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Date: 03-02-2022
Case Style:
Mark Fuller, III v. Tracy Landrum Fuller
Case Number: 54,098-CA
Judge: R Jeff Cox
Court:
COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA
On appeal from The Fourth Judicial District Court for the
Parish of Ouachita, Louisiana
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Defendant's Attorney: RICHARD L. FEWELL, JR., APLC Counsel for Appellee
By: Richard L. Fewell, Jr.
Description:
Shreveport LA - Divorce lawyer represented defendant with filing a petition to modify custody.
Mark and Tracy were married in 2007. Three children were born to
this union, L.F., P.F., and H.F.1
Mark filed for divorce on June 1, 2012. A
hearing officer heard the matter, and on August 2, 2012, issued a hearing
officer conference report (“HOCR”). The HOCR recommended the parties
share interim joint custody of the minor children, with Tracy designated as
the interim domiciliary parent. Because of Mark’s work schedule, his
interim visitation was as follows: during the weeks that he had 5 days off, he
was entitled to have the children from when he picked them up Friday at
school until he dropped them back off at school the following Tuesday; the
following week, he was entitled to pick up the children Monday at school
and return them to school the following morning. As to the child support
calculation, the HOCR stated Mark worked at two jobs, but did not have
1 L.F. was born before the marriage and is currently 17 years old. P.F. and H.F.
are twins and are currently 12 years old.
2
proof of income from one of the employers. Tracy was unemployed. Mark
was ordered to pay $1,700 per month in interim child support and $400 per
month in interim periodic spousal support. On August 8, 2012, the trial
court made the HOCR a temporary order.
The judgment of divorce was rendered January 28, 2014. A consent
judgment was filed on July 2, 2014, in which the parties agreed to joint
custody. Tracy was designated as the primary domiciliary parent, and
Mark’s visitation schedule remained the same as in the temporary order.
The consent agreement also designated a schedule for holidays, school
breaks, and summer vacation. Mark’s child support was set at $2,100 per
month, by agreement of the parties. Mark and Tracy agreed to alternate
claiming the children as dependents for income tax purposes.
On December 23, 2014, Mark filed a rule for modification of custody,
child support, and for contempt. He claimed circumstances changed which
warranted and justified a change in the custody arrangement, and he
requested domiciliary-parent status. He stated that he was recently engaged
and could provide a more stable, supportive, and structured environment for
the children. He also claimed Tracy did not have a stable environment and
alleged the following: she does not have stable employment; she has a
gambling addiction; she has stolen money from his parents; she was fired as
a bookkeeper for theft; she is under investigation for embezzlement of over
$100,000 from her employer; her home is under foreclosure; she did not
allow his visitation of the children at times; she plans events for the children
during his visitation times; L.F. was in need of counseling; and, he now has
flexible hours at a new employer.
3
On January 14, 2015, the State filed an ex parte motion and order to
change payee, rule for contempt, and request for immediate income
assignment because Tracy alleged that Mark was behind in his child support
payments in the amount of $15,007. Tracy attached an affidavit of
arrearages, alleging Mark began missing payments in February 2013. The
trial court signed an immediate income assignment order. Tracy and Mark
both signed and filed another affidavit of arrearages, signed on the same day
as the first one, which showed Mark paid his child support obligation every
month, and was not behind on his payments.
Tracy filed peremptory exceptions of no right of action and res
judicata. She argued that Mark’s allegations of a gambling addiction,
undiagnosed bipolar disorder, stolen money, and her being fired for theft
were all raised by him previously in 2012. She stated that he had no right of
action on the basis that he had an excellent support system and has a new
employer because both of these existed at the time of the consent judgment.
In addition, he was living with his now-fiancée at the time the consent
judgment was signed. Tracy then filed a rule for contempt because their
consent judgment stated neither party shall have overnight guests of the
opposite sex while the children are in the residence. She alleged that Mark
had his girlfriend spend the night when the children were visiting him.
At the hearing officer conference, the hearing officer granted Tracy’s
exceptions. The HOCR stated that the father only made one or two “new”
allegations and they were irrelevant, immaterial, or he was unable to prove
them. The HOCR stated that the parents agreed to put the children in
counseling and agreed to exchange the children in a public place when the
4
exchange does not occur at the children’s schools. Neither party filed
objections to the HOCR. The HOCR was adopted and implemented by the
trial court on September 15, 2015.
On October 13, 2016, Mark filed a rule to modify custody and for
contempt, in which he alleged the following:
• Tracy has been evicted from and lost her residence to foreclosure. The
children must sleep on the floor when they reside with her and have not
maintained proper hygiene. They do not take regular baths at her
residence. When they do bathe at her residence, they must take cold
baths because the gas bill does not get paid.
• Tracy has filed false reports in both bankruptcy court and child support
proceedings claiming Mark is behind on child support payments.
• Tracy has openly spoken negatively about Mark to the children—stating
they do not have to speak to him, he lies, and he committed adultery
while they were married.
• Tracy has not communicated with Mark regarding L.F.’s counseling or
the name of his therapist.
• Tracy has unilaterally changed Mark’s weekend visit schedule to
weekends when he worked.
• Mark remarried and is able to provide a stable home and support system.
• Mark has exercised primary responsibility for assisting the children with
their schoolwork. The children’s school performance has suffered due to
Tracy’s unwillingness to properly supervise.
• Tracy has not complied with the doctor’s instructions regarding P.F., and
the child required surgery on her left ear due to ear infections.
5
• Tracy tells the children they need to return to court and tell the judge that
they want to live with her.
• Tracy has attempted to alienate the children in the following ways:
becoming confrontational with Mark in the presence of the children,
refusing to allow the children to speak with their father or paternal
grandparents during extracurricular activities or school functions, and
offering to buy the children things if they do not speak to their father.
Tracy filed a peremptory exception of no right of action arguing that
Mark had failed to meet his burden under Bergeron.
2
She stated she was not
evicted but left voluntarily; the children have not been forced to sleep on the
floor; and, she has not neglected the children’s hygiene. Tracy stated Mark
was in contempt for failing to maintain dental and vision insurance for July
and August 2016, failing to provide proof of life insurance in which the
children are named beneficiaries, and failing to provide timely
reimbursement for medical expenses and extracurricular activities.
A hearing officer conference was held on February 17, 2017. The
HOCR stated that Tracy and the children lived in a three-bedroom rental
duplex, which Tracy contends is an adequate home. The hearing officer
stated that Tracy’s loss of the home after telling the court she would keep
her payments current and filing a factually false affidavit with Support
Enforcement Services shows she is not necessarily truthful and does not
keep her word, but does not seem to be material enough to change
domiciliary custody. Regarding Mark’s claim that Tracy would not tell him
the psychologist’s name, the hearing officer was unable to determine who is
2 Bergeron v. Bergeron, 492 So. 2d 1193 (La.1986).
6
telling the truth, but stated it did not harm the children and was not a
material change to modify domiciliary status. The HOCR stated the
evidence related to P.F.’s ear infection and surgery occurred prior to the
previous conference and is not a change since the last court date. The
hearing officer found that filing the false support affidavit in district court
and bankruptcy court occurred before the previous conference and “is
literally not a change in circumstances.” The allegations of not allowing the
children to speak to Mark in public were a “he said, she said” issue which
could not be resolved, but the hearing officer determined Mark could not
carry his burden of proof that day. The HOCR did not recommend a change
in the custody arrangement. The HOCR was made temporary by the trial
court on March 5, 2017.
Mark filed an objection to the HOCR. He argued Tracy’s loss of the
family home warrants a change in circumstances. Mark stated that he
intended to produce evidence at trial of Tracy’s alienation of the children
and that the current custody situation was not in the best interest of the
children. He objected to the hearing officer’s determinations that Tracy’s
failure to disclose the psychologist was not sufficient to modify custody, that
Tracy was properly addressing the needs of the children, and that she
consistently engaged in actions to alienate the children was res judicata.
Tracy also filed objections to the HOCR. She argued that all of
Mark’s arguments should have been dispensed with on the exceptions of no
cause of action or res judicata. She stated these matters were either
addressed at a previous conference or are immaterial.
7
Upon Mark’s motion, the trial court ordered P.F. and H.F. to be
interviewed by Whitney Foster, a counselor at Family Solutions Counseling,
and Ms. Foster to render an opinion to the court at the time of trial.
On July 18, 2019, proceedings began before the trial court regarding
the objections to the HOCR. Richard Reeves, the former husband of Mark’s
current wife (Andrea Fuller), testified first on behalf of Mark. Mr. Reeves
and Andrea had one child, I.R., together before divorcing. He stated that he
and Andrea did not have a contentious divorce, Andrea is domiciliary parent,
and they work together well in sharing joint custody of their child. Mr.
Reeves stated he has always been welcome in Mark’s home and never had
any reason to be concerned about his daughter living there.
Mark’s father, Mark Fuller, Jr., testified that he has had good
interaction with the children, Mark, and Andrea. He stated that he has seen
some strain at times in Mark and L.F.’s relationship when Mark would ask
L.F. to do something and L.F. would not do what he was asked. He stated
that it was not easy to have a relationship with Tracy, and Tracy told them
that she did not want them around. He stated visits at Mark and Tracy’s
former home were not good and he could feel the “tension in the air.”
Mark’s mother, Brenda Fuller, testified that she keeps the children
when Mark and Andrea are at work. She stated that she and L.F have a
close relationship. She testified that she knows of issues between Mark and
L.F. when it comes to rules in Mark’s house that L.F. does not think he has
to follow. She stated that L.F. has told her he would want to live primarily
with his mom. P.F. and H.F. have never told her what they would prefer.
She stated that she believes Tracy has fewer rules than Mark. She testified
8
that she believes Mark, Andrea, and the children get along well. She stated
that she did not know of any problems or negative feelings between the
children, but mentioned L.F. and I.R. may have been jealous of each other as
stepsiblings when their parents first married.
Terry Winkler, a coworker and friend of Mark’s, testified that he and
his family go on vacations with Mark and Mark’s family. He also stated that
he and Mark are on a deer lease together and Mark brings his kids hunting.
He testified that he has not seen any interactions between Mark, Andrea, and
the children that would raise any red flags. He stated that he witnessed them
getting along and enjoying being together.
Andrea testified that she agreed with Mr. Reeves, her ex-husband, that
they have a positive relationship and co-parent I.R. well together. She stated
that as she witnessed the interactions between Mark and Tracy, she was
“traumatized for the kids and [herself].” She testified that she feels she has a
positive relationship with L.F., P.F., and H.F. Andrea stated that there was a
little “sibling rivalry” between L.F. and I.R. when they all first moved in
together, but it did not last long. She stated that the transition of everyone
being in the same house and living as a family went smoothly. Andrea
described incidents where picking up the children from Tracy were difficult.
Andrea stated she would meet to swap the children with Tracy because it
was easier on her work schedule than Mark’s schedule. She stated that after
several times of picking up the children, Tracy would not release them to her
until Mark showed up. She described instances where she and Mark thought
the pick-up time was at 6:00 p.m. and Tracy said it was at 3:00 p.m. so they
were not able to get the children that week. Andrea stated there were a
9
couple of instances when they were supposed to pick the children up after
school and the children would not be at school when they got there.
Andrea testified that after L.F. began counseling, she saw a huge
improvement in his relationship with Mark. She stated that L.F. would have
tantrums and get upset when he did not get his way or did not like Mark’s
rules and consequences. She stated that he would calm down after he and
Mark would talk everything over, but the tantrums became less frequent
after he started counseling. Andrea testified that Tracy does not
communicate about the children’s medical appointments or extracurricular
schedules with them. She stated that she and Mark had to call around to
different doctorss offices to find out which psychologist L.F. was seeing.
She testified that P.F. had an ear surgery around Thanksgiving that they
were not aware of until P.F. told them and handed them a bag of antibiotics.
Andrea stated they were not given any discharge instructions or pain
medication from Tracy and had to call the doctor to find out if they were to
remove the packing from surgery that was still in P.F.’s ear.
Tracy testified that she has been married four times. She testified that
she has been working part-time doing clerical accounting work and her job
allows her to be home by 2 o’clock in the afternoon, which correlates with
the children’s school schedule. She stated that she and Mark have not had
verbal communication in years and they primarily communicate through
email, in which both of their attorneys are cc’d. Mark’s attorney questioned
why the court should believe any of her testimony when she has filed
inaccurate documents under oath. Tracy responded, “There was confusion
on the child support document that was done under oath. But my children
10
have never been in ruins to where they’re forced to sleep on the floor or had
cold showers.” Tracy denied telling the children anything about the divorce;
she also denied ever discouraging the children from speaking with Mark or
his family at extracurricular activities or school events. She stated that she
has never blocked Mark’s phone number on the children’s cell phones, but
L.F. blocked Mark’s number. She testified that she did block Andrea’s
number from both P.F.’s and H.F’s phones.
Tracy testified that she and Mark have confusion or disagreements on
when summer vacation is to start. Tracy denied or explained away all of
Mark’s allegations, especially those regarding visitation issues and
disagreements. Tracy testified that she has sent Mark medical bills for the
children and receipts for extracurricular activities and has not been
reimbursed by Mark for his portion of the payments. Tracy stated that P.F.
and H.F. do not want to stay at Mark’s house because they are not treated
fairly. She stated that she takes P.F. and H.F. to church “maybe six times
within a year” (L.F. chooses not to attend) and encourages their Christian
faith.
Whitney Foster, an expert in family counseling, testified that Mark
contacted her about counseling P.F. and H.F. Ms. Foster stated that she had
to get permission from Tracy, as the domiciliary parent, before she could
begin sessions with P.F. and H.F. Ms. Foster went through her session notes
for the court. She described how P.F. recalled multiple instances of Tracy
telling them lies about Mark. P.F. stated in counseling that Tracy blocked
Mark from calling P.F.’s phone, but later removed the block. Ms. Foster
stated that P.F. had a recurring theme in counseling of wanting to live with
11
both of her parents at the same time. H.F. wanted equal time with both
parents. Ms. Foster testified that in one session, H.F. stated, “I like both my
parents. I’m hoping my Dad can find a neighborhood near my Mom.”
Ms. Foster testified that both girls described instances of crying
themselves to sleep and not knowing why; P.F. reported that she is homesick
and missed her Dad. Ms. Foster stated that in her opinion, Tracy’s actions
were forms of parental alienation over the children.
Mark testified that he is a registered nurse, hospital supervisor, and
teaches medical classes at a community college. He described an instance of
the children coming to his house and complaining of no baths or cold baths.
He said P.F. and H.F. would have matted hair and some of the knots would
have to be cut out because they could not be brushed. Mark testified
regarding P.F.’s ear infections. He stated that he took P.F. to the doctor’s
office multiple times and sent her antibiotics, ear drops, and instructions to
Tracy’s house. The nurse practitioner who examined P.F. told Mark that her
ears were healing slowly and it was imperative that she take all of her
medication. Mark stated that after speaking with the doctors, it was his
understanding that the ear infection got out of control, which led to damage
and slow healing. This out-of-control infection has been attributed to the
failure to use antibiotics appropriately and timely.
Mark stated that he helps the kids with their homework and has
enrolled them in online tutoring as needed. He testified that the children had
failing grades primarily on days which correlated with their days at Tracy’s
house. Mark testified that L.F. has confronted him about abusing Tracy and
having affairs when they were married. Mark stated that he had to be firm
12
with L.F. that those things did not happen and when he is old enough, he can
read the divorce papers for himself to see why they actually divorced. He
also described instances of L.F. not speaking to him in public so he would
not get in trouble with Tracy and instances of Tracy being confrontational
with him in public. Mark testified that he places an importance on the
children attending church and fostering their spiritual growth.
The trial court spoke with L.F. in a closed hearing and received letters
from P.F. and H.F., which are sealed in the record. L.F. testified in open
court regarding a protective order that was filed against Mark during the
custody proceedings. He stated that the protective order was filed because
Mark pinned him against his truck. He stated that the night before the
incident, Andrea asked for his phone because he had been staying up too late
and making too much noise. He refused to give her his phone and locked
himself in his room. He stated that he did not feel that her taking his phone
was “justified.” L.F. testified that although he thought his actions were rude,
he did not give her the phone because he did not like her. He testified that
the next evening, he was sitting outside when Mark got home from work and
they were discussing what happened the night before when Andrea asked for
his phone. He stated that Mark told him that he was disrespectful and to go
inside and set his phone on the counter, which he declined to do. Mark also
told L.F. to clean his room and mow the yard. He testified that when he
refused, Mark pinned him against the truck and took his phone.
L.F. stated that he would describe the environment at Mark’s house as
“hostile” for him and his sisters and there was a lot of “psychological
abuse.” L.F. testified he has not had contact with Mark since this incident
13
and would prefer supervised visitation if he continues to go to Mark’s house.
He stated that H.F. did not get along well with P.F. and I.R. and was often
left out at Mark’s house. L.F. testified that Andrea makes P.F. and H.F. cry
sometimes.
During the protective order hearing, L.F. was questioned about his
punishment at his mom’s house versus his dad’s house, and he responded, “I
don’t raise hell at my mom’s house like I do at my dad’s house.” Mark
motioned at the hearing to have the protective order involuntarily dismissed.
The trial court agreed that there was no need to have a protective order based
on the evidence presented and involuntarily dismissed the protective order.
At the end of the hearings, the trial court issued its 26-page written
reasons for judgment, which was filed December 8, 2020. The trial court
denied Tracy’s exception of res judicata. The trial court also denied Tracy’s
motion to strike Mrs. Foster’s testimony because she could not be both a
counselor to the children and custody evaluator. The trial court found that
Mrs. Foster testified as to issues that were reported to her by P.F. and H.F.
that could have the effect of parental alienation, but did not provide
testimony regarding her opinion as to the proper custody arrangement for the
children. The trial court found that Mark met his burden of proof as to the
material change in circumstances. As to the best interest of the child factors
outlined in La. C.C. art. 134, the trial court found the following:
1. The potential for the child to be abused—This factor is inapplicable
as neither parent has inflicted mental abuse as defined by La. Ch. C.
art. 603, nor is there any indication of any potential abuse by either
parent.
14
2. Love, affection, and other emotional ties between each party and the
child—Both parents love their children, but the trial court was
“persuaded by the testimony, that Tracy has taken actions, in her
words or deeds, to damage the love, affection, and the strong
emotional ties that the children have enjoyed with their father.”
Because Tracy took “unnecessary actions in an effort to damage the
children’s relationship with their father,” this factor weighed in
favor of Mark.
3. Capacity and disposition of each party to give the child love,
affection, and spiritual guidance and to continue the education and
rearing of the child—Although both parents have the capacity to
give their children love and affection, Mark has shown a greater
capacity to provide for the children’s education and to provide
spiritual guidance.
4. Capacity and disposition of each party to provide the child with
food, clothing, medical care, and other material needs—Both parties
had the capacity to provide for food, clothing, and other material
needs, but Mark, as a registered nurse, was in a better position to
assess the medical needs of the children.
5. The length of time the child has lived in a stable, adequate
environment, and the desirability of maintain continuity of that
environment—Tracy did not provide a consistent stable and
adequate environment for the children; her history did not allow the
trial court to infer long-term stability. Mark’s living environment
15
was more consistent, and he sincerely tried to engage in coparenting with Tracy. This factor weighed slightly in favor of Mark.
6. The permanence, as a family unit, of the existing or proposed
custodial home—Tracy has resided in her residence since 2017 and
Mark in his residence since 2014. Mark stated was trying to move
into the children’s current school district. This factor weighed in
favor of Tracy because if Mark does not get moved into the current
school district, then moving the children to a new school district
would be detrimental to their best interests.
7. The moral fitness of each party, insofar as it affects the welfare of
the child—Tracy’s perjury on two separate occasions could have
resulted in criminal prosecution and one could have caused great
harm to Mark. Tracy’s willingness to engage in this conduct was an
indication of lack of moral fitness. Tracy did not present any
credible evidence that Mark was morally unfit; therefore, this factor
weighed in favor of Mark.
8. History of substance abuse, violence, or criminal activity—This
factor is inapplicable because no credible evidence was introduced
by either party.
9. Mental and physical health of each party—This factor is
inapplicable because both parties were mentally and physically
healthy.
10. Home, school, and community history of child—Again, if Mark
was unable to move into the current school district, this could be
16
detrimental to the best interests of the children. This factor weighs
in favor of Tracy.
11. Reasonable preference of the child—All three children were of
sufficient age to express a preference. P.F. and H.F. would like
equal time with both parents. The trial court found that L.F.’s
preference to live with his mother has to do the with rift between
Mark and L.F. caused by Tracy’s leniency toward discipline and
willingness to allow L.F. to do as he wants. The trial court stated it
was in the best interest of the children to craft a custodial
arrangement that will allow, as much as possible, equal time with
both parents. Therefore, both parents will have to properly
communicate. Tracy’s efforts in communicating were found to be
inadequate.
12. The willingness and ability of each party to facilitate and encourage
a close and continuing relationship between the child and other
party—Tracy engaged in parental alienation both intentionally and
subconsciously, which is the primary reason the consent judgment
has failed. This factor overwhelmingly favors Mark, “and demands
a modification of the custody arrangement.”
13. Distance between the residences—This factor was irrelevant
because the parties lived in close proximity to each other.
14. Responsibility for the care and rearing of the child previously
exercised by each party—Tracy has had the primary responsibility
for the care and rearing of the children, but her manner and methods
have caused issues that rendered her unfit to carry on with those
17
responsibilities, which were described in detail in considering the
other factors. Normally, this factor would weigh in favor of the
primary custodial parent, but did not weigh in favor of Tracy.
After considering the above factors, the trial court found that the best
interest of the children will most effectively be met by joint custody with
Mark being designated as the primary custodial parent. Tracy’s visitation
consisted of having the children every other weekend, major holidays being
split 50/50, and alternating weeks in the summer. As to Tracy’s rule for
contempt for Mark failing to pay his portion of the children’s expenses,
using his wife as a proxy in co-parenting, not adhering to the summer
schedule, and other specified acts, the trial court found the claims did not
rise to the level of contempt. The trial court denied Mark’s rule for
contempt as it was based on the same factors which formed the basis for the
custody change. Therefore, the punishment for contempt would have been
inequitable. Each party was responsible for their own court costs.
Tracy now appeals the trial court’s judgment.
DISCUSSION
Modification of Custody and Domiciliary Parent
Tracy does not dispute that there has been a material change in
circumstances to warrant a review of the consent judgment. However, she
disagrees that the changes made by the trial court are in the children’s best
interests. She argues that the trial court improperly considered co-parenting
issues within multiple factors.
In most child custody cases, the trial court’s determination is based
heavily on factual findings. Harrel v. Harrel, 52,248 (La. App. 2 Cir.
18
6/27/18), 251 So. 3d 546. Child custody decisions are reviewed under the
abuse of discretion standard. Leard v. Schenker, 06-1116 (La. 6/16/06), 931
So. 2d 355; Harrel v. Harrel, supra. The determination of the trial judge in
child custody matters is entitled to great weight, and that discretion will not
be disturbed on review absent a clear showing of abuse. Leard v. Schenker,
supra; Harrel v. Harrel, supra.
Neither party argues the trial court improperly determined there was a
material change in circumstances or improperly continued the joint custody
scheme. Therefore, the first issue we must consider is whether the trial court
erred in designating Mark as the domiciliary parent.
In designating the domiciliary parent, for purposes of joint custody
determination, consideration must be given to the factors in La. C.C. art. 134
and any other relevant factors. The principal consideration in every child
custody case is the best interest of the child. Nichols v. Nichols, 32,219 (La.
App. 2 Cir. 9/22/99), 747 So. 2d 120. La. C.C. art. 134 states, in pertinent
part:
A. Except as provided in Paragraph B of this Article, the court
shall consider all relevant factors in determining the best
interest of the child, including:
(1) The potential for the child to be abused, as defined by
Children’s Code Article 603, which shall be the primary
consideration.
(2) The love, affection, and other emotional ties between each
party and the child.
(3) The capacity and disposition of each party to give the child
love, affection, and spiritual guidance and to continue the
education and rearing of the child.
(4) The capacity and disposition of each party to provide the
child with food, clothing, medical care, and other material
needs.
(5) The length of time the child has lived in a stable, adequate
environment, and the desirability of maintaining continuity of
that environment.
19
(6) The permanence, as a family unit, of the existing or
proposed custodial home or homes.
(7) The moral fitness of each party, insofar as it affects the
welfare of the child.
(8) The history of substance abuse, violence, or criminal
activity of any party.
(9) The mental and physical health of each party. Evidence that
an abused parent suffers from the effects of past abuse by the
other parent shall not be grounds for denying that parent
custody.
(10) The home, school, and community history of the child.
(11) The reasonable preference of the child, if the court deems
the child to be of sufficient age to express a preference.
(12) The willingness and ability of each party to facilitate and
encourage a close and continuing relationship between the child
and the other party, except when objectively substantial
evidence of specific abusive, reckless, or illegal conduct has
caused one party to have reasonable concerns for the child’s
safety or well-being while in the care of the other party.
(13) The distance between the respective residences of the
parties.
(14) The responsibility for the care and rearing of the child
previously exercised by each party.
While the court is not bound to make a mechanical evaluation of all
the statutory factors listed in La. C.C. art. 134, it should decide each case on
its own facts in light of those factors. Nor is the court bound to give more
weight to one factor over another; rather, when determining the best interest
of the child, the factors must be weighed and balanced in view of the
evidence presented. The factors are provided as a guide to the court, and the
relative weight given to each factor is left to the discretion of the trial court.
Abrams v. Turner, 52,922 (La. App. 2 Cir. 9/25/19), 282 So. 3d 304.
In child custody cases where two parents are fervently competing for
custody and domiciliary status of the children, frequently the trial court must
determine the best interest of the children solely from the testimony of the
parents and their respective relatives or friends. This naturally passionate
and self-interested testimony is rarely objective, leaving it to the trial court,
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who is in the best position to view firsthand the demeanor and tone of the
witnesses, to assess the credibility of the witnesses, and decide how much
weight to give the testimony in light of the factors in La. C.C. art. 134.
Abrams v. Turner, supra.
In the case before us, the trial court found it was in the children’s best
interests to grant domiciliary status to Mark. In discussing the factors, the
trial court stated multiple times that Tracy acted to damage the relationship
between Mark and the children. Testimony revealed that Tracy would
reprimand the children for speaking to their father in public, she blocked his
phone number on the children’s cell phones, and Tracy engaged in parental
alienation of the children. The trial court found this to be the primary reason
that the previous custody arrangement failed and demanded modification.
The trial court found factors two, three, four, five, seven, and 12 to be
in favor of Mark and factors six and ten to be in Tracy’s favor. Tracy argues
that factors two, four, seven, and 12 should not have weighed against her,
and factors three, five, 11, and 14 should have been in her favor. She asserts
that the trial court improperly considered actions of parental alienation
within multiple factors and weighed those factors against her. She argues
that Mark spoke to the children about wanting to modify the visitation
schedule to see them more; Mark has more education, but she still has the
capacity to love them and provide them with food and other necessities; the
children have done well in school while under her care; and, her false
statements in court regarding child support had no effect on the minor
children.
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We disagree with Tracy’s arguments. The trial court is in the best
position to assess witness credibility and weigh their testimonies. The fact
that both parents have struggled to properly communicate with each other
does not negate the fact that Tracy has exhibited behavior consistent with
parental alienation. The trial court is to weigh the factors in light of the
evidence presented and is given the discretion to weigh the factors as it sees
fit. The factors are not a game in which one parent “scores” a factor and the
parent with the highest “score” wins. Depending on the facts of each case,
one factor may carry more weight than it would in another case.
The trial court found that Tracy’s actions of alienation and trying to
keep the children from Mark were overwhelming reasons to modify custody
and designate Mark as domiciliary parent. Even if additional factors should
have been in Tracy’s favor, those few factors are not enough to overcome
the trial court’s discretion in placing more weight on the alienation. In
reviewing the factors, particularly the alienation exhibited by Tracy, in light
of all the testimony presented at trial, we find that the trial court did not
abuse its discretion when weighing the factors and naming Mark the
domiciliary parent. This assignment lacks merit.
Visitation Schedule
Tracy argues that the trial court erred in substantially decreasing her
time with the children. She argues that her visitation of every other weekend
during the school year is an excessive limitation on her time with the
children. Tracy highlights that her visitation time is less than Mark’s
visitation time under the previous order.
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The trial court’s finding that joint custody is in the best interest of the
child does not necessarily require an equal sharing of physical custody.
Collins v. Collins, 36,629 (La. App. 2 Cir. 10/23/02), 830 So. 2d 448.
Substantial time rather than strict equality of time is mandated by the
legislative scheme providing for joint custody of children. Abrams v.
Turner, supra. Every child custody case must be viewed on its own
particular set of facts and relationships involved, with the paramount goal of
reaching a decision which is in the best interest of the child. Nichols v.
Nichols, supra.
A joint implementation order shall allocate the time periods during
which each parent shall have physical custody of the child so that the child is
assured of frequent and continuing contact with both parents. La. R.S.
9:335(A)(2)(a). Our jurisprudence has not defined “frequent and
continuing” in terms of a minimum amount of time. Frequent and
continuing contact must be determined based on the facts of each case. 3
Tracy was given every other weekend from 5:30 pm Friday to 5:30
pm Sunday during the school year, alternating weeks in the summer, and one
half of all major holidays. This amounts to four nights a month during
3
In O'Brien v. O'Brien, 30,001 (La. App. 2 Cir. 12/10/97), 704 So. 2d 933,
alternating weekends, alternating holidays, and six weeks in the summer was held not to
be frequent and continuous contact. In Ellinwood v. Breaux, 32,730 (La. App. 2 Cir.
3/1/00), 753 So. 2d 977, the court added two weeks in the summer to make the visitation
schedule frequent and continuing. The Ellinwood schedule became alternating weekends,
alternating holidays, and 6 weeks in the summer. In Collins, surpa, the court modified
the visitation schedule to give the children frequent and continuing contact—every other
week Wednesday through Sunday and 8 weeks in the summer. In Bingham v. Bingham,
42,140 (La. App. 2 Cir. 4/4/07), 954 So. 2d 842, the court stated that giving mom custody
of the children during the school year and dad custody during the summer (with some
specific visitation carved out) was frequent and continuous visitation. The Bingham
court distinguished the case from Collins because Collins involved parents who
communicated well with each other and fostered the children’s relationships with the
other parent.
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approximately nine months out of the year and approximately six weeks
during the summer, plus one half of holidays.
Under the facts of this case, we do not find this visitation schedule to
be frequent and continuing. This is not a case where the parents live so far
apart that each parent cannot get the children to school during the school
year. In fact, Mark was looking to move closer to Tracy in order for the
children to stay in the same school district. Although factors three and four
were in favor of Mark, the trial court stated that both parties have the
capacity to love and care for the needs of the children.
The major breakdowns in the previous custody agreement were the
communication between the parents and Tracy’s actions of parental
alienation. Both parents must do better communicating with each other in
order to ensure the children’s needs are met. Given the change in the
visitation schedule, Tracy’s parental alienation actions should be less
frequent and effective, even if she is designated a few more days a month
during the school year. Additionally, the children are accustomed to seeing
both of their parents more than four days a month. Allowing Tracy a little
more visitation time during the school year will help ensure the children
have frequent and continuous contact with her.
For these reasons, we remand the visitation schedule back to the trial
court to craft a schedule that gives Tracy more than four days a month
during the school year.4
4 We note that the trial court is in the best position to determine how best to
schedule the visitation, whether it be additional nights when Tracy already has the
children or adding time to the weeks she does not have the children. As the parents
struggle to communicate, the schedule should be clear on when the school year ends and
begins in order to transition to the summer schedule.
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Child Support and Tax Deductions
Tracy argues that if this Court finds that the trial court abused its
discretion in modifying custody and designating Mark as domiciliary parent,
then the termination of child support and award of dependency tax
deductions must also be manifestly erroneous. We did not find the trial
court to be manifestly erroneous in modifying custody and designating Mark
the domiciliary parent. Therefore, the termination of Mark’s child support
payments and yearly permission to claim the children on his income taxes
were proper.
Outcome: We affirm the trial court’s judgment modifying joint custody and
naming Mark the domiciliary parent, and we remand the visitation schedule
to the trial court for a modification to allow the children frequent and
continuous contact with Tracy. Each party bears its own costs associated
with this appeal
Plaintiff's Experts:
Defendant's Experts:
Comments: