Louisiana Grandparent Visitation

Louisiana Family Law:

Louisiana Grandparent Visitation Rights

The following article was originally printed in Around the Bar, the monthly publication of the Baton Rouge Bar Association. This article is intended for attorneys and therefore has a more “scholarly” approach that may be less easy to read. However, for the lawyer or for the layman with a serious interest in the subject, this article presents a complete review of current Louisiana law on grandparent visitation.

Grandparent Visitation Rights in Louisiana

By Stephen E. Covell

What rights should grandparents have to see their grandchildren? Should it make a difference if the parents are divorced or if one of the parents is dead or in jail? Can the states have legislation allowing grandparent visitation, or is there an absolute constitutional right for a parent to be free from any interference in the way the parent decides to raise the child?

At the present time, it looks like the Louisiana First and Third Circuit Courts of Appeal and the United States Supreme Court may be in disagreement on these issues. Will the Louisiana Supreme Court and/or the Louisiana Law Institute arrive at a solution? Stay tuned…

Troxel v. Granville

At the heart of the dispute is the U.S. Supreme Court case decided in June of 2000 that put many state legislatures into panic mode (Jennifer Troxel v. Tommie Granville 530 U.S. 57). At issue was a Washington State law (Section 26.10.160(3)) that permits “any person” to petition a superior court for visitation rights “at any time” and authorizes the court to grant visitation when it would “serve the best interest of the child.”

Tommie Granville and Brad Troxel had two daughters. They never married and ended their relationship in 1991. Brad lived with his parents, Jennifer and Gary Troxel, and regularly brought his daughters to the Troxels’ house for weekend visitation during a two-year period. Brad committed suicide in 1993, but the Troxels continued to see their granddaughters on a regular basis after their son’s death. Late in 1993, Tommie Granville informed the Troxels that she would not allow any further visitation except for one short visit per month. The Troxels sued for visitation rights in Superior Court under Washington’s statute and asked for two weekends of visitation each month and two weeks in the summer. Granville did not oppose visitation entirely, but wanted to allow only one day of visitation each month without any time overnight. In 1995, the Superior Court awarded the Troxels one weekend per month, one week during the summer, and four hours on each grandparent’s birthday.

Granville appealed during which time she married and her new husband adopted the daughters. Eventually, the case was heard by the Washington Supreme Court which found that the statute under which the Troxels gained visitation unconstitutionally infringed on the fundamental right of parents to rear their children. The U.S. Supreme Court granted certiorari in 1999 and affirmed the Washington judgment. The majority (there were three strong dissents) found that the Fourteenth Amendment provides that no state “shall deprive a person of life, liberty, or property” and that “The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by the Court.”

Of course, it could also be argued that this decision has the effect of substituting a court’s understanding of family relationships with the understanding of elected bodies, thereby allowing a mother, for whatever motives, to sever all relations to one-half the bloodline of the children. As Justice Scalia said in his dissent: “I think it obvious—whether we affirm or reverse the judgment here, or remand as Justice Stevens or Justice Kennedy would do—that we will be ushering in a new regime of judicially prescribed, and federally prescribed, family law. I have no reason to believe that federal judges will be better at this than state legislatures; and state legislatures have the great advantages of doing harm in a more circumscribed area, of being able to correct their mistakes in a flash, and of being removable by the people.”

If you look at the many amicus briefs filed in Troxel, you can see how the wagons have been circled for future disputes over this issue. Filing briefs on behalf of the mother were: Northwest Women’s Law Center et al; Coalition for the Restoration of Parental Rights; American Academy of Matrimonial Lawyers; Lambda Legal Defense and Education Fund et al; and nine others. Filing briefs on behalf of the grandparents were: American Association of Retired Persons; Grandparent Caregiver Law Center: National Conference of State Legislatures et al; and two others.

Louisiana Statutory Law

Louisiana has three statutes that control the issue of grandparent visitation. These statutes may or may not run afoul of Troxel, depending on how you wish to argue and, perhaps, whether you are in the Third Circuit or the First Circuit.

Children’s Code Article 1264 is aimed exactly at the situation in Troxel where a parent is deceased and the children are adopted by a new parent:

Art. 1264 Post-adoption visitation rights of grandparents

     Notwithstanding any provision of law to the contrary, the natural parents of a deceased party to a marriage dissolved by death whose child is thereafter adopted, and the parent of a party who has forfeited the right to object to the adoption of his child pursuant to Article 1245 may have limited visitation rights to the minor child so adopted.

Title 9 of the Civil Code Ancillaries allows grandparent visitation where the visitation would be in the best interest of the children:

LSA R.S. 9:344 Visitation rights of grandparents and siblings.

     A. 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.

     B. 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.

     C. 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.

     D. 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 find that such visitation rights would be in the best interest of the child or children.

Finally, Civil Code Article 136 gives visitation rights, under extraordinary circumstances, to a relative by blood or affinity (which, of course, includes grandparents). Where Article 136 conflicts with R.S. 9:344, the provisions of R.S. 9:344 shall supersede Article 136. Before granting visitation under Article 136, the court must consider such things as 1) the length of time and quality of the relationship; 2) whether the child needs guidance which can be best provided by the relative; 3) the preference of the child, if the child is mature enough to express a preference; 4) the willingness of the relative to promote a close relationship with the parent; and, 5) the mental and physical health of the child and the relative.

 Louisiana Grandparent Visitation Cases

The Third Circuit narrowly avoided having to rule on the constitutionality of Louisiana’s visitation statutes in State In Re: Satchfield v. Guillot (La.App. 3 Cir. 06/26/02) 820 So.2d 1255. After acknowledging that the case would have to be examined in light of the Troxel decision, the Court concluded that 9:344 did not apply since the parents were together and that the requirement of Civil Code Article 136(B) that there be extraordinary circumstances, upon which the trial court relied, was “a substitution of its judgment for the judgment of Sebastian’s parents without a showing that the parents’ decision is detrimental to the child.” Finding that there were not sufficient extraordinary circumstances, the Court concluded that it did not have to rule on the constitutionality of Article 136(B).

In Dupre v. Dupre (La.App. 3 Cir. 12/30/02) 2002-0902, the Third Circuit had to face the constitutionality of R.S. 9:344 squarely since the father was sentenced to life in prison and the provisions of R.S. 9:344 were certainly applicable to the issue of grandparent visitation. The trial court awarded one weekend per month visitation to the grandparents and the mother appealed. In its decision, the Third Circuit analyzed Troxel and concluded that 9:344, which only allows visitation to the parents of a deceased, interdicted or incarcerated parent, provided it be found to be in the best interest of the child, is easily distinguishable from the ‘breathtakingly broad” statute found unconstitutional in Troxel.

Our own First Circuit has had more trouble deciding where Louisiana’s grandparent visitation statutes stand in relation to the Washington statute found unconstitutional by the U.S. Supreme Court. In Galjour v. Harris (La.App. 1 Cir. 03/28/01) 795 So.2d 350, the First Circuit had no problem distinguishing the Louisiana statutes allowing grandparent visitation from the Washington statute. In Galjour, the mother was deceased and the grandparents petitioned for visitation claiming they had a statutory right under R.S. 9:344 to seek visitation. The father filed an exception claiming the statute was unconstitutional under theTroxel ruling. At trial the grandparents were given visitation on every third weekend subject to some restrictions. The father appealed, claiming the statute was unconstitutional and claiming that the trial court erred in not giving him any special weight in determining what was in his child’s best interest. The court decided that R.S. 9:344 was sufficiently different and limited in its scope from Troxel and “Additionally, the statute’s grant of visitation does not contemplate a significant intrusion upon the child’s relationship with the other parent or interference with said parent’s fundamental right to make childrearing decisions.”

The following year, the First Circuit seems to reverse itself in Wood v. Wood (La.App. 1 Cir. 09/27/02) No. 2002 CU 2819. In this case, the father was incarcerated and the mother and grandparents entered into a stipulated judgment giving the grandparents visitation on the first weekend of each month, one Sunday every other month, and one night on all major holidays. By agreement, the grandparents also paid child support. Because of apparent problems with visitation arrangements, the grandparents asked for and received additional visitation of one week in the summers. The mother appealed the award of the additional one week visitation and the First Circuit reversed the trial court’s award of additional visitation.

The first thing the First Circuit had to do in Wood was justify how it arrived at a different conclusion the year before in Galjour. The court cited the fact that the Legislature, after the Galjour decision, passed a resolution requesting that the Louisiana Law Institute study the effect of Troxel on the Louisiana statutes on child visitation and “report its findings and recommendations to the legislature on or before January 1, 2003.” The First Circuit noted that the request by the Legislature was an expression of concern “for protecting the fundamental rights of parents” rather than the broader and more obvious conclusion that the resolution was a request for guidance as to where Louisiana stood and what (if anything) should be done legislatively.

The Court next addressed the constitutionality of R.S. 9:344, even though the issue was not brought up at the trial level. Finally, the Court determined that the trial judge had put an unfair burden on the parent to show that the additional visitation would be detrimental to the child. In his dissent, Judge Bob Downing pointed out that no such burden had been placed on the parent to show the additional visitation was detrimental. The record showed that the trial court addressed the issue properly: the child’s best interest. There was evidence presented that the child enjoyed her visits, that she visited cousins while at her grandparents’ house, and that she is happy there. Judge Downing then discussed the finding in Galjour that R.S. 9:344 does not represent a significant intrusion on the parent’s rights and observed: “I do not see how an additional one-week of visitation during the summer would be a significant intrusion on the child’s relationship with her mother or an interference with her right to make child-rearing decisions.” An appeal was taken to the Louisiana Supreme Court where writs were denied, with two dissents.

As for the grandparents in Troxel, the newly discovered constitutional right in that case effectively took away the grandchildren they helped raise and severed all living links to their dead son. Louisiana’s existing statutes, reasonably interpreted, would avoid that particular injustice.


  1. MiMi says


    • Deedee65 says

      I, too, believe, especially in this day and age, with the immorality and producing children from different fathers, (and they are not married) who are not around to support them, and daughters who go from man to man in a concubinage arrangements, and come to live with their parent because they lack support for the children who need a stable environment needs to be addressed in the best interest of the children. I, too, as a single grandparent, am facing the devastating blow of being manipulated by an emotionally unstable , and verbally abusive daughter, who, after meeting another man, (unmarried again) just up and moved out. My 3 1/2 year old grandson, (as well as his 11 year old brother) have lived with me for 4 years, since my daughter came to me and told me she was pregnant. I have been the main mother, and nurturer for my littlest grandson( and his brother) since shortly after birth because
      his mother said she couldn’t do it. She didn’t have the patience or mental stability to deal with it. I got up for all feedings, and caregiving and did all the things for him that involves normal parenting for the child. (Her sister filled the gaps when I worked) The bond that he and I have had since birth is more of mother and child, than grandparent. Now she has met another man and just up and in 24 hour notice, without even communication, got another dwelling,took both grandchildren,and left. We were all looking for a larger place to live, because the Landlord was selling this place. Now that she has a lover that can support her she just up and left, (and left me in a predicament too). She didn’t confer with him either about this move, and now, after the major work with my littlest she decides to be a mother. She says “you can come to visit), but she has thrwarted every offer, and lied about him staying the night while she needed to get things unpacked, and bringing him over to get the other stuff of the boys. When I went over because I hurt so bad, and needed to see him, it was just for a few minutes outside, and my grandson’s eyes lit up and he hugged me so tight and told me that he loved me. He wanted to be with me as he started to cry and become a little rebellious in trying to reach out to me. Needless to say, I wasn’t able to get a goodbye hug or kiss. Her retort was he needs to listen to me. How does this little one understand his nana is not truly welcome anymore, and can’t be there to exercise the love and patience he had from Nana. How does he understand (cold turkey) we can’t be together after that is all he has known in his life. Does he think I abandoned him, and don’t want to be around him. How is this going to effect him psychologically. His element of trust, security, stability, is now being turned upside down. The one person who was there for it all. This has thoroughly devasted me too. No more goodnight prayers, and songs before sleeping. No more building things together. No little looking into each others eyes daily to say “I love you bery, bery much, forever., She did the same thing years ago with his oldest brother. When the first 2 1/2 years of his life were spent with me and his aunt, She literally grabbed and pulled him out of my arms, while he screamed “Nana” Nana”. I did not get to see him for a very long time after that. I , too, believe in the best interest of the child, and childrens rights. There are many children out there who are suffering from emotional, and psychological neglect. I don’t trust my daughter and her relationships.and the lack of patience she has with my littlest. He needs to be protected too.

      • kzamess says


        This is exactly my case. My divorced daughter was staying here with me. Her husband who is in the A.F. had an affair on her and booted both my daughter and granddaughter out a couple of years ago to live with his 17 year old girlfriend. My daughter moved in with me and has been unstable going from man to man over a year now. The father is abusive to the child, with no hard evidence except for me and others witnessing him calling the baby foul names and hitting the child when she was not even hardly walking. He does NOT need to be around this child. He doesn’t know how to treat a small child. He is in another state that is very far away and he’s trying to get physical custody of the child. I have got written proof where he publicly wrote to a guy on Facebook that the reason for a child is so you can get a large tax return back from the government. I have been the one who has raised my grand baby over the past year. She is fixing to be 4 years old and I am all she really knew as a parent. I took care of her, fed her, clothed her, etc.. Her mother has taken her out of my home 3 different times to go live with other men to help support her because the father won’t send the right amount of child support. The mother is mentally unstable. I’ve been the one supporting the both of them on what little income I make. I took out a loan for a lawyer and I got it to where he couldn’t take the child out of state and we were going after child support for my granddaughter. We tried going through the Support Enforcement Program that never came through for us. They kept messing everything up. Once they even said that they couldn’t locate the father. How is this when he is in the air force for God’s sake!?? Well, she has just recently let the child stay with the father’s mother (the other grandmother) and she won’t even let me talk to the child. My daughter is now saying that her ex is fixing to try to take the child from her. Neither should be raising this child. I have been the child’s mother figure over the past year or so and she depends on me and loves me. It is certainly heartbreaking to me and it’s hard to sleep at night knowing exactly what you said about… (How does this little one understand his nana is not truly welcome anymore, and can’t be there to exercise the love and patience he had from Nana. How does he understand (cold turkey) we can’t be together after that is all he has known in his life. Does he think I abandoned him, and don’t want to be around him. How is this going to effect him psychologically. His element of trust, security, stability, is now being turned upside down. The one person who was there for it all. This has thoroughly devasted me too. No more goodnight prayers, and songs before sleeping. No more building things together. No little looking into each others eyes daily to say “I love you bery, bery much, forever.) I know exactly how you feel. I’m so heartbroken. I am calling my lawyer tomorrow to tell her the circumstances and to see if there is any way possible I can at least get visiting rights. If you have found out anything… Would you please let me know? I am also a “Nana”.

  2. JDC says

    My son had a child with his girlfriend. They were never married. I let them live at my house from the time the pregnancy was announced. They split up when the baby was a year and a half old. It was an on again, off again situation with the child staying with me and my son 95% of the time at my home. At one point she completely abandoned the child. The baby lived at my home with me and my son since he was born up until about 6 months ago. The mother has never really held a job for any length of time. She has been fired for stealing from every job she has ever had. She stole from me also the entire time she lived in my home, but I tolerated her because I did not want my grandson living on the streets. She had nowhere else to live. From the time she split up with my son, she has lived with about 6 different men. She recently had another baby, and she is not with that child’s father either. She is addicted to pain pills, and I constantly worry about my grandchild. She has nowhere to live when she is in-between boyfriends, and lives with whoever will take her in. About six months ago, she had a huge argument with my son, and now she and her family have decided that we can no longer see the child. My home has been the only stable home that child has ever known. I do not have money to fight about it in court. I am just trying to find out what rights a grandmother has when it comes to visitation with their grandchild.

  3. kzamess says

    Please read my comment above. I truly believe in this day and time that in a lot of cases the grandparents are better parents to the child than their own parents. Something needs to at least be done about us having visitation rights, and I do believe that it IS in the best interest of the child. No one ever thinks about how the child feels these days. No matter how small they are, I think that at least at 3 years of age they know who loves them and who cares for them. The judges need to ask small children questions. They are smart and they know what they feel and what they won’t at this age. Children should be allowed ALWAYS to see their maternal grandparents, unless of course there are cases of abuse, etc.. I don’t think we should have to FIGHT for grandparents rights. It’s ludicrous how the laws are these days. They don’t think about how the children feel. ASK THE CHILDREN… How can a judge live with themselves awarding a parent a child who is crying, begging and screaming not to go with their own parent. Does anyone ever think this is odd? That should tell them that the child is not safe. There are so many children who are brought up in unstable environments these days. These kids can’t even speak for themselves… They are lost, tosses around and used like pawns in a war. This is just WRONG. It breaks my heart.

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