In Re JBA

914 So. 2d 654, 2005 WL 2757783
CourtLouisiana Court of Appeal
DecidedOctober 26, 2005
Docket40,567-CA
StatusPublished

This text of 914 So. 2d 654 (In Re JBA) 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
In Re JBA, 914 So. 2d 654, 2005 WL 2757783 (La. Ct. App. 2005).

Opinion

914 So.2d 654 (2005)

In the Interest of J.B.A. and J.B.A.

No. 40,567-CA.

Court of Appeal of Louisiana, Second Circuit.

October 26, 2005.

*655 Fewell-Kitchens by Richard L. Fewell, Jr., for Appellants, Mark Edward Fuller and Brenda Fuller.

McKeithen, Ryland & Champagne by Dina F. Domangue, Rebel G. Ryland, Columbia, for Appellees, Patricia Ann Taylor and Joe Taylor.

Michael Chad Alford, pro se.

Before WILLIAMS, PEATROSS & MOORE, JJ.

PEATROSS, J.

In this custody dispute, the trial court granted joint custody of two minor boys, J.B.A. and J.B.A., to their paternal and maternal grandparents, designating the Taylors, the paternal grandparents, primary domiciliary custodians with visitation in favor of the Fullers, the maternal grandparents. After careful review of the evidence and testimony in this case, we affirm the award of joint custody, but reverse the remainder of the judgment. Judgment is hereby rendered designating the Fullers as domiciliary custodians of *656 J.B.A. and J.B.A., with visitation in favor of the Taylors as specified herein.

FACTS AND ACTION OF THE TRIAL COURT

Nicole and Michael Alford had two sons, J.B.A. and J.B.A., ages four and one, when the two divorced. Thereafter, the boys lived primarily with Nicole, spending weekends with Michael. In November 1997, Nicole was killed in a car accident. At the time, Michael was living with a girlfriend, Erin. For approximately one year after Nicole's death, the boys resided with their father. Apparently, Michael and Erin began fighting and the environment in that home was not appropriate for the young boys. The boys, therefore, moved in with Michael's parents, the Taylors. During this time, the boys spent most weekends with the maternal grandparents, the Fullers. For several years, the two sets of grandparents had substantial time with the boys and were somewhat cooperative with each other regarding time with the boys.

In July 2001, Michael filed a Petition for Voluntary Transfer of Custody to his mother, Mrs. Taylor, for an undesignated period of time. An order granting Mrs. Taylor sole custody of the boys was signed on July 3, 2001. No appeal was taken and no objection was made to the order.

Soon thereafter, discord erupted between the two sets of grandparents. All parties agree that there was some type of confrontation between Mrs. Taylor and Mrs. Fuller concerning Mrs. Fuller's desire to take one of the boys to church. The various accounts of this incident all confirm one common thread — since the encounter, there has existed a tension between the grandmothers concerning the activities of the boys and when the boys will be allowed to spend time and associate with the Fullers. In addition, prior to this encounter, the Fullers were enjoying spending most weekends with the boys, could visit the boys' school and attended ball practices and games. After the encounter, the Taylors unilaterally restricted the Fullers' time with the boys to alternating weekends, spoke with the school authorities to disallow Mrs. Fuller from visiting the boys' school and made the boys feel uncomfortable about associating with the Fullers at ball practices and games. Mrs. Taylor does not dispute these facts.

This deteriorating relationship between the grandparents prompted the Fullers to file a Petition for Modification in November 2001, requesting sole custody of the boys, with reasonable supervised visitation of Michael. The Fullers alleged that the Taylors neglected and abused the boys, physically and emotionally, and that the children would suffer substantial harm if returned to the custody of their father. The court appointed a psychologist, Dr. Gary Baker, to conduct mental health evaluations of all of the parties and present a report and opinion on custody to the court. In addition, the Fullers hired Lynne Thomas, a licensed counselor, to evaluate the boys and render an expert opinion on what living arrangement would be best for them.

The hearing in this matter was continued many times, mainly due to the failure to complete the mental health evaluations. The continuances resulted in an inordinate delay in the matter coming before the trial court for decision.[1] The matter was finally *657 heard in October 2004 and, by interim order on June 13, 2005, joint custody was awarded to the Taylors and Fullers, with the Taylors named as primary domiciliary custodians and the Fullers being granted specific visitation rights. This appeal by the Fullers ensued.

DISCUSSION

The paramount consideration in any determination of child custody is the best interest of the child. Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731; Hoskins v. Hoskins, 36,031 (La.App.2d Cir.4/5/02), 814 So.2d 773; Masters v. Masters, 33,438 (La.App.2d Cir.4/5/00), 756 So.2d 1196, writ denied, 01-3096 (La.12/7/01), 803 So.2d 975. La. C.C. art. 134 provides a non-exclusive list of factors which the trial court may consider with all other relevant factors for the determination of the best interests of the child.[2] The consideration of all relevant factors under Article 134 should be followed in actions to change custody, as well as in those to fix custody initially. The court is not bound to make a mechanical evaluation of all of the statutory factors listed in La. C.C. art. 134, but should decide each case on its own facts in light of those factors. The court is not bound to give more weight to one factor over another; and, when determining the best interest of the child, the factors must be weighed and balanced in view of the evidence presented. Hoskins, supra. Moreover, the factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the trial court. Id.

We note that deference is due the trial court in custody determinations involving factual issues. Under the manifest *658 error standard of review, in reviewing the factual findings of a trial court, an appellate court is limited to a determination of manifest error. State ex rel. W.H. v. J.A., 35,887 (La.App.2d Cir.2/27/02), 811 So.2d 189, citing Hill v. Morehouse Parish Police Jury, 95-1100 (La.1/16/96), 666 So.2d 612. We are instructed that, before a fact finder's verdict may be reversed, we must find from the record that a reasonable factual basis does not exist for the verdict and that the record establishes that the verdict is manifestly wrong. Lewis v. State Through Dept. of Transp. and Development, 94-2370 (La.4/21/95), 654 So.2d 311; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993).

Although we accord deference to the fact finder, we are cognizant of our constitutional duty to review facts, not merely to decide if we, as a reviewing court, would have found the facts differently, but to determine whether the trial court's verdict was manifestly erroneous/clearly wrong based on the evidence or clearly without evidentiary support. See LSA-Const. Art. 5, section 10(B); Ambrose v. New Orleans Police Dept. Ambulance Service, 93-3099 (La.7/5/94), 639 So.2d 216. A review of facts is not completed by reading only so much of the record as will reveal a reasonable factual basis for the findings in the trial court, but the reviewing court must consider whether the trial court's findings are reasonable in light of the record taken as a whole. State ex rel. A.C., 99-1943 (La.App. 4th Cir.2/23/00), 772 So.2d 668, writ denied,

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Related

Hill v. Morehouse Parish Police Jury
666 So. 2d 612 (Supreme Court of Louisiana, 1996)
Stobart v. State Through DOTD
617 So. 2d 880 (Supreme Court of Louisiana, 1993)
Masters v. Masters
756 So. 2d 1196 (Louisiana Court of Appeal, 2000)
Evans v. Lungrin
708 So. 2d 731 (Supreme Court of Louisiana, 1998)
Lewis v. STATE, DEPT. OF TRANSPORTATION & DEV.
654 So. 2d 311 (Supreme Court of Louisiana, 1995)
Ambrose v. New Orleans Police Amb. Serv.
639 So. 2d 216 (Supreme Court of Louisiana, 1994)
Hoskins v. Hoskins
814 So. 2d 773 (Louisiana Court of Appeal, 2002)
Gonzales v. Xerox Corp.
320 So. 2d 163 (Supreme Court of Louisiana, 1975)
State ex rel. A. C.
772 So. 2d 668 (Louisiana Court of Appeal, 2000)
State ex rel. W.H.V. v. J.A.V.
811 So. 2d 189 (Louisiana Court of Appeal, 2002)
In the Interest of J.B.A.
914 So. 2d 654 (Louisiana Court of Appeal, 2005)

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