Helping The Children

GRANDPARENT RIGHTS TO CUSTODY OR VISITATION WITH THEIR GRANDCHILDREN

In general, grandparent rights to their grandchildren are limited.  The U.S. Supreme Court in the year 2000 reaffirmed the fundamental right of parents to make all decisions concerning the welfare of their children.  The court limited the right of grandparents to interfere with the decisions of the parents only in extraordinary circumstances.  Thus, in Louisiana, grandparent rights to their grandchildren are limited.

GRANDPARENT VISITATION RIGHTS IN LOUISIANA

Grandparents have several options if they desire parents to maintain custody of their grandchildren but still want a set schedule of visitation so they can be assured contact with their grandchildren.  A grandparent has the right to file suit in court to ask for visitation rights in the following circumstances:

  1. A divorce petition is pending between the mother and father of the grandchildren.  A grandparent may intervene in the divorce to ask for visitation with the grandchildren.  The grandparent will have to prove extraordinary circumstances exist which make it in the best interest of the grandchild to have visitation.  The judge will consider the length and quality of the prior relationship between the grandchild and grandparent, whether the grandparent can uniquely provide guidance and support to the grandchild that the parent cannot, the grandchild’s wishes, and the mental and physical health of the grandparent.  Also, the judge will consider the willingness of the grandparent to encourage a good relationship between parent and child; 
  2. A grandparent may sue for visitation even if there is no pending divorce or if the parents were never married, but lived together; if the grandparent’s child is sentenced to prison, dies or is interdicted.  Also, the grandparent may  sue for visitation if the parents are married and have lived separately for more than six months. A judge has discretion to  grant visitation if the grandparent proves it is in the best interest of the child;   
  3. A grandparent may sue for visitation rights when their grandchild has been placed in foster care by the state because of abuse or neglect by the parents.

GRANDPARENT CUSTODIAL RIGHTS IN LOUISIANA

Grandparents may ask for legal custody of grandchildren in the following circumstances: 

  • If the parents have filed for custody in a divorce petition, the grandparents may intervene and ask the judge to award them custody.  The grandparents will have to prove that maintaining custody of the grandchild with the parents would substantially harm the child.  This burden of proof is difficult to overcome and could result in the parents maintaining custody even though the child would be better off  living with the grandparents.  Generally, the judge would have to find that the parents are abusing or neglecting the grandchild to award custody to grandparents; 
  • If parents are abusing their child, grandparents may file a protective order on behalf of the grandchild asking that they obtain temporary custody of the child.  A judge could grant an immediate order of custody.  A hearing would be held within 30 days during which the grandparents would have to prove the abuse to the judge.  If abuse is proven at the hearing, the judge may award custody to the grandparents for between six and eighteen months.  Protective orders are designed to provide emergency relief, so it is relatively easy for the grandparents to appear at the clerk of court in the parish where the abuse has occurred and file the protective order without the help of an attorney.  However, it is always better to seek advice from an attorney;
  • Grandparents may request legal custody of their grandchild when the state has obtained custody of the grandchild because of abuse or neglect.  It is the policy of the state to attempt to place abused children with relatives before they are placed in foster care; 
  • If the parents are in agreement that the grandparents should have custody of the child,  they may sign a Voluntary Transfer of Custody.  This document is an agreement which transfers custody from the parents to the grandparents and is signed by a judge.  It can be permanent or temporary.  However, if the parents should ever change their minds about the custody arrangement after the document has been approved by the judge, the parents would have to get the approval of the judge before their custodial rights would be restored.

PROVISIONAL CUSTODY BY MANDATE

The Provisional Custody by Mandate is a Power of Attorney by which a parent may authorize a grandparent to provide care for the grandchild. The document must be signed in front of two witnesses and a notary and must be renewed each year. It can be revoked at anytime by the parent.  The document does not transfer legal custody and does not have to be approved by a judge. It merely allows the grandparent to do such things as enroll the grandchild in school or obtain medical care for the grandchild.  Grandparents should check with individual school boards to determine if that parish will allow the child to be enrolled with a Provisional Custody by Mandate or whether the grandparent will need legal custody to enroll the grandchild in school.   

Louisiana does have a law which allows doctors and schools to provide services for a grandchild without the parent’s consent if the grandparent signs an affidavit stating the grandchild lives with the grandparent and the grandparent is unable to contact the parents after reasonable efforts.  However, the decision to provide services based on that affidavit is left up to the service provider.

ADOPTION

Adoption differs from legal custody in that if a grandparent adopts the grandchild, the parents’ rights are terminated.  If the grandparent is awarded legal custody, the parents still have a right to visit the grandchild and an obligation to financially support the grandchild. Grandparents may apply to adopt their grandchild if the parents voluntarily surrender their parental rights or if the parents do not want to voluntarily surrender and the following circumstances exist. The grandparent has had physical or legal custody of the grandchild for at least six months prior to filing for the adoption and granted custody and either;  The parents have refused or failed to comply with a court order of support without just cause for a period of at least six months; or  The parents have refused or failed to visit, communicate, or attempt to communicate with the grandchild without just cause for at least six months;  


And the adoption is in the best interest of the child.

Uniform International Child Abduction Prevention Act

Passed in 2007 Regular Session (Introduced by Senator Broom.  LA. R.S. 13:1851 through 1862). 


1.  Action for abduction prevention measures

     A.  A court on its own motion may order abduction prevention measures in a child-custody proceeding if the court finds that the evidence established a credible risk of abduction of the child; 

     B.  A party to a child-custody determination, or another individual or entity having a right under the law of this state or any other state to seek a child-custody determination for the child may file a petition seeking abduction prevention measures to protect the child.  

2.  A court of this state has temporary emergency jurisdiction under these provisions; 

3.  Factors to determine risk of abduction.  The court shall consider all of the following factors and any evidence of numerous factors that the petitioner or respondent: 

     A.  Has previously abducted or attempted to abduct the child; 

     B.  Has threatened to abduct the child;

     C.  Has recently engaged in activities that may indicate a planned abduction;

     D.  Has engaged in domestic violence, stalking, or child abuse or neglect;

     E.  Has refused to follow a custody determination;

     F.   Lacks strong familial, financial, emotional, or cultural ties to the United States; 

     G.  Has strong familial, financial, emotional, or cultural ties to another country;

     H.  Has used multiple names to attempt to mislead or defraud;

     I.    Has engaged in any other conduct the court considers relevant to the risk of abduction;

4.  Provisions & measures to prevent abductions:

     A.   An imposition of travel restrictions;

     B.   A prohibition of the respondent directly or indirectly, either: 

          (i)    Removing the child from the United States without permission of the court or the petitioner's written consent;

          (ii)    Removing or retaining the child in violation of a child-custody determination;

          (iii)   Removing the child from school or a child-care or similar facility

          (iv)   Approaching the child at any location other than a site designated for supervised visitation.

     C.  Restrictions on child’s passport, including, but not limited to, placing child’s name in the US Department of State Children’s Passport Issuance Alert Program; A requirement that the respondent surrender to the court or the petitioner's attorney any U.S. or foreign passport issued in the child's name, including a passport issued in the name of both the parent and the child; and a prohibition upon the respondent from applying on behalf of the child for a new or replacement passport or visa.

     D.   In the abduction prevention order the court  may:

          1.   Limit visitation or order supervised visitation until court orders otherwise;

          2.   Require respondent to post a bond or provide other security in an amount sufficient to serve as a financial deterrent to abduction;

          3.   Require the respondent to obtain education; There are other provisions to prevent imminent  abduction such as issuing a warrant to take physical custody of the child or directing law enforcement to locate child.