Modifying a Custody Order in Louisiana: Understanding the Bergeron Standard

The Challenge of Modifying Custody in Louisiana

Family dynamics evolve over time as children grow and parents' lives change. You might feel that your current custody arrangement is no longer working. However, Louisiana has some of the strictest laws in the United States when it comes to changing child custody. The state believes that children need stability, and courts actively seek to prevent parents from dragging their children through constant, unending legal battles. Depending on how your original custody order was finalized, the legal mountain you have to climb can be incredibly steep. To understand your options, we suggest browsing our USA Lawyer Directory to find a seasoned family law attorney in your parish.

What is the Bergeron Standard?

If your original custody order was decided by a judge after a full trial where evidence was presented, it is known as a "considered decree." To change a considered decree, you must overcome a massive legal hurdle known as the Bergeron standard, established by the Louisiana Supreme Court in the famous case Bergeron v. Bergeron, 492 So. 2d 1193 (LA Supreme Court 1986).

Under the Bergeron standard, it is not enough to simply show that a new custody arrangement would be "better" for the child. You must prove that a material change in circumstances has occurred AND satisfy a two-pronged alternative burden: you must prove either (1) that the continuation of the present custody arrangement is so deleterious (harmful) to the child as to justify a modification, or (2) by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child. The burden of proof is intentionally heavy to discourage frivolous lawsuits in courts like the 9th Judicial District Court, Alexandria or the 26th Judicial District Court, Benton.

Consent Decrees vs. Considered Decrees

Not every custody order faces the Bergeron standard. If you and your ex-spouse originally agreed on a custody schedule outside of court and simply had the judge sign off on it, you have a "consent decree" (also known as a stipulated judgment).

As affirmed in cases like Tracie F. v. Francisco D., 188 So. 3d 231 (LA Supreme Court 2016), modifying a consent decree is much easier. You only need to prove that a "material change in circumstances" has occurred and that the modification is in the "best interest of the child" according to the factors in La. Civ. Code art. 134. A material change could be something as simple as the child changing schools, a parent getting a new work schedule, or a parent relocating.

Examples of Circumstances Heavy Enough to Overturn Bergeron

If you are trapped in a considered decree, what actually constitutes "harm" heavy enough to satisfy the Bergeron rule? To successfully pursue a Motion and Rule to Modify Custody (or Rule to Show Cause for Modification of Custody) under La. Code Civ. Proc. art. 961 and La. Code Civ. Proc. art. 2592, your attorney will need to provide concrete evidence of severe issues. Examples that typically meet the Bergeron standard include:

• Substance Abuse: The primary custodial parent has developed a severe drug or alcohol addiction that endangers the child.
• Physical or Emotional Abuse: Documented instances of the child being subjected to domestic violence or severe neglect.
• Dangerous Environment: The custodial parent has moved in with a new partner who is a registered sex offender or violent criminal.
• Severe Educational Neglect: The child is missing dozens of days of school without medical excuses, leading to failing grades and truancy charges.

How Much Does it Cost to Modify Custody?

Changing custody is essentially starting a new lawsuit, and the costs reflect the complexity of the case.

• Consent Modification: If you both agree to a change (like adjusting summer schedules), a lawyer can draft a new consent judgment for roughly $500 to $1,500, plus court filing fees of about $150.
• Contested Modification Trial: If you must fight to overturn a considered decree under the Bergeron standard, expect to pay between $5,000 and $20,000 in attorney fees, as these cases require extensive discovery, witness preparation, and aggressive litigation.
• Custody Evaluators: The court may appoint a mental health professional to evaluate the family. This evaluator usually charges $2,500 to $5,000, typically split between the parents.

Timelines for Modification

Filing a rule to modify custody can take several months to resolve. If there is an immediate threat to the child's life or safety, your attorney can file for an Emergency Ex Parte Custody Order, which a judge can grant on the same day. However, for standard modifications, a hearing is usually set within 30 to 60 days. If the case is highly contested, discovery (subpoenaing records, taking depositions) can stretch the timeline to 6 to 12 months before a final trial is held.