Louisiana Custody and Visitation Law
Louisiana courts typically have not restricted the custody and visitation of lesbian or gay parents as long as they conceal their sexual orientations. It would seem that courts would not look favorably on granting custody and/or visitation to a lesbian or gay parent who did not conceal his or her sexual orientation or the nature of a relationship with a same-sex partner. There are no reported or published opinions dealing with transgender parents or same-sex co-parents.
Custody and Visitation for Lesbian, Gay and Bisexual Parents
Louisiana law states: “The court shall consider all relevant factors in determining the best interest of the child. Such factors may include: (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.”
In one 1995 case, Scott v. Scott, the father filed a motion to change custody. The court maintained the joint custody arrangement but designated the father as the domiciliary parent, i.e., the one with primary physical custody. The mother appealed, arguing among other things that the trial court erred in giving physical custody to the father based on her sexual orientation. The appeals reiterated that: “In assessing whether a parent's sexual lifestyle is cause for removing or denying custody, we must consider whether the behavior was damaging to the children. This involves a determination of (1) whether the children were aware of the illicit relationship, (2) whether sex play occurred in their presence, (3) whether the furtive conduct was notorious and brought embarrassment to the children and (4) what effect the conduct had on the family home life.” The appeals court found that the children were aware of the relationship between the mother and her same-sex partner and that because the mother and her partner refused to hide the fact that they were a same-sex couple, and, “unlike more conventional relationships, far more likely to cause embarrassment, particularly to young children.” While affirming the holding in Lundin, i.e., that “the mere fact of homosexuality may not require a determination of moral unfitness so as to deprive the homosexual parent of joint custody,” the court distinguished this case, noting that the mother openly resided with her partner. The court went as far as to state, “It is the opinion of this court that under such facts [parent living openly with same-sex partner], primary custody with the homosexual parent would rarely be held to be in the best interests of the child.” As a result, the appeals court affirmed the trial court’s decision to transfer primary physical custody to the father.
In 1990’s Lundin v. Lundin, the mother was awarded sole custody of the child of the marriage. After the divorce, the mother entered into a same-sex relationship and the father appealed the custody award. The appeals court reversed the award of sole custody, stating that there was a legislative preference for joint custody and there is no reason to indicate that joint custody was not in the best interest of the child. The appeals court, however, believed the father should have greater custodial time because in this case, “Where the sexual preference is known and openly admitted, where there have been open, indiscreet displays of affection beyond mere friendship and where the child is of an age where gender identity is being formed, joint custody arrangement should award greater custodial time to the father.”
In a 1984 case, Peyton v. Peyton, the district court awarded joint custody in alternating three-month intervals. The father appealed, questioning whether the award was correct given the mother was engaged in “discreet lesbian activities.” The appeals court noted that the trial court evaluated the 11 factors listed in state law and all factors pointed toward an award of joint custody. The father argued that the mother’s sexual orientation cast doubt on her ability and willingness to provide proper guidance. The appeals court noted that the father had also admitted an adulterous relationship with his girlfriend and that “neither parent in this case has demonstrated high moral standards … the trial judge did not see fit to favor one form of adultery over another, we do not find his decision erroneous.”
Citations: LA. CIV. CODE Art. 134; Scott v. Scott, 665 So.2d 760 (La. App. 1995); Lundin v. Lundin, 569 So.2d 533 (La. Ct. App. 1990); Peyton v. Peyton, 457 So.2d 321 (La. Ct. App. 1984).
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Last Updated: 11/7/2004