Divorce and Family Law: Code Article 133

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If the Louisiana family courts had it their way, a child from a marriage that ends in divorce would always remain in the custody of one or both of the parents. This is because Louisiana holds the family in very high esteem, and regards the parent-child relationship one to that is extremely important.

Unfortunately, this cannot always be the case. Sometimes there are factors that come into play whereby a court cannot conscience placing a child with a particular parent. Louisiana Civil Code article 133 deals with one such problem. The article reads: “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…”

One easy way to illustrate article 133 is through an example. Let’s say Daisy is the only daughter of Max and Linda. Max and Linda got a divorce ten years ago. After the breakup, Max became engaged in a serious drug addiction. This addiction compromised his ability to seek custody of his child. A family court ordered that he is only to have limited visitation of Daisy, and that Linda would be the sole custodial parent.

Now let’s say that Linda dies in a car accident. Max catches wind of this and decides he is going to take this opportunity to get custody of Daisy, because he did not get much custody as part of the divorce. The problem for Max is that he still has drug issues, and he has been in and out of rehab for the past five years.

Now let’s say that Daisy has a grandmother, Susan. Susan has been taking care of Daisy for almost Daisy’s whole life. In fact, if Linda were alive, she would probably say that Susan was more of a mother to Daisy than Linda herself was.

Because Daisy’s custodial parent is deceased, a family court may have to award custody of her to another parent. In the above example, we would have a classic example of how article 133 would work. If it could be proven, a court may disqualify Max from being the custodial parent even though he is an actual parent of Daisy. This is of course because of his drug problem. Given Susan’s long track record of caring for Daisy, not to mention that she is an actual relative as well, a court very well may make her the custodial parent under article 133.

As the language of the article indicates, there may be other hypotheticals where a father like Max is denied custody of the child after the divorce from the child’s mother, and where the child is given to someone other than a doting grandparent. If Max is unfit, the court will look for another potential parent for Daisy rather than place her in an unstable environment. This might mean an aunt or uncle, an older sibling, or maybe even an old and trusted friend of the family.

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

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