In Louisiana, as in all states, custody determinations are made based upon the best interests of the child. Legal custody governs who makes decisions regarding the child; physical custody addresses the primary residence of the child. For example, joint legal custody means that parents share in decision-making, but one parent might have primary physical custody and provide the child's primary home. Disabled parents can face obstacles when seeking either custody of or visitation with their children. Louisiana has no specific laws regarding disabled parents and custody, but several laws can affect a parent's ability to seek and retain custody of her child.
Child's Best Interests
In determining the best interests of the child, judges may consider factors such as each parent's ability to care for the child and the child's attachment to each parent. Disabled parents are most at risk of losing custody when their disability interferes with their ability to care for their children. When a parent has been disabled for the child's entire life and has been able to provide competent care, however, the disability is less likely to play a role in custody determinations. Mental health disabilities that interfere with decision-making skills can be especially problematic. Parents with substance abuse problems and untreated mental illnesses are at a high risk of losing custody.
In Louisiana, parents can petition the courts for a change of custody when there has been a material change in the child's circumstances. A material change is any substantive change that alters the child's daily life. If a parent becomes disabled after a final custody decision, or a parent's disability changes greatly -- either for better or for worse -- either parent may petition the court for a change in custody. Parents must demonstrate how their proposed change of custody is in the child's best interests. Louisiana judges are permitted to consider the emotional and physical health of each parent when making child custody determinations, and parents seeking a modification must demonstrate why a disability affects -- or does not affect -- the child.
Several states, such as California, have proposed bills to protect the rights of disabled parents and disabled parents across the country have sued on the grounds that losing custody of their children constitutes disability discrimination. Currently, there are no such laws protecting disabled parents in Louisiana. However, the Americans with Disabilities Act requires employers and schools to make "reasonable accommodations" that enable the disabled to work or attend school. For example, a person might be permitted to work from home. These accommodations cannot be used against disabled parents in custody disputes; it would not be permissible to claim that accommodations constitute evidence that a person was incapable of parenting their child.
Child support determinations are made according to the needs of the child and the income of the parent. Disabled parents who do not have primary physical custody of their children may be liable for child support. However, if the parent is unable to work full-time or must pay for in-home care or medication, judges may reduce the parent's child support liability. Louisiana law permits parents to deduct extraordinary medical expenses from their total gross income. This can dramatically reduce a disabled parent's child support liability.