Child Custody, Modifications, and the Bergeron Standard
Once there is a final judgment in a child custody case, modifications or changes are challenging. A consent decree in child custody means that both parties agree to the custody arrangement without needing a trial. A considered decree is put in place by the Judge. Changes to either decree are burdensome. The rules are different in both instances. The person seeking modifications must prove they serve the child’s best interests.
There are five types of child custody available to parents in New Orleans. There are options for every situation. When both parents work together, and you have a New Orleans child custody lawyer, you can find a solution that works for everyone. The child custody arrangements you can seek are:
- Legal: This can be with one or both parents and allows them to make decisions regarding the child’s upbringing. Some critical matters include religion, education, etc.
- Physical: This is the child’s residence and who handles daily care. It is usually given to both parents when they live close to each other, and it is easy for the child to go between homes. Again it can be with one or both parents.
- Joint: Both parents have the same legal rights and responsibilities for decision-making regarding the child excluding physical custody. A schedule is made so that familial bonds continue to flourish.
- Sole: One parent has sole custody, and the other will get visitation. However, visitation is only awarded if it is in the child’s best interest. Sole custody can apply to legal or physical custody matters.
- Shared: This custody type gives both parents equal parenting time, responsibilities, and legal decision-making.
New Orleans also has split and third custody arrangements. These are for unique circumstances. Split custody is when there are multiple children, and each parent has custody of one child. You will see this when there are two children. One parent takes custody of one child, and the other takes custody of the other. Sometimes neither parent can care for the child. The court will award custody to a family member or third party equipped to care for the child.
Parents can request a modification to child custody arrangements for many reasons. The best way to do this is for both parents to agree to the arrangement before going through the court. They can establish a new order and submit it. The court will review the order, and if it continues to benefit the child, it will be approved. If the parents agree the current order doesn’t work but cannot agree on a new one, they can file a formal motion. Parents must show there was a substantial change in circumstance since the last order was issued.
So, what is the Bergeron Standard?
The Bergeron Standard applies in considered divorces – ones where a Judge puts the order in place: “The Louisiana Supreme Court held in Bergeron v. Bergeron, 492 So. 2d 1193 (1986) that the person seeking the modification bears a heavy burden of proving that the current custody is so deleterious to the child as to warrant its modification, or by clear and convincing evidence that the benefits of the change outweigh the damages that will be done to the child.”
This is a MUCH higher standard than would be needed in a consent decree. In those cases, the burden of proof is that it’s in the child’s best interests to modify an order.
Why does this standard only apply to certain cases?
First, you should understand that the original case is a bit unorthodox. It involves parental kidnapping, multiple marriages, disputes between both parties as to who has custody, and finger-pointing by both sides. The opinion also contains a sentence that says “This litigation over the custody of the unfortunate child arose because his mother allowed him to remain with his father after a 1983 Christmas visit and to attend school in Jefferson Parish during the spring of 1984.” We point this out because A) whomever says Judges are completely impartial clearly doesn’t know much about Judges, B) the original order was decreed by a court, and C) be the Appellate court recognized just how traumatizing this entire experience had been on the child.
And that is the crux of the Bergeron Standard: the actions of these parents had deleterious effects on their child. Theoretically, any parents who can come to an agreement without argument about custody should be able to modify that order without too much of a challenge. If a Judge has to create that order, however – a Judge who has already determined what he or she thinks is best for that child based on all of the evidence – then the chances are good that the Judge will need a pretty significant reason to modify the order at all.
What factors are considered in a child custody decision
When your case cannot be decided and goes to trial, the Judge will review many different factors. You must be ready with evidence showing why your arrangement is best for the child. Some of the factors the Judge will review and consider include:
- The bond between the child and parents
- The amount of affection and love between the child and parents
- Mental and physical health of the parents
- The child’s background in school, the community, etc.
- The capacity of each parent to provide basic needs
- The child’s reasonable preference
- The morality of each spouse and its potential impacts on the child
- Parents’ willingness to encourage and facilitate a healthy relationship with the other parent
- How easy or challenging it will be for the child to adjust to their new surroundings
- Residential distance of the parents
- The child’s emotional, physical, mental, religious, and social needs and how each parent can facilitate them
A child should have access to time with both parents. If one parent gets custody, the other one should get visitation. There will also be a schedule established that considers everyone’s needs. Additionally, the child’s needs will change as they get older. You should have a New Orleans child custody lawyer helping you through each phase.
Challenges with considered child custody decrees
A considered decree is issued after a trial happens. During the trial, both sides will present evidence about their position on custody to the court. The Judge will then issue the decree after considering all of the evidence. When the Judge files their decision, it can be challenging to make any changes. If you disagree with the Judge’s decision, you must present new evidence. You have the right to seek a modification, but you should work with a New Orleans child custody lawyer.
The biggest challenge is showing the benefit of the new proposed arrangement outweighs any potential harm. The evidence must be clear and convincing, making it the highest burden of proof across civil law topics. Essentially you must show that the Judge made a mistake. No one, especially a Judge, wants to admit they made a mistake in their ruling. There will be a lot of pushback, but our New Orleans modification lawyers can help.
When handling child custody arrangements, you hope the child’s best interests are considered. You also hope that you and you ex can co-parent effectively. Unfortunately, that doesn’t always happen. Emotions are high, and everyone thinks they know what is best for the child. Some parents are selfish and use their children as a pawn. Letting the court decide can be detrimental to you and your child’s relationship. The Law Offices of James A. Graham can help with custody and other family law matters. Call our office or complete our contact form to schedule a case review with our New Orleans child custody attorney today.