D.M.B.T. v. M.A.T.

83 So. 3d 3, 2011 WL 1880372
CourtLouisiana Court of Appeal
DecidedMay 18, 2011
DocketNo. 46,381-CA
StatusPublished
Cited by2 cases

This text of 83 So. 3d 3 (D.M.B.T. v. M.A.T.) 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
D.M.B.T. v. M.A.T., 83 So. 3d 3, 2011 WL 1880372 (La. Ct. App. 2011).

Opinion

PEATROSS, J.

| iThis is an appeal from a judgment ordering supervised visitation in favor of M.A.T., the father of two minor children.1 The father appeals and for the reasons stated herein, we affirm.

FACTS

The mother, D.M.B.T., and father, M.A.T., in this dispute were married in 1996 and separated in 2004, approximately nine months after learning that the father was infected with HIV. The couple had twins, who were five years old when the couple divorced. This is a heart-wrenching case; the record reveals that this is an upstanding family, with two good parents who both love the children very much. As of the date of trial in this matter, in 2008, the children were unaware that their father was HIV-positive.

At the time the father contracted HIV, he was the general manager of a retirement community in Bossier City.2 According to the father, he picked up a trash bag outside of the residential buildings in the retirement center to take it to the Dumpster one evening and was stuck by a hypodermic needle that was loose in the bag. The father testified that, at the time, he did not think the incident was “a big deal” and he did nothing about it. He did not reveal to anyone that he had been stuck and did not report the incident or take steps to correct any disposal issues at the facility. Approximately six weeks after the incident, the father became terribly ill and, after a battery of |2tests, was informed that he had tested positive for HIV. The father is in managed treatment, is progressing well, and now lives with asymptomatic HIV.

As stated, the marriage failed and the couple ultimately divorced in October 2005. According to the testimony of the mother, the two had discussed divorce prior to the father’s contracting HIV and his infection [5]*5was not an issue in the divorce or initial custody proceedings. The stipulated Joint Custody Implementation Plan (“JCIP”), filed on February 10, 2005, provided for joint custody with the mother designated as domiciliary parent with visitation by the father “as agreed upon” by the parties.

In February 2006, the male child, who was six years old at that time, returned from a visit with the father with a bite mark on his buttocks. The child related to the mother and, ultimately, to the pediatrician, that his father had bitten him on the buttocks, through his underwear, while they were playing. The child told the pediatrician that his father had bitten him “through his pantys (sic).” There was a bruise in the shape of an adult mouth, but the skin was not broken. It is undisputed that this was an isolated incident of this magnitude — there are no allegations of any other acts of this type.

Following the biting incident, the mother insisted on supervised visitation only and the father agreed so that he could “continue to see the children.” The parties agreed that the father’s mother, the only member of the father’s family who was aware of his infection, would supervise the visits.

|sOn April 17, 2006, the father filed a Petition for Periods of Physical Custody and for Mediation, requesting unsupervised visitation; however, the mother was not served with the petition. No further action was taken until March 22, 2007, when the mother filed a rule nisi to modify the JCIP to provide for supervised visitation. On May 8, 2007, a judgment on rule was entered on stipulation of the parties. The judgment required, inter alia, supervised visitation and that the parties enroll in and complete an HIV education program. The father was further ordered to provide to the mother copies of all medical records on an ongoing basis. The purpose of this requirement was to inform the mother of lab results indicating the viral load, which would reveal the level of risk of the father transmitting the infection to others. This would allow the mother to monitor the level of contagiousness of the infection to the children.

On September 6, 2007, the father filed another petition for periods of unsupervised custody alleging that he had complied with the court-ordered obligations, including successful completion the HIV education class. On November 2, 2007, the father filed a motion for expedited hearing because he was being “forced by his former wife to exercise supervised visitation with the children” pending a judgment on the rule. Hearing was set for November 15, 2007. This hearing did not take place and the next filing of record is the parties’ joint motion to set the matter for trial filed on July 1, 2008. The mother then filed a response to the father’s petition for unsupervised visitation wherein she listed the following nonexclusive 14behaviors of the father that she alleged place the children at risk of contracting HIV and support supervised visitation:

a. the biting incident as described above
b. the father regularly cuts fruits and vegetables while holding them in his hand without protective gloves and then feeds them directly to the children
c. the father offers his children bites of food from his plate and from a fork that has been in his mouth
d. the father allows others, including his children, to drink from his glass after he has placed his mouth on the glass
e. the father does not take precautions recommended to prevent transmission of the disease to others, including the children

[6]*6In addition, the mother alleged that the father had failed to provide her with any medical records as ordered by the court. She was unable, therefore, to monitor the level of risk to the children while they were with their father.

On August 28, 2008, the trial judge ordered mediation and appointed experts; however, the issue of supervision was ultimately tried before the judge in May 2009. At the hearing, Dr. Gerardo Negron, the father’s treating infectious disease physician, testified regarding the risk of transmission of the virus from day-to-day normal activity and contact with the children. The father and mother also testified. On August 31, 2010, judgment was rendered ordering supervised visitation. The judgment was filed into the record on October 1, 2010. This appeal from that judgment ensued.

DISCUSSION

The paramount consideration in any determination of child custody is the best interest of the child. La. C.C. art. 131; Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731. The court is to consider all relevant factors in determining the best interest of the child. La. C.C. art. 134.3 The court is not bound to make a mechanical evaluation of each factor. Shivers v. Shivers, 44,596 (La.App.2d Cir.7/1/09), 16 So.3d 500. Rather, a custody dispute must be decided in light of its peculiar set of facts and the relationships involved in order to reach a decision that is in the best interest of the child. Id., citing Earle v. Earle, 43,925 (La.App.2d Cir.12/3/08), 998 So.2d 828, writ denied, 09-0117 (La.2/13/09), 999 So.2d 1151; Wages v. Wages, 39,819 (La.App.2d Cir.3/24/05), 899 So.2d 662.

The trial court’s findings in child custody matters are entitled to great weight and will not be disturbed on review without a showing of clear abuse. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986).

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Bluebook (online)
83 So. 3d 3, 2011 WL 1880372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dmbt-v-mat-lactapp-2011.