Hill v. Hill

777 So. 2d 1263, 2001 WL 55364
CourtLouisiana Court of Appeal
DecidedJanuary 24, 2001
Docket34,104-CA
StatusPublished
Cited by6 cases

This text of 777 So. 2d 1263 (Hill v. Hill) 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
Hill v. Hill, 777 So. 2d 1263, 2001 WL 55364 (La. Ct. App. 2001).

Opinion

777 So.2d 1263 (2001)

Russell Clinton HILL, Plaintiff-Appellant,
v.
Jennifer Rose HILL, Defendant-Appellee.

No. 34,104-CA.

Court of Appeal of Louisiana, Second Circuit.

January 24, 2001.

*1264 Bobby L. Culpepper, Jonesboro, Counsel for Appellant.

Chris L. Bowman, Jonesboro, Counsel for Appellee.

Before BROWN, WILLIAMS and STEWART, JJ.

WILLIAMS, Judge.

In this child custody proceeding, the plaintiff, Russell Clinton Hill, appeals the trial court's judgment awarding the parties joint custody of the minor child and designating the defendant, Jennifer Rose Hill, as primary domiciliary parent. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Russell Clinton Hill ("Rusty") and Jennifer Rose Hill were married on August 12, 1994 and established their matrimonial domicile in Jonesboro, Louisiana. One child, Andrew Dalton Hill, was born of the marriage on December 26, 1994. On August 23, 1999, the defendant left the matrimonial *1265 domicile with the minor child and moved to Many, Louisiana.

On August 23, 1999, the plaintiff filed a petition for divorce pursuant to LSA-C.C. art. 102. In his petition, the plaintiff requested sole custody of the minor child, and that the defendant be awarded reasonable visitation rights. In response to the plaintiff's petition, the defendant filed an answer and reconventional demand requesting that the parties be awarded joint custody of their minor child, and that she be designated primary domiciliary parent. On September 27, 1999, the trial court rendered an interim consent judgment, awarding the parties joint custody and designating the defendant as primary domiciliary parent. The plaintiff was awarded visitation from 4:00 p.m. on Fridays until 7:00 p.m. on Sundays for periods consisting of three consecutive weekends. The plaintiff was ordered to pay $300 per month as child support.

A hearing to determine custody was held on November 8, 1999. After the hearing, the trial court awarded the parties joint custody of the minor child, and designated the defendant as primary domiciliary parent subject to the joint custody implementation plan[1] submitted by the defendant. Additionally, the plaintiff was ordered to pay $265 per month as child support. The plaintiff's motion for a new trial was denied. The plaintiff appeals.

DISCUSSION

The plaintiff argues that the trial court abused its discretion in designating the defendant as primary domiciliary parent of the parties' minor child. According to the plaintiff, the trial court awarded custody to the defendant utilizing the "maternal preference rule." The plaintiff also contends the trial court incorrectly weighed the factors set forth in LSA-C.C. art. 134.

The primary consideration in rendering a child custody determination is always the best interest of the child. LSA-C.C. art. 131. 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 *1266 case. Cooper v. Cooper, 579 So.2d 1159 (La.App. 2d Cir.1991); McKinley v. McKinley, 25,365 (La.App.2d Cir.1/19/94), 631 So.2d 45. The maternal preference rule and any presumption thereunder has been abrogated. No presumption or preference, from real life or fictitious stereotype, flows from the sex of the parent. Dubois v. Dubois, 532 So.2d 360 (La.App. 3d Cir.1988). The father and mother stand on equal footing at the outset and the role of the court is to determine the best interest of the child based on the relative fitness and ability of the competing parents in all respects to care for the child. Dubois v. Dubois, supra.

A court of appeal may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). One important factor underlying the trial court's broad discretion in child custody cases is the trial court's better opportunity to evaluate the credibility of the witnesses. Windham v. Windham, 616 So.2d 276 (La.App. 2d Cir.1993). On appellate review, the trial court's determination of custody issues is afforded great weight, and its discretion will not be disturbed on review in the absence of a clear showing of abuse. Estes v. Estes, 261 La. 20, 258 So.2d 857 (1972).

Article 134 provides that the factors to be utilized in determining the best interest of the child in a custody dispute 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, and
(12) The responsibility for the care and rearing of the child previously exercised by each party.

When a trial court has made a considered decree of permanent custody, the party seeking to modify the decree bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody, or of proving by clear and convincing evidence that any harm likely to be caused by a change of environment is substantially outweighed by the advantages to the child. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). A considered decree is one for which evidence as to parental fitness to exercise custody is received by the court. Evans v. Terrell, 27,615 (La.App.2d Cir.12/6/95), 665 So.2d 648, writ denied, 96-0387 (La.5/3/96) 672 So.2d 695. By contrast, a judgment with a custody plan that was entered by default, was not contested or was merely entered by consent of the parties is not a considered decree. Barnes v. Cason, 25,808 (La.App.2d Cir.5/4/94), 637 So.2d 607, writ denied, 94-1325 (La.9/2/94), 643 So.2d 149.

*1267 In the instant case, the plaintiff contends that the factors to be considered under LSA-C.C. art. 134 preponderate in his favor. Rusty argues that it is in Andrew's best interest to return to Jonesboro where he has lived since birth, has family and friends and has established positive relationships. Rusty contends that Andrew is happier in Jonesboro and if he is designated domiciliary parent, he would be able to adequately accommodate Andrew's needs.

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Cite This Page — Counsel Stack

Bluebook (online)
777 So. 2d 1263, 2001 WL 55364, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hill-v-hill-lactapp-2001.