Estes v. Estes

258 So. 2d 857, 261 La. 20, 1972 La. LEXIS 5716

• Court: Supreme Court of Louisiana
• Decided: February 21, 1972
• Docket: 51300
• Status: Published

Opinions

TATE, Justice.

This is a child custody proceeding. The essential issue concerns the proof necessary for a mother to regain custody of two young children when she had temporarily surrendered custody of them to the children’s father. Reversing the trial court, the court of appeal held that the mother had the burden to prove that a change (restoring custody to her) would benefit the children. Since both parents could provide equally good homes, the court felt that the mother had not borne such burden. 244 So.2d 902 (La.App. 1st Cir. 1971), certiorari granted 258 La. 354, 246 So.2d 679 (1971).

The mother was initially awarded custody of the two small children of the marriage, then aged 4 and 2, at the time she obtained a judicial separation on the ground of abandonment in February 1964. Custody was maintained in her when a final divorce was decreed in May 1965.

In May 1966, the mother and father filed a joint petition by which they secured an order amending the custody decree so as to give custody of the children to the father “until such time as [the mother] can provide a proper home for said children.” The record explains that, at the time, the mother was unemployed and unable to provide for the children. Thereafter, the mother regularly visited the children, and the children visited with her at least one weekend per month.

The mother was remarried on August 5, 1967. She filed a rule to regain custody of the children in June 1969, a little less than two years later. She explains that the delay was due in part to her former husband being in California with the children when she had first remarried, to her unwillingness to interrupt their school year upon their return, to her pregnancy, and to a serious illness of her second husband.

As both the trial and appellate courts found, the homes of both parents are good, comfortable, and moral. The children are loved by both parents, and each parent can provide a fine home for them.

The trial court, which saw and heard the witnesses and which interviewed the children (then aged 10 and 8), concluded that returning custody of the children to their mother is “in the ultimate best interest of two very lovely little children.” The court pointed out that the consent amendment of 1966 was intended by the parties to transfer custody temporarily only, with the chil'dren to be returned to the mother at such time as she could provide for them a good and comfortable home.

The court further stated that: “It finds and believes from the record, pleadings, and testimony of this case that the mother of these children loves them dearly, as does the father, that she has visited them regularly, cared for them and provided for them regularly, has never abandoned her children nor neglected the same and that as a mother of children of tender years, she has a greater right to the custody thereof than does the father.”

In reversing, the court of appeal felt that the mother’s delay in attempting to regain custody of the children forfeited any rights she had under the temporary-custody agreement to regain the custody of the children. It concluded that the mother in such circumstances “must bear the burden of proving that a change in custody is in the best interest of the children” and that she had failed to do so, since both homes were equally good.

The court of appeal erred in reversing the trial court’s considered determination under such circumstances. In Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971), we summarized the applicable legal principles as follows: (extensive citation of authorities omitted) :

“(1) The paramount consideration in determining to whom custody should be granted is always the welfare of the children. * * *

“(2) The general rule is that it is in the best interest of the children of the marriage to grant custody to the mother, especially when they are of tender years. Such paramount right of the mother to custody should not be denied unless she is morally unfit or otherwise unsuitable, and it is only in exceptional cases that the better interest of the children is served by changing their custody from the mother to the father. * * *

“(3) When the trial court has made a considered decree of permanent custody in the light of the above principles, even though such custody is subject to modification at any time when a change of conditions demands it, the party seeking the change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the children as to justify removing them from the environment to which they are accustomed. * *

“(4) Upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight. He is in a better position to evaluate the best interests of the children from his total overview of the conduct and character of the parties and the children and of community standards. His discretion on the issue will not be disturbed on review in the absence of a clear showing of abuse thereof. * * * ”

The trial court correctly held that, under the recited circumstances, the courts should apply the usual presumption that the interest of the children of tender years is best served by granting the mother the custody of the children of the marriage. This was, in fact, done at the time of the initial separation and divorce. The mother’s temporary inability to care for them due to economic distress ¹ did not transform her into an unworthy parent, nor alter her custody as being in the ultimate best interest of these young children.

It is true that stability in environment is an important value, so that a party seeking to change a considered determination of the permanent custody of children bears a heavy burden to justify such change as being in their best interest. Nevertheless, here, both parents and children realized at the time of the 1966 change of custody that it was temporary only. •

There is no showing that, because of this temporary custody, the children’s ultimate best welfare is not better served by returning them to their mother’s care in accord with the initial custody determination and in accord with their justified expectations. Their ties with their mother remained warm and strong through their repeated visitations to and with her, and through her love and care for them.

See: Nugent v. Nugent, 232 So.2d 521 (La.App. 3d Cir. 1970); Malpica v. Puig, 166 So.2d 546 (La.App. 4th Cir. 1964); Tullier v. Tullier, 140 So.2d 916 (La.App. 4th Cir. 1962).

We do not hold that variant circumstances might never justify a denial of the return of children to their mother when she has temporarily surrendered their custody. We hold only that no such exceptional circumstances are shown here*.

Further, an appellate court must give great weight to the trial court’s considered determination of custody. If the trial court decides which parent should best have custody for the children’s sake after it has applied correct principles of law, a reviewing court should disturb such custody determination only where there is a clear abuse of the trial court’s discretion in the matter, even though reasonable minds might differ as to the children’s best interest under the variant circumstances suggested by a particular record.

Accordingly, the judgment of the court of appeal is reversed, and the trial court’s decree awarding custody to the mother and providing for visitation rights of ,the father is reinstated and is affirmed. The defendant father is to pay all costs, of these proceedings.

Court of Appeal decree annulled, and trial court judgment reinstated.

1 . In the proffer of testimony the defendant husband suggested other reasons for the temporary change of custody, but we agree with the trial court that this testimony is irrelevant as constituting a belated attempt to contradict the joint pleadings filed in 1966. Further, this proffer of testimony shows that the intention of counsel at the time the 1966 pleadings were framed was to permit the mother to take the children back when she could again provide a suitable home for them.