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2026 Regular Session ENROLLED
SENATE BILL NO. 76
BY SENATOR MILLER (On Recommendation of the Louisiana State Law Institute)
1 AN ACT
2 To enact Civil Code Art. 138, relative to the modification of child custody; to provide with
3 respect to the evidentiary burdens required to modify child custody; and to provide
4 for related matters.
5 Be it enacted by the Legislature of Louisiana:
6 Section 1. Civil Code Art. 138 is hereby enacted to read as follows:
7 Art. 138. Modification of custody award
8 A. When a court has awarded custody pursuant to a judgment rendered
9 by considered decree, the award may be modified by the court within the period
10 of five years after the date of the judgment, in accordance with the best interest
11 of the child, only upon proof of either of the following:
12 (1) By clear and convincing evidence that the harm likely to be caused
13 by a change of custody is substantially outweighed by the advantages to the
14 child.
15 (2) That the continuation of the present custody award is so harmful to
16 the child as to justify modification.
17 B. After five years have elapsed from the date of a judgment rendered
18 by considered decree, and in all other cases, an award of custody may be
19 modified by the court upon a change in circumstances that materially affects the
20 welfare of the child if the modification is in the best interest of the child.
21 C. A judgment is "rendered by considered decree" when the trial court
22 receives evidence of parental fitness to exercise care, custody, and control of a
23 child and enters a final and appealable judgment based on its evaluation of that
24 evidence.
25 Revision Comments – 2026
26 (a) This revision codifies the standard set by the Louisiana Supreme Court
27 for modification of custody orders pursuant to considered decrees in Bergeron v.
28 Bergeron, 492 So. 2d 1193, 1200 (La. 1986), with modifications. It also codifies the
29 existing, and lesser, standard for modifying consent decrees. See, e.g., McCorvey v.
ACT No. 93
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Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.
SB NO. 76 ENROLLED
1 McCorvey, 916 So. 2d 357, 370-71 (La. App. 3 Cir. 2005). This revision is not
2 intended to abrogate the jurisprudence interpreting Bergeron; rather, it is intended
3 to add clarity by codifying the Bergeron standard and by calling attention to the often
4 jurisprudentially overlooked alternative weighing standard set forth in Bergeron.
5 (b) Louisiana jurisprudence explains that a consent decree subject to the best
6 interest standard is one made through "a stipulated judgment, such as when the
7 parties consent to a custodial arrangement, and no evidence of parental fitness is
8 taken." Alternatively, a considered decree is one "wherein the trial court receives
9 evidence of parental fitness to exercise care, custody, and control of a child."
10 McCorvey v. McCorvey, 916 So. 2d 357, 370-71 (La. App. 3 Cir. 2005); see also
11 Evans v. Lungrin, 708 So. 2d 731 (La. 1998). Some Louisiana courts have noted that
12 judgments may be the result of "hybrid" proceedings, as when the court received
13 some evidence of parental fitness, but the parties enter into a stipulated judgment
14 prior to the court's ruling. Such judgments should be treated under the modification
15 standard applicable to consent decrees. McCorvey, supra at 371.
16 (c) The use of "in all other cases" in Paragraph B of this Article contemplates
17 application of the lesser evidentiary standard to modification of a consent decree, a
18 considered decree once five years have elapsed from the date of that decree, and a
19 judgment as a result of hybrid proceedings.
20 (d) The change in circumstances described in Paragraph B of this Article
21 refers to a change that materially affects the child's welfare. Burns v. Burns, 236 So.
22 3d 571, 574 (La. App. 1 Cir. 2017). A parent's remarriage, engagement, and similar
23 life changes do not necessarily rise to such a level. See id.
24 (e) The standards set forth in this Article apply to modifications of judgments
25 of custody rendered by consent decree or considered decree and generally apply to
26 both physical and legal custody. They do not, however, apply to minor changes, such
27 as a change in visitation of a parent from a Tuesday night to a Wednesday night.
28 (f) Interim, temporary, or interlocutory custodial orders are not governed by
29 the standards set forth in this Article.
30 (g) Custodial orders entered by hearing officers, whether interim or
31 otherwise, are not "considered decrees" in accordance with this Article, as they are
32 not custodial awards made by a "trial court."
33 (h) On account of the enactment of this Article, Comment (d) of the 1993
34 Revision Comments to Article 131 has been superseded. This Article should be
35 consulted, as it elaborates upon and modifies jurisprudential treatment of custody
36 modification.
PRESIDENT OF THE SENATE
SPEAKER OF THE HOUSE OF REPRESENTATIVES
GOVERNOR OF THE STATE OF LOUISIANA
APPROVED:
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Coding: Words which are struck through are deletions from existing law;
words in boldface type and underscored are additions.