Child Relocation

One controversial issue in child custody today is relocation of the child by one parent, when there is no notification or consent of the other parent. Sometimes parents believe they get the upper-hand by moving the child away, when in fact they could be putting their own rights at risk by failing to follow proper procedure, not to mention the harm it could ultimately cause the child.

Relocation Defined

Louisiana Law, RS 9:355.1, defines "Relocation" as:

(a) Intent to establish legal residence with the child at any location outside of the state.

(b) If there is no court order awarding custody, an intent to establish legal residence with the child at any location within the state that is at a distance of more than one hundred fifty miles from the other parent. If there is a court order awarding custody, then an intent to establish legal residence with the child at a distance of more than one hundred fifty miles from the domicile of the primary custodian at the time the custody decree was rendered.

(c) A change in the principal residence of a child for a period of sixty days or more, but does not include a temporary absence from the principal residence.

Relocation Properly Done

In Louisiana, a parent can not and should not relocate a child's residence without providing the other parent a Notice of Relocation. The parent may also have to submit a Motion to Effect Relocation, if the court requires or if it is likely that the other parent will oppose the move. An opposing parent may object to the move by filing an Objection to Relocation.

LDC offers a Notice of Relocation form and Motion to Effect Relocation, and Objection to Relocation forms, complete with instructions and outline of factors the court will consider at the hearing. Visit LouisianaDivorceCourt.com to order yours.

Acknowledgment of Paternity, Legitimation

Under Louisiana law, children are either legitimate or illegitimate. Legitimate children are those who are either born or conceived during marriage, or who have been legitimated by subsequent marriage or by an 'act' or declaration executed before a notary and two witnesses, declaring that it is the intention of the parent making the declaration to legitimate such child or children. In this way, even illegitimate children - those born out of wedlock, can be legitimated by proper form.

An alternative but related act is an Acknowledgment of Paternity. The acknowledgment of an illegitimate child is made by declaration executed before a notary and two witnesses, or it may be made in the registering of the birth or baptism of such child. There is a key difference between mere registration and formal acknowledgment, however:

(1) An acknowledgment or declaration by notarial act is deemed to be a legal finding of paternity and is sufficient to establish an obligation to support an illegitimate child without the necessity of obtaining a judgment of paternity.

(2) An acknowledgment by registry creates only a presumption of paternity, which may be rebutted if the alleged father proves he is not the father.

LDC offers a Combined Act of Legitimation and Acknowledgment of Paternity for fathers who wish to legitimate and formally acknowledge their children as their own. This form can be purchased directly from LouisianaDivorceCourt.com

Spousal Support, Alimony

Determination of final periodic support

When a spouse has not been at fault in causing the divorce and is in need of support, the determination of a spouse's final periodic support (or alimony) obligation is based on the needs of that party and the ability of the other party to pay.

In determining the amount and duration of final support, the court considers "all relevant factors". Pursuant to La.Civ.Code Art. 112, those factors may include:

(1) The income and means of the parties, including the liquidity of such means.
(2) The financial obligations of the parties.
(3) The earning capacity of the parties.
(4) The effect of custody of children upon a party's earning capacity.
(5) The time necessary for the claimant to acquire appropriate education, training, or employment.
(6) The health and age of the parties.
(7) The duration of the marriage.
(8) The tax consequences to either or both parties.

You should consider all of these factors in building your case for spousal support. Just know that, in the end, the sum awarded will not exceed one-third of your spouse's net income.

Louisiana No-fault Divorce, 103 Divorce

The no-fault divorce, sometimes referred to as a "103 Divorce" is the simplest kind, where the parties have already been separate for the required period of time. It requires no action on the part of the party who is served or who voluntarily signs a waiver of service.

The most common procedure for filing a no fault divorce in Louisiana is as follows:

A. Respect Filing Requirements and Waiting Periods

1. SEPARATE for six months (or 365 days if they are minor children).
2. FILE a verified Petition for Divorce in the domicile of either party or last matrimonial domicile
3. SERVE the other spouse with certified copy (or obtain a written waiver of service).
4. WAIT - the other spouse has 15 days to respond (30 if the spouse lives out of state), and if there is no response or Answer filed, then
5. SET a "Confirmation of Default" date two or more days after entry of "Preliminary Default", this is done by request through the Clerk of Court.

B. Appear in Open Court / Confirm Default

1. APPEAR in open court on date of the hearing/confirmation with TWO witnesses who can testify that you've lived apart without reconciliation for the required time (180 or 365 days).
2. SUBMIT proposed Judgment for Judge's signature.


Alternative Endings

IF waiver is obtained, a default judgment may be entered on the date the affidavit is filed, proceed to A5.
IF an Answer is filed, then FILE a Motion to Set for Trial on the Petition, serve the other spouse, and proceed to B1.

Sample forms for a 103 Divorce can be purchased at LouisianaDivorceCourt.com

Domicile in Louisiana Family Law

One of the most curious and confusing terms in Louisiana family law is also the simplest - "domicile". You can not properly file anything in Louisiana without understanding the concept of domicile. As an example, a Petition for Divorce can only be filed in a parish where either party is domiciled, or in the parish of the last matrimonial domicile. So, what is domicile?

Domicile is not Residence Alone

The terms residence and domicile are not synonymous, and although a person can have several residences, that person can have only one domicile. See La.Civ.Code art. 38; Becker v. Dean, 03-2493 (La. 9/26/03), 854 So.2d 864.

Domicile Defined

La.Civ.Code art. 38 states as follows:

The domicile of each citizen is in the parish wherein he has his principal establishment.

The principal establishment is that in which he makes his habitual residence; if he resides alternately in several places, and nearly as much in one as in another, and has not declared his intention in the manner hereafter prescribed, any one of the said places where he resides may be considered as his principal establishment, at the option of the persons whose interests are thereby affected.

Domicile = Residence + Intent to Remain

In other words, domicile demands a sense of permanency or stability. Thus, "domicile" is the principal establishment where one habitually resides, with a corresponding intent to remain. Russell v. Goldsby, 00-2595 (La.9/22/00), 780So.2d 1048.