Divorce is an unfortunate event, but the reality is it happens to many families; and, the strains of divorce can affect the entire family both physically and mentally. If there are children involved in divorce, the Family Law courts in the South Louisiana area – from Lafayette to New Orleans – strive to protect those children above all else. Though they are not the parties involved in a divorce lawsuit, the children’s best interests are considered to be paramount, even above that of their parents who are going through the divorce . In some cases, a judge will even take into account a child’s preference. Though they may not be of legal age in the eyes of the law, they are still entitled to protections. Your family lawyer will be able to advise if and when a child’s preference should be considered. 

General Rights

A divorce can be a scary time for children. Generally, the court will consider what is known as the “best interest factors” when considering what is best for any children involved in a divorce. The law lists factors that must be considered; however, the court evaluates each child’s best interests on a case-by-case basis. Aside from the factors used to determine the best interest of children, courts will generally recognize certain responsibilities of each parent that are meant to safeguard their children. For example, each parent must ensure that they do not admonish the other parent in the presence of the children, nor should they use the children as a means to communicate with the other parent. In an ideal situation, the children should be a neutral party in the divorce with nothing but love coming from the divorcing parties.

Love and Security

Children of divorce may need a little extra love and care during that season of uncertainty. Those children have the right to a caring and guiding relationship in a stable, loving environment. Each parent has an obligation to provide a wholesome environment for their children, which most parents are more than happy to provide. That being said, there is no true guide for parents to navigate divorce and custody. A child’s sense of security is very important during this time. Parents must remember to show love to their children more than they show dislike of their now ex-spouse.  

Rights When Deciding Custody

When the family law courts are deciding custody of a child, the State of Louisiana takes the child’s best interest into account. But do they ever take their preferences into account? According to article 134 of Louisiana Civil Code, “the court shall consider all relevant factors in determining the best interest of the child, including…the reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.” Of course, this is a case-by-case decision made by the judge, but on those occasions, if the child is at least 12 years old, the court will give some weight to their preference. The judge may speak to a child younger than 12, but this is always a case specific determination. This decision will be based on the rationale and reasoning behind the child’s preference and not based on temporary emotions or whims. The judge will also be aware of the possibility of parental manipulation or alienation by either of the child’s parents. The judge interviewing the minor child or children will remain focused on whether the preferences of the child lines up with the best relationship, best provider, and best opportunity for education and social activities throughout their life.

During divorce proceedings, though their opinions may have some weight, children are usually not asked to testify in court. However, the judge has the option to request an interview with the child or children in their chambers without the parents present to ask questions of them. The parents’ family lawyer may or may not be present at this type of hearing as well. A court reporter may record the interview, and this can be used during the custody proceedings as evidence.

In some cases, a family lawyer may be appointed by the Court to represent the children in the custody proceedings. Either the Court on its own motion, either parent, any party, or even the child can petition the court to have an attorney appointed for the child in a custody or visitation proceeding. The court will hold a hearing to determine whether the child should be represented by their own attorney. At the hearing the court will consider: whether the custody of visitation proceeding is exceptionally intense or protracted; whether an attorney representing the child could provide the court with significant information not otherwise readily available or likely to be presented by the parents; whether there exists a possibility that neither parent is capable of providing an adequate and stable environment for the child; whether the interest of the child and those of either parent/party conflict; or any other factor relevant to determining the child’s best interests. The court must appoint an attorney for the child if there is a clear case of either parent or other person caring for the child has inflicted any abuse on the child or that either parent or caretaker knew or should have known of such abuse. If an attorney is appointed for the child or children in a custody matter, then that child will have the same rights of confidentiality with their attorney as any person and that attorney must zealously represent the child’s rights at trial. 

In summary, although children may not be of the legal age to represent themselves, they do have certain fundamental rights that are protected, especially during a divorce and custody proceeding. If you have any questions on the rights of your child or children, or if you need assistance with a divorce/custody case in the New Orleans or Lafayette areas, contact your local family lawyer at Latiolais Law Firm.