Dennis v. Melancon

471 So. 2d 1092, 1985 La. App. LEXIS 8992
CourtLouisiana Court of Appeal
DecidedJune 26, 1985
DocketNo. 84-510
StatusPublished

This text of 471 So. 2d 1092 (Dennis v. Melancon) 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
Dennis v. Melancon, 471 So. 2d 1092, 1985 La. App. LEXIS 8992 (La. Ct. App. 1985).

Opinion

STOKER, Judge.

This is an appeal from a trial court ruling denying a change of custody sought by the father of two children.

Macy Dennis, the father of the two children, filed a rule to show cause why sole custody should not be granted to him or, alternatively, why joint custody should not be granted, with physical custody given to him, and the mother given reasonable visitation. The case was tried on November 21, 1983. At the time of trial the two children, twin girls, were eleven years old.

The trial judge, after hearing the evidence and ordering a home study by the Department of Health and Human Resources, awarded joint custody, with the mother having physical custody of the girls during the school year and the father having physical custody during the summer months.

The father appeals this ruling and makes two assignments of error:

“1) The Lower Court clearly erred in failing to award sole custody of the two (2) minor children, age eleven (11), unto Appellant-father, who is the custodian of the minor son, age fourteen (14).
2) Only in the event that this Honorable Court would hold joint custody to be appropriate herein, then and only then, Appellant-father avers that the Lower Court clearly erred in the implementation of the joint custody award with respect to Code of Civil Procedure Article 146, in that he should have clearly been awarded the physical possession of the minor children subject to reasonable and/or specific times of possession unto Appellee-wife.”

Macy Dennis and Elaine Melancon were divorced in 1978, and custody of their three children was granted to Elaine, with visitation rights granted to Macy for the first three weekends of every month. In 1980, custody of the oldest child, David Stewart Lawrence Dennis, was transferred to Macy.

In September, 1983, Macy filed this rule to show cause why the custody of Ann Kathryn Dennis and Mary Margaret Dennis should not be changed to his sole custody or, alternatively, to joint custody with physical custody of the children with him. He contends it is in the best interest of the children that they be removed from the custody of their mother. He makes several arguments why it is in the best interest of the children to remove them from their mother’s custody.

Elaine Melancon has a history of prescription drug dependency. At the time of trial she had not taken any mood-altering drugs for six and a half months, that is, since May 2, 1983. Six or seven months before trial she began a treatment program at the Opelousas Foundation, a mental health and substance abuse treatment facility. She was still in the program at the time of trial. Prior to her treatment she took the prescription drug Tranzene for six or seven years.

During the time she was on Tranzene she had emotional problems, such as fear and hysteria. She has altered the way she disciplines her children since she stopped taking the drug. She admits that she slapped Mary Margaret across the face once and yanked at her hair two or three [1094]*1094times. She has screamed and yelled and cursed at the children. She has put the children in the bathroom with the light off, but stated she had not done so in the last two or three years before trial. She testified that she has done none of those things since she stopped Tranzene, but she has raised her voice at the children and punishes them when they need to be punished.

Mr. Dennis objects to the way the girls are spanked by their mother. She has them bend over and touch their ankles and spanks them with a belt. Mary Margaret testified that her mother makes her drop her pants and spanks her ten times. If she lets go of her ankles, she is spanked ten more times. Elaine said she does not recall making them drop their pants, and that she spanks them two or four times.

Elaine testified that she put the children in the bathroom because she was told by a psychologist to put them in a place where it is not stimulating and isolates them from the rest of the family. She stated that the door was left open although the girls testified otherwise.

Mr. Dennis also objects to the girls being left alone at home from 3:30 p.m. when they got home from school until 5:30 p.m. when Elaine gets home from work. He objects to her leaving the children by themselves while she goes to the Opelousas Foundation on Monday nights. The children started staying with him while their mother is at the Opelousas Foundation. Macy has remarried and his new wife stated that she would quit working and stay home with the children if Macy had custody of them.

Macy argues that all three children should live together in one home. Dr. Jimmy Cole, a Ph.D. in psychology, testified that it would be more normal and healthy for all three children to be together.

Both girls testified that they wanted to live with their father.

The trial judge stated his reasons for the judgment in a minute entry on January 13, 1984. He stated:

“The law is clear that joint custody is to be preferred over the granting of sole custody. Also, this Court believes that a meaningful relationship between young female children and their natural mother is a most important part of their growing up. Some degree of continuity of togetherness is necessary to achieve this type of relationship.”

The Supreme Court stated in Turner v. Turner, 455 So.2d 1374 (La.1984):

“The appropriate standard to be applied by the trial court in determining the custody of a child of a dissolved marriage is that of the ‘best interest of the child.’ This standard is repeated throughout article 146, and is the sole criterion to be met in making the award.
“The trial judge sits as a sort of fiduciary on behalf of the child, and must pursue actively that course of conduct which will be of greatest benefit to the child. It is the child’s emotional, physical, material and social well-being and health which are the judge’s very purpose in child custody cases. He must protect the child from the harsh realities of the parents’ often bitter, vengeful, and typically highly emotional conflict. The legislature has mandated that the judge shall look only to the child’s interests.
“In furtherance of this important goal, the court has been vested with broad and independent powers. It may, for example, order that an investigation be conducted into the home lives of the parties, the psychological health of the child, or into any other factor which the judge deems to be important in his determination of the child’s best interest. C.C. 146(C)(3). In this way, the court can fulfill its obligation to the child.”

There is a rebuttable presumption that joint custody is in the best interest of the child. LSA-C.C. art. 146(C). The presumption may be rebutted by a showing that it is not in the best interest of the child.

Here the presumption in favor of joint custody has not been rebutted. Both [1095]*1095parents have strong ties to the children. They have loved and cared for the children all their lives. While the mother’s conduct has not been exemplary in the past, she is now recovering from the problems with drugs and is better able to care for the children. While the parents would have no relationship were it not for the children, they have been able to arrange the girls’ visitation with their father in the past.

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Related

Turner v. Turner
455 So. 2d 1374 (Supreme Court of Louisiana, 1984)

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Bluebook (online)
471 So. 2d 1092, 1985 La. App. LEXIS 8992, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dennis-v-melancon-lactapp-1985.