Brisbois v. Brisbois

767 So. 2d 887, 2000 WL 1228788
CourtLouisiana Court of Appeal
DecidedAugust 29, 2000
Docket00-CA-203
StatusPublished
Cited by5 cases

This text of 767 So. 2d 887 (Brisbois v. Brisbois) 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
Brisbois v. Brisbois, 767 So. 2d 887, 2000 WL 1228788 (La. Ct. App. 2000).

Opinion

767 So.2d 887 (2000)

Janelle Schonekas BRISBOIS
v.
Keith Joseph BRISBOIS.

No. 00-CA-203.

Court of Appeal of Louisiana, Fifth Circuit.

August 29, 2000.

*888 Marc D. Winsberg, Metairie, Louisiana, Attorney for Plaintiff/Appellant.

Pat M. Franz, Metairie, Louisiana, Attorney for Defendant/Appellee.

Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and SUSAN M. CHEHARDY.

DALEY, Judge.

Janelle Brisbois Wheat appeals the trial court's denial of her Rule for Relocation Authority. She sought court approval to relocate to the State of Michigan with her minor child, Courtney. Mr. Keith Brisbois, the father of Courtney, petitioned the court to be awarded primary custody of Courtney if the relocation was disallowed. The trial court denied Mrs. Wheat's Rule and granted Mr. Brisbois primary (joint) custody of Courtney. We affirm.

Wheat and Brisbois were divorced on March 9, 1998, after approximately five years of marriage. They had one child, Courtney, born on March 31, 1994. Following the divorce, the trial court awarded joint custody, and Janelle Brisbois was designated domiciliary parent, with visitation to Keith. Janelle subsequently married Myrle Wheat, with whom she has two children, ages one year old and six weeks old at the time of trial.[1] Mrs. Wheat filed her Rule after she and Mr. Wheat decided to relocate to Michigan where Mr. Wheat had secured a job at a nuclear power plant.

*889 After a hearing, wherein the judge heard testimony from the parties, Mr. Wheat, Brisbois's parents (the paternal grandparents), and Elliot Levine, a social worker, the trial judge denied Mrs. Wheat's Rule for Relocation Authority and granted Mr. Brisbois's Motion to Modify Custody, designating Mr. Brisbois as Courtney's domiciliary parent. This appeal follows.

Mrs. Wheat argues that the trial court erred in discounting the only expert testimony offered, which came from Elliot Levine, a clinical social worker who interviewed Mr. and Mrs. Wheat and Courtney.[2] Based upon this interview, he found Courtney's relationship with her nuclear family (Mrs. Wheat and her siblings) to be of primary importance, and found that it was in the best interest of the child to be allowed to relocate to Michigan with her nuclear family.

Law

§ 355.12. Factors to determine contested relocation
In reaching its decision regarding a proposed relocation, the court shall consider the following factors:
(1) The nature, quality, extent of involvement, and duration of the child's relationship with the parent proposing to relocate and with the non-relocating parent, siblings, and other significant persons in the child's life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child.
(3) The feasibility of preserving the relationship between the non-relocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
(4) The child's preference, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the non-relocating party.
(6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.
(7) The reasons of each parent for seeking or opposing the relocation.
(8) Any other factors affecting the best interest of the child.

The testimony highlighted several facts. At the time of trial, Courtney was five years old, her sister Candis was 10, and her younger siblings were one year old and six weeks old. Courtney's first home was with Keith's parents in Destrehan. While Janelle was pregnant with Courtney and until she was about six months old, they lived with Keith's parents. Courtney's grandmother, Keith's mother, continued to provide day care until Courtney was enrolled in outside day care. The record showed that Courtney's maternal grandparents, Janelle's parents, live in Gretna, but there was no testimony about their relationship with Courtney.

Mrs. Wheat testified that she stays home with her four children and cares for Courtney's needs 24 hours a day, unless Courtney is visiting her father. The current visitation schedule gives Keith two consecutive weekends, from Thursday afternoon until Sunday, with Courtney, to accommodate his offshore schedule (14 on, 14 off). Keith also has summer and alternate holiday visitation. The paternal grandparents also exercised regular visitation on certain Sundays.

Mr. Brisbois testified that he is a paramedic. He currently works offshore, but *890 has lined up a land based job with regular hours if he were awarded custody of Courtney. He currently lives in a two bedroom townhouse with plenty of room for Courtney, and he cooks. Mr. Brisbois agreed that if he were awarded custody, Courtney could stay involved in her current extracurricular activities, such as t-ball. If he were awarded custody, Mr. Brisbois said that he would make sure Mrs. Wheat got all of her visitation, and that Courtney would call her on a regular basis. He also agreed that Courtney could see her mother whenever she returned to Louisiana to visit.

Mr. Brisbois said that while Courtney was a baby, he worked shift work, and, therefore, was available much of the time to care for Courtney. He denied that Mrs. Wheat was her primary caretaker in that time frame. Since the divorce, he has asked for as much visitation as his ex-wife would allow.

Mr. Brisbois testified regarding a claim he made with the Office of Child Services, after he saw marks on Courtney's legs that the child reported were caused by Mr. Wheat's corporal punishment of her with a switch. Keith prefers to discipline Courtney with "time-outs." OCS conducted an investigation of this incident. The records of the investigation were subpoenaed and brought to court by the OCS child protection worker, but not considered by the court in this decision.

Mr. Brisbois testified that he takes Courtney to mass every Sunday he has her, and that she has been baptized and reared in the Catholic faith until his ex-wife remarried Mr. Wheat and converted to Mormonism, to which he objects.

Mrs. Wheat testified that Courtney idolizes her big sister Candis, and loves her two babies. She said that Courtney is well adjusted and does well in school. She confirmed that OCS inquired about the corporal punishment incident, but thinks the investigation was dropped.

Elliot Levine, a clinical social worker, interviewed Mr. and Mrs. Wheat, Courtney and her sister Candis, for about 1½—2 hours. He took a history, from the Wheats, of the circumstances of their marriage. He asked for "negatives" and did not receive any negative information about Mr. Brisbois. The Wheats did report the incident involving the Office of Child Services.

Mr. Levine interviewed Courtney with Candis present in the room. Courtney indicated a very loving relationship with both her father and grandfather. He also observed Courtney and Candis playing while he interviewed Mr. and Mrs.

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Cite This Page — Counsel Stack

Bluebook (online)
767 So. 2d 887, 2000 WL 1228788, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brisbois-v-brisbois-lactapp-2000.