In Re SLG

895 So. 2d 773, 2005 WL 477964
CourtLouisiana Court of Appeal
DecidedMarch 2, 2005
Docket39,704-CA
StatusPublished

This text of 895 So. 2d 773 (In Re SLG) 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 SLG, 895 So. 2d 773, 2005 WL 477964 (La. Ct. App. 2005).

Opinion

895 So.2d 773 (2005)

In the Interest of the Minor Children, S.L.G. and K.A.G.

No. 39,704-CA.

Court of Appeal of Louisiana, Second Circuit.

March 2, 2005.

*775 Michael L. Glass, Alexandria, for Appellant Connie Hammett.

McKeithen & Lewellyan by Donald D. McKeithen, Jr., for Appellant Charles Hammett.

Laura J. Burkett, for Appellees Jerry & Tabitha Bazan, Theresa & Wayne Lord.

Before BROWN, STEWART and LOLLEY, JJ.

*774 LOLLEY, J.

Charles and Connie Hammett appeal the judgment of the Fifth Judicial District Court, Franklin Parish, Louisiana, awarding tutorship and custody of the two minor children, Kobe and Shadye Graham, to Tabitha and Jeronimo Bazan. For the following reasons we affirm the trial court's judgment.

FACTS

At issue in this appeal is the tutorship and custody of two minor children — Kobe Addison Graham, whose date of birth is July 13, 2000, and Shadye Leigh Graham, whose date of birth is June 13, 2002. The parents of the children, Stacey Graham and Tessia Cureington ("Tess"), were unmarried and are now deceased.[1]

Stacey was the son of Connie Hammett and Lennie Graham, who are divorced. Connie married Charles Hammett in 1995 (her second marriage and his fourth), and they are the original plaintiffs in this tutorship/custody proceeding. Charles and Connie live in their home in Richland Parish, Louisiana, near Rayville. Stacey had numerous other relatives in the vicinity, and as the trial court noted in the reasons for judgment, his grandfather was sheriff of Richland Parish for many years.

*776 Stacey was 17 years old when he quit high school and moved in with Tess, also 17, and her mother, Terry Cureington. Nine months later, their son, Kobe, was born. A month after Kobe was born, Stacey's and Tess' nomadic lifestyle began. During some of that time, they lived periodically with Connie and Charles; however, the record reflects that between this time and their deaths, these young parents lived in a minimum of nine different places. In June 2002, Tess gave birth to the couple's daughter, Shadye. On December 22, 2002, Tess and Shadye were living with a friend of Tess', and Kobe was living primarily with Stacey in a travel-trailer. On that afternoon, Stacey went to visit Tess. He murdered her and then killed himself, leaving Kobe and Shadye orphans.

Immediately after the murder/suicide, the care of the children switched between the families of Stacey and Tess. Terry obtained an ex parte custody order and then deposited the children with Tabitha and Jeronimo ("Jerry") in Dallas, Texas. Tabitha Bazan was Tess' older half-sister and Terry's oldest daughter. However, at a very young age, Tabitha was adopted and raised by her grandparents, who were deceased before any of the events leading up to this litigation even occurred. Tabitha's husband, Jerry, is a naturalized United States citizen, born in Mexico but raised in South Texas.

Connie and Charles filed a motion to vacate Terry's custody order and sought custody of the children themselves. They later amended their motion to a tutorship proceeding.[2] Trial was held over numerous and interrupted days in 2004, during which time the parties shared physical custody of the children. Ultimately, judgment was rendered in favor of Tabitha and Jerry, naming them tutors for the children and giving them primary custody. Connie and Charles were granted limited visitation with the children. This appeal by the Hammetts ensued.

DISCUSSION

Initially, we note that this case is one addressing the tutorship of Kobe and Shadye, a determination which is based on their best interest. Thus, the applicable law for consideration are those codal articles, statutory provisions, and jurisprudence that address tutorship and the best interest of the children. The statutory provision cited by the appellants in their first assignment of error, i.e., La. R.S. 9:355.12(A), is inapplicable to this scenario and will not be discussed. That particular statute relates to the relocation of children when it is contested by parents or custodians. Relocation in this case is only pertinent as a factor in determining the best interest of the children. So considering, we will address the appellants' argument that the trial court erred in failing to consider the best interest of the children by naming Tabitha and Jerry as tutors and granting them primary custody.

There are four kinds of tutorship: (1) tutorship by nature; (2) tutorship by will; (3) tutorship by the effect of the law; and (4) tutorship by the appointment of the judge. La. C.C. art. 247. When a tutor has not been appointed to the minor by the parent dying last, then the court, considering the best interest of the minor, shall appoint a tutor from among the qualified ascendants in the direct line, collaterals by blood within the third degree, and the surviving spouse of the parent dying last. *777 La. C.C. art. 263. Necessarily, the tutorship of the minor children also involves the responsibility of their custody and care. See La. C.C.P. art. 4261. Thus, in determining the custody of Kobe and Shadye it is necessary to determine their best interest as defined under La. C.C. art. 134, which states:

The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(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.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

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. Flanagan v. Flanagan, 36,852 (La.App.2d Cir.03/05/03), 839 So.2d 1070. 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. Id. 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.

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In the Interest of S.L.G.
895 So. 2d 773 (Louisiana Court of Appeal, 2005)

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Bluebook (online)
895 So. 2d 773, 2005 WL 477964, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-slg-lactapp-2005.