Louisiana Family Law: Civil Code Article 134(2) and its Applicability to a Divorce Lawyer

When a court performs a child custody analysis, it often makes its determination on what each sides divorce lawyer or other attorney presents.  Rather than looking at the law and applying it by rote, the court in Louisiana often looks at the contested issues in making its determination.  Having said this, there still is substantive law to consider both for the court and the parents.  This article is part of a series that attempts to explain some of the intricacies regarding Louisiana Civil Code Article 134 which may be one of the most important child custody provisions in the code.  In particular, this article goes into part two of article 134 which emphasizes the importance of each parents’ ability to give emotional and spiritual guidance to the child and “to continue the education and rearing of the child.”

 One easy yet sad example to see the application of section (2) of article 134 is in the hypothetical instance of one parent suffering an injury or accident, and subsequently getting involved in a custody battle for the child or children.  For example, if one parent suffers head trauma of some sort, and is no longer able to function on the intellectual level that they once did, a court may consider their “capacity” diminished.  While this parent no doubt still loves their child very much, a diminished intellectual capacity could compromise their ability to see that the child is reared in an appropriate manner.  Oftentimes, a parent with this affliction may have their hands full taking care of themselves, let alone a child as well.

 Section (2) also considers the “disposition” of the parent.  This means that a court may look at the personality of each parent when awarding custody.  Take an example where one parent clearly spends money or time on themselves instead of the child.  If a court can clearly see that that one parent is more predisposed towards their own personal life, rather than the life of their child, this section may be determinative of custody.

 Oftentimes, analysis of a custodial arrangement is not very black and white like the above examples.  The spirit of section (2) seems to ask the question: “which parent puts the needs of their child ahead of their own?”  If one parent is not as invested in the future of their child, and this can be corroborated through evidence, the court may take this into consideration.  We may see this situation in examples like a parent who is preoccupied with nightlife and other more personal priorities, as opposed to a parent who remains in the home with the children after dark.  Another example is where a parent can be seen making a conscious effort to continue the child’s education and socialization, be it through encouraging scholastic activities or making sure that they are supervised and instructed in a proactive and caring way.  Sometimes, the respective families of each parent may play an important part in this process, and that can be also considered.  If one parent has a relative who contributes a good deal of time to the rearing of the child, an court may consider this in awarding custody to the parent with this relative.

Will Beaumont is a lawyer in New Orleans. This article is informational, not legal advice.