Colvin v. Colvin

914 So. 2d 662
CourtLouisiana Court of Appeal
DecidedOctober 26, 2005
Docket40,518-CA
StatusPublished
Cited by6 cases

This text of 914 So. 2d 662 (Colvin v. Colvin) 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
Colvin v. Colvin, 914 So. 2d 662 (La. Ct. App. 2005).

Opinion

914 So.2d 662 (2005)

Timothy L. COLVIN, Plaintiff-Appellee
v.
Karla K. Hatten COLVIN, Now Pagans, Defendant-Appellant.

No. 40,518-CA.

Court of Appeal of Louisiana, Second Circuit.

October 26, 2005.

*664 Ann B. McIntyre, Winnsboro, for Appellant.

Dawn Hendrix Mims, for Appellee.

Before WILLIAMS, GASKINS and DREW, JJ.

GASKINS, J.

In this child custody case, the mother appeals from a trial court judgment which requires an eight-year-old child to alternate between his parents, who live in different states, on a rotating annual basis. We reverse and render.

FACTS

Karla Hatten and Timothy Colvin were married in 1995. Their son Christian was born in April 1997. The parents separated in August 1997.

In October 1997, the father filed a petition for divorce in Franklin Parish, where both parents resided. He requested joint custody of the child with the mother being named domiciliary parent and the father having alternating weekend visitation; the mother agreed. This was granted in an order signed on October 17, 1997. When the judgment of divorce was signed on March 12, 1998, this custody arrangement was continued.

In February 1999, the father filed a rule to show cause requesting the implementation of a more detailed custody plan which retained the mother as domiciliary parent. Pursuant to a stipulated judgment signed on June 16, 1999, the mother remained domiciliary parent and the father received specified visitation.

Both parents have remarried, and each has a child with the new spouse. The father resides in Rayville, Louisiana, in Richland Parish, while the mother currently lives in Southaven, Mississippi.

Before eventually ending up in Mississippi, the mother moved several times. In April 2003, the father filed an objection to the mother relocating from West Monroe, Louisiana, to West Helena, Arkansas, in connection with the stepfather's job with Wal-Mart. In June 2003, the father filed a rule to modify custody, seeking to be named domiciliary parent due to the mother's moves. However, the parents eventually stipulated that the mother would remain the domiciliary parent and that she could move to West Helena, Arkansas.[1] Later, the stepfather accepted a Wal-Mart promotion in Southaven, Mississippi.

In December 2004, the father filed an objection to the proposed move to Mississippi and sought to be named domiciliary parent. In her response, the mother asserted that the new location would be only 65 miles from her former Arkansas residence.

Trial was held on February 10, 2005, and May 6, 2005. Among other evidence, the trial court considered the report of Dr. E.H. Baker, the psychologist it appointed to examine the child. According to Dr. Baker, the mother's moves so far had not adversely affected the child. He suggested that the child remain with the mother and that the father's visitation continue as before. However, the doctor further recommended *665 that, should the mother and stepfather move yet again, the child should be sent to live with his father.

Given the distance between the parents' homes and the desire of both parents to participate fully in the child's upbringing, the trial court awarded joint custody with the parents alternating years. The period of domiciliary custody would run from the weekend following July 4 of one year to the weekend following July 4 of the next year, with the non-domiciliary parent having alternating weekend visitations, spring break and the Thanksgiving, Christmas and Easter holidays. The domiciliary parent is prohibited from moving during the year he or she has custody. The court acknowledged that such an approach was "experimental" and had the potential to be difficult. Judgment was signed June 13, 2005.

The mother appeals.

LAW

The paramount consideration in any determination of child custody is the best interest of the child. La. C.C. art. 131; Evans v. Lungrin, XXXX-XXXX (La.2/6/98), 708 So.2d 731.

In cases where the original custody decree is a stipulated judgment and the rule of Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), is inapplicable, the party seeking modification must prove (1) that there has been a material change of circumstances since the original custody decree was entered, and (2) that the proposed modification is in the best interest of the child. Evans v. Lungrin, supra.

In determining the best interest of a child in custody cases, there must be a weighing and balancing of factors favoring or opposing custody in respective competing parents on the basis of evidence presented in each particular case. Hoskins v. Hoskins, 36,031 (La.App. 2d Cir.4/5/02), 814 So.2d 773.

According to La. C.C. art. 134, the relevant factors to be considered in determining the best interest of the child may include the following:

(1) The love, affection, and other emotional ties between each party and the child.
(2) 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.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

*666 The court is not bound to make a mechanical evaluation of all of the statutory factors listed in La. C.C. art. 134, but should decide each case on its own facts in light of those factors. The court is not bound to give more weight to one factor over another, and when determining the best interest of the child, the factors must be weighed and balanced in view of the evidence presented. Hoskins v. Hoskins, supra. Moreover, the factors are not exclusive, but 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. McIntosh v. McIntosh, 33,908 (La.App. 2d Cir.8/31/00), 768 So.2d 219.

Continuity and stability of environment are important factors to consider in determining what is in the child's best interest. A change from a stable environment should not be made absent a compelling reason. Ketchum v. Ketchum, 39,082 (La.App. 2d Cir.9/1/04), 882 So.2d 631.

Regarding decrees of joint custody, La. R.S. 9:335 provides in pertinent part as follows:

A. (1) In a proceeding in which joint custody is decreed, the court shall render a joint custody implementation order except for good cause shown.

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914 So. 2d 662, Counsel Stack Legal Research, https://law.counselstack.com/opinion/colvin-v-colvin-lactapp-2005.