Family law

Family Law encompasses almost every aspect of family life when the family unit is, unfortunately, ending. It is a very trying time for all involved, and I will do my best to ensure a smooth transition from raising children in a two parent home to one where only one parent is present at any given time.

 

But Family Law involves many issues other than the "usual" ones we always hear about such as divorce, custody, child support, spousal support, and dividing community property.  These include:

 

  • establishing whether you are the father of a child, and if not, how long do you have to prove that you are not the father before the law deems it too late and holds you responsible
 
  • dealing with children who are teenagers and who "fight" fixed custody and visitation plans adopted by the parents or the courts
 
  • becoming owner of property during a marriage that may not necessarily be considered community property, and protecting yourself with respect to the income produced by separately-owned property

 

Although many of these issues are complicated and cannot be fully explored in a small space such as this, I want to at least make the reader aware that Louisiana has been at the forefront of passing detailed laws that try to deal with these matters.

Marriage



Marriage is a legal relationship between a man and a woman that is created by civil contract between them.  Louisiana has three requirements for the validity of a marriage: (a) the absence of any legal impediments, (2) a marriage ceremony, and (3) the free consent of the parties to take each other as husband and wife, expressed at the ceremony.

 

Impediments to Marriage



An "impediment" to marriage is some factor that precludes parties from contracting a valid marriage.  For example, a married person may not contract another marriage.  In addition, the following persons may not marry one another:

 

  • Ascendants and descendants

 

  • Collaterals (relatives) within the fourth degree, whether of the whole or of the half blood.

 

Relatives are always prohibited from marrying in either the ascendant or descendant line, or if they are related within the fourth degree by blood.  They are also prohibited from marrying within the fourth degree if they are related by adoption unless they obtain judicial authorization to marry.

 

Marriage Ceremony

 

The parties must participate in a marriage ceremony performed by a third person who is qualified, or reasonably believed by the parties to be qualified, to perform the ceremony.  The parties must be
physically present at the ceremony when it is performed - the parties to be married may not contract a marriage through other people standing in their place (that is, by procuration or proxy).

 

Free Consent

 

The parties to be married must consent of their own free will.  Consent is not free when given under duress or when given by a person incapable of discernment.

 

Examples of lack of free consent are purported marriage between minors, adults who have been declared mentally incapable of consenting, and when any party participates in a marriage ceremony under some threat (without which that person would not marry).

 

Incidents and Effects of Marriage

 

Married persons owe each other fidelity, support, and assistance.  Spouses also mutually assume the moral and material direction of the family, exercise parental authority, and assume the moral and material obligations resulting these assumptions.

 

Although marriage does not change the name of either spouse, a married person may use the surname of either or both spouses as a surname.  For example, if John Smith marries Jane Doe, the spouses may use the following as their married names: John and Jane Smith, John and Jane Doe, John and Jane Smith-Doe, or John and Jane Doe-Smith.

 

Lastly, spouses may not sue each other except for Family Law matters, such as divorce, custody, support, and division of community property.

Parent and Child

 

Parenthood and Childhood Obligations

 

Filiation is the legal relationship between a child and his parent.  It may be established by proof of maternity or paternity or by adoption.  From filiation springs the obligations parents and children owe to one another.  Obligations do not flow only downward from parent to child.  Obligations also flow upward from child to parent.

 

Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children.  Ascendants and descendants have reciprocal alimentary duties to one another.    Children are bound to maintain their father and mother and other ascendants, who are in need, and the relatives in the direct ascending line are likewise bound to maintain their needy descendants, this obligation being reciprocal.  This reciprocal obligation is limited to life's basic necessities of food, clothing, shelter, and health care, and arises only upon proof of inability to obtain these necessities by other means or from other sources.

 

Alimentary duties also include what is necessary for the nourishment, lodging, and support of the person who claims it.

 

Alimentary duties further include the education, when the person to whom the alimony is due is a minor, or when the person to whom alimony is due is a major who is a full-time student in good standing in a secondary school, has not attained the age of nineteen, and is dependent upon either parent.  And it includes the education, when the person to whom the alimony is due has not attained the age of twenty-two and has a developmental disability.

 

A child, whatever be his age, owes honor and respect to his father and mother.  A child remains under the authority of his father and mother until his majority or emancipation.  In case of difference between the parents, the authority of the father prevails.  As long as the child remains under the authority of his father and mother, he is bound to obey them in every thing which is not contrary to good morals and the laws.  An unemancipated minor can not quit the parental house without the permission of his father and mother, who have the right to correct him, provided it be done in a reasonable manner.  Fathers and mothers may, during their life, delegate a part of their authority to teachers, schoolmasters and others to whom they intrust their children for their education, such as the power of restraint and correction, so far as may be necessary to answer the purposes for which they employ them.  They have also the right to bind their children as apprentices.

 

The father is, during the marriage, administrator of the estate of his minor children.  The mother takes on the role of administrator in the event the father is interdicted or absent.  He or she shall be accountable both for the property and revenues of the children's estates, the use of which he or she is not entitled to by law.  If they are given a usufruct (the right to use and the right to the fruits) over a child's estate, the parents shall be accountable only for the property.  This administration ceases at the time of the majority or emancipation of the children.  The most common occurrence of a father acting as an administrator of the estate of his minor child is when the father files suit on behalf of that son as a result of the son being injured in an accident caused by another person.

 

Fathers and mothers owe protection to their children, and of course they may, as long as their children are under their authority, appear for them in court in every kind of civil suit, in which they may be interested, and they may likewise accept any donation made to them.  Although the law does not condone or encourage vigilantism or "self help", Louisiana nevertheless recognizes that fathers and mothers may justify themselves in an action begun against them for assault and battery, if they have acted in the defense of the persons of their children.  Conversely, fathers and mothers are answerable for the offenses or quasi-offenses committed by their children.

 

Who are a Parents' Children?

 

The husband of the mother is usually the father of all children delivered by the mother.  Sometimes, this is not the case.  If a father suspects that a child is not his, the time periods associated with terminating responsibility for a child that is not the father's are very short and the purported father must acted very quickly to relieve himself of parental responsibility for that child.

 

Maternity is usually not difficult to prove, as most women give birth in a hospital setting surrounded by health care providers who immediately take fingerprints and footprints of the newborn child as well as obtain vital information of both the birth mother and the child.  Maternity may be established by a preponderance of the evidence that the child was born of a particular woman.

 

Unfortunately, we are seeing more and more children being born out of wedlock.  And we are even witnessing with greater frequency a situation where a married woman gives birth to a man who is not her husband.  Trying to balance a father's rights with a child's recognized need to have a father-figure in his life, Louisiana has developed a series of presumptions of filial relationship between a child and the husband in a marriage.  A husband has an opportunity to disavow paternity if he believes the child born of his marriage is not his child, but he must exercise his right to file a disavowal suit within a certain limited time or he will be precluded from doing so after the passage of that time period.  Louisiana has, as a matter of policy, deemed it more important that a child be considered for legal purposes the child of the husband of the wife who bore the child, rather than the child be considered to have been born without a father in his life.

 

As Louisiana recognizes the strong need for a father to be present in the life of a child, the state has established what is considered one of the strongest civil presumptions: the husband of the mother is presumed to be the father of all children born during the marriage, as well as those born within 300 days from the date of the termination of the marriage (the assumption being that if an unborn child goes to term and delivers nine months after conception, the mother is presumed to have gotten pregnant while still married to her husband before their divorce).  This presumption is so strong that even if the mother has remarried before the child is born, and the child is born within 300 days of the termination of the mother's first marriage, the first husband is still presumed to be the father of the child.

 

Although the law does its best to prevent children being raised without a known father, it does not do so at the expense of "innocent" husbands.

 

Suppose a woman marries twice, and the first husband suspects that he is not the father of the child born after he terminated his marriage to the mother, but within 300 days of the termination of that marriage.  Further suppose that the mother has since remarried a second time and the child is born during this second marriage.

 

Here, we have an apparent conflict: all children born during a marriage or within 300 days after the termination of a marriage are presumed to be the children of the husband of that marriage.  Yet, we have a child born during a second marriage, but still within 300 days of the termination of the first marriage.  This scenario presents us with two presumptions that initially point to two different men as the father: (a) the child is presumed to be the child of the first husband because the child was born within 300 days of the termination of the first marriage; (b) the child is presumed to be the husband of the second marriage because the child was born while the mother was married to the second husband.

 

What can each man do?

 

If the first husband suspects that he is not the father, despite the 300-day presumption, the first husband may bring a disavowal action in an attempt to establish he is not the father.  If that first husband wins and obtains a judgment of disavowal of paternity, the second husband will be presumed to be the father based on the second presumption: all children born during a marriage are presumed to be the children of the husband in that marriage.

 

To complicate matters, suppose the woman had an affair with a third man and he is truly the natural father of the child.  In that case, no presumption gives rise to that third man being the father.

 

To prevent being saddled with responsibility for a child not his, the second husband may also bring a disavowal action in an attempt to establish that he is not the child's father.  But, the second husband may disavow paternity only if he institutes a disavowal action within a peremptive period (meaning, a period that cannot be interrupted) of one year from the day that the judgment of disavowal obtained by the first husband is final and definitive.

 

This one year time period within which the second husband must act may sound unfair, but Louisiana has taken the position that, with all other things being equal, it is better that the child be "legally" the child of the second husband, than be declared to have no known father.

 

Thus, as long as the time periods established above are upheld, either husband may disavow paternity of the child by clear and convincing evidence that he is not the father.  The testimony of the husband shall be corroborated by other evidence.  The disavowal of paternity suit, however, must be filed within one year from the day the husband learns or should have learned of the birth of the child.  Nevertheless, if the husband lived separate and apart from the mother continuously during the 300 days immediately preceding the birth of the child (such as a husband who is in the military and serves his tour of duty overseas and is gone 450 days by the time the mother has a child), this one year period does not begin to run until the husband is notified in writing that a party in interest has asserted that the husband is the father of the child.

 

The mother of a child also has rights to establish paternity by a man.  For example, if a child is born after the  mother's termination of her first marriage but still within 300 days of that termination and while she is married to her second husband, remember that the first husband is still presumed to be the father.  But the mother may file suit to establish that the first husband is not the father of the child and that her second, present husband is the father.  A mother may file such a suit, however, only if the second husband has acknowledged the child as his by authentic act or by signing the birth certificate.  To win, the mother must prove by clear and convincing evidence both that her former husband is not the father and that her present husband is the father.  The testimony of the mother shall be corroborated by other evidence, which such evidence almost always consisting of blood and tissue collection and then testing for type and DNA.

 

Like the presumed father, time periods also apply to the mother attempting to establish paternity.  The action by the mother must be filed within a peremptive period of 180 days from the marriage to her present husband and also within two years from the day of the birth of the child.

 

To prevent the situation of a child having no "legal" father, a judgment shall not be rendered decreeing that the former husband is not the father of the child unless the judgment also decrees that the present husband is
the father of the child.

 

A person presumed to be the father must bring a disavowal action within 180 days from the date of the marriage or the acknowledgment by the husband, whichever occurs later.

 

The only time the husband of the mother may not sue to disavow paternity is if the child is born as a result of an assisted conception to which the husband consented.  This makes perfect sense because the husband knows ahead of time that with an assisted conception, he may or may not be the actual father, and thus he should not be allowed to try to disavow paternity when he did not protest the assisted conception.

 

Sometimes, a man who is not married to anyone may wish to establish his paternity of a child so that he can play a role in the child's life.  That man may, by authentic act or by signing the birth certificate, acknowledge a child not filiated to another man.  The acknowledgment creates a presumption that the man who acknowledges the child is the father.  The presumption can be invoked only on behalf of the child.  Except as otherwise provided in custody, visitation, and child support cases, the acknowledgment does not create a presumption in favor of the man who acknowledges the child.  The action is strictly personal.  If the child is presumed to be the child of another man, the action shall be instituted within one year from the day of the birth of the child.  Nevertheless, if the mother in bad faith deceived the father of the child regarding his paternity, the action shall be instituted within one year from the day the father knew or should have known of his paternity, or within ten years from the day of the birth of the child, whichever first occurs.  In all cases, the action shall be instituted no later than one year from the day of the death of the child.  These time periods just mentioned may not be interrupted.

 

Finally, even a child may seek to establish paternity, even though he is presumed to be the child of another man.  If the action is instituted after the death of the alleged father, a child shall prove paternity by clear and convincing evidence.  For purposes of succession only, this action is subject to a peremptive period of one year.  This peremptive period commences to run from the day of the death of the alleged father.  One year is a very short period, but the law places a premium on finality of paternity, even if the presumed father is not truly the natural father of the child.

Termination of Marriage



As mentioned earlier, Family Law cases usually begin with the spouses terminating their marriage.  Although I do not offer psychological or marital advice, I will ask the potential client at our first meeting if the spouses have considered seeking professional or religious counseling before deciding to end their marriage.  I have, too often, been employed by a spouse who "demands an immediate divorce", only to change their mind several months later.  As I will explain at the outset, I cannot refund any part of the deposit paid that has been spent by me in terms of hours worked and expenses incurred in moving forward with a divorce.  It is for this reason that I advise potential clients to exhaust their possibilities for reconciling before employing an attorney, unless that potential client believes his or her spouse is hiding assets or incurring higher-than-normal debt, in which case a suit asking for a restraining order and an injunction may be needed as soon as possible.

 

Marriage terminates upon either the death of either spouse, divorce, or a judicial declaration that a marriage is null.

 

Except in the case of "covenant marriages" (which are rare), a divorce shall be granted on the petition of a spouse upon proof that:

 

(1) The spouses have been living separate and apart continuously for the requisite period of time;

 

(2) The other spouse has committed adultery; or,

 

(3) The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor.

 

The "requisite period of time" mentioned above in (1) refers to two time periods: 180 days and 365 days.  The other two grounds found in (2) and (3) entitle the other spouse to obtain a divorce immediately - that spouse does not have to wait to file for divorce based on adultery or incarceration.

 

A spouse may obtain a divorce within 180 days:

 

(a) when there are no minor children of the marriage;

 

(b) upon a finding by the court, pursuant to a rule to show cause, that the other spouse has physically or sexually abused the spouse seeking divorce or a child of one of the spouses; or

 

(c)  If, after a contradictory hearing or consent decree, a protective order or an injunction has been issued, in accordance with law, against the other spouse to protect the spouse seeking the divorce or a
child of one of the spouses from abuse.

 

A spouse may obtain a divorce within 365 days until the last child of the marriage becomes a major (that is, turns 18).

 

The cause of action for divorce is extinguished by the reconciliation of the parties.  Reconciliation is a question of law based on facts.  In almost all instances, a one-time sexual encounter between separated spouses is not sufficient to constitute reconciliation.  Reconciliation is usually found to have occurred, however, when the spouses have marital relations and evidence an intent of wanting to try to make their marriage work.  This is usually shown by the parties beginning to live together again as husband and wife.

Spousal Support



In most family cases I have handled, the husband was either the sole or major wage earner.  When spouses separate, one household suddenly becomes two and expenses likewise increase.  In divorce proceedings or thereafter, the court may award interim periodic support to a party or may award final periodic support to a party who is in need of support and who is free from fault prior to the filing of a proceeding to terminate the marriage.

 

Interim Spousal Support

 

Upon a motion of a party, or when a demand for final spousal support is pending, the court may award a party an interim spousal support allowance based on the needs of that party, the ability of the other party to pay, and the standard of living of the parties during the marriage.  Interim spousal support terminates as soon as the parties are divorced.

 

If a claim for final spousal support is pending when the parties divorce and a spouse has been paying interim spousal support, the interim spousal support award shall terminate upon either: (a) rendition of a judgment awarding or denying final spousal support, or (b) 180 days from the rendition of judgment of divorce, whichever occurs first.

 

The obligation to pay interim spousal support may extend beyond 180 days from the rendition of judgment of divorce, but only for good cause shown.

 

Final Periodic Spousal Support

 

When a spouse has not been at fault and is in need of support, based on the needs of that party and the ability of the other party to pay, that spouse may be awarded final periodic support in accordance with the following factors:

 

(1)  The income and means of the parties, including the liquidity of such means.

 

(2)  The financial obligations of the parties.

 

(3)  The earning capacity of the parties.

 

(4)  The effect of custody of children upon a party's earning capacity.

 

(5)  The time necessary for the claimant to acquire appropriate education, training, or employment.

 

(6)  The health and age of the parties.

 

(7)  The duration of the marriage.

 

(8)  The tax consequences to either or both parties.

 

Final periodic spousal support may never exceed 1/3 (one-third) of the obligor's (paying spouse's) net income.

 

Modification or Termination of Spousal Support

 

An award of periodic support may be modified if the circumstances of either party materially change and shall be terminated if it has become unnecessary.  The subsequent remarriage of the payor spouse shall not constitute a change of circumstance.

 

The obligation of spousal support is extinguished upon the remarriage of the obligee, the death of either party, or a judicial determination that the obligee has cohabited with another person of either sex in the manner of married persons.

 

The obligation of final spousal support may be modified, waived, or extinguished by judgment of a court, or by the parties themselves through either an authentic act or an act under private signature duly acknowledged by the party receiving support.

Child Custody



When spouses separate and they have minor children, the most important decision they have to make is where the children will primarily reside.  A court shall award custody of a child in accordance with the best interest of the child.

 

If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award.  In the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly.  But if custody to one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent.

 

Determining the "Best Interest of the Child"

 

In determining the best interest of the child when deciding custody, the court shall consider all relevant factors, including but not limited to:

 

(1) The love, affection, and other emotional ties between each party and the child.

 

(2)  The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.

 

(3)  The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.

 

(4)  The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.

 

(5)  The permanence, as a family unit, of the existing or proposed custodial home or homes.

 

(6)  The moral fitness of each party, insofar as it affects the welfare of the child.

 

(7)  The mental and physical health of each party.

 

(8)  The home, school, and community history of the child.

 

(9)  The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.

 

(10)  The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.

 

(11)  The distance between the respective residences of the parties.

 

(12)  The responsibility for the care and rearing of the child previously exercised by each party.

 

One must distinguish "legal custody" from "physical custody".  A parent has legal custody of a child when, by judgment, a parent has been given the right to make important decisions in the upbringing of that child.  Although the parent who does not have legal custody should be consulted on major decisions that affect the child’s life, the parent with legal custody will ultimately have the final "say" on disputed decisions.

 

Physical custody refers merely to the person who has "control over" the child at any given time.  For example, if a child is visiting a parent who is not the domiciliary parent, the parent who has the child is deemed to have physical custody of that child while the child is in that parent’s care.  At no time, however, does the domiciliary parent lose his or her status as the legal custodian of the child when the child is not presently with him or her.

 

One often-overlooked area of child custody involves custody proceedings brought by non-parents.  This might occur where a grandparent or other relative perceives a child to be at risk with his or her natural parents and that relative takes steps to obtain custody of the child.  If an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment.

 

Regardless of how well you think you have a chance for obtaining custody of a child when going against a parent, you should not proceed without substantial evidence supporting your cause, and I recommend that you involve the state through The Louisiana Department of Children and Family Services.  The type of evidence you will need will be expensive: depositions of the relevant witnesses, documents supporting evidence of harm to the child (usually in the form of police or Emergency Room reports), reports from psychologists or psychiatrists who have evaluated the parents and the child that contain an expert conclusion that the child is in danger if he remains with one or both parents.  I do not recommend going to court in an attempt to build your case - you should have your case ready before you set foot in a courtroom.

Child Visitation

 

Parental Visitation Rights

 

Unless abuse or danger is suspected, courts will usually encourage as much contact between a child and a non-domiciliary parent.  The exercise of that contact is called visitation.  A visitation schedule may be agreed upon by the parents (and usually adopted without question by a judge, unless it is found to not be in the child’s best interest), or it may be set by the presiding judge if the parents have not voluntarily done so.  With many judicial districts now having "family law divisions", most family law judges will have a "prepared" visitation schedule that will serve as a model for the plan ultimately adopted in any given case.  Many of these visitation schedules can be found online on the website of a family law division or a family law judge.

 

The relevant statutes governing visitation provide that a parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would not be in the best interest of the child.

 

Under extraordinary circumstances (such a when a parent's alcoholism or drug addiction affect that parent's ability to care for his child), a relative, by blood or marriage, or a former stepparent or stepgrandparent, not granted custody of the child, may be granted reasonable visitation rights if the court finds that it is in the best interest of the child.  In determining the best interest of the child while considering a visitation request, the court shall consider:

 

(1) The length and quality of the prior relationship between the child and the relative.

 

(2)  Whether the child is in need of guidance, enlightenment, or tutelage which can best be provided by the relative.

 

(3)  The preference of the child if he is determined to be of sufficient maturity to express a preference.

 

(4)  The willingness of the relative to encourage a close relationship between the child and his parent or parents.

 

(5)  The mental and physical health of the child and the relative.

 

Grandparent and Sibling Visitation Rights

 

One issue with visitation that has become very contentious is the right of grandparents and siblings of parents to exercise visitation, especially when a grandparent or sibling seeking visitation is not the parent or sibling of the child who has custody of that child.  The Louisiana Legislature has established the following rules prescribing grandparent and sibling visitation.

 

  • If a minor child's married parent dies, is interdicted or incarcerated, and that parent's parents (the child's grandparents) do not have custody, the court may, in its discretion, grant those grandparents reasonable visitation rights to the child while the child is a minor, if the court finds that such visitation rights would be in the best interest of the child.

 

  • If a minor child's married parent dies or is incarcerated, and that minor child has full brothers and sisters, the court may, in its discretion, grant those siblings reasonable visitation rights to the child while the child is a minor, if the court finds that such visitation rights would be in the best interest of the child.
 
  • If a minor child's parents are not married, and one of that child's parents dies, is interdicted, or incarcerated, and that parent's parents (the child's grandparents) do not have custody, the court may, in its discretion, grant those grandparents reasonable visitation rights to the child while the child is a minor, if the court finds that such visitation rights would be in the best interest of the child.

 

  • If a minor child's parents are legally separated or have been living apart for six months, the court may, in its discretion, grant reasonable visitation rights to the grandparents or siblings while the child is a minor, if the court finds that such visitation rights would be in the best interest of the child.

 

The law makes no provision for sibling visitation rights to a minor child if that child's parents are not married.

Child Support

 

As mentioned above, by the very act of marrying, parents of children obligate themselves to support, maintain, and educate their children.  Divorce should not change those obligations.  In addition, because these obligations are legal, separated or divorced parents may not validly "contract away" their obligations owed to their children.  Sometimes, divorced parents may agree in writing to accept only certain sums from one another as fulfilling their child support obligations.  Although it may seem unfair based on the fact that both parents originally agreed to a set child support amount, and now one of those parents has changed their mind and wants to increase the amount, a court will void that parental-agreement if the court finds that agreement is not in accord with Louisiana's child support guidelines.

 

Modifications of Child Support

 

In some instances, the parents may agree to suspend the payment of child support, especially when a change of physical custody has occurred.  An example of this would be where a father has been paying child support to the mother, and for whatever reason, the mother allows the child to begin living with the father and agrees to allow the father to suspend his child support payments to her while the child lives with the father.  In some cases, the mother has been precluded from collecting "back due" child support when she sought that support from the father during the period that she "excused" him from paying it, and that period coincided with the child residing with the father.  Nevertheless, it is always best that the father file a motion to suspend or amend payments based on a change in circumstances rather than rely on verbal or implied agreements of suspension.

 

A parent's obligation to educate a child usually ends when the child becomes an adult.  But, a few courts have enforced specific agreements where a parent unequivocally agreed to support an adult child through college.

 

When a court has set child support, the payor-parent may not seek modification of the amount of support unless a court finds a "material change in circumstances" has occurred between the date of the award and the date the parent seeks the modification.

 

In some instances, the payor-parent may find himself unable to pay child support.  To negate his obligation to pay, he  must show that he has no assets, no income, and is unemployable (which is different than merely unemployed).   Although rare today, some payor-spouses in the past have offered to allow a child to reside with him in lieu of paying child support to the mother.  But as the "best interest of the child" determines custody, this practice is not often used.

 

Contrary to the belief of most people (some attorneys included) child support is owed to the child - not the parent to whom the support is paid.  Yet, the child support must be paid to the custodial parent.  Basically, the parent receiving the child support has a duty to ensure that the support received is used to provide for that child and the payor-parent cannot dictate how the custodial parent spends the support she receives.

 

The spouse to whom child support is owed is almost always the "domiciliary parent", that is, the parent whose residence is also the child’s "official" residence.  Likewise, the domiciliary parent almost always has physical custody of the child more than the other natural parent.

 

In 2016, the Louisiana Supreme Court finally ruled that only one parent may be considered the "domiciliary parent"; one cannot have a situation where two domiciliary parents exist.

 

Determining the Amount of Child Support

 

In establishing the child support guidelines, Louisiana stated the following as its premise for doing so:

 

The premise of these guidelines as well as the provisions of the Civil Code is that child support is a continuous obligation of both parents, children are entitled to share in the current income of both parents, and children should not be the economic victims of divorce or out-of-wedlock birth.  The economic data underlying these guidelines, which adopt the Income Shares Model, and the guideline calculations attempt to simulate the percentage of parental net income that is spent on children in intact families incorporating a consideration of the expenses of the parties, such as federal and state taxes and FICA taxes.  While the legislature acknowledges that the expenditures of two-household divorced, separated, or non-formed families are different from intact family households, it is very important that the children of this state not be forced to live in poverty because of family disruption and that they be afforded the same opportunities available to children in intact families, consisting of parents with similar financial means to those of their own parents.

 

In a nutshell, the basic child support obligation (which does not include other amounts discussed below) is calculated as follows:

 

1. The parents shall combine the amounts of their adjusted gross monthly incomes.  The Louisiana Legislature has established amounts of support based on combined monthly parent incomes ranging from $0 to $30,000.

 

For example, if the father earns $5000 per month and the mother earns $2500 per month, their combined monthly income will be $7500.  That $7500 is the starting point.

 

2.  Next, each parent shall then determine by percentage his and her proportionate share of the combined amount.

 

These percentages are calculated by dividing each parent's monthly income by the combined monthly income of both parents.

 

Using the above hypothetical figures, $5000 divided by $7500 yields a percentage of 66 2/3% of the combined total, and $2500 divided by $7500 yields a percentage of 33 1/3% of the combined total.

 

3.  The Court will then consult the table of child support amounts determined by the Legislature and apply each parent's percentage to the amount corresponding to the combined monthly income of both parents and the number of children to whom child support is owed.

 

Based on the current table amounts, the basic child support obligation for 2 children for parents with combined monthly incomes of $7500 is $1494.

 

66 2/3% of $1494 = $996, and 33 1/3% of $1494 = $498, for a combined total of $1494.

 

4.  Finally, the parent without legal custody, or the non-domiciliary parent, shall owe his or her total child support obligation as a money judgment of child support to the custodial or domiciliary party.

 

Again using the above figures, if the mother is the domiciliary parent, the father shall owe basic child support in the amount of $996 each month.

 

There shall be a rebuttable presumption that the amount of child support obtained by use of the guidelines is the proper amount of child support.  A court may deviate from the guidelines if their application would not be in the best interest of the child or would be inequitable to the parties, but the deviating-court must give specific oral or written reasons for the deviation, including a finding as to the amount of support that would have been required under a mechanical application of the guidelines and the particular facts and circumstances that warranted a deviation from the guidelines.  The reasons shall be made part of the record of the proceedings.

 

In addition to the basic child support owed, a court may order the payor-parent to pay his percentage of: net child care costs, health insurance premiums, extraordinary medical expenses (such as ER visits and orthodontics), expenses of tuition, registration, books, and supply fees required for attending a special or private elementary or secondary school to meet the needs of the child, expenses for transportation of the child from one parent to the other, and special expenses incurred for child rearing intended to enhance the health, athletic, social, or cultural development of a child, including but not limited to camp, music or art lessons, travel, and school sponsored extracurricular activities.

 

Effect on Child Support Obligation Based on "Special" Custody Arrangements

 

"Shared custody" means a joint custody order in which each parent has physical custody of the child for an approximately equal amount of time.  If the joint custody order provides for shared custody, the basic child support obligation shall first be multiplied by one and one-half and then divided between the parents in proportion to their respective adjusted gross incomes.  Each parent's theoretical child support obligation shall then be cross multiplied by the actual percentage of time the child spends with the other party to determine the basic child support obligation based on the amount of time spent with the other party.

 

"Split custody" means that each party is the sole custodial or domiciliary parent of at least one child to whom support is due.  If the custody order provides for split custody, each parent shall compute a total child support obligation for the child or children in the custody of the other parent, based on the usual calculation.  The amount of "total child support obligation" shall be a theoretical support obligation owed to each parent.  The parent owing the greater amount of child support shall owe to the other parent the difference between the two amounts as a child support obligation.

 

Effective Date Child Support Is Owed

 

Except for good cause shown, a judgment awarding, modifying, or revoking an interim child support allowance shall be retroactive to the date of judicial demand, but in no case prior to the date of judicial demand.

 

A judgment that initially awards or denies final child support is effective as of the date the judgment is signed and terminates an interim child support allowance as of that date.

 

Except for good cause shown, a judgment modifying or revoking a final child support judgment shall be retroactive to the date of judicial demand, but in no case prior to the date of judicial demand.

 

Child support of any kind, except that paid pursuant to an interim child support allowance award, provided by the judgment debtor from the date of judicial demand to the date the support judgment is signed, to or on behalf of the child for whom support is ordered, shall be credited to the judgment debtor against the amount of the judgment.

 

In the event that the court finds good cause for not making the award retroactive to the date of judicial demand, the court may fix the date on which the award shall commence, but in no case shall this date be a date prior to the date of judicial demand.

 

Termination of Child Support When Children Become Adults

 

When there is a child support award in a specific amount per child, the award for each child shall terminate automatically without any action by the obligor upon each child's attaining the age of majority, or upon emancipation relieving the child of the disabilities attached to minority.  When, however, there is a child support award in globo (that is, a lump sum payable for all children with no breakdown for each) for two or more children, the award shall terminate automatically and without any action by the obligor when the youngest child for whose benefit the award was made attains the age of majority or is emancipated relieving the child of the disabilities attached to minority.

 

Thus, the difference between child support of a specific amount vs. in globo child support, is that "specific amount child support" automatically ends for each child when that child becomes an adult or is emancipated, whereas "in globo child support" ends only when the youngest child becomes an adult or is emancipated.  As a payor-spouse, the wording of the child support order can be a "trap" for the inattentive payor-spouse and his attorney unless they desired to pay "in globo child support".

 

An award of child support continues with respect to any unmarried child who attains the age of majority, or to a child who is emancipated relieving the child of the disabilities attached to minority, as long as the child is a full-time student in good standing in a secondary school or its equivalent, has not attained the age of nineteen, and is dependent upon either parent.  Either the primary domiciliary parent or the major or emancipated child is the proper party to enforce an award of child support.

 

Effect on Child Support Obligation When the Custodial Parent Interferes with

Custody and Visitation Rights of the Payor-Parent

 

If one joint custodial parent or his agent is intentionally secreting a child with the intent to preclude the other joint custodial parent from knowing the whereabouts of the child sufficiently to allow him to exercise his rights or duties as joint custodial parent, the latter may obtain from the court an order suspending or modifying his obligation under an order or judgment of child support.  However, such circumstances shall not constitute a defense to an action for failure to pay court- ordered child support or an action to enforce past due child support.

 

In other words, a parent under an obligation to pay child support is not entitled to "self-help" by way of refusing to pay court-ordered child support without court approval if he custodial and visitation rights are intentionally being interfered with by the domiciliary parent.

Adoption 

 

As someone who was adopted, I am very familiar with the rights and obligations that result from the adoption of a child.

 

Before proceeding with an adoption, the natural parents and the adopting parents should understand the legal consequences of adopting.  Once a child is adopted, the natural parents (unless both sets of parents agree to the contrary) no longer have any rights with respect to the adopted child.  That means the natural parents will have no right to contact, visit, or otherwise "interfere" with the raising of the adopted child.  If the natural father is still living, he must give his permission for the adoption before it is finalized.

 

The only "tie" that remains between an adopted child and his natural parents is one of inheritance.  An adopted child, in addition to acquiring the right to inherit from his adoptive parents, retains the right to inherit from his natural parents.  This is not usually a problem, however, because most adoptive children do not know the identities of their natural parents.

 

Lastly, those contemplating an adoption (particularly, a private adoption where one deals directly with the natural parents) should realize that it is not an inexpensive process.  In addition to legal fees and costs, the adoptive parents are usually asked to pay for evaluations of the natural parents required by law.  Before giving a child up for adoption, the natural parents must be evaluated by a psychologist or psychiatrist to determine if they understand the "personal" ramifications of losing all rights with their child, and they must meet with an attorney who must counsel them on the legal consequences of the adoption.

Dividing The Community Assets and Debts

 

Partitioning or Dividing the Community Assets and Debts by a Court

 

If the spouses are unable to voluntarily divide their community property and debts following the termination of their marriage, Louisiana has established a procedure in which the parties may petition a court to do so.  The procedure is relatively simple:

 

I.  When the spouses are unable to divide the community assets and debts, or they are unable to settle their respective claims arising from their community assets and debts, either spouse, as an incident of the action that would result in a termination of the matrimonial regime, or upon termination of the matrimonial regime or thereafter, may file suit to partition the community property.  That suit shall be conducted in accordance with the following rules:

 

A. Within 45 days of service of a petition or motion by either party to partition the community assets and debts, each party shall file a sworn detailed descriptive list of all community property, the fair market value and location of each asset, and all community liabilities.

 

i.  For good cause shown, the court may extend the time period for filing a detailed descriptive list.

 

ii.  If a party fails to file a sworn detailed descriptive list timely, the other party may file a motion with the court asking the court to order the non-filing party to explain why the sworn detailed descriptive list timely filed by the party filing the motion, should not be deemed to constitute a
judicial determination of the community assets and liabilities.  At the hearing of this motion, the court may either grant the request or, for good cause shown, extend the time period for filing a sworn detailed descriptive list.

 

iii.  If the court grants the request, the timely-filed list shall be deemed to be "the" list for purposes of dividing assets and debts.

 

iv. Each party shall affirm under oath that the detailed descriptive list filed by that party contains all of the community assets and liabilities then known to that party.  Amendments to the descriptive lists shall be permitted.  No inventory shall be required.

 

B. Within 60 days of the date of service of the last filed detailed descriptive list, each party shall either traverse (that is, dispute)or concur in the inclusion or exclusion of each asset and liability and the valuations contained in the detailed descriptive list of the other party.

 

i.  For good cause shown, the court may extend the time period for a party to traverse or concur in the detailed descriptive list of the other party.  The trial of the traverses may be by summary procedure.

 

C.  At the trial of the traverses, the court shall determine the community assets and liabilities; the valuation of assets shall be determined at the trial on the merits.  The court, in its discretion, may by ordinary procedure try and determine at one hearing all issues, including those raised in the traverses.

 

II.  The court may appoint such experts as it deems proper to assist the court in the settlement of the community and partition of community property, including the classification of assets as community or separate, the appraisal of community assets, the settlement of the claims of the parties, and the allocation of assets and liabilities to the parties.

 

III.  The court shall then partition the community in accordance with the following rules:

 

A.  The court shall value the assets as of the time of trial on the merits, determine the liabilities, and adjudicate the claims of the parties.

 

B.  The court shall divide the community assets and liabilities so that each spouse receives property of an equal net value.

 

C.  The court shall allocate or assign to the respective spouses all of the community assets and liabilities. 

 

i.  In allocating assets and liabilities, the court may divide a particular asset or liability equally or unequally or may allocate it in its entirety to one of the spouses.

 

ii.  The court shall consider the nature and source of the asset or liability, the economic condition of each spouse, and any other circumstances that the court deems relevant.

 

iii.  As between the spouses, the allocation of a liability to a spouse obligates that spouse to  extinguish that liability.  The allocation in no way affects the rights of creditors.

 

D.  In the event that the allocation of assets and liabilities results in an unequal net distribution, the court shall order the payment of an equalizing sum of money, either cash or deferred, secured or unsecured, upon such terms and conditions as the court shall direct.

 

i.  The court may order the execution of notes, mortgages, or other documents as it deems
necessary, or may impose a mortgage or lien on either community or separate property, movable or immovable, as security.

 

E.  In the event that the allocation of an asset, in whole or in part, would be inequitable to a party, the court may order the parties to draw lots for the asset or may order the private sale of the asset on
such terms and conditions as the court deems proper, including the minimum price, the terms of sale, the execution of realtor listing agreements, and the period of time during which the asset shall be offered for private sale.

 

F.  Only in the event that an asset cannot be allocated to a party, assigned by the drawing of lots, or sold at private sale, shall the court order a partition thereof by licitation (that is, a partition where the assets are sold at a public auction).  The court may fix the minimum bids and other terms and conditions upon which the property is offered at public sale.

 

i.  In the event of a public auction of the community assets, the court shall expressly state the reasons why the asset cannot be allocated, assigned by the drawing of lots, or sold at private sale.

 

Community Property



Unless prospective spouses sign an agreement before they marry (commonly called a "pre-nuptial agreement") stating they have decided to not share the assets and debts they acquire and incur while married, earnings of the spouses are owned equally, and debts incurred by the spouses are owed equally.  Louisiana refers to the system of community property in Louisiana as "the legal regime of community of acquets and gains".  In addition, things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community.  Either spouse may, however, prove that a certain asset or debt is separate.

 

By far, the hardest thing to understand by non-attorneys (and even some attorneys who do not handle family law matters) is the difference between what many people erroneously call "the community" and "community property".  Technically, "the community" is not an entity - it merely refers to the system where each spouse owns a present undivided one-half interest in the community property.  This is different than the actual "community property", which refers to the assets each spouse owns together equally.

 

When the spouses have decided to terminate their marriage, the division of community assets and debts is often contentious if the spouses have significant assets, debts, or both.  The termination of a marriage also terminates the system that led to the spouses co-owning property (community assets) and to the spouses equally responsible for obligations (community debts).

 

Yet, although "the legal regime of community of acquets and gains" may be terminated by divorce, the former spouses will continue to co-own community assets and be equally responsible for community debts until those assets and debts are divided.  The division of community assets and debts is called a "partition".

 

During the marriage, spouses may divide (or "partition") all of the community assets they have acquired from the date they were married through the date they decide to divide their assets.  This is called a "voluntary partition" and is accomplished  by one spouse donating to the other his or her ½ undivided ownership interest in the donated property with the intent to make that donated property the separate property of the spouse to whom the property was donated.  For movable property, spouses may donate their ownership interest by simply delivering the property to the other spouse with the intent to make that property owned solely by the spouse accepting it.  Donation of immovable property, however, must be in writing, and if it is to be recognized by the public, the written donation must be filed with the clerk of court.

 

Spouses may also divide all of the community debts they have incurred during the marriage, but that division will not affect "third persons" (such as a bank holding a promissory note or a hospital where a spouse received medical treatment) unless the third persons agree to the proposed division.  This third-person agreement usually takes the form of a newly issued promissory note or a contract where that third-person agrees to hold only one spouse liable for the debt and discharges the other spouse from liability.

 

Although spouses may partition their community assets and debts, they do not have the right to petition a court to do so.  A court may partition community assets and debts only after the termination of the marriage.  A court’s partition of community assets and debts is called a "judicial partition".

 

Separate Property



First, separate property comprises:

 

a. property acquired by a spouse prior to the establishment of a community property regime (this refers to all property owned by a spouse prior to the marriage);

 

b. property acquired by a spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison with the value of the separate things used;

 

c. property acquired by a spouse by inheritance or donation to him individually;

 

d. damages awarded to a spouse in an action for breach of contract against the other spouse or for the loss sustained as a result of fraud or bad faith in the management of community property by the other spouse;

 

e. damages or other indemnity awarded to a spouse in connection with the management of his separate property;

 

f. damages for pain and suffering awarded to a spouse in personal injury suit that arises during the existence of the community property regime; and,

 

g. things donated by one spouse to the other during the existence of the community property regime.

 

Second, although a spouse may have separate property, the natural and civil fruits of that separate property are considered community property.  A spouse who owns separate property may prevent the fruits from being deemed community property by declaring it as such in writing and then providing that writing to the other spouse before filing the declaration with the clerk of court.

 

Examples of fruits of separate property include:

 

a. minerals (oil and gas) produced from immovable property;

 

b. bonuses, delay rentals, and shut-in payments arising from mineral leases;

 

c. rent on separately-owned apartments or homes;

 

d. interest earned on separately-owned investments such as CD’s and savings accounts; and,

 

e. literally the fruits produced by plants or trees on separately owned immovable property (such as oranges, apples, pecans, sugar cane, etc.)

 

Community and Separate Obligations

 

An obligation incurred by a spouse may be either a community obligation or a separate obligation.

 

Community Obligations 

 

An obligation incurred by a spouse during the existence of a community property regime for the common interest of the spouses or for the interest of the other spouse is a community obligation.  In addition, all obligations incurred by a spouse during the existence of a community property regime are presumed to be community obligations.  An alimentary obligation (an obligation owed to one's ascendants and descendants) imposed by law on a spouse is deemed to be a community obligation.

 

An obligation incurred before the date of a judgment of divorce for attorney fees and costs in an action for divorce and in incidental actions is deemed to be a community obligation.

 

Separate Obligations

 

A separate obligation of a spouse is one incurred by that spouse prior to the establishment of a community property regime, or one incurred during the existence of a community property regime though not for the common interest of the spouses or for the interest of the other spouse.  An obligation resulting from an intentional wrong or an obligation incurred for the separate property of a spouse is likewise a separate obligation to the extent that it does not benefit both spouses, the family, or the other spouse.

Summary



I discussed the above areas of "family law" because I encounter them most often in my practice.  But the field of "family law" runs the gamut of family life from the moment a child is conceived till the moment a person dies, and the discussion above is just a tip of the proverbial iceberg when it comes to all of the laws governing the familial relationship before, during, and after marriage.  One should not rely only on what was mentioned above in deciding family issues.  As with all areas of the law, one should seek professional advice from an attorney before concluding that you do or do not have a valid claim, and you should seek such advice as soon as an issue arises.

 

As far as my background in Family Law, I have successfully represented clients such as an unwed mother trying to establish paternity, women seeking protection from an abusive husband or boyfriend, a father attempting to begin a relationship with his child for the first time, and a mother trying to prevent the adoption of her daughters against her will because she fell behind in her child support payments through misfortune.

 

I have also handled some of the most heart-wrenching cases you could encounter - a great-aunt who tried to adopt a great-nephew because the niece (the child's mother) was a drug addict and left her three year old child alone for hours at a time with a dog serving as a "babysitter"; a grandmother who sought custody of her one year old grandson because her son (the father) was an alcoholic who "forgot" to feed and change the child until he cried so loudly that the neighbors thought the child was injured.

 

I don't shy away from the difficult cases, and the likelihood of going to court does not give me pause in representing a client whose case has merit.