Clark v. Kleidon

682 So. 2d 887, 96 La.App. 3 Cir. 1198, 1996 La. App. LEXIS 2663, 1996 WL 638031
CourtLouisiana Court of Appeal
DecidedNovember 6, 1996
DocketNo. 96-1198
StatusPublished
Cited by1 cases

This text of 682 So. 2d 887 (Clark v. Kleidon) 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
Clark v. Kleidon, 682 So. 2d 887, 96 La.App. 3 Cir. 1198, 1996 La. App. LEXIS 2663, 1996 WL 638031 (La. Ct. App. 1996).

Opinion

_JjAMY, Judge.

The issue presented on this supervisory writ is whether the trial court clearly abused its discretion in awarding legal custody of a minor child to a non-parent rather than to the child’s natural parent. For the reasons which follow, we reverse the trial court’s award of custody and remand with instructions.

DISCUSSION OF THE RECORD

Michelle Lea Clark and Brian Scott Klei-don were married on October 11, 1994. Michelle and Brian were living in Jacksonville, Florida where Brian was stationed in the United States Navy. Michelle gave birth to a girl, Arielle Michelle Kleidon, on November 1, 1994. However, at the end of April 1995, Michelle left Brian and moved back home to live with her mother, Barbara M. Clark, in Simmesport, Louisiana. Michelle also brought Arielle to her mother’s house.

On June 7, 1996, Michelle and Brian were granted a judgment of divorce. Also, in that judgment of divorce, Michelle was granted custody of Arielle. However, on June 21, 1996, Michelle was killed in an automobile accident. Four |2days later, Barbara M. Clark filed a “Petition For Sole Custody” of Arielle. Specifically, Barbara alleged:

[889]*889Petitioner, BARBARA M. CLARK shows that she has a stable homelife, further that she is involved with the daily-activities and caring for the child and has been so involved even when MICHELLE LEA CLARK KLEIDON was living.
Petitioner, BARBARA M. CLARK further avers that she has a loving relationship with this child, the child is only 19 months old and has always lived with the grandmother. There is a loving bond between the grandmother and the minor child, ARIELLE MICHELLE KLEI-DON.
Petitioner, BARBARA M. CLARK further avers that it is in the best interest of the minor child, ARIELLE MICHELLE KLEIDON that she be granted custody subject to visitation rights in favor of the father, BRIAN SCOTT KLEIDON.
The grandmother avers that she will foster a loving relationship between the child and the father BRIAN SCOTT KLEIDON.
The petitioner further avers that the father is in the military and is stationed in Florida and further has received orders to be “shipped out”.

A hearing on the merits was held on August 9, 1996. The trial court rendered judgment on August 22, 1996, granting Barbara M. Clark, the maternal grandmother, sole custody of Arielle Michelle Kleidon. Further, the trial court granted Brian Scott Klei-don visitation privileges under the following conditions: (1) no overnight visitation until ordered by the court; (2) all visitation must take place in Avoyelles Parish, Louisiana; (3) Brian Scott Kleidon must give Barbara M. Clark ten day notice prior to visitation; and (4) visitation is to take place from 9:00 a.m. until 5:00 p.m. on Saturday and from 9:00 a.m. until 5:00 p.m. on Sunday.

In response to the trial court’s judgment, Brian filed for supervisory writs with this court, alleging that the trial court “erred in not establishing any compelling need of the child sufficient to justify deprivation of the surviving parent to his paramount right to custody.” The precise issue that we are asked to address is whether the trial | ¡.court erred in granting custody of Arielle to Barbara M. Clark, a non-parent, instead of to Brian Scott Kleidon, a parent.

LAW

La.Civ.Code art. 133, which became effective on January 1, 1994 and is applicable in the present case, states:

If an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment.

The Revision Comments to Article 133 provide in part that:

(a) This Article reproduces the relevant portions of the source provisions, former Civil Code Article 131(A) & (B) (1992), without substantial change. The redundant dual test for divesture of parental custody found in the source article has been replaced with a similar, but briefer, provision.
(b) The requirement of proof that parental custody would result in “substantial harm” to the child that is stated in this Article represents a change in the terminology of the test for divestiture of parental custody. The new language, which is not entirely new to Louisiana law (Pittman v. Jones, 559 So.2d 990, 993 (La.App. 4th Cir.1990); In the Matter of Stewart, 602 So.2d 212, 214 (La.App. 3d Cir.1992)), has been adopted because it represents an efficient means of giving effect to a parent’s paramount right to custody of his child as against any nonparent. The primacy of that parental right was recognized by the Louisiana jurisprudence long before it was given effect by the legislature in 1982. See prior C.C. Art. 146 as amended by 1982 La.Acts, No. 307, Wood v. Beard, 290 So.2d 675 (La.1974). Prior to the 1982 introduction of the two-part statutory test that parental custody be shown to be “detrimental” to the child and that divestiture be “required to serve the best interest of the child,” the courts had followed the jurisprudential formula: “the parent ... [890]*890may be deprived of ... custody only when (he) had forfeited his or her right to parenthood, ... is unfit, or ... is unable to provide a home for the child.” Deville v. LaGrange, 388 So.2d 696, 697-98 (La.1980). See also Jones v. Jones, 415 So.2d 300 (La.App. 2d Cir.1982) (Use of best interest standard was improper in custody contest between parent and nonparent). That jurisprudential language was of course substantially different from the statutory language adopted in 1982, and at least one court accordingly held that the 1982 enactment had changed the law, giving the courts “more freedom or latitude to pursue the goal of insuring that the best interest of the child is served in resolving custody disputes between |4parent and nonparent litigants.” Boyett v. Boyett, 448 So.2d 819, 822 (La.App. 2d Cir.1984). A similar argument (although most likely to the opposite effect) could be made again under this revision, which does indeed change the terms of the relevant test significantly. However, it is clear that the heart of the parental primacy concept, the rule that a nonparent always bears the burden of proof in a custody contest with a parent, was not disturbed by the prior statutory enactment, and likewise has not been affected by this revision. See Love v. Love, 536 So.2d 1278 (La.App. 3d Cir.1988); Boyett v. Boyett, supra; Deville v. LaGrange, supra.

“The rights of parents to the companionship, care, custody and management of their children is a fundamental liberty interest warranting great deference and protection under the law.” State In The Interest of D.D., 94-1404 (La.App. 3 Cir. 2/15/95); 650 So.2d 447, 449, citing Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Parents enjoy the paramount right of custody of their children and may be deprived of that right only for compelling reasons which must be expressly determined and supported by convincing evidence. In Re Custody Of Landry, 95-141 (La.App. 1 Cir. 10/6/95); 662 So.2d 169;

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State ex rel. Hair
757 So. 2d 754 (Louisiana Court of Appeal, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
682 So. 2d 887, 96 La.App. 3 Cir. 1198, 1996 La. App. LEXIS 2663, 1996 WL 638031, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-kleidon-lactapp-1996.