyer to the judgment.
For a divorce lawyer, one of the toughest things to do is to convince a court that child relocation is in the best interests of the child. If a court grants the right to move, this usually means that one of the parents will be deprived of custody which the law presumes to be detrimental to a child. As a result, the Louisiana civil code has established a number of factors that courts must consider before making a ruling. Even though they are required to methodically evaluate each factor, courts often find that one of the factors in the particular case is so strong that it is decisive in swaying its opinion.
The Louisiana Supreme Court ruled on Tuesday, May 10, 2011 that the trial court does not have to show in its rulings that it considered everything that the law requires it to consider. In other words, it is almost as if courts making a decision on relocation will be presumed to have all that they are required to do, and it is for a litigant’s divorce lawyer to show that this was not the case. Clearly, this will be difficult, and, in many cases, impossible argument to prove.
In making its ruling, the high court ultimately concluded that the “appropriate standard of review…is that the trial court's relocation determination is entitled to great weight and will not be overturned absent a clear showing of abuse of discretion.” This essentially means that what happens at the trial court level will not be able to be overturned, unless the litigant or divorce lawyer can show that some significant mistakes were made, not just that the court came to a bad decision after a proper application of law to fact. If you dislike the trial court’s ruling on whether you can relocate, this decision means that your divorce lawyer can do much less in seeking a review of the trial court’s findings.
The above material is intended for information purposes only. It is not intended as professional legal advice and should not be construed as such.
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