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Regular Session, 2012
SENATE BILL NO. 261
BY SENATOR NEVERS
CHILDREN. Provides relative to children and awards of visitation to grandparents and
others. (gov sig)
AN ACT1
To amend and reenact Civil Code Articles 136 and 137 and R.S. 9:344(D), relative to2
children; to provide relative to the duties of care, custody, and control of children3
under certain circumstances; to provide relative to rights and responsibilities; to4
provide relative to custody and visitation; to provide relative to awards of visitation5
rights; to provide relative to visitation by grandparents and other non-parents; to6
provide certain terms, conditions, procedures, and requirements; and to provide for7
related matters.8
Be it enacted by the Legislature of Louisiana:9
Section 1. Civil Code Articles 136 and 137 are hereby amended and reenacted to10
read as follows: 11
Art. 136. Award of visitation rights 12
A. A parent not granted custody or joint custody of a child is entitled to13
reasonable visitation rights unless the court finds, after a hearing, that visitation14
would not be in the best interest of the child.15
B. A grandparent not granted custody of a child may be granted16
reasonable visitation rights if the court finds that it is in the best interest of the17 SB NO. 261
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child.1
C. B. Under extraordinary circumstances, any other a relative, by blood or2
affinity, or a former stepparent or stepgrandparent, not granted custody of the child3
may be granted reasonable visitation rights if the court finds that it is in the best4
interest of the child. Extraordinary circumstances shall include a determination5
by a court that a parent is abusing a controlled dangerous substance.6
D. In determining the best interest of the child under Paragraphs B and C7
of this Article, the court shall consider:8
(1) The length and quality of the prior relationship between the child and the9
relative.10
(2) Whether the child is in need of guidance, enlightenment, or tutelage11
which can best be provided by the relative.12
(3) The preference of the child if he is determined to be of sufficient maturity13
to express a preference.14
(4) The willingness of the relative to encourage a close relationship between15
the child and his parent or parents.16
(5) The mental and physical health of the child and the relative.17
C. In accordance with Paragraph B of this Article, extraordinary18
circumstances may include when a parent is addicted to a controlled dangerous19
substance.20
E. D. In the event of a conflict between this Article and R.S. 9:344 or 345,21
the provisions of the statute shall supersede those of this Article.22
* * *23
Art. 137. Denial of visitation; felony rape; death of a parent24
A. In a proceeding in which visitation of a child is being sought by a natural25
parent, if the child was conceived through the commission of a felony rape, the26
natural parent who committed the felony rape shall be denied visitation rights and27
contact with the child.28
B. In a proceeding in which visitation of a child is being sought by a relative29
by blood or affinity family member, if the court determines, by a preponderance of30 SB NO. 261
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the evidence, that the intentional criminal conduct of the relative family member1
resulted in the death of the parent of the child, the relative family member shall be2
denied visitation rights and contact with the child.3
Section 2. R.S. 9:344(D) is hereby amended and reenacted to read as follows:4
ยง344. Visitation rights of grandparents and siblings5
* * *6
D. If the parents of a minor child or children of the marriage have lived7
apart are legally separated or living apart for a period of six months, in8
extraordinary circumstances the grandparents or siblings of the child or children9
may have reasonable visitation rights to the child or children during his their10
minority, if the court in its discretion finds find that such visitation rights would be11
in the best interest of the child or children. In determining the best interest of the12
child the court shall consider the same factors contained in Civil Code Article13
136(D). Extraordinary circumstances shall include a determination by a court14
that a parent is abusing a controlled dangerous substance.15
Section 3. This Act shall become effective upon signature by the governor or, if not16
signed by the governor, upon expiration of the time for bills to become law without signature17
by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If18
vetoed by the governor and subsequently approved by the legislature, this Act shall become19
effective on the day following such approval.20
The original instrument was prepared by Jerry G. Jones. The following
digest, which does not constitute a part of the legislative instrument, was
prepared by Nancy Vicknair.
DIGEST
Nevers (SB 261)
Present law provides relative to duties of care, custody, and control of children, including
visitation rights.
Present law (C.C. Art. 136) provides that a parent not granted custody or joint custody of a
child is entitled to reasonable visitation rights unless the court finds, after a hearing, that
visitation would not be in the best interest of the child.
Proposed law retains present law.
Present law provides that under extraordinary circumstances, a relative, by blood or affinity, SB NO. 261
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or a former stepparent or stepgrandparent, not granted custody of the child may be granted
reasonable visitation rights if the court finds that it is in the best interest of the child. In
determining the best interest of the child, the court shall consider:
1. The length and quality of the prior relationship between the child and the relative.
2. Whether the child is in need of guidance, enlightenment, or tutelage which can best
be provided by the relative.
3. The preference of the child if he is determined to be of sufficient maturity to express
a preference.
4. The willingness of the relative to encourage a close relationship between the child
and his parent or parents.
5. The mental and physical health of the child and the relative.
Proposed law provides that a grandparent not granted custody of a child may be granted
reasonable visitation rights if the court finds that it is in the best interest of the child.
Proposed law further provides that under extraordinary circumstances, any other relative, by
blood or affinity, or a former stepparent or stepgrandparent, not granted custody of the child
may be granted reasonable visitation rights if the court finds that it is in the best interest of
the child. In determining the best interest of the child for the purpose of visitation rights by
grandparents and other relatives, the court shall consider:
1. The length and quality of the prior relationship between the child and the relative.
2. Whether the child is in need of guidance, enlightenment, or tutelage which can best
be provided by the relative.
3. The preference of the child if he is determined to be of sufficient maturity to express
a preference.
4. The willingness of the relative to encourage a close relationship between the child
and his parent or parents.
5. The mental and physical health of the child and the relative.
Present law provides that extraordinary circumstances may include when a parent is addicted
to a controlled dangerous substance. Proposed law provides that extraordinary
circumstances shall include a determination by a court that a parent is abusing a controlled
dangerous substance.
Present law additionally provides that in the event of a conflict between the present law and
the provisions of R.S. 9:344 (visitation rights of grandparents and siblings), the provisions
of the statute will control. Proposed law retains present law, but deletes additional reference
to R.S. 9:345 (appointment of attorney in child custody or visitation proceedings).
Present law (C.C. Art. 137) relative to denial of visitation rights provides that in a
proceeding in which visitation of a child is being sought by a natural parent, if the child was
conceived through the commission of a felony rape, the natural parent who committed the
felony rape shall be denied visitation rights and contact with the child. Further provides that
in a proceeding in which visitation of a child is being sought by a family member, if the
court determines, by a preponderance of the evidence, that the intentional criminal conduct
of the family member resulted in the death of the parent of the child, the family member
shall be denied visitation rights and contact with the child.
Proposed law changes "natural parent" to "parent". Changes "family member" to "relative SB NO. 261
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by blood or affinity". Retains remainder of present law.
Present law (R.S. 9:344) provides relative to visitation rights of grandparents and siblings.
Present law provides that if one of the parties to a marriage dies, is interdicted, or
incarcerated, and there is a minor child or children of such marriage, the parents of the
deceased, interdicted, or incarcerated party without custody of such minor child or children
may have reasonable visitation rights to the child or children of the marriage during their
minority, if the court in its discretion finds that such visitation rights would be in the best
interest of the child or children. Also provides that when the parents of a minor child or
children live in concubinage and one of the parents dies, or is incarcerated, the parents of the
deceased or incarcerated party may have reasonable visitation rights to the child or children
during their minority, if the court in its discretion finds that such visitation rights would be
in the best interest of the child or children. Further provides that if one of the parties to a
marriage dies or is incarcerated, the siblings of a minor child or children of the marriage may
have reasonable visitation rights to such child or children during their minority if the court
in its discretion finds that such visitation rights would be in the best interest of the child or
children. Proposed law retains present law.
Present law additionally provides that if the parents of a minor child or children of the
marriage are legally separated or living apart for a period of six months, the grandparents
or siblings of the child or children may have reasonable visitation rights to the child or
children during their minority, if the court in its discretion finds that such visitation rights
would be in the best interest of the child or children.
Proposed law provides that if the parents of a minor child of the marriage have lived apart
for a period of six months, in extraordinary circumstances the grandparents or siblings of the
child may have reasonable visitation rights to the child during his minority, if the court in
its discretion finds that such visitation rights would be in the best interest of the child. In
determining the best interest of the child the court shall consider the same five factors listed
in Civil Code Article 136.
Proposed law provides that extraordinary circumstances in R.S. 9:344(D) shall include a
determination by a court that a parent is abusing a controlled dangerous substance.
Effective upon signature of the governor or lapse of time for gubernatorial action.
(Amends C.C. Arts. 136 and 137 and R.S. 9:344(D))
Summary of Amendments Adopted by Senate
Committee Amendments Proposed by Senate Committee on Judiciary A to the
original bill.
1. Relative to extraordinary circumstances, changes "addicted to a controlled
dangerous substance" to "abusing a controlled dangerous substance".
Senate Floor Amendments to engrossed bill.
1. Make technical changes.