H.S.C. v. C.E.C.

944 So. 2d 738
Louisiana Court of Appeal·Decided November 8, 2006·No. No. 2005-CA-1490·Published·Cited by 9 cases

Opinions

JOAN BERNARD ARMSTRONG, Chief Judge.

|, The defendant-appellant, hereinafter referred to variously as “C. C.”1 or “the father” appeals a judgment of the trial court, signed on March 18, 2005, permitting his spouse, hereinafter referred to variously as “H. S. C.” or “the mother”, to relocate their minor daughter2, hereinafter referred to variously as “H. C.” or “the child”, to Medford, Oregon.

The parents were married on October 25, 1998 in New Orleans. One child was born of this marriage on April 13, 1999, the little girl who is the subject of this relocation litigation. The parties separated on December 1, 2001, filed for divorce on February 26, 2003 and the judgment of divorce was signed on June 5, 2003. From the time of the separation the child lived with the mother, although she visited frequently with the father as he picked her up after school and kept her for a couple of hours until the mother got off from work.

In June of 2004, the mother sent the father a letter3 informing him that “it is necessary for me to move on with my life in a new place.” The target date for the contemplated move was projected to be in the coming August, as “I believe the school year starts around the 16th of August.” The letter did not state where that 12new place might be. The letter did state that the mother felt that she would benefit professionally; that the unnamed city had virtually no crime; that the child and the child’s half-brother “would also not feel the constant stress level that is between the two of us”; that the two children would benefit from going to the same school and being on the same schedule; that it would eliminate the daily after-school transfer of the child between houses that resulted in inconsistent rules and levels of discipline. The letter offered to allow the child to visit the father during the summer and alternating major holidays.

In response, on July 12, 2004, the father filed an opposition to relocation as a result of which the trial court issued a custody evaluation order on July 23, 2004, ordering the parties to contact the court appointed custody evaluator, Ms. Clare Hesse. A trial on the relocation was ultimately heard on March 8, 2005, resulting in the judgment signed on March 18, 2005, allowing the relocation, which is now before the court on this appeal.4

The judgment also established the following:

The visitation dates for [H.C.] to visit with her father and paternal grandparents are:
During March 2005 every Tuesday night, an overnight visit.
During April and May 2005, every Tuesday and Wednesday nights.
From June 1, 2005 for six consecutive weeks then returned to Heather Crab-tree.
[740] In odd years (2005) father will have child for Christmas and even years (2006) for Thanksgiving.
[3Mother will have child on those holidays in the opposite order.
In the summer of 2006 and during this (2005) summer, child support payments are suspended for [t]he period of time child is with father, which money is to be used to pay for summer camps for [H.C.] Child support payments are to be paid for the period of time per month with mother.
The summer of 2006 father will have the child for ten (10) weeks, June July and first two weeks in August and for the same time period each year thereafter. Resumes of those persons who will be caretakers for [H.C.] while with [H.S.C.] will be sent to [H.C.’s] father, also [H.C.’s] doctors, school, report cards, etc.

The father filed a motion for new trial. On May 13, 2005, the trial court signed a judgment denying the application for new trial; declaring that the trial court retained jurisdiction over the matter; and specifying how the transportation costs of the child’s visitation should be allocated between the parents.

This is what is known as a “child relocation” case and falls under La. R.S. 9:355.13, et seq. According to the leading relocation case, Curole v. Curole, 02-1891 (La.10/15/02), 828 So.2d 1094, the trial court’s determination in a relocation matter is entitled to great weight and will not be overturned on appeal absent a clear showing of abuse of discretion. Id., 02-1891, p. 4, 828 So.2d at 1096. Pursuant to La. R.S. 9:355.12, the relocating parent has the burden of proving that the proposed relocation is: (1) made in good faith; and (2) in the best interest of the child. Id. The legislature considered other possible ways of allocating the burden of proof in relocation cases, but instead made the specific, conscious decision to impose this burden on the parent seeking to relocate the child. Id., 02-891, p. 5, 828 So.2d at 1097.

|4In Curóle the Court noted that: “La. R.S. 9:355.12 sets forth eight factors the court must consider in determining whether the proposed relocation is in the best interest of the child.” Id., 02-1891, pp. 5-6, 828 So.2d at 1097. The Curóle opinion then quotes the eight La. R.S. 9:355.12 factors.

In Leaf v. Leaf, 05-0592 (La.App. 4 Cir. 3/2/06), 929 So.2d 131, this Court, in relying exclusively on the authority of Curóle in deciding the question of relocation, noted that there are twelve factors to be considered under La. R.S. 9:355.12. This is not inconsistent with the quotation in Curóle of the eight factors set forth above. Rather it represents an amendment to La. R.S. 9:355.12 by Acts 2003, No. 676 § 1, subsequent to the date of the Curóle decision, but effective prior to the instigation of these proceedings in 2004, adding the following four factors to the original eight5:

(8) The current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the circumstances of the parent seeking relocation of the child.
(9) The extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and community property obligations.
[741] (10) The feasibility of a relocation by the objecting parent.
(11) Any history of substance abuse or violence by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.

IfjThe appellant assigns as error the allowing of the relocation when taking into account the statutory factors. Although La. R.S. 9:355.12 mandates that all of the factors it sets forth be considered in making the determination regarding a proposed relocation of a child, it does not require a court to give preferential consideration to any certain factor or factors. Curole, supra, 02-1891, p. 828 So.2d at 1097; Blackburn v. Blackburn, 37,006 (La. App. 2 Cir. 1/29/03), 836 So.2d 1222.

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H.S.C. v. C.E.C., 944 So. 2d 738 (La. Ct. App. 2006).

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