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Regular Session, 2010
SENATE BILL NO. 320
BY SENATOR QUINN (On Recommendation of the Louisiana State Law Institute)
CHILDREN. Provides for the relocation of the residence of a child. (8/15/10)
AN ACT1
To amend and reenact Subpart E of Part III of Chapter 1 of Code Title V of Code Book I of2
Title 9 of the Louisiana Revised Statutes of 1950, presently comprised of R.S.3
9:355.1 through 355.17, to be comprised of R.S. 9:355.1 through 355.19, relative to4
the relocation of the residence of a child; to provide for definitions; to provide for5
applicability; to provide for the proposal of relocation; to provide for notice; to6
provide for an objection; to provide for the limitation on an objection to relocation7
by non-parents; to provide for the failure to object; to provide for court authorization8
to relocate; to provide for a temporary order; to provide for the priority for hearings;9
to provide for factors to determine relocation; to provide for the appointment of a10
mental health expert; to provide for the burden of proof; to provide for a11
modification of custody; to provide for the posting of security; to provide for12
sanctions; and to provide for related matters.13
Be it enacted by the Legislature of Louisiana:14
Section 1. Subpart E of Part III of Chapter 1 of Code Title V of Code Book I of Title15
9 of the Louisiana Revised Statutes of 1950, presently comprised of R.S. 9:355.1 through16
355.17, is hereby amended and reenacted to be comprised of R.S. 9:355.1 through 355.19,17 SB NO. 320
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to read as follows:1
SUBPART E. RELOCATING A CHILD'S RESIDENCE2
§355.1. Definitions3
As used in this Subpart:4
(1) "Equal physical custody" means that the parents share equal parental5
authority of the child absent a court order to the contrary.6
(2) "Parent entitled to primary custody" means a parent designated by a court7
order as the sole or primary custodian or domiciliary parent within a joint custody8
arrangement, but does not include a parent who has equal physical custody.9
(3) (1) "Principal residence of a child" means:10
(a) The location designated by a court to be the primary residence of the11
child.12
(b) In the absence of a court order, the location at which the parties have13
expressly agreed that the child will primarily reside.14
(c) In the absence of a court order or an express agreement, the location, if15
any, at which the child has spent the majority of time during the prior six months.16
(4) (2) "Relocation" means:17
(a) Intent to establish legal residence with the child at any location outside18
of the state.19
(b) If there is no court order awarding custody, an intent to establish legal20
residence with the child at any location within the state that is at a distance of more21
than one hundred fifty miles from the other parent. If there is a court order awarding22
custody, then an intent to establish legal residence with the child at a distance of23
more than one hundred fifty miles from the domicile of the primary custodian at the24
time the custody decree was rendered.25
(c) A a change in the principal residence of a child for a period of sixty days26
or more, but does not include a temporary absence from the principal residence.27
Comments – 2010 Revision28
29
(a) This revision moves the geographic threshold for application of the30
relocation statutes to R.S. 9:355.2.31 SB NO. 320
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(b) Absences of more than sixty days which are temporary – including, for1
instance, a summer holiday – are not relocation as defined in this Subpart.2
3
§355.2. Applicability4
A. This Subpart shall apply to an order regarding custody of or visitation5
with a child issued:6
(1) On or after August 15, 1997.7
(2) Before August 15, 1997, if the existing custody order does not expressly8
govern the relocation of the child.9
B. This Subpart shall apply to a proposed relocation:10
(1) When there is intent to establish the principal residence of a child at11
any location outside of this state.12
(2) If there is no court order awarding custody, when there is an intent13
to establish the principal residence of a child at any location within this state14
that is at a distance of more than one hundred miles from the domicile of the15
other parent.16
(3) If there is a court order awarding custody, when there is an intent17
to establish the principal residence of a child pursuant to R.S. 9:355.7 and 355.818
at any location within this state that is at a distance of more than one hundred19
miles from the principal residence of the child at the time the most recent20
custody decree was rendered.21
(4) If no principal residence is designated by the court or the parties22
have equal physical custody, when there is an intent to establish the principal23
residence of a child at any location within this state that is at a distance of more24
than one hundred miles from the domicile of a person entitled to object to25
relocation of the residence of the child.26
B. C. To the extent that a provision of this Subpart conflicts with an existing27
custody order, this Subpart shall not apply to the terms of that order that governs28
relocation of the child.29
C. D. This Subpart shall not apply when:30 SB NO. 320
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(1) The parents of a child persons required to give notice of and the1
persons entitled to object to a proposed relocation have entered into an express2
written agreement for a temporary relocation of that child's principal residence,3
regardless of the duration of the temporary relocation.4
(2) An order issued pursuant to Domestic Abuse Assistance, Part II of5
Chapter 28 of Title 46 or the Post-Separation Family Violence Relief Act or6
Injunctions and Incidental Orders, Parts IV and V of Chapter 1 of Code Title V of7
Code Book I of Title 9, except R.S. 9:372.1, all of the Louisiana Revised Statutes8
of 1950, Domestic Abuse Assistance, Chapter 8 of Title XV of the Children's Code,9
or any other restraining order, preliminary injunction, permanent injunction, or any10
protective order prohibiting a spouse from harming or going near or in the proximity11
of the other spouse is in effect.12
Comments – 2010 Revision13
14
(a) This revision reduces the threshold distance for application of the15
relocation statutes from 150 miles to 100 miles in recognition of the likelihood that16
weekday visitation and the general ability to participate in the child's daily life will17
be substantially affected by distances of more than 100 miles. The relocation laws18
of a number of other states hinge upon relocations involving moves in excess of 10019
miles (See, e.g., Mich. Comp. Laws § 722.31; Tenn. Code § 36-6-108) and many20
states apply their relocation statutes to moves involving even shorter distances. See,21
e.g., Ala. Code 1975 § 30-3-162 (60 miles); Or. Rev. Stat. § 107.159 (60 miles).22
23
(b) "Equal physical custody" in Paragraph B(2) refers to a custody24
arrangement under which persons have equal or approximately equal physical25
custody. It should be interpreted to mean one half or an approximately equal amount26
of time, expressed in percentages such as forty-nine percent/fifty-one percent.27
"Equal physical custody" is distinguished from "shared custody" under R.S. 9:315.9,28
which Louisiana courts have interpreted to include custody arrangements with a split29
of sixty-three percent/thirty-seven percent. See, e.g., Westcott v. Westcott, 927 So.30
2d 377 (La. App. 1st Cir. 2005). Such a split is not "equal physical custody" under31
this statute.32
33
(c) If a person proposes relocation of a child within the state and at distances34
shorter than those in Paragraph B(2), Louisiana's relocation statutes have no35
application and the person seeking to relocate has no obligation to provide notice or36
seek court approval in advance of the move.37
38
(d) Paragraph B(3) changes the focus of the distance threshold from the39
domicile of the primary custodian at the time the custody decree was rendered to the40
principal residence of the child at the time of the custody decree in light of the notion41
that the body of relocation statutes focuses on a relocation of the child and not his42
caregivers.43
44
(e) See R.S. 9:355.7 and 355.8 regarding the persons entitled to object to a45
proposed relocation. Not all persons entitled to notice of a relocation are permitted46 SB NO. 320
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to object.1
2
(f) The purpose of Paragraph D(2) is to prevent the application of Louisiana's3
child relocation statutes, requiring the party proposing relocation to notify a person4
entitled to receive notice of the details of the proposed move, in situations involving5
family violence, domestic abuse, and the like. The reference to "Part V of Chapter6
1 of Code Title V of Code Book I of Title 9," however, includes R.S. 9:372.1, which7
governs an injunction prohibiting harassment. When an injunction has been issued8
only under R.S. 9:372.1, there is insufficient justification for exempting the proposed9
relocation from the requirements of the child relocation statutes.10
11
§355.3. Persons authorized to propose relocation of principal residence of a12
child13
The following persons are authorized to propose relocation of the14
principal residence of a child by complying with the notice requirements of this15
Subpart:16
(1) A person designated in a court decree as the sole custodian.17
(2) A person designated in a court decree as the domiciliary parent in18
a joint custody arrangement.19
(3) A person sharing equal physical custody under a court decree.20
(4) A person sharing equal parental authority under Chapter 5 of Title21
VII of Book I of the Louisiana Civil Code.22
(5) A person who is the natural tutor of a child born outside of marriage.23
Comments – 2010 Revision24
25
(a) Persons authorized to propose relocation of a child's principal residence26
are generally those with legal decision-making authority over the child, including the27
sole custodian or domiciliary parent in a joint custody arrangement or the natural28
tutor of a child born outside of marriage. When parents are married and sharing29
equal parental authority, both are entitled to propose relocation. Regardless of who30
holds decision-making authority for the child, however, persons who share equal31
physical custody of the child under a court decree are equally authorized to propose32
relocation.33
34
(b) For the definition of "equal physical custody," see R.S. 9:355.2,35
Comment (b).36
37
§355.3. 355.4. Notice of proposed relocation of child to other parent38
A. A parent entitled to primary custody of a child person proposing39
relocation of the principal residence of a child shall notify the other any person40
recognized as a parent of a proposed relocation of the child's principal residence41 SB NO. 320
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and any other person awarded custody or visitation under a court decree as1
required by R.S. 9:355.4 9:355.5, but before relocation shall obtain either court2
authorization to relocate, after a contradictory hearing, or the written consent of the3
other parent prior to any relocation.4
B. If both parents persons have equal physical custody of a child under a5
court decree, a parent one shall notify the other parent of a proposed relocation of6
the child's principal residence as required by R.S. 9:355.4, but 9:355.5, and before7
relocation shall obtain either court authorization to relocate, after a contradictory8
hearing, or the express written consent of the other parent person prior to any9
relocation.10
C. Repealed by Acts 2008, No. 751, §2, eff. July 3, 2008.11
Comments – 2010 Revision12
13
(a) See R.S. 9:355.3 for a list of persons authorized to propose relocation of14
a child's principal residence.15
16
(b) For the definition of "equal physical custody," see R.S. 9:355.2,17
Comment (b).18
19
§355.4. 355.5. Mailing notice of proposed relocation address20
A. Notice of a proposed relocation of the principal residence of a child shall21
be given by registered or certified mail, return receipt requested, to the last known22
address of the parent person entitled to notice under R.S. 9:355.4 no later than23
either any of the following:24
(1) The sixtieth day before the date of the intended move or proposed25
relocation.26
(2) The tenth day after the date that the parent person proposing relocation27
knows the information required to be furnished by Subsection B of this Section, if28
the parent person did not know and could not reasonably have known the29
information in sufficient time to comply with the sixty-day notice, and it is not30
reasonably possible to extend the time for relocation of the child.31
B. The following information, if available, shall be included with the notice32
of intended relocation of the child:33 SB NO. 320
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(1) The intended new residence, including the specific address, if known.1
(2) The mailing address, if not the same.2
(3) The home and cellular telephone number numbers, if known.3
(4) The date of the intended move or proposed relocation.4
(5) A brief statement of the specific reasons for the proposed relocation of5
a child, if applicable.6
(6) A proposal for a revised schedule of physical custody or visitation with7
the child.8
(7) A statement informing the other parent person entitled to object that an9
objection to the proposed relocation shall be filed within thirty days of receipt of the10
notice and that the other parent person should seek legal advice immediately.11
C. A parent person required to give notice of a proposed relocation shall12
have a continuing duty to provide the information required by this Section as that13
information becomes known.14
§355.6. Failure to give notice of relocation15
The court may consider a failure to provide notice of a proposed relocation16
of a child as:17
(1) A factor in making its determination regarding the relocation of a child.18
(2) A basis for ordering the return of the child if the relocation has taken19
place without notice or court authorization.20
(3) Sufficient cause to order the parent seeking to relocate the child person21
proposing relocation to pay reasonable expenses and attorney fees incurred by the22
person objecting to the relocation.23
§355.7. Objection to relocation of child24
Except for a person with equal physical custody of a child under a court25
decree, a person entitled to object to a proposed relocation of the principal26
residence of a child shall initiate a summary proceeding objecting to the27
proposed relocation within thirty days after receipt of the notice. A person with28
equal physical custody of a child under a court decree who desires to relocate29 SB NO. 320
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shall comply with R.S. 9:355.4(B).1
Comments – 2010 Revision2
3
(a) The availability of the summary proceeding described in this Section is4
subject to the limitations described in R.S. 9:355.8. Some persons entitled to receive5
notice of a proposed relocation of a child's residence are not permitted to initiate a6
proceeding to object to the proposed relocation.7
8
(b) A person entitled to object to a proposed relocation who does not initiate9
a proceeding to object may nonetheless commence an action to change custody or10
the visitation schedule in light of the changed circumstances of the relocation.11
12
(c) Initiating a summary proceeding requires the filing of a motion or rule13
to show cause in compliance with Code of Civil Procedure Articles 2591-2596.14
Retaining an attorney to handle an objection to relocation is not sufficient to initiate15
a proceeding absent any filings.16
17
(d) For the definition of "equal physical custody," see R.S. 9:355.2,18
Comment (b).19
20
§355.8. Limitation on objection by non-parents21
Only a person recognized as a parent or awarded custody may object to22
the relocation. A non-parent who has been awarded visitation may initiate a23
proceeding to obtain a revised visitation schedule.24
Comment – 2010 Revision25
26
This Section recognizes the primacy of parental rights over non-parent rights27
regarding relocation of a child. See generally Troxel v. Granville, 530 U.S. 57, 12028
S.Ct. 2054, 147 L.Ed. 49 (2000) (holding that Washington's non-parent visitation29
statute violated mother's fundamental right to raise her children as she saw fit).30
Although a non-parent entitled to notice of a proposed relocation under this Subpart31
may not commence an action to restrict a parent's right to relocate the child, the non-32
parent may, if granted visitation, commence an action to revise the visitation33
schedule in light of the changed circumstances of the relocation. A non-parent who34
has been awarded custody of the child may, however, object to a parent's proposal35
to relocate the child.36
37
§355.9. Failure to object to notice of proposed relocation38
Except as otherwise provided by R.S. 9:355.4(B), the person required to39
give notice may relocate the principal residence of a child after providing the40
required notice unless a person entitled to object initiates a summary41
proceeding to prevent the relocation within thirty days after receipt of the42
notice.43
§355.5. 355.10. Court authorization to relocate44
A parent seeking to relocate the principal residence of a child person45 SB NO. 320
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proposing relocation shall not, absent express written consent or failure to timely1
object to the proposed relocation, remove relocate the child pending resolution of2
the dispute, or final order of the court, unless the parent person obtains a temporary3
order to do so pursuant to R.S. 9:355.10 9:355.11.4
§355.10. 355.11. Temporary order5
A. The court may grant a temporary order allowing a parent to relocate6
relocation.7
B. The court, upon the request of the moving parent party, may hold a8
limited evidentiary preliminary hearing on the proposed relocation but may shall9
not grant court authorization to remove relocate the child on an ex parte basis.10
C. If the court issues a temporary order authorizing a parent to relocate with11
the child relocation, the court may shall not give undue weight to the temporary12
relocation as a factor in reaching its final determination.13
D. If temporary relocation of a child is permitted, the court may require the14
parent person relocating the child to provide reasonable security guaranteeing that15
the court ordered physical custody or visitation with the child will not be interrupted16
or interfered with by the relocating parent or that the relocating parent person will17
return the child if court authorization for the removal is denied at the final hearing.18
E. An order not in compliance with the provisions of this Section is not19
enforceable, and is null and void.20
Comment – 2010 Revision21
22
Subsection (E) tracks the language of Code of Civil Procedure Article23
3945(E), which makes temporary, custody orders unenforceable, "null," and "void"24
if not in compliance.25
26
§355.9. 355.12. Priority for temporary and final hearing on objection27
A hearing on either a temporary or permanent order permitting or restricting28
the objection to the proposed relocation shall be accorded appropriate priority on29
the court's docket held within thirty days of the filing of the objection.30
Comment – 2010 Revision31
32
After entry of an order on relocation, a Louisiana court may retain33 SB NO. 320
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jurisdiction consistent with Louisiana law and the Uniform Child Custody1
Jurisdiction and Enforcement Act. (R.S. 13:1814).2
3
§355.12. 355.13. Factors to determine contested relocation4
A. In reaching its decision regarding a proposed relocation, the court shall5
consider the following factors all relevant factors in determining whether6
relocation is in the best interest of the child. Those factors may include:7
(1) The nature, quality, extent of involvement, and duration of the child's8
relationship of the child with the parent person proposing to relocate and with the9
nonrelocating parent person, siblings, and other significant persons in the child's life.10
(2) The age, developmental stage, needs of the child, and the likely impact11
the relocation will have on the child's physical, educational, and emotional12
development, taking into consideration any special needs of the child.13
(3) The feasibility of preserving a good relationship between the14
nonrelocating parent person and the child through suitable physical custody or15
visitation arrangements, considering the logistics and financial circumstances of the16
parties.17
(4) The child's preference views, taking into consideration the age and18
maturity of the child.19
(5) Whether there is an established pattern of conduct of the by either the20
parent person seeking or opposing the relocation, either to promote or thwart the21
relationship of the child and the nonrelocating party.22
(6) Whether How the relocation of the child will enhance affect the general23
quality of life for both the custodial parent seeking the relocation and the child,24
including but not limited to financial or emotional benefit or educational opportunity.25
(7) The reasons of each parent person for seeking or opposing the relocation.26
(8) The current employment and economic circumstances of each parent27
person and whether or not how the proposed relocation is necessary to improve will28
affect the circumstances of the parent seeking relocation of the child.29
(9) The extent to which the objecting parent person has fulfilled his or her30 SB NO. 320
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financial obligations to the parent person seeking relocation, including child support,1
spousal support, and community property , and alimentary obligations.2
(10) The feasibility of a relocation by the objecting parent person.3
(11) Any history of substance abuse , harassment, or violence by either4
parent the person seeking or opposing relocation, including a consideration of the5
severity of such conduct and the failure or success of any attempts at rehabilitation.6
(12) Any other factors affecting the best interest of the child.7
B. The court may not consider whether or not the person seeking relocation8
of the child will relocate without the child if relocation is denied or whether or not9
the person opposing relocation will also relocate if relocation is allowed.10
Comments – 2010 Revision11
12
(a) This revision changes the language of the statute to make it clear that, as13
in cases requiring the application of the factors of Civil Code Article 134, a court14
need not make a factual finding on every factor.15
16
(b) In considering the needs of the child and the developmental impact of17
relocation, the court may take into account not only the general needs of similarly18
situated children, but also any special needs of the particular child under19
consideration.20
21
(c) The "logistics" in Paragraph A(3) may include a consideration of the22
amount of time the child will be required to spend traveling in order to maintain a23
meaningful relationship with the person objecting to the relocation, the distance24
involved, and the proximity, availability, and safety of travel arrangements.25
26
(d) A consideration of the"preference" of the child is a traditional factor in27
cases involving custody. The word "views" is used in order to broaden the inquiry28
and to decrease the potentially harmful impact of asking a child to choose in a29
relocation contest.30
31
(e) Because the focus of the best interest inquiry in relocation is on the child,32
references to improvements in the custodial parent's quality of life and the necessity33
of improving the circumstances of a parent in Paragraphs A(6) and A(8) have been34
eliminated. A child may benefit or suffer detriment either directly or indirectly from35
a change in the quality of life or economic circumstances of any person exercising36
custody or visitation with him, and such benefits and detriments are to be considered37
by the court. The assessment must be focused on the effect of relocation on the38
child, however, and not the benefit relocation will provide to the adults exercising39
custody or visitation rights.40
41
(f) Paragraph A(7) may lead to a consideration of the mental and emotional42
well-being of both the person seeking to relocate and the person opposing it. The43
substantial mental and emotional toll of custody proceedings should be considered44
in the relocation context, just as it is in Civil Code Article 134 on factors affecting45
the best interest of the child in custody disputes in general.46
47
§355.8. 355.14. Mental health expert; appointment48 SB NO. 320
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The court, on motion of either party or on its own motion, may promptly1
appoint an independent mental health expert to render a determination as to whether2
the proposed relocation is in the best interest of an opinion as to the effect of the3
proposed relocation on the child.4
§355.15. Application of factors at initial hearing5
If the issue of relocation is presented at the initial hearing to determine6
custody of and visitation with a child, the court shall apply also consider the factors7
set forth in R.S. 9:355.12 9:355.13 in making its initial determination.8
Comment – 2010 Revision9
10
In an initial custody determination, the court will generally consider the11
factors concerning best interest of the child set out in Civil Code Article 134. This12
statute requires the court to consider application of the relevant factors specific to13
relocation in R.S. 9:355.13 as well as the Article 134 factors. Dicta in McLain v.14
McLain, 974 So.2d 726, 733 (La.App. 4th Cir. 2007), stating that the Article 13415
factors are "arguably not applicable" when relocation is at issue in the initial custody16
hearing, is no longer accurate under this revision.17
18
§355.13. 355.16. Burden of proof19
The relocating parent person has the burden of proof that the proposed20
relocation is made in good faith and is in the best interest of the child. In21
determining the child's best interest, the court shall consider the benefits which the22
child will derive either directly or indirectly from an enhancement in the relocating23
parent's general quality of life.24
Comments – 2010 Revision25
26
(a) Although the person proposing relocation has the burden to prove that the27
relocation attempt is made both in good faith and in the best interests of the child,28
there is no presumption in favor of or against relocation of the child's residence.29
This Section places the initial burden of proof on the person proposing relocation.30
If a proceeding objecting to the relocation is instituted in accordance with R.S.31
9:355.7, the person wishing to relocate must prove by a preponderance of the32
evidence that relocation meets the good faith and best interest standards. If that33
burden of proof has been met, the burden then shifts to the person objecting to the34
relocation to show by a preponderance of the evidence that the proposed relocation35
is not made in good faith or is not in the best interest of the child.36
37
(b) This revision eliminates reference to the court's consideration of an38
enhancement in the qualify of life of the person seeking relocation in determining the39
best interest of the child. It does not, however, change the law. A detailed list of40
factors to be considered in determining whether relocation is in the best interest of41
the child is set out in R.S. 9:355.13 and among them is a consideration of "how the42
relocation of the child will affect the general quality of life for the child, including43 SB NO. 320
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but not limited to financial or emotional benefit or education opportunity."1
2
§355.11. 355.17. Proposed relocation not basis for modification Modification of3
custody4
Providing notice of a proposed relocation of a child shall not constitute a5
change of circumstance warranting a change of custody. Moving Relocating6
without prior notice if there is a court order awarding custody or moving7
relocating in violation of a court order may constitute a change of circumstances8
warranting a modification of custody.9
Comment – 2010 Revision10
11
In accordance with R.S. 9:355.8, not all persons receiving notice of a12
proposed relocation are entitled to object. To the extent moving without prior notice13
or in violation of a court order may constitute a change of circumstances warranting14
a modification of custody, it is only in a contest between a person proposing15
relocation and a person entitled to object to the proposed relocation.16
17
§355.14. 355.18. Posting security18
If relocation of a child is permitted, the court may require the parent person19
relocating the child to provide reasonable security guaranteeing that the court20
ordered physical custody or visitation with the child will not be interrupted or21
interfered with by the relocating party.22
§355.16. 355.19. Sanctions for unwarranted or frivolous proposal to relocate child23
or objection to relocation24
A. After notice and a reasonable opportunity to respond, the court may25
impose a sanction on a parent proposing a relocation of the child person proposing26
or objecting to a proposed relocation of a child if it determines that the proposal was27
made or the objection was filed:28
(1) To harass the other parent person or to cause unnecessary delay or29
needless increase in the cost of litigation.30
(2) Without being warranted by existing law or based on a frivolous31
argument.32
(3) Based on allegations and other factual contentions which have no33
evidentiary support nor, if specifically so identified, could not have been reasonably34 SB NO. 320
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believed to be likely to have evidentiary support after further investigation. In1
violation of Code of Civil Procedure Article 863(B).2
B. A sanction imposed under this Section shall be limited to what is3
sufficient to deter repetition of such conduct or comparable conduct by others4
similarly situated. The sanction may consist of , or include, directives of a5
nonmonetary nature, an order to pay a penalty to the court, or, if imposed on motion6
and warranted for effective deterrence, an order directing payment to the movant of7
some or all of the reasonable attorney fees and other expenses incurred as a direct8
result of the violation reasonable expenses and attorney fees incurred as a direct9
result of the conduct.10
§355.17. Continuing jurisdiction11
If the court grants authorization to relocate, the court may retain continuing,12
exclusive jurisdiction of the case after relocation of the child as long as the non-13
relocating parent remains in the state.14
Section 2. The provisions of this Act shall be effective on August 15, 2010. They15
shall not apply to any case that is being litigated or appealed in or to any court of this state16
wherein the custody of a child is an issue due to the relocation of a party on the effective17
date of this Act; however, any subsequent relocation by a party after final disposition of such18
litigation pending on the effective date of this Act shall be governed by Section 1 of this Act.19
The original instrument was prepared by Camille Sebastien Perry. The
following digest, which does not constitute a part of the legislative
instrument, was prepared by Tammy Crain-Waldrop.
DIGEST
Quinn (SB 320)
Present law (R.S. 9:355.1) provides that "equal physical custody" means that the parents
share equal parental authority of the child absent a court order to the contrary.
Proposed (Comment (b) under R.S. 9:355.2) provides that "equal physical custody" refers
to a custody arrangement under which persons have equal or approximately equal physical
custody.
Present law (R.S. 9:355.1) provides a definition of "parent entitled to primary custody."
Proposed law deletes this definition of a term not used elsewhere in family law.
Present law (R.S. 9:355.1) provides a definition of "principal residence of a child." SB NO. 320
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Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
Proposed law (R.S. 9:355.1) retains present law.
Present law (R.S. 9:355.1) provides that "relocation" means an intent to establish the
residence of the child outside of the state, an intent to establish the residence of the child at
any location within the state that is at a distance of more than 150 miles from the other
parent, an intent to establish the residence of the child at a distance of more than 150 miles
from the domicile of the primary custodian, or a change in the principal residence of a child
for a period of sixty days or more.
Proposed law (R.S. 9:355.1 and R.S. 9:355.2(B)(1)) retains present law, in part.
Proposed law (R.S. 9:355.2) changes present law to provide that the provisions regarding
relocation of a child's residence shall apply when there is an intent to establish the principal
residence of a child pursuant to R.S. 9:355.7 and 355.8 at any location within the state that
is at a distance of more than 100 miles from the domicile of the other parent, when there is
an intent to establish the principal residence of a child at a distance of more than 100 miles
from the current principal residence of the child, or when there is an intent to establish the
principal residence of a child at a distance of more than 100 miles from the domicile of a
person entitled to object to relocation of the child's residence.
Present law (R.S. 9:355.2) provides for the applicability of the provisions regarding
relocation of a child's residence.
Proposed law (R.S. 9:355.2) retains present law, in part and changes present law to state a
distance factor for the application of the relocation provisions, and to change the phrase
"parents of a child" to "persons required to give notice of and persons entitled to object to
a proposed relocation."
Present law (R.S. 9:355.2) provides that the provisions of the present law requiring the party
proposing relocation to notify a person entitled to receive notice of the details of the
proposed move shall not apply in certain situations, such as those involving family violence
and domestic abuse.
Proposed law provides that when an injunction has been granted prohibiting a spouse from
harassing the other spouse in a proceeding for divorce, there is insufficient justification for
exempting the proposed relocation from the requirements of the child relocation statutes.
Proposed law (R.S. 9:355.3) authorizes the following persons to propose a relocation of a
child's principal residence:
(1)A person designated in a court decree as the sole custodian.
(2)A person designated in a court decree as the domiciliary parent in a joint custody
arrangement.
(3)A person sharing equal physical custody under a court decree.
(4)A person sharing equal parental authority under Chapter 5 of Title VII of Book I of
the Louisiana Civil Code.
(5)A person who is the natural tutor of a child born outside of marriage.
Present law (R.S. 9:355.3) provides for a notice of proposed relocation of child.
Proposed law (R.S. 9:355.4) retains present law, in part and changes present law to modify
references from "parent" to "persons".
Present law (R.S. 9:355.4) provides for the mailing of a notice of a proposed relocation SB NO. 320
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words in boldface type and underscored are additions.
address.
Proposed law (R.S. 9:355.5) retains present law, in part and changes present law to modify
references from "parent" to "persons," to provide that information relative to cellular phone
numbers shall be given, and to provide for a proposed revised schedule of physical custody.
Present law (R.S. 9:355.6) provides for the failure to give notice of relocation.
Proposed law (R.S. 9:355.6) retains present law, in part and changes present law to modify
references from "parent" to "persons," and eliminates court authorization to consider an
award of attorney fees to the person objecting to relocation by the party proposing relocation
when there is a failure to provide notice for these matters.
Proposed law (R.S. 9:355.7) requires a person entitled to object to a proposed relocation of
the principal residence of a child to initiate a summary proceeding objecting to the proposed
relocation within 30 days after receipt of the notice, except for a person with equal physical
custody of a child under a court decree, and requires a person with equal physical custody
of a child under a court decree who desires to relocate to comply with notice requirements.
Proposed law (R.S. 9:355.8) limits an objection to relocation to a person recognized as a
parent or awarded custody, but authorizes a non-parent who has been awarded visitation to
initiate a proceeding to obtain a revised visitation schedule.
Proposed law (R.S. 9:355.9) authorizes the person required to give notice to relocate the
principal residence of a child after providing the required notice, unless a person entitled to
object initiates a summary proceeding to prevent the relocation within 30 days after receipt
of the notice, except when persons have equal physical custody of the child under a court
decree.
Present law (R.S. 9:355.5) provides for a court authorization to relocate.
Proposed law (R.S. 9:355.10) retains present law, in part and changes present law to modify
references from "parent" to "persons" and provides for the failure to timely object to a
proposed relocation.
Present law (R.S. 9:355.10) provides for a temporary order allowing a parent to relocate.
Proposed law (R.S. 9:355.11) retains present law, in part and changes present law to modify
references from "parent" to "persons", to provide for physical custody, and to provide that
an order not in compliance is null and void.
Present law (R.S. 9:355.9) requires a hearing on either a temporary or permanent order
permitting or restricting relocation to be accorded appropriate priority on the court's docket.
Proposed law (R.S. 9:355.12) changes present law to provide that a hearing on the objection
to the proposed relocation shall be held within 30 days from the filing of the objection.
Present law (R.S. 9:355.12) provides for the factors that a court shall consider in determining
if a relocation is in the best interest of the child.
Proposed law (R.S. 9:355.13) retains present law, in part and changes present law to provide
that the court shall consider "all relevant factors," to modify references from "parent" to
"persons", to provide for physical custody, and to provide for harassment by a person
seeking or opposing relocation and provides that the court shall consider as a factor in
determining whether relocation is in the best interest of the child, whether there is an
established pattern of conduct by either the person seeking or opposing the relocation either
to promote or thwart the relationship of the child and nonrelocating party.
Present law (R.S. 9:355.8) provides for the appointment of a mental health expert. SB NO. 320
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words in boldface type and underscored are additions.
Proposed law (R.S. 9:355.14) retains present law, in part and changes present law to provide
that the court on motion of either party or on its own motion may appoint a mental health
expert to render an opinion on the effect of the proposed relocation on the child.
Present law (R.S. 9:355.15) requires the court to apply the factors concerning relocation in
making its initial determination, if the issue of relocation is presented at the initial hearing
to determine custody of and visitation with a child.
Proposed law (R.S. 9:355.15) retains present law, in part and changes present law to provide
that the court "shall also consider" rather than "apply" the factors to determine a contested
relocation at an initial hearing.
Present law (R.S. 9:355.13) provides that the relocating parent has the burden of proof that
the proposed relocation is made in good faith and is in the best interest of the child and
requires the court, in determining the child's best interest, to consider the benefits which the
child will derive either directly or indirectly from an enhancement in the relocating parent's
general quality of life.
Proposed law (R.S. 9:355.16) retains present law, in part and changes present law to modify
references from "parent" to "persons" and deletes the provision requiring the court to
consider the enhancement on the child's life that relocation might create.
Present law (R.S. 9:355.17) provides that if the court grants authorization to relocate, the
court may retain continuing, exclusive jurisdiction of the case after relocation of the child
as long as the non-relocating parent remains in the state.
Proposed law deletes this provision.
Present law (R.S. 9:355.11) provides that giving notice of a proposed relocation of a child
shall not constitute a change of circumstance warranting a change of custody, but moving
without prior notice or moving in violation of a court order may constitute a change of
circumstances warranting a modification of custody.
Proposed law (R.S. 9:355.17) provides that giving notice of a proposed relocation shall not
constitute a change of circumstance warranting a change of custody, but relocating without
prior notice if there is a court order awarding custody or relocating in violation of a court
order may constitute a change of circumstances warranting a modification of custody.
Present law (R.S. 9:355.14) provides that if relocation of a child is permitted, the court may
require the parent relocating the child to provide reasonable security guaranteeing that the
court ordered visitation with the child will not be interrupted or interfered with by the
relocating party.
Proposed law (R.S. 9:355.18) retains present law, in part and changes present law to modify
references from "parent" to "persons" and to provide for physical custody.
Present law (R.S. 9:355.16) provides for sanctions for unwarranted or frivolous proposals
to relocate the child or an objection to relocation.
Proposed law (R.S. 9:355.19) retains present law, in part and changes present law to modify
references from "parent" to "persons".
Proposed law provides that the provisions of the proposed law shall be effective on August
15, 2010 and shall not apply to any case that is being litigated or appealed in or to any court
of this state wherein the custody of a child is an issue due to the relocation of a party on the
effective date of the proposed law; however, any subsequent relocation by a party after final
disposition of such litigation pending on the effective date of the proposed law shall be
governed by it. SB NO. 320
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words in boldface type and underscored are additions.
(Amends R.S. 9:355.1- 355.19)
Summary of Amendments Adopted by Senate
Committee Amendments Proposed by Senate Committee on Judiciary A to the
original bill.
1. Provides that as a factor in determining whether relocation is in the best
interest of the child, the court shall consider whether there is an established
pattern of conduct by either the person seeking or opposing the relocation
either to promote or thwart the relationship of the child and nonrelocating
party.
Senate Floor Amendments to engrossed bill.
1. Technical amendments.