Boyett v. Boyett

448 So. 2d 819
CourtLouisiana Court of Appeal
DecidedMarch 26, 1984
Docket16,091-CA
StatusPublished
Cited by32 cases

This text of 448 So. 2d 819 (Boyett v. Boyett) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boyett v. Boyett, 448 So. 2d 819 (La. Ct. App. 1984).

Opinion

448 So.2d 819 (1984)

Charlotte Lynn London BOYETT, Plaintiff-Appellee,
v.
Jerry Lynn BOYETT, Defendant-Appellant.

No. 16,091-CA.

Court of Appeal of Louisiana, Second Circuit.

March 26, 1984.

*820 Wright & Hennen by Dennis Hennen, Monroe, for defendant-appellant.

Blackwell, Chambliss, Hobbs & Henry by Larry Arbour, West Monroe, for plaintiff-appellee.

Before HALL and SEXTON, JJ., and McCLENDON, J. Pro Tem.

HALL, Judge.

This is a habeas corpus proceeding to determine custody of a minor, Amber Lee Boyett, brought by her father, Jerry Lynn Boyett, against her maternal grandmother, Shirley London. The father appeals from a judgment awarding custody of the minor to the grandmother. For the following reasons, we affirm the judgment appealed.

On August 6, 1980, when the Boyett couple were divorced, the custody of their daughter was awarded to the mother. On August 8, 1983, following the mother's incarceration for distribution of drugs, on the petition of the father alleging abandonment of the child by the mother whose whereabouts were unknown, custody of the minor was changed to the father. Approximately one and one-half to two years prior to that award, unbeknownst to the father, the grandmother had obtained custody of the girl through juvenile court proceedings in which the mother had relinquished custody in favor of the grandmother.

On August 10, 1983, the father filed for a writ of habeas corpus seeking to compel the grandmother to deliver the child to him. On August 17, 1983, the grandmother filed an answer and reconventional demand in response to the father's petition alleging that she had raised the child since birth and that the child's mother, Charlotte London Boyett, desired that custody be awarded to the grandmother, and praying that she be awarded custody of the minor. After trial, judgment denying the father's demand and awarding custody to the maternal grandmother was rendered on August 18, 1983, and signed the following day. This appeal followed.

The father contends the trial court erred in not awarding him custody because there were no compelling reasons to deny him custody. He argues the trial court made no finding that he was unable or unfit to care for the child or that he had forfeited his superior, parental right to custody of the child through neglect or abandonment *821 of the girl. In sum, he contends the trial court applied the wrong standard to this case and treated the matter as if two parents were contesting custody.

Citing LSA-C.C. Art. 146 B., as amended by Act 307 of 1982, the grandmother contends this award of custody was properly made in favor of a nonparent based upon a finding that awarding custody to the parent would be detrimental to the child and that the award to a nonparent was required to serve the best interest of the child.

The 1982 Amendment

After amendment by Act 307 of the 1982 Regular Session of the Legislature, effective January 1, 1983, LSA-C.C. Arts. 157 and 146[1] provided, in pertinent part, as follows:

"Art. 157. Custody of children; visitation rights of grandparents
"A. In all cases of separation and divorce, and change of custody after an original award, permanent custody of the child or children shall be granted to the parents in accordance with Article 146."
"Art. 146. Custody of children pending the litigation
"A. If there are children of the marriage whose provisional custody is claimed by both husband and wife, the suit being yet pending and undecided, custody shall be awarded in the following order of preference, according to the best interest of the children:
"(1) To both parents jointly. The court, shall, unless waived by the court for good cause shown, require the parents to submit a plan for implementation of the custody order, or the parents acting individually or in concert may submit a custody implementation plan to the court prior to issuance of a custody decree. Such plan may include such considerations as the following:
"(a) Domiciliary arrangements for the child or children.
"(b) Rights of access and communication between the respective parents and the child or children.
"(c) Child support, if appropriate to the economic circumstances of the parents.
"(d) Any other matter deemed in the best interest of the child or children.
"(2) To either parent. In making an order for custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child or children frequent and continuing contact with the noncustodial parent, and shall not prefer a parent as custodian because of that parent's sex. The burden of proof that joint custody would not be in a child's best interest shall be upon the parent requesting sole custody.
"(3) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment.
"(4) To any other person or persons deemed by the court to be suitable and able to provide an adequate and stable environment.
"B. Before the court makes any order awarding custody to a person or persons other than a parent without the consent of the parents, it shall make a finding that an award of custody to a parent would be detrimental to the child and the award to a nonparent is required to serve the best interest of the child. Allegations that parental custody would be detrimental to the child, other than a statement of that ultimate fact, shall not appear in the pleadings." (emphasis added)

The opposing parties in this custody suit agree that LSA-C.C. Art. 146 governs this situation. They do not agree, however, on the effect of Act 307 of 1982 as it relates to custody disputes pitting a parent against a nonparent.

The father contends that the passage of Act 307 in no way changed the previously-existing, *822 jurisprudentially-developed rules regulating custody awards which prefer a parent over a nonparent. Citing Wood v. Beard, 290 So.2d 675 (La.1974), as the most often cited pronouncement of these rules, he contends that, under the amended statute, in order to award custody to a nonparent the court still must find the parent unable or unfit to provide a home for the child or find a forfeiture by the parent of the paramount or superior parental right to custody.

The grandmother contends that the amendment of LSA-C.C. Art. 146 changed prior law by specifically authorizing a custody award to a nonparent based upon the findings that an award of custody to the parent "would be detrimental to the child" and that "the award to a nonparent is required to serve the best interest of the child." Whether or not the cited language works a change in the law, she further argues, the evidence presented in this case justifies the award of custody to a nonparent even under the rules enunciated in Wood v. Beard, supra, and should be affirmed on that basis.

Our scrutiny of Art. 146 as amended by Act 307 convinces us that a change in the law has occurred. The prior jurisprudence had awarded custody to a nonparent in preference to a parent only in those situations in which the parent was unable or unfit to provide the child a home or had forfeited the otherwise superior parental right of custody. See Cawthorne v. Williams, 313 So.2d 915 (La.App.

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Cite This Page — Counsel Stack

Bluebook (online)
448 So. 2d 819, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boyett-v-boyett-lactapp-1984.