Text of LA SB 122 (2009)

SLS 09RS-241 ORIGINAL Page 1 of 19 Coding: Words which are struck through are deletions from existing law; words in boldface type and underscored are additions. Regular Session, 2009 SENATE BILL NO. 122 BY SENATOR BROOME Prefiled pursuant to Article III, Section 2(A)(4)(b)(i) of the Constitution of Louisiana. CHILDREN. Authorizes certain de facto custodian and interested third party custody and visitation proceedings. (gov sig) AN ACT 1 To enact R.S. 9:197 through 197.21, relative to children; to provide relative to custody and 2 visitation of children; to authorize certain de facto custodian and interested third 3 party custody proceedings and orders; to provide definitions, terms, procedures, 4 conditions, and requirements; to provide relative to de facto custody proceedings; to 5 provide relative to custody proceedings by certain interested third parties; to provide 6 for visitation rights and proceedings by grandparents and others under certain 7 circumstances; to provide for consideration of factors, burden of proof, and orders 8 by the court; to authorize certain custody consent decrees; to provide for an effective 9 date; and to provide for related matters. 10 Be it enacted by the Legislature of Louisiana: 11 Section 1. R.S. 9:197 through 197.21 are hereby enacted to read as follows: 12 §197. Definitions 13 As used in R.S. 9:197 through 197.20, unless the context requires 14 otherwise: 15 (1) "De facto custodian" means an individual who has been the primary 16 caretaker for a child who has, within the twenty four months immediately 17 SB NO. 122 SLS 09RS-241 ORIGINAL Page 2 of 19 Coding: Words which are struck through are deletions from existing law; words in boldface type and underscored are additions. preceding the filing of the petition, resided with the individual without a parent 1 present and with a lack of demonstrated consistent participation by a parent for 2 a period of: 3 (a) six months or more, which need not be consecutive, if the child is 4 under three years of age; or 5 (b) one year or more, which need not be consecutive, if the child is three 6 years of age or older. 7 (2) For purposes of the definition, any period of time after a legal 8 proceeding has been commenced and filed must not be included in determining 9 whether the child has resided with the individual for the required minimum 10 period. 11 (3) For purposes of the definition, "lack of demonstrated consistent 12 participation" by a parent means refusal or neglect to comply with the duties 13 imposed upon the parent by the parent-child relationship, including, but not 14 limited to, providing the child necessary food, clothing, shelter, health care, 15 education, creating a nurturing and consistent relationship, and other care and 16 control necessary for the child's physical, mental, or emotional health and 17 development. 18 (4) "De facto custodian" does not include an individual who has a child 19 placed in the individual's care: 20 (a) through a custody consent decree under Section 197.12; 21 (b) through a court order or voluntary placement agreement; or 22 (c) for adoption. 23 (5) "Interested third party" means an individual who is not a de facto 24 custodian but who can prove that at least one of the factors in Section 197.7(A), 25 is met. 26 (6) "Interested third party" does not include an individual who has a 27 child placed in the individual's care: 28 (a) through a custody consent decree under Section 197.12; 29 SB NO. 122 SLS 09RS-241 ORIGINAL Page 3 of 19 Coding: Words which are struck through are deletions from existing law; words in boldface type and underscored are additions. (b) through a court order or voluntary placement; or 1 (c) for adoption. 2 §197.1 Commencement of proceeding 3 A. In a court of this state with jurisdiction to decide child custody 4 matters, a de facto or third-party child custody proceeding may be brought by 5 an individual other than a parent by filing a petition seeking custody in the 6 parish where: 7 (1) the child is permanently a resident, the child is found, or an earlier 8 order for custody of the child has been entered; or 9 (2) the court has jurisdiction over the matter. 10 B. The proceeding is commenced by personal service of the summons 11 and petition. 12 C. An individual other than a parent who seeks visitation shall qualify 13 under one of the provisions of Section 197.13 through 197.20, and shall comply 14 with these provisions to commence the proceeding. 15 §197.2. Requisites of petition or motion 16 A. A petition for de facto custody shall state and allege: 17 (1) The name and address of the petitioner and any prior or other name 18 used by the petitioner; 19 (2) The name and, if known, the address and last four digits of the Social 20 Security number of the respondent mother and father or guardian and any 21 prior or other name used by the respondent and known to the petitioner; 22 (3) The name and date of birth of each child for whom custody is sought; 23 (4) The relationship of the petitioner to each child for whom custody is 24 sought; 25 (5) The petitioner or petitioners' basis for jurisdiction under Section 26 197(1) or 197(5); 27 (6) The current legal and physical custodial status of each child for 28 whom custody is sought and a list of all prior orders of custody, if known to the 29 SB NO. 122 SLS 09RS-241 ORIGINAL Page 4 of 19 Coding: Words which are struck through are deletions from existing law; words in boldface type and underscored are additions. petitioner; 1 (7) Whether any party is a member of the armed services; 2 (8) The length of time each child has resided with the petitioner and has 3 resided in the state of Louisiana; 4 (9) Whether a separate proceeding for dissolution or custody is pending 5 in a court in this state or elsewhere; 6 (10) Whether a permanent or temporary standby custody designation 7 has been executed or filed in a court in this state or elsewhere; 8 (11) Whether a permanent or temporary standby custody designee 9 differs in identity from the de facto custodian and reasons why the proposed de 10 facto custodian should have custodial priority over a designated standby 11 custodian; 12 (12) Whether parenting time should be granted to the respondents; 13 (13) Any temporary or permanent child support, attorney fees, costs, 14 and disbursements; 15 (14) Whether an order of protection or a similar law of another state 16 that governs the parties or a party and a minor child of the parties is in effect 17 and, if so, the district court or similar jurisdiction in which it was entered; and 18 (15) That it is in the best interests of the child under Sections 197.9 and 19 197.10 that the petitioner have custody of the child. 20 B. The petition must be verified by the petitioner or petitioners and its 21 allegations established by competent evidence. 22 §197.3. Written notice 23 A. Written notice of a hearing on a petition to establish de facto or 24 third-party custody of a child must be given to: 25 (1) The parent of the child, if: 26 (a) the person's name appears on the child's birth certificate as a parent; 27 (b) the person has substantially supported the child; 28 (c) the person either was married to the person designated on the birth 29 SB NO. 122 SLS 09RS-241 ORIGINAL Page 5 of 19 Coding: Words which are struck through are deletions from existing law; words in boldface type and underscored are additions. certificate as the natural mother within the three hundred twenty-five days 1 before the child's birth or married that person within the ten days after the 2 child's birth; 3 (d) the person is openly living with the child or the person designated on 4 the birth certificate as the natural mother of the child, or both; 5 (e) the person has been adjudicated the child's parent; 6 (f) the person has filed a paternity action within thirty days after the 7 child's birth and the action is still pending; or 8 (g) the person and the mother of the child signed a declaration of 9 parentage before August 1, 1995, which has not been revoked, or a recognition 10 of parentage which has not been revoked or vacated; and 11 (2) The guardian or legal custodian, if any, of the child. 12 B. Notice need not be given to a person whose parental rights have been 13 terminated. 14 C. Written notice of a hearing on a petition to establish de facto or 15 third-party custody of a child must be given to the public authority if either 16 parent receives public assistance, the petitioner receives public assistance on 17 behalf of the child, or either parent receives child support enforcement services 18 from the public authority or applies for public assistance or child support 19 enforcement services from the public authority after a petition is filed. Notice 20 to the public authority must include a copy of the petition. 21 §197.4. Approval without hearing 22 A. Approval of an order without a hearing is permitted if both parents 23 consent by stipulation or agreement that it is in the best interests of the child to 24 be in the custody of the de facto custodian or interested third party. 25 B. If either parent receives public assistance, the petitioner receives 26 public assistance on behalf of the child, or either parent receives child support 27 enforcement services from the public authority, the petitioner must notify the 28 public authority of the stipulation or agreement. 29 SB NO. 122 SLS 09RS-241 ORIGINAL Page 6 of 19 Coding: Words which are struck through are deletions from existing law; words in boldface type and underscored are additions. §197.5. Emergency or temporary hearings 1 A. The court may grant ex parte relief only if requested by a motion 2 with a properly executed supporting affidavit. The affidavit must outline 3 specific supporting facts as to why the case needs to be expedited. 4 B. The court shall grant ex parte or temporary relief if the petitioner 5 and situation fit the factors outlined for de facto custodian or third-party 6 custodian under Sections 197.6 and 197.7, and Sections 197(1) and (5). 7 C. If the court orders temporary custody, the de facto custodian or 8 interested third party shall seek temporary or permanent custody of the child 9 pursuant to Sections 197.1 through 197.8. 10 §197.6. De facto custodian; burden of proof; factors 11 A. To establish that an individual is a de facto custodian, the individual 12 must: 13 (1) show by clear and convincing evidence that the individual satisfies the 14 provisions of Section 197(1); and 15 (2) prove by a preponderance of the evidence that it is in the best 16 interests of the child to be in the custody of the de facto custodian. 17 B. The following factors shall be considered by the court in determining 18 a parent's lack of demonstrated consistent participation for purposes of Section 19 197(1): 20 (1) the intent of the parent or parents in placing the child with the de 21 facto custodian; 22 (2) the amount of involvement the parent had with the child during the 23 parent's absence; 24 (3) the facts and circumstances of the parent's absence; 25 (4) the parent's refusal to comply with conditions for retaining custody 26 set forth in previous court orders; 27 (5) whether the parent now seeking custody was previously prevented 28 from doing so as a result of domestic violence; and 29 SB NO. 122 SLS 09RS-241 ORIGINAL Page 7 of 19 Coding: Words which are struck through are deletions from existing law; words in boldface type and underscored are additions. (6) whether a sibling of the child is already in the petitioner's care. 1 C. In determining the best interests of the child, the court shall apply the 2 standards in Sections 197.9 and 197.10. 3 §197.7. Interested third party; burden of proof; factors. 4 A. To establish that an individual is an interested third party, the 5 individual shall: 6 (1) show by clear and convincing evidence that one of the following 7 factors exist: 8 (a) the parent has abandoned, neglected, or otherwise exhibited 9 disregard for the child's well-being to the extent that the child will be harmed 10 by living with the parent; 11 (b) placement of the child with the individual takes priority over 12 preserving the day-to-day parent-child relationship because of the presence of 13 physical or emotional danger to the child, or both; or 14 (c) other extraordinary circumstances; 15 (2) Prove by a preponderance of the evidence that it is in the best 16 interests of the child to be in the custody of the interested third party. 17 B. The following factors must be considered by the court in determining 18 an interested third party's petition: 19 (1)The amount of involvement the interested third party had with the 20 child during the parent's absence or during the child's lifetime. 21 (2) The amount of involvement the parent had with the child during the 22 parent's absence. 23 (3) The presence or involvement of other interested third parties. 24 (4) The facts and circumstances of the parent's absence. 25 (5) The parent's refusal to comply with conditions for retaining custody 26 set forth in previous court orders. 27 (6) Whether the parent now seeking custody was previously prevented 28 from doing so as a result of domestic violence. 29 SB NO. 122 SLS 09RS-241 ORIGINAL Page 8 of 19 Coding: Words which are struck through are deletions from existing law; words in boldface type and underscored are additions. (7) Whether a sibling of the child is already in the care of the interested 1 third party. 2 C. In determining the best interests of the child, the court shall apply the 3 standards in Sections 197.9 and 197.10. 4 §197.8. Dismissal of petition 5 A. The court shall dismiss a petition for custody if the court finds that: 6 (1) the petitioner is not a de facto custodian as set forth in Section 138(1); 7 (2) the petitioner does not establish at least one of the factors in Section 8 197.7(A); or 9 (3) placement of the child with the petitioner is not in the best interests 10 of the child. 11 B. If the court finds that a party cannot establish factors for visitation 12 under Sections 197.13 through 197.20, the court shall dismiss a petition for 13 visitation. 14 §197.9. Best interest of a child; custody factors 15 A. If two or more parties seek custody of a child, the court shall consider 16 and evaluate all relevant factors in determining the best interests of the child, 17 including the following factors: 18 (1) The wishes of the party or parties as to custody. 19 (2) The reasonable preference of the child, if the court deems the child 20 to be of sufficient age to express preference. 21 (3) The child's primary caretaker. 22 (4) The intimacy of the relationship between each party and the child. 23 (5) The interaction and interrelationship of the child with a party or 24 parties, siblings, and any other person who may significantly affect the child's 25 best interests. 26 (6) The child's adjustment to home, school, and community. 27 (7) The length of time the child has lived in a stable, satisfactory 28 environment and the desirability of maintaining continuity. 29 SB NO. 122 SLS 09RS-241 ORIGINAL Page 9 of 19 Coding: Words which are struck through are deletions from existing law; words in boldface type and underscored are additions. (8) The permanence, as a family unit, of the existing or proposed 1 custodial home. 2 (9) The mental and physical health of all individuals involved; except 3 that a disability of a proposed custodian or the child shall not be determinative 4 of the custody of the child, unless the proposed custodial arrangement is not in 5 the best interests of the child. 6 (10) The capacity and disposition of the parties to give the child love, 7 affection, and guidance, and to continue educating and raising the child in the 8 child's culture and religion or creed, if any. 9 (11) The child's cultural background. 10 (12) The effect on the child of the actions of an abuser, if related to 11 domestic violence or abuse that has occurred between the parents or the parties. 12 B. The court may not use one factor to the exclusion of all others. The 13 court shall make detailed findings on each of the factors and explain how the 14 factors led to its conclusions and to the determination of the best interests of the 15 child. 16 C. The court shall not give preference to a party over the de facto 17 custodian or interested third party solely because the party is a parent of the 18 child. 19 D. The court shall not prefer a parent over the de facto custodian or 20 third-party custodian solely on the basis of the gender of the parent, de facto 21 custodian, or third party. 22 E. The fact that the parents of the child are not or were never married 23 to each other shall not be determinative of the custody of the child. 24 F. The court shall not consider conduct of a proposed custodian that does 25 not affect the custodian's relationship to the child. 26 §197.10. Best interest of a child; factors when joint custody is sought 27 A. In addition to the factors listed in Section 197.9, if either joint legal 28 or joint physical custody is contemplated or sought, the court shall consider the 29 SB NO. 122 SLS 09RS-241 ORIGINAL Page 10 of 19 Coding: Words which are struck through are deletions from existing law; words in boldface type and underscored are additions. following relevant factors: 1 (1) The ability of the parties to cooperate in the rearing of the child. 2 (2) Methods for resolving disputes regarding any major decision 3 concerning the life of the child and the parties' willingness to use those methods. 4 (3) Whether it would be detrimental to the child if one party were to 5 have sole authority over the child's upbringing. 6 (4) Whether domestic violence or abuse has occurred between the 7 parties. 8 B. If the court awards joint legal or physical custody over the objection 9 of a party, the court shall make detailed findings on each of the factors in this 10 Section and explain how the factors led to its determination that joint custody 11 would be in the best interests of the child. 12 §197.11. De Facto and third-party custody orders 13 A. In a child custody proceeding under Sections 197 through 197.20, the 14 court shall make any additional orders it considers just and proper concerning: 15 (1) The legal custody of a minor child, whether sole or joint. 16 (2) The child's physical custody and residence. 17 (3) The quality and duration of parenting time and whether it is 18 supervised or unsupervised. 19 (4) Child support as determined pursuant to R.S. 9:315 et seq. 20 (5) Other matters reasonably affecting the best interests of the child. 21 §197.12. Custody consent decree 22 A. A parent may transfer legal and physical custody of a child by a 23 consent decree. The court may approve a proposed consent decree if the custody 24 arrangement is in the best interests of the child and all parties to the decree 25 agree to it after being fully informed of its contents. A consent decree under this 26 Section shall: 27 (1) Transfer legal and physical custody of the child to a third party and 28 state that this includes the ability to determine the child's residence; make 29 SB NO. 122 SLS 09RS-241 ORIGINAL Page 11 of 19 Coding: Words which are struck through are deletions from existing law; words in boldface type and underscored are additions. decisions regarding the child's education, religious training, and health care; 1 and obtain information and public services on behalf of the child in the same 2 manner as a parent. 3 (2) Indicate whether the transfer of custody is temporary or permanent. 4 (3) Include an order for child support in the guidelines amount and an 5 allocation of child care costs and including an order for health care costs. 6 B. A party to a consent decree may file a motion to modify or terminate 7 the consent decree at any time. A party who has custody of a child under this 8 section shall seek modification of the consent decree before transferring 9 physical or legal custody of the child to anyone. 10 §197.13. Rights of visitation to unmarried persons; parent deceased 11 If a parent of an unmarried minor child is deceased, the parents and 12 grandparents of the deceased parent may be granted reasonable visitation 13 rights to the unmarried minor child during minority by the district court upon 14 finding that visitation rights would be in the best interests of the child and 15 would not interfere with the parent-child relationship. The court shall consider 16 the amount of personal contact between the parents or grandparents of the 17 deceased parent and the child prior to the application. 18 §197.14. Rights of visitation to unmarried persons; family court proceedings 19 A. In all proceedings for dissolution of marriage or custody, after the 20 commencement of the proceeding, or at any time after completion of the 21 proceedings, and continuing during the minority of the child, the court may, 22 upon the request of the parent or grandparent of a party, grant reasonable 23 visitation rights to the unmarried minor child, after dissolution of marriage or 24 determination of parentage during minority if it finds that: 25 (1) visitation rights would be in the best interests of the child; and 26 (2) such visitation would not interfere with the parent-child relationship. 27 The court shall consider the amount of personal contact between the 28 parents or grandparents of the party and the child prior to the application. 29 SB NO. 122 SLS 09RS-241 ORIGINAL Page 12 of 19 Coding: Words which are struck through are deletions from existing law; words in boldface type and underscored are additions. B. If a motion for grandparent visitation has been heard and denied, 1 unless agreed to in writing by the parties, no subsequent motion may be filed 2 within six months after disposition of a prior motion on its merits. 3 §197.15. Rights of visitation to unmarried persons; child resided with 4 grandparents 5 If an unmarried minor has resided with grandparents or 6 great-grandparents for a period of twelve months or more, and is subsequently 7 removed from the home by the minor's parents, the grandparents or 8 great-grandparents may petition the district court for an order granting them 9 reasonable visitation rights to the child during minority. The court shall grant 10 the petition if it finds that visitation rights would be in the best interests of the 11 child and would not interfere with the parent and child relationship. 12 §197.16. Rights of visitation to unmarried persons; child has resided with other 13 person 14 A. If an unmarried minor has resided in a household with a person, 15 other than a foster parent, for two years or more and no longer resides with the 16 person, the person may petition the district court for an order granting the 17 person reasonable visitation rights to the child during the child's minority. The 18 court shall grant the petition if it finds that: 19 (1) Visitation rights would be in the best interests of the child. 20 (2) The petitioner and child had established emotional ties creating a 21 parent and child relationship. 22 (3) Visitation rights would not interfere with the relationship between the 23 custodial parent and the child. 24 B. The court shall consider the reasonable preference of the child, if the 25 court considers the child to be of sufficient age to express a preference. 26 §197.17. Exception for adopted children 27 Section 197.16 shall not apply if the child has been adopted by a person 28 other than a stepparent or grandparent. Any visitation rights granted prior to 29 SB NO. 122 SLS 09RS-241 ORIGINAL Page 13 of 19 Coding: Words which are struck through are deletions from existing law; words in boldface type and underscored are additions. the adoption of the child shall be automatically terminated upon such adoption. 1 §197.18. Grandparent visitation with an adopted child 2 A. A grandparent of a child adopted by a stepparent may petition and 3 a court may grant an order setting visitation with the child if: 4 (1) the grandparent is the parent of: 5 (i) a deceased parent of the child; or 6 (ii) a parent of the child whose parental relationship was terminated by 7 a decree of adoption; and 8 (2) the court determines that the requested visitation: 9 (i) is in the best interests of the child; and 10 (ii) would not interfere with the parent and child relationship. 11 B. Failure to comply with the terms of an order for visitation is not a 12 basis for revoking, setting aside, or otherwise challenging the validity of a 13 consent, relinquishment, or adoption of a child. 14 §197.19. Establishment of interference with parent and child relationship 15 The court may not deny visitation rights based on allegations that the 16 visitation rights would interfere with the relationship between the custodial 17 parent and the child unless after a hearing the court determines by a 18 preponderance of the evidence that interference would occur. 19 §197.20. Visitation proceeding may not be combined with proceeding 20 Visitation proceedings pursuant to Sections 197 through 197.19 may not 21 be combined with any other child custody or visitation proceedings. 22 §197.21. Effect of provisions 23 A. The actions and proceedings authorized in R.S. 9:197 through 197.20 24 shall be in addition to any other actions and proceedings authorized by law. 25 B. The provisions of R.S. 9:197 through 197.21 shall supercede and 26 control to the extent of conflict with any other provision of law. 27 Section 2. This Act shall become effective upon signature by the governor or, if not 28 signed by the governor, upon expiration of the time for bills to become law without signature 29 SB NO. 122 SLS 09RS-241 ORIGINAL Page 14 of 19 Coding: Words which are struck through are deletions from existing law; words in boldface type and underscored are additions. by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If 1 vetoed by the governor and subsequently approved by the legislature, this Act shall become 2 effective on the day following such approval. 3 The original instrument and the following digest, which constitutes no part of the legislative instrument, were prepared by Angela Lockett De Jean. DIGEST Proposed law defines "de facto custodian" as individual who has been the primary caretaker for a child who has, within the twenty four months immediately preceding the filing of the petition, resided with the individual without a parent present and with a lack of demonstrated consistent participation by a parent for a period of: a. six months or more, which need not be consecutive, if the child is under three years of age; or b. one year or more, which need not be consecutive, if the child is three years of age or older. Proposed law provides that for purposes of the definition in proposed law, any period of time after a legal proceeding has been commenced and filed must not be included in determining whether the child has resided with the individual for the required minimum period. Proposed law defines, "lack of demonstrated consistent participation" by a parent as refusal or neglect to comply with the duties imposed upon the parent by the parent-child relationship, including, but not limited to, providing the child necessary food, clothing, shelter, health care, education, creating a nurturing and consistent relationship, and other care and control necessary for the child's physical, mental, or emotional health and development. Proposed law provides that "de facto custodian" does not include an individual who has a child placed in the individual's care: a. through a custody consent decree under proposed law; b. through a court order or voluntary placement agreement; or c. for adoption. Proposed law provides that "interested third party" means an individual who is not a de facto custodian but who can meet at least one of the factors in proposed law. Proposed law provides that "interested third party" does not include an individual who has a child placed in the individual's care: a. through a custody consent decree pursuant to the proposed law; b. through a court order or voluntary placement; or c. for adoption. Proposed law provides that in a court of this state with jurisdiction to decide child custody matters, a de facto or third-party child custody proceeding may be brought by an individual other than a parent by filing a petition seeking custody in the parish where: 1. the child is permanently a resident, the child is found, or an earlier order for custody of the child has been entered; or 2. the court has jurisdiction over the matter. SB NO. 122 SLS 09RS-241 ORIGINAL Page 15 of 19 Coding: Words which are struck through are deletions from existing law; words in boldface type and underscored are additions. Proposed law provides that a de facto or third-party child custody proceeding is commenced by personal service of the summons and petition. Proposed law provides that an individual other than a parent who seeks visitation shall qualify under one of the provisions of proposed law, and shall comply with these provisions to commence the proceeding. Proposed law requires that a petition for de facto custody shall state and allege: 1. The name and address of the petitioner and any prior or other name used by the petitioner; 2. The name and, if known, the address and last four digits of the Social Security number of the respondent mother and father or guardian and any prior or other name used by the respondent and known to the petitioner; 3. The name and date of birth of each child for whom custody is sought; 4. The relationship of the petitioner to each child for whom custody is sought; 5. The petitioner or petitioners' basis for jurisdiction under proposed law; 6. The current legal and physical custodial status of each child for whom custody is sought and a list of all prior orders of custody, if known to the petitioner; 7. Whether any party is a member of the armed services; 8. The length of time each child has resided with the petitioner and has resided in the state of Louisiana; 9. Whether a separate proceeding for dissolution or custody is pending in a court in this state or elsewhere; 10. Whether a permanent or temporary standby custody designation has been executed or filed in a court in this state or elsewhere; 11. Whether a permanent or temporary standby custody designee differs in identity from the de facto custodian and reasons why the proposed de facto custodian should have custodial priority over a designated standby custodian; 12. Whether parenting time should be granted to the respondents; 13. Any temporary or permanent child support, attorney fees, costs, and disbursements; 14. Whether an order of protection or a similar law of another state that governs the parties or a party and a minor child of the parties is in effect and, if so, the district court or similar jurisdiction in which it was entered; and 15. That it is in the best interests of the child pursuant to proposed law that the petitioner have custody of the child. Proposed law provides that the petition must be verified by the petitioner or petitioners and its allegations established by competent evidence. Proposed law provides that written notice of a hearing on a petition to establish de facto or third-party custody of a child must be given to: 1. The parent of the child, if: (a) the person's name appears on the child's birth certificate as a parent; (b) the person has substantially supported the child; (c) the person either was married to the person designated on the birth certificate as the natural mother within the 325 days before the child's birth or married that person within the ten days after the child's birth; (d) the person is openly living with the child or the person designated on the birth certificate as the natural mother of the child, or both; (e) the person has been adjudicated the child's parent; (f) the person has filed a paternity action within 30 days after the child's birth and the action is still pending; or (g) the person and the mother of the child signed a declaration of parentage before August 1, 1995, which has not been revoked, or a recognition of parentage which has not been revoked or vacated; and 2. The guardian or legal custodian, if any, of the child. SB NO. 122 SLS 09RS-241 ORIGINAL Page 16 of 19 Coding: Words which are struck through are deletions from existing law; words in boldface type and underscored are additions. Proposed law requires that notice need not be given to a person whose parental rights have been terminated. Proposed law requires written notice of a hearing on a petition to establish de facto or third-party custody of a child must be given to the public authority if either parent receives public assistance, the petitioner receives public assistance on behalf of the child, or either parent receives child support enforcement services from the public authority or applies for public assistance or child support enforcement services from the public authority after a petition is filed. Notice to the public authority must include a copy of the petition. Proposed law provides that approval of an order without a hearing is permitted if both parents consent by stipulation or agreement that it is in the best interests of the child to be in the custody of the de facto custodian or interested third party. Proposed law provides that if either parent receives public assistance, the petitioner receives public assistance on behalf of the child, or either parent receives child support enforcement services from the public authority, the petitioner must notify the public authority of the stipulation or agreement. Proposed law provides that the court may grant ex parte relief only if requested by a motion with a properly executed supporting affidavit. The affidavit must outline specific supporting facts as to why the case needs to be expedited. Proposed law provides that the court shall grant ex parte or temporary relief if the petitioner and situation fit the factors outlined for de facto custodian or third-party custodian pursuant to proposed law. Proposed law provides that if the court orders temporary custody, the de facto custodian or interested third party shall seek temporary or permanent custody of the child pursuant to proposed law. Proposed law provides that to establish that an individual is a de facto custodian, the individual must: 1. show by clear and convincing evidence that the individual meets the definition of a de facto custodian; and 2. prove by a preponderance of the evidence that it is in the best interests of the child to be in the custody of the de facto custodian. Proposed law provides that the following factors shall be considered by the court in determining a parent's lack of demonstrated consistent participation for as provided in proposed law: 1. the intent of the parent or parents in placing the child with the de facto custodian; 2. the amount of involvement the parent had with the child during the parent's absence; 3. the facts and circumstances of the parent's absence; 4. the parent's refusal to comply with conditions for retaining custody set forth in previous court orders; 5. whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence; and 6. whether a sibling of the child is already in the petitioner's care. Proposed law provides that to establish that an individual is an interested third party, the individual shall: 1. show by clear and convincing evidence that one of the following factors exist: (a) the parent has abandoned, neglected, or otherwise exhibited disregard for the SB NO. 122 SLS 09RS-241 ORIGINAL Page 17 of 19 Coding: Words which are struck through are deletions from existing law; words in boldface type and underscored are additions. child's well-being to the extent that the child will be harmed by living with the parent; (b) placement of the child with the individual takes priority over preserving the day-to-day parent-child relationship because of the presence of physical or emotional danger to the child, or both; or (c) other extraordinary circumstances; 2. Prove by a preponderance of the evidence that it is in the best interests of the child to be in the custody of the interested third party. Proposed law provides the following factors must be considered by the court in determining an interested third party's petition: 1. The amount of involvement the interested third party had with the child during the parent's absence or during the child's lifetime. 2. The amount of involvement the parent had with the child during the parent's absence. 3. The presence or involvement of other interested third parties. 4. The facts and circumstances of the parent's absence. 5. The parent's refusal to comply with conditions for retaining custody set forth in previous court orders. 6. Whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence. 7. Whether a sibling of the child is already in the care of the interested third party. Proposed law provides that the court shall dismiss a petition for custody if the court finds that: 1. the petitioner is not a de facto custodian as set forth in proposed law; 2. the petitioner does not establish at least one of the factors in proposed law; or 3. placement of the child with the petitioner is not in the best interests of the child. Proposed law provides that if the court finds that a party cannot establish factors for visitation under proposed law, the court shall dismiss a petition for visitation. Proposed law provides that if two or more parties seek custody of a child, the court shall consider and evaluate all relevant factors in determining the best interests of the child, including the following factors: 1. The wishes of the party or parties as to custody. 2. The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference. 3. The child's primary caretaker. 4. The intimacy of the relationship between each party and the child. 5. The interaction and interrelationship of the child with a party or parties, siblings, and any other person who may significantly affect the child's best interests. 6. The child's adjustment to home, school, and community. 7. The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity. 8. The permanence, as a family unit, of the existing or proposed custodial home. 9. The mental and physical health of all individuals involved; except that a disability of a proposed custodian or the child shall not be determinative of the custody of the child, unless the proposed custodial arrangement is not in the best interests of the child. 10. The capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child's culture and religion or creed, if any. 11. The child's cultural background. 12. The effect on the child of the actions of an abuser, if related to domestic violence or SB NO. 122 SLS 09RS-241 ORIGINAL Page 18 of 19 Coding: Words which are struck through are deletions from existing law; words in boldface type and underscored are additions. abuse that has occurred between the parents or the parties. Proposed law provides that the court shall not give preference to a party over the de facto custodian or interested third party solely because the party is a parent of the child. Proposed law provides that in addition to the factors listed in proposed law, if either joint legal or joint physical custody is contemplated or sought, the court shall consider the following relevant factors: 1. The ability of the parties to cooperate in the rearing of the child. 2. Methods for resolving disputes regarding any major decision concerning the life of the child and the parties' willingness to use those methods. 3. Whether it would be detrimental to the child if one party were to have sole authority over the child's upbringing. 4. Whether domestic violence or abuse has occurred between the parties. Proposed law provides that in a child custody proceeding, the court shall make any additional orders it considers just and proper concerning: 1. The legal custody of a minor child, whether sole or joint. 2. The child's physical custody and residence. 3. The quality and duration of parenting time and whether it is supervised or unsupervised. 4. Child support as determined pursuant to R.S. 9:315 et seq. 5. Other matters reasonably affecting the best interests of the child. Proposed law provides that a parent may transfer legal and physical custody of a child by a consent decree. The court may approve a proposed consent decree if the custody arrangement is in the best interests of the child and all parties to the decree agree to it after being fully informed of its contents. Proposed law provides that a consent decree shall: 1. Transfer legal and physical custody of the child to a third party and state that this includes the ability to determine the child's residence; make decisions regarding the child's education, religious training, and health care; and obtain information and public services on behalf of the child in the same manner as a parent. 2. Indicate whether the transfer of custody is temporary or permanent. 3. Include an order for child support in the guidelines amount and an allocation of child care costs and including an order for health care costs. Proposed law provides that if a parent of an unmarried minor child is deceased, the parents and grandparents of the deceased parent may be granted reasonable visitation rights to the unmarried minor child during minority by the district court upon finding that visitation rights would be in the best interests of the child and would not interfere with the parent child relationship. The court shall consider the amount of personal contact between the parents or grandparents of the deceased parent and the child prior to the application. Proposed law provides that in all proceedings for dissolution of marriage or custody, after the commencement of the proceeding, or at any time after completion of the proceedings, and continuing during the minority of the child, the court may, upon the request of the parent or grandparent of a party, grant reasonable visitation rights to the unmarried minor child, after dissolution of marriage or determination of parentage during minority if it finds that: 1. visitation rights would be in the best interests of the child; and 2. such visitation would not interfere with the parent-child relationship. Proposed law provides that if a motion for grandparent visitation has been heard and denied, SB NO. 122 SLS 09RS-241 ORIGINAL Page 19 of 19 Coding: Words which are struck through are deletions from existing law; words in boldface type and underscored are additions. unless agreed to in writing by the parties, no subsequent motion may be filed within six months after disposition of a prior motion on its merits. Proposed law provides that if an unmarried minor has resided with grandparents or great-grandparents for a period of 12 months or more, and is subsequently removed from the home by the minor's parents, the grandparents or great-grandparents may petition the district court for an order granting them reasonable visitation rights to the child during minority. The court shall grant the petition if it finds that visitation rights would be in the best interests of the child and would not interfere with the parent and child relationship. Proposed law provides that if an unmarried minor has resided in a household with a person, other than a foster parent, for two years or more and no longer resides with the person, the person may petition the district court for an order granting the person reasonable visitation rights to the child during the child's minority. The court shall grant the petition if it finds that: 1. Visitation rights would be in the best interests of the child. 2. The petitioner and child had established emotional ties creating a parent and child relationship. 3. Visitation rights would not interfere with the relationship between the custodial parent and the child. Proposed law provides that the court shall consider the reasonable preference of the child, if the court considers the child to be of sufficient age to express a preference. Proposed law provides that proposed law shall not apply if the child has been adopted by a person other than a stepparent or grandparent. Any visitation rights granted prior to the adoption of the child shall be automatically terminated upon such adoption. Proposed law provides that a grandparent of a child adopted by a stepparent may petition and a court may grant an order setting visitation with the child if: 1. the grandparent is the parent of: (i) a deceased parent of the child; or (ii) a parent of the child whose parental relationship was terminated by a decree of adoption; and 2. the court determines that the requested visitation: (i) is not in the best interests of the child; and (ii) would not interfere with the parent and child relationship. Proposed law provides that the court may not deny visitation rights based on allegations that the visitation rights would interfere with the relationship between the custodial parent and the child unless after a hearing the court determines by a preponderance of the evidence that interference would occur. Proposed law provides that visitation proceedings pursuant to the proposed law may not be combined with any other child custody or visitation proceedings. Proposed law provides that it shall be in addition to other actions authorized by law, and that its provisions shall supercede and control to the extent of conflict with any other provision of law. Effective upon signature of the governor or lapse of time for gubernatorial action. (Adds R.S. 9:197 - 197.21)