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Regular Session, 2012
SENATE BILL NO. 153
BY SENATOR BROOME (On Recommendation of the Louisiana State Law Institute)
CHILDREN. Provides for relocation of the residence of a child. (8/1/12)
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, to be comprised of R.S. 9:355.13
through 355.19, to enact R.S. 9:357, and to direct the Louisiana State Law Institute4
to add a comment under Civil Code Article 134, relative to child custody and the5
relocation of the residence of a child; to provide for definitions; to provide for6
applicability; to provide for the proposal of relocation; to provide for notice; to7
provide for an objection; to provide for a limitation on an objection; to provide for8
the failure to object; to provide for the burden of proof; to provide for court9
authorization to relocate; to provide for a temporary order; to provide for the priority10
for trial; to provide for factors to determine a contested relocation; to provide for the11
appointment of a mental health expert; to provide for a modification of custody; to12
provide for a posting of security; to provide for sanctions; to provide for the use of13
technology; and to provide for related matters.14
Be it enacted by the Legislature of Louisiana:15
Section 1. Subpart E of Part III of Chapter 1 of Code Title V of Code Book I of Title16
9 of the Louisiana Revised Statutes of 1950, comprised of R.S. 9:355.1 through 355.19, is17 SB NO. 153
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hereby amended and reenacted 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: means a17
(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 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 - 2012 Revision28
(a) This revision moves the geographic threshold for application of the29
relocation statutes to R.S. 9:355.2.30 SB NO. 153
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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 when any of the10
following exist:11
(1) There is intent to establish the principal residence of a child at any12
location outside the state.13
(2) There is no court order awarding custody and there is an intent to14
establish the principal residence of a child at any location within the state that15
is at a distance of more than seventy-five miles from the domicile of the other16
parent.17
(3) There is a court order awarding custody and there is an intent to18
establish the principal residence of a child at any location within the state that19
is at a distance of more than seventy-five miles from the principal residence of20
the child at the time that the most recent custody decree was rendered.21
(4) If either no principal residence of a child has been designated by the22
court or the parties have equal physical custody, and there is an intent to23
establish the principal residence of a child at any location within the state that24
is at a distance of more than seventy-five miles from the domicile of a person25
entitled to object to relocation.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
govern relocation of the child.29
C.D. This Subpart shall not apply when either of the following30
circumstances exist:31 SB NO. 153
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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 the a temporary relocation of that child's the principal3
residence of the child regardless of the duration of the temporary relocation.4
(2) An There is in effect an order issued pursuant to Domestic Abuse5
Assistance, Part II of Chapter 28 of Title 46 or the Post-Separation Family Violence6
Relief Act or Injunctions and Incidental Orders, Parts IV and V of Chapter 1 of Code7
Title V of Code Book I of Title 9, except R.S. 9:372.1, all of the Louisiana Revised8
Statutes of 1950, Domestic Abuse Assistance, Chapter 8 of Title XV of the9
Children's Code, or any other restraining order, preliminary injunction, permanent10
injunction, or any protective order prohibiting a spouse from harming or going near11
or in the proximity of the other spouse is in effect.12
Comments - 2012 Revision13
(a) This revision reduces the threshold distance for application of the14
relocation statutes from one hundred fifty miles to seventy-five miles in recognition15
of the likelihood that weekday visitation and the general ability to participate in the16
child's daily life will be substantially affected by distances of more than seventy-five17
miles. The relocation laws of a number of other states hinge upon relocations18
involving even shorter distances. See, e.g., Ala. Code 1975 §30-3-162 (60 miles);19
Florida Stat. §61.13001 (50 miles); Maine Rev. Stat. §1657 (60 miles); Or. Rev. Stat.20
§107.159 (60 miles).21
22
(b) "Equal physical custody" in Paragraph (4) of Subsection B of this Section23
refers to a custody arrangement under which persons have equal or approximately24
equal physical custody. It should be interpreted to mean one-half or an25
approximately equal amount of time, expressed in percentages such as forty-nine26
percent/fifty-one percent. "Equal physical custody" is distinguished from "shared27
custody" under R.S. 9:315.9, which Louisiana courts have interpreted to include28
custody arrangements with a split of sixty-three percent/thirty-seve n percent. See,29
e.g., Westcott v. Westcott, 927 So. 2d 377 (La. App. 1st Cir. 2005). Such a split is30
not "equal physical custody" under this statute.31
32
(c) If a person proposes relocation of a child within the state and within33
distances shorter than those prescribed under Subsection B of this Section,34
Louisiana's relocation statutes have no application, and the person seeking to relocate35
has no obligation to provide notice or seek court approval in advance of the move.36
37
(d) Paragraph (3) of Subsection B of this Section changes the focus of the38
distance threshold from the domicile of the primary custodian at the time that the39
custody decree was rendered to the principal residence of the child at the time of the40
custody decree in light of the notion that the body of relocation statutes focuses on41
a relocation of the child and not his caregivers.42
43
(e) See R.S. 9:355.7 and 355.8 regarding the persons entitled to object to a44
proposed relocation. Not all persons entitled to notice of a relocation are permitted45 SB NO. 153
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to object.1
2
(f) The purpose of Paragraph (2) of Subsection D of this Section is to prevent3
the application of Louisiana's child relocation statutes, requiring the party proposing4
relocation to notify a person entitled to receive notice of the details of the proposed5
move, in situations involving family violence, domestic abuse, and the like. The6
reference to "Part V of Chapter 1 of Code Title V of Code Book I of Title 9,"7
however, includes R.S. 9:372.1, which governs an injunction prohibiting harassment.8
When an injunction has been issued only under R.S. 9:372.1, there is insufficient9
justification for exempting the proposed relocation from the requirements of the10
child relocation statutes. 11
12
§355.3. Persons authorized to propose relocation of principal residence of a13
child14
The following persons are authorized to propose relocation of the15
principal residence of a child by complying with the notice requirements of this16
Subpart:17
(1) A person designated in a current court decree as the sole custodian.18
(2) A person designated in a current court decree as a domiciliary19
parent in a joint custody arrangement.20
(3) A person sharing equal physical custody under a current court21
decree.22
(4) A person sharing equal parental authority under Chapter 5 of Title23
VII of Book I of the Louisiana Civil Code.24
(5) A person who is the natural tutor of a child born outside of marriage.25
Comments - 2012 Revision26
(a) Persons authorized to propose relocation of a child's principal residence27
are generally those with legal decision-making authority over the child, including the28
sole custodian or domiciliary parent in a joint custody arrangement or the natural29
tutor of a child born outside of marriage. When parents are married and sharing30
equal parental authority, both are entitled to propose relocation. Regardless of who31
holds decision-making authority for the child, however, persons who share equal32
physical custody of the child under a court decree are equally authorized to propose33
relocation.34
35
(b) For the definition of "equal physical custody," see R.S. 9:355.2,36
Comment (b). 37
38
§355.3.§355.4. Notice of proposed relocation of child to other parent ;court39
authorization to relocate40
A. A parent entitled to primary custody of a child person proposing41 SB NO. 153
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relocation of a child's principal residence shall notify the other any person1
recognized as a parent of a proposed relocation of the child's principal residence2
and any other person awarded custody or visitation under a court decree as3
required by R.S. 9:355.4, R.S. 9:355.5 but before relocation shall obtain either court4
authorization to relocate, after a contradictory hearing, or the written consent of the5
other parent prior to any relocation.6
B. If both parents multiple persons have equal physical custody of a child7
under a court decree, a parent the person proposing relocation shall notify the8
other parent of a proposed relocation of the child's principal residence of the child9
as required by R.S. 9:355.4, but R.S. 9:355.5, and before relocation shall obtain10
either court authorization to relocate, after a contradictory hearing, or the express11
written consent of the other parent prior to any relocation person.12
Comments - 2012 Revision13
(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
(c) A "person recognized as a parent" under this provision includes persons20
who have been recognized by a court as parents in a filiation or avowal action,21
persons who are presumed to be parents under Louisiana Civil Code Articles 185 or22
195, and persons who have formally acknowledged a child, as set out in Louisiana23
Civil Code Article 196, though they have not been judicially recognized as such.24
25
§355.4.§355.5. Mailing notice of proposed relocation address26
A. Notice of a proposed relocation of the principal residence of a child shall27
be given by registered or certified mail, return receipt requested, to the last known28
address of the parent person entitled to notice under R.S. 9:355.4 no later than29
either any of the following:30
(1) The sixtieth day before the date of the intended move or proposed31
relocation.32
(2) The tenth day after the date that the parent person proposing relocation33
knows the information required to be furnished by Subsection B of this Section, if34
the parent person did not know and could not reasonably have known the35 SB NO. 153
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information in sufficient time to comply with provide the sixty-day notice, and it is1
not reasonably possible to extend the time for relocation of the child.2
B. The following information, if available, shall be included with the notice3
of intended relocation of the child:4
(1) The current mailing address of the person proposing relocation.5
(1)(2) The intended new residence, including the specific physical address,6
if known.7
(2)(3) The intended new mailing address, if not the same.8
(3)(4) The home and cellular telephone number numbers of the person9
proposing relocation, if known.10
(4)(5) The date of the intended move or proposed relocation.11
(5)(6) A brief statement of the specific reasons for the proposed relocation12
of a child, if applicable.13
(6)(7) A proposal for a revised schedule of physical custody or visitation14
with the child.15
(7)(8) A statement informing the other parent that an the person entitled to16
object shall make any objection to the proposed relocation shall be filed in writing17
by registered or certified mail, return receipt requested, within thirty days of18
receipt of the notice and that the other parent should seek legal advice immediately.19
C. A parent person required to give notice of a proposed relocation shall20
have a continuing duty to provide the information required by this Section as that21
information becomes known.22
Comment - 2012 Revision23
The proposal for a revised custody and visitation schedule described in24
Paragraph (7) of Subsection B of this Section has no legal effect. Any existing25
custody or visitation order remains in effect unless and until a court orders a26
modification of custody or visitation. The intent, however, is to require the person27
proposing relocation to consider and describe in writing how all persons entitled to28
custody or visitation under an existing order may continue to maintain their29
relationship with the child after the proposed relocation.30
31
§355.6. Failure to give notice of relocation32
The court may consider a failure to provide notice of a proposed relocation33 SB NO. 153
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of a child as:1
(1) A factor in making its determination regarding the relocation of a child.2
(2) A basis for ordering the return of the child if the relocation has taken3
place without notice or court authorization.4
(3) Sufficient cause to order the parent seeking to relocate the child person5
proposing relocation to pay reasonable expenses and attorney fees incurred by the6
person objecting to the relocation.7
§355.7. Objection to relocation of child8
Except for a person with equal physical custody of a child under a court9
decree, a person who is entitled to object to a proposed relocation of the10
principal residence of a child shall make any objection within thirty days after11
receipt of the notice. The objection shall be made in writing by registered or12
certified mail, return receipt requested, to the mailing address provided for the13
person proposing relocation in the notice of proposed relocation.14
A person with equal physical custody of a child under a court decree15
need not make an objection under this Section. The rights of persons with equal16
physical custody are governed by R.S. 9:355.4(B).17
Comments - 2012 Revision18
(a) The objection procedure described in this Section is subject to the19
limitations described in R.S. 9:355.8. Some persons entitled to receive notice of a20
proposed relocation of a child's residence are not permitted to object to the proposed21
relocation.22
23
(b) A person who is entitled to object to a proposed relocation but chooses24
not to do so may nonetheless commence an action to change legal or physical25
custody or the visitation schedule in light of the changed circumstances of the26
relocation.27
28
(c) In the absence of timely objection, retaining an attorney to handle an29
objection to relocation is not sufficient to require the person proposing relocation to30
initiate a proceeding.31
32
(d) For the definition of "equal physical custody," see R.S. 9:355.2,33
Comment (b).34
35
§355.8. Limitation on objection by non-parents36
A non-parent may object to the relocation only if he has been awarded37
custody. A non-parent who has been awarded visitation may initiate a38 SB NO. 153
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proceeding to obtain a revised visitation schedule.1
Comments - 2012 Revision2
(a) This Section recognizes the primacy of parental rights over non-parent3
rights regarding relocation of a child. See generally Troxel v. Granville, 530 U.S.4
57, 120 S.Ct. 2054, 147 L.Ed. 49 (2000) (holding that Washington's non-parent5
visitation statute violated mother's fundamental right to raise her children as she saw6
fit). Although a non-parent who has not been awarded custody may be entitled to7
notice of a proposed relocation and may not object to a relocation, the non-parent8
may, if granted visitation, commence an action to revise the visitation schedule in9
light of the changed circumstances of the relocation.10
11
(b) This provision governs objections by non-parents only. It does not limit12
the right of a parent to object to a proposed relocation.13
14
§355.9. Effect of objection or failure to object to notice of proposed relocation15
Except as otherwise provided by R.S. 9:355.4(B), the person required to16
give notice may relocate the principal residence of a child after providing the17
required notice unless a person entitled to object does so in compliance with18
R.S. 9:355.7.19
If a written objection is sent in compliance with R.S. 9:355.7, the person20
proposing relocation of the principal residence of the child shall initiate within21
thirty days after receiving the objection a summary proceeding to obtain court22
approval to relocate. Court approval to relocate shall be granted only after a23
contradictory hearing.24
Comment - 2012 Revision25
If, at any time, the person proposing relocation and those entitled to object26
enter into the express written agreement on relocation described in R.S. 9:355.2(D),27
no summary proceeding or court approval to relocate is necessary. The relocation28
statutes do not apply to restrict moves for which the parties agree. R.S. 9:355.2(D).29
30
§355.13. §355.10. Burden of proof31
The relocating parent person proposing relocation has the burden of proof32
that the proposed relocation is made in good faith and is in the best interest of the33
child. In determining the child's best interest, the court shall consider the benefits34
which the child will derive either directly or indirectly from an enhancement in the35
relocating parent's general quality of life.36
Comments - 2012 Revision37 SB NO. 153
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(a) Although the person proposing relocation has the burden to prove that the1
relocation attempt is made both in good faith and in the best interest of the child,2
there is no presumption in favor of or against relocation of the child's residence.3
This Section places the burden of proof on the person proposing relocation. If an4
objection to the relocation is made in accordance with R.S. 9:355.7, the person5
wishing to relocate must prove by a preponderance of the evidence, on contradictory6
hearing, that relocation meets the good faith and best interest standards.7
8
(b) This revision eliminates reference to the court's consideration of an9
enhancement in the quality of life of the person seeking relocation in determining the10
best interest of the child. It does not, however, change the law. A detailed list of11
factors to be considered in determining whether relocation is in the best interest of12
the child is set out in R.S. 9:355.14, and among them is a consideration of "how the13
relocation of the child will affect the general quality of life for the child, including14
but not limited to financial or emotional benefit or education opportunity."15
16
§355.5.§355.11. Court authorization to relocate17
A parent seeking to relocate the principal residence of a child If timely18
objection to a proposed relocation is made by a person entitled to object, the19
person proposing relocation shall not, absent express written consent, remove of20
the objecting person, relocate the child pending resolution of the dispute, or by21
final order of the court, unless the parent person proposing relocation obtains a22
temporary order to do so pursuant to R.S. 9:355.10 R.S. 9:355.12.23
§355.10.§355.12. Temporary order24
A. The court may grant a temporary order allowing a parent to relocate25
relocation.26
B. The court, upon the request of the moving parent party, may hold a27
limited evidentiary an expedited preliminary hearing on the proposed relocation28
but may shall not grant court authorization to remove relocate the child on an ex29
parte basis.30
C. If the court issues a temporary order authorizing a parent to relocate with31
the child relocation, the court may shall not give undue weight to the temporary32
relocation as a factor in reaching its final determination.33
D. If temporary relocation of a child is permitted, the court may require the34
parent person relocating the child to provide reasonable security guaranteeing that35
the court ordered court-ordered physical custody or visitation with the child will36
not be interrupted or interfered with by the relocating parent or that the relocating37 SB NO. 153
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parent person will return the child if court authorization for the removal relocation1
is denied at the final hearing trial.2
E. An order not in compliance with the provisions of this Section is not3
enforceable and is null and void.4
Comment - 2012 Revision5
Subsection (E) of this Section tracks the language of C.C.P. Art. 3945(E),6
which makes temporary custody orders unenforceable and null and void if not issued7
in compliance.8
9
§355.9.§355.13. Priority for temporary and final hearing trial10
A hearing trial on either a temporary or permanent order permitting or11
restricting the proposed relocation shall be accorded appropriate priority on the12
court's docket assigned within sixty days after the filing of the motion to obtain13
court approval to relocate.14
Comments - 2012 Revision15
(a) The trial referenced here is the final hearing on the merits of the16
relocation; it is to be distinguished from a preliminary hearing on relocation,17
described in R.S. 9:355.12.18
19
(b) After entry of an order on relocation, a Louisiana court may retain20
jurisdiction consistent with Louisiana law and the Uniform Child Custody21
Jurisdiction and Enforcement Act. (R.S. 13:1814).22
23
§355.12.§355.14. Factors to determine contested relocation24
A. In reaching its decision regarding a proposed relocation, the court shall25
consider the following all relevant factors in determining whether relocation is26
in the best interest of the child, including the following:27
(1) The nature, quality, extent of involvement, and duration of the child's28
relationship of the child with the parent person proposing to relocate relocation and29
with the non-relocating parent person, siblings, and other significant persons in the30
child's life.31
(2) The age, developmental stage, needs of the child, and the likely impact32
the relocation will have on the child's physical, educational, and emotional33
development, taking into consideration any special needs of the child.34 SB NO. 153
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(3) The feasibility of preserving a good relationship between the non-1
relocating parent person and the child through suitable physical custody or2
visitation arrangements, considering the logistics and financial circumstances of the3
parties.4
(4) The child's preference views about the proposed relocation, taking into5
consideration the age and maturity of the child.6
(5) Whether there is an established pattern of conduct of the parent by either7
the person seeking or the person opposing the relocation, either to promote or8
thwart the relationship of the child and the nonrelocating other party.9
(6) Whether How the relocation of the child will enhance affect the general10
quality of life for both the custodial parent seeking the relocation and the child,11
including but not limited to financial or emotional benefit or and educational12
opportunity.13
(7) The reasons of each parent person for seeking or opposing the relocation.14
(8) The current employment and economic circumstances of each parent15
person and whether or not how the proposed relocation is necessary to improve may16
affect the circumstances of the parent seeking relocation of the child.17
(9) The extent to which the objecting parent person has fulfilled his or her18
financial obligations to the parent person seeking relocation, including child support,19
spousal support, and community property , and alimentary obligations.20
(10) The feasibility of a relocation by the objecting parent person.21
(11) Any history of substance abuse , harassment, or violence by either22
parent the person seeking or the person opposing relocation, including a23
consideration of the severity of such the conduct and the failure or success of any24
attempts at rehabilitation.25
(12) Any other factors affecting the best interest of the child.26
B. The court may not consider whether or not the person seeking relocation27
of the child will may relocate without the child if relocation is denied or whether or28
not the person opposing relocation will may also relocate if relocation is allowed.29 SB NO. 153
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Comments - 2012 Revision1
(a) This revision changes the opening language of the statute to make it clear2
that, as in cases requiring the application of the factors of Civil Code Article 134, a3
court need not make a factual finding on every factor.4
5
(b) In considering the needs of the child and the developmental impact of6
relocation, the court may take into account not only the general needs of similarly7
situated children, but also any special needs of the particular child under8
consideration.9
10
(c) The "logistics" referred to in Paragraph (3) of Subsection A of this11
Section may include a consideration of the amount of time the child will be required12
to spend traveling in order to maintain a meaningful relationship with the person13
objecting to the relocation, the distance involved, and the proximity, availability, and14
safety of travel arrangements.15
16
(d) A consideration of the child's "preference" is a traditional factor in cases17
involving custody. The word "views" is used here in order to broaden the inquiry and18
to decrease the potentially harmful impact of asking a child to choose in a relocation19
contest.20
21
(e) Because the focus of the best interest inquiry in relocation is on the child,22
references to improvements in the custodial parent's quality of life and the necessity23
of improving the circumstances of a parent in Paragraphs (6) and (8) of Subsection24
A of this Section have been eliminated. A child may benefit or suffer detriment25
either directly or indirectly from a change in the quality of life or economic26
circumstances of any person exercising custody or visitation with him, and such27
benefits and detriments are to be considered by the court. The assessment must28
focus on the effect of relocation on the child, however, and not the benefit that29
relocation will provide to the adults exercising custody or visitation rights.30
31
(f) The promotion of or interference with the relationship between the child32
and the other parent described in Paragraphs (3) and (5) of Subsection A of this33
Section may include a parent's willingness to make travel arrangements that allow34
the child meaningful time with both parents and that minimize the negative impact35
of long-distance parenting on the child.36
37
(g) Paragraph (7) of Subsection A of this Section may lead to a consideration38
of the mental and emotional well-being of both the person seeking relocation and the39
person opposing it. The substantial mental and emotional toll of custody40
proceedings should be considered in the relocation context, just as it is in Civil Code41
Article 134, on factors affecting the best interest of the child in custody disputes in42
general.43
44
§355.8.§355.15. Mental health expert; appointment45
The court, on motion of either party or on its own motion, may promptly46
appoint an independent mental health expert to render a determination as to whether47
the proposed relocation is in a report to assist the court in determining the best48
interest of the child.49
§355.15.§355.16. Application of factors at initial hearing50 SB NO. 153
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If the issue of relocation is presented at the initial hearing to determine1
custody of and visitation with a child, the court shall apply consider also the factors2
set forth in R.S. 9:355.12 R.S. 9:355.14 in making its initial determination.3
Comment - 2012 Revision4
In an initial custody determination, the court will generally consider the5
factors concerning best interest of the child set out in Civil Code Article 134. This6
statute requires the court to consider application of the relevant factors specific to7
relocation in R.S. 9:355.14 as well as the Article 134 factors. Dicta in McLain v.8
McLain, 974 So.2d 726, 733 (La. App. 4th Cir. 2007), stating that the Article 1349
factors are "arguably not applicable" when relocation is at issue in the initial custody10
hearing, are no longer accurate under this revision.11
12
§355.17. Continuing jurisdiction13
If the court grants authorization to relocate, the court may retain continuing,14
exclusive jurisdiction of the case after relocation of the child as long as the non-15
relocating parent remains in the state.16
§355.11.§355.17. Proposed relocation not basis for modification Modification of17
custody18
Providing notice of a proposed relocation of a child shall does not constitute19
a change of circumstance warranting a change of custody. Moving Relocating20
without prior notice if there is a court order awarding custody or moving21
relocating in violation of a court order may constitute a change of circumstances22
warranting a modification of custody.23
Any change in the principal residence of a child, including one not24
meeting the threshold distance set out in R.S. 9:355.2, may constitute a change25
of circumstances warranting a modification of custody.26
Comments - 2012 Revision27
(a) In accordance with R.S. 9:355.8, not all persons receiving notice of a28
proposed relocation are entitled to object. Moving without prior notice or in29
violation of a court order may constitute a change of circumstances warranting a30
modification of custody, but only in a contest between a person proposing relocation31
and a person entitled to object to the proposed relocation.32
33
(b) The second paragraph of this Article clarifies that even a move of less34
than seventy-fi ve miles may warrant a change of custody. Although such a move35
would not be sufficient to trigger the protection of the relocation statutes, courts have36
discretion to modify the current custodial arrangement after any move that makes an37
existing custody order unfeasible.38 SB NO. 153
SLS 12RS-449 ORIGINAL
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Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
§355.14.§355.18. Posting security1
If relocation of a child is permitted, the court may require the parent person2
relocating the child to provide reasonable security guaranteeing that the court3
ordered court-ordered physical custody or visitation with the child will not be4
interrupted or interfered with by the relocating party.5
§355.16.§355.19. Sanctions for unwarranted or frivolous proposal to relocate child6
or objection to relocation7
A. After notice and a reasonable opportunity to respond, the court may8
impose a sanction on a parent person proposing a relocation of the child or objecting9
to a proposed relocation of a child if it determines that the proposal or objection was10
made or the objection was filed:11
(1) To harass For the purpose of harassing the other parent or to cause12
person or causing unnecessary delay or needless increase in the cost of litigation.13
(2) Without being warranted by a basis in existing law or based on the basis14
of a frivolous argument.15
(3) Based on allegations and other factual contentions which have no16
evidentiary support nor, if specifically so identified, could not have been reasonably17
believed to be likely to have evidentiary support after further investigation. In18
violation of Code of Civil Procedure Article 863(B).19
B. A sanction imposed under this Section shall be limited to what is20
sufficient to deter repetition of such conduct or comparable conduct by others21
similarly situated. The sanction may consist of, or include, directives of a22
nonmonetary nature, an order to pay a penalty to the court, or, if imposed on motion23
and warranted for effective deterrence, an order directing payment to the movant of24
some or all of the reasonable attorney fees and other expenses incurred as a direct25
result of the violation reasonable expenses and attorney fees incurred as a direct26
result of the conduct.27
Section 2. R.S. 9:357 is hereby enacted to read as follows:28
§357. Use of technology29 SB NO. 153
SLS 12RS-449 ORIGINAL
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Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
The court shall consider ordering persons awarded custody or visitation1
to use technology, including video calling, telephone, text messaging, Internet2
communications, or other forms of technology, to facilitate communication with3
the child when it is in the best interest of the child.4
Section 3. The Louisiana State Law Institute is hereby directed to add the following5
comment under Civil Code Article 134:6
Art. 134. Factors in determining child's best interest7
* * *8
Comment - 2012 Revision9
The facilitation of the relationship between the child and the other party10
described in factor (10) may include a party's willingness to make travel11
arrangements and facilitate electronic communications that allow the child12
meaningful time with both parties and that minimize the negative impact of13
long-distance parenting on the child.14
15
Section 4. This Act shall not apply to any litigation pending on the effective date of16
this Act regarding the relocation of the principal residence of a child, but shall apply to any17
subsequent relocation after final disposition of that litigation.18
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Julie J. Baxter.
DIGEST
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 law (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 removes this definition as not used elsewhere in family law.
Present law (R.S. 9:355.1) provides a definition of "principal residence of a child".
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 60 days or more. SB NO. 153
SLS 12RS-449 ORIGINAL
Page 17 of 18
Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
Proposed law (R.S. 9:355.2) revises present law to provide that it shall apply when there is
an intent to establish the principal residence of a child at any location within the state that
is at a distance of more than 75 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 75 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 75 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 this Subpart.
Proposed law (R.S. 9:355.2) revises present law to state a distance factor for the application
of this Subpart, to change the term "parents of a child" to "persons required to give notice
of and persons entitled to object to a proposed relocation", and to provide an exception for
"R.S. 9:372.1" in Paragraph (2) Subsection D of Section 355.2.
Proposed law (R.S. 9:355.3) provides for persons authorized to propose a relocation of
child's principal residence.
Present law (R.S. 9:355.3) provides for a notice of proposed relocation of child.
Proposed law (R.S. 9:355.4) revises present law to change references from "parent" to
"person".
Present law (R.S. 9:355.4) provides for the mailing of a notice of a proposed relocation
address.
Proposed law (R.S. 9:355.5) revises present law to change references from "parent" to
"person", to provide that information relative to the current mailing address of the person
proposing relocation shall be given, to provide that cellular phone numbers shall be given,
to provide for a proposed revised schedule of physical custody, and to provide that the
person entitled to object shall make any objection in writing within thirty days of the receipt
of the notice.
Present law (R.S. 9:355.6) provides for the failure to give notice of relocation.
Proposed law (R.S. 9:355.6) revises present law to change references from "parent" to
"person" and to eliminate attorney fees for matters governed by this Section.
Proposed law (R.S. 9:355.7) provides for an objection to the relocation of a child.
Proposed law (R.S. 9:355.8) provides for a limitation on an objection to the relocation of a
child by non-parents.
Proposed law (R.S. 9:355.9) provides for the failure to object to a notice of a proposed
relocation of a child.
Present law (R.S. 9:355.13) provides for the burden of proof in relocation cases.
Proposed law (R.S. 9:355.10) revises present law to change references from "parent" to
"person" and to delete the provision that the court shall consider the enhancement on the
child's life that relocation might create.
Present law (R.S. 9:355.5) provides for a court authorization to relocate.
Proposed law (R.S. 9:355.11) revises present law to change references from "parent" to
"person" and to provide for a timely objection to a proposed relocation.
Present law (R.S. 9:355.10) provides for a temporary order allowing a parent to relocate. SB NO. 153
SLS 12RS-449 ORIGINAL
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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. 9:355.12) revises present law to change references from "parent" to
"person," to provide for physical custody, and to provide that an order not in compliance
with this Section is not enforceable and is null and void.
Present law (R.S. 9:355.9) provides for a priority for a hearing on a temporary or final order
on relocation.
Proposed law (R.S. 9:355.13) changes present law to provide that a trial on the objection to
the proposed relocation shall be held within 60 days after the filing of the summary
proceeding.
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. 9:355.14) revises present law to provide that the court shall consider "all
relevant factors", to change references from "parent" to "person" to provide for physical
custody, and to provide for harassment by a person seeking or opposing relocation.
Present law (R.S. 9:355.8) provides for the appointment of a mental health expert.
Proposed law (R.S. 9:355.15) revises 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 a report.
Present law (R.S. 9:355.15) provides for the application of certain factors at an initial
hearing.
Proposed law (R.S. 9:355.16) revises present law to provide that the court "shall consider
also" the factors in proposed R.S. 9:355.14 at an initial hearing.
Present law (R.S. 9:355.17) provides for continuing jurisdiction.
Proposed law removes this reference, as Louisiana law already provides for continuing
jurisdiction.
Present law (R.S. 9:355.11) provides for a possible modification of custody as a result of a
proposed relocation.
Present law (R.S. 9:355.14) provides for posting security.
Proposed law (R.S. 9:355.18) revises present law to change references from "parent" to
"person" and to provide for physical custody.
Present law (R.S. 9:355.16) provides for sanctions.
Proposed law (R.S. 9:355.19) revises present law to change references from "parent" to
"person".
Proposed law (R.S. 9:357) provides a court with the authority to order persons awarded
custody or visitation to use technology to facilitate communication with the child when it
is in the best interest of the child.
Proposed law directs the Louisiana State Law Institute to add a comment under Civil Code
Article 134 relative to electronic communications between a child and other parties.
Effective August 1, 2012.
(Amends R.S. 9:355.1 - 355.19; adds R.S. 9:357; adds Comment under Civil Code Article
134)