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LEGAL CORNER: What’s the “Bergeron Standard” in child custody cases?

Updated: Feb. 5, 2020 at 11:43 AM CST
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LAKE CHARLES, La. (KPLC) -Submit your questions to news@kplctv.com. Civil matters only, please.

QUESTION: What’s the “Bergeron Standard” in child custody cases?

ANSWER: Child custody decrees (judgments) are either “consent decrees” or “considered decrees.” A consent decree is a decree that parties agree to without having a trial or evidentiary hearing. A considered decree is a decree that a judge renders following a contested hearing or trial where evidence is taken and testimony is given. The burden of proof to modify a consent decree is best interest of the child. In other words, in order to modify a consent decree, the plaintiff (the one seeking the modification) must prove that the sought out modification serves the child best interest. However, to modify a considered decree, the burden is much higher. The Louisiana Supreme Court held in Bergeron v. Bergeron, 492 So. 2d 1193 (1986) that the person seeking the modification bears a heavy burden of proving that the current custody is so deleterious to the child as to warrant its modification, or by clear and convincing evidence that the benefits of the change outweigh the damages that will be done to the child. The higher standard is commonly referred to as the “Bergeron” standard.

QUESTION: Can I get simple form and do my own will?

ANSWER: It’s NOT a good idea to try to do your own will. In Louisiana, wills (called testaments) are very specific to form. CC Art. 1573 expressly says that the formalities prescribed for execution of a testament must be observed or the testament is absolutely null. One small mistake can invalidate an entire will. Wills should not be attempted without the advises of a lawyer. There are only two types of wills in Louisiana, notarial and oleographic. (CC Art 1574) The notarial will is more common. It is usually prepped by a lawyer. It must be witnessed and notarized, and it must contain certain language. (CC art. 1576) An olographic will is one that is entirely in the handwriting of the testator and dated and signed at the end. Nothing can appear on the will other than the testators handwriting and it must be signed at the end. (CC art 1575). Besides the form, the provisions in the will should be reviewed by an experienced attorney to make sure that the testator’s goals will be achieved.

QUESTION: Both of my parents are now deceased. I am one of their four children. All they owned was their home. Do we have to do a succession in order to get the property in our names?

ANSWER: Yes. A succession is the process by which ownership is transferred from the deceased to the deceased heirs. However, if there is no will, and if the total value is of each parent’s half of the house is no more than $125,000.00 each (meaning that the house is worth no more than $250,000.00) then you can transfer ownership by a small succession affidavit, which does not require a judges signature and is easier and cheaper than a regular succession. (See La. CCP Art. 3421 et seq for more info on small successions.).

Disclaimer: The information furnished in this answer is general and may not apply to some situations. All legal situations are unique. No one should rely to their detriment on these answers. Anyone with a potential legal problem should seek the advice of a licensed attorney before taking any action or inaction. The answers provided are not intended to be specific legal advice and no attorney-client relationship is created between the SWLA Law Center and the viewers of KPLC-TV.

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