STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 04-1649
JOSHUA ARRINGTON
VERSUS
DELOIS JAMES CAMPBELL
**********
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 216,979 HONORABLE GEORGE CLARENCE METOYER, JR, DISTRICT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Billy Howard Ezell, Judges.
Cooks, J., concurs in the majority opinion, finding only the allegations of sexual abuse amount to a material change in circumstance affecting the child’s welfare since the September, 2003 consent judgment changing the custody of the child.
REVERSED, RENDERED, AND REMANDED.
Lloyd E. Hennigan, Jr. Hennigan and Walters P. O. Drawer 1970 Jena, LA 71342 (318) 992-4105 Counsel for: Defendant/Appellee Delois James Campbell
Susan Ford Fiser Attorney at Law P.O. Box 12424 Alexandria, LA 71315-2424 (318) 442-8899 Counsel for: Plaintiff/Appellant Joshua Arrington EZELL, JUDGE.
In this appeal, J.A.1 appeals the decision of the trial court refusing to grant him
sole custody of his son, K.A. We find that the trial court failed to consider the best
interests of K.A. in reaching its decision and, accordingly, reverse the decision of the
trial court, render a decision, and remand for further proceedings in accordance with
this ruling.
K.A. was born on September 8, 1998. His parents were never married. By
judgment rendered May 5, 2000, J.A. and D.C., the child’s mother, agreed to joint
custody of K.A. D.C. was designated as the primary custodial parent, and J.A. was
awarded reasonable visitation. On September 30, 2003, the parties signed a consent
judgment changing the custody of K.A. The new agreement retained joint custody,
with the father becoming the primary custodial parent and the mother receiving
visitation. After an incident involving K.A. and another child at school, J.A. filed for
a protective order and for a change in custody of K.A., seeking sole custody with
supervised visitation only for the mother.
At trial on the matter, despite very disturbing testimony regarding allegations
of cruelty and sexual abuse toward K.A., the trial court denied the rule to change
custody. From this decision, J.A. appeals. J.A. asserts seven assignments of error on
appeal. As his first assignment of error, J.A. claims that the trial court committed
legal error in applying an incorrect standard of review in determining the custody of
K.A., and that therefore, a de novo review is required of this court. We agree.
Because we agree with the first assignment of error, we need not address the others.
1 Although we are not required to use initials to insure the confidentiality of minors in child custody cases under the Uniform Rules of Louisiana Courts of Appeal Rule 5-2, we will do so here due to the nature of the allegations contained in this claim.
1 This court has clearly stated the standard of review for an appellate court in
child custody matters. “The trial court is in a better position to evaluate the best
interest of the child from its observances of the parties and witnesses; thus, a trial
court’s determination in a child custody case is entitled to great weight on appeal and
will not be disturbed unless there is a clear abuse of discretion.” Hawthorne v.
Hawthorne, 96-89, p.12 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, 625, writ denied
96-1650 (La. 10/25/96), 681 So.2d 365. Under Louisiana Civil Code Article 131,
decisions regarding custody of the children are made with the best interest of the child
being paramount. Louisiana Civil Code Article 134 provides a number of factors to
be considered in making the best interest determination. These factors are merely
suggested factors, and the trial court is free to use other factors to make its
determination. Aucoin v. Aucoin, 02-756 (La.App. 3 Cir. 12/30/02), 834 So.2d 1245.
However, the trial court should consider the totality of the facts and circumstances in
its analysis of the best interest of the child.
It is clear from the record that the trial court below did not consider the best
interest of K.A. at all in reaching its decision. In its oral reasons, the trial court
simply stated that “one of the strongest rights in the law is a parent’s right to have
unfettered access to his or her children, to be free of supervision and to be free from
outside influences from any third parties, including family members.” There was no
mention of any of the factors set forth in Louisiana Civil Code Article 134, nor was
there any mention of K.A.’s best interest in general. The trial court apparently only
considered the rights of the mother, which are clearly subservient to the best interest
of the child in any custody matter. La.Civ. Code art. 131. Because the trial court
committed legal error in applying an incorrect standard of review, we shall perform
a de novo review of this case.
2 Because the custody agreement between J.A. and D.C. was not a considered
decree by the court, J.A.’s burden in changing the present custody arrangement
requires that he prove: 1) a material change in circumstances affecting the welfare
of the child has occurred since the original decree, and 2) the proposed modification
is in the best interest of the child. See Weaver v. Weaver, 01-1656 (La.App. 3 Cir.
5/29/02), 824 So.2d 438. It is clear from the record that J.A. has met both of these
requirements.
After the second joint custody agreement awarding J.A. with domiciliary parent
status, K.A. was caught in the restroom of his kindergarten with another child,
touching each other inappropriately. J.A. was called by the principal and forced to
pick K.A. up from school. When the child was questioned about his actions, K.A. felt
as if he had done nothing wrong, stating that he was only playing a game he learned
from his mother’s new brother-in-law, Bud. When asked by J.A. if Bud had touched
him, K.A. said yes. When asked how, the child pulled down his pants and began
masturbating. K.A. also told his step-mother, J.A.’s wife, that Bud had taught him
the game he had been caught playing with the other boy. Furthermore, K.A. told Dr.
Kenneth Binns, his child psychologist, that “Bud put his bird in my bobo.” When
asked to elaborate, the child refused, stating, “my mom told me not to talk about that.”
An investigation is still ongoing into the possible molestation of K.A.
Besides the allegations of sexual abuse, there was also evidence of cruel
treatment to K.A. by his mother in trying to potty train the child. At the time of trial
K.A. was five years old and suffered from encopresis, or a failure to control his bodily
functions. In essence, he was still not completely potty trained. The child exhibited
fear when confronted with the toilet. He would scream, kick, and bite to not get on
the potty. Most of this fear seemed to be generated from the mother’s home. K.A.
3 would make great strides in his potty training at his father’s home, only to experience
regression and setbacks after contact with his mother. At one point, after an accident,
D.C. forced K.A. to kneel in front of the toilet and scrub his feces out of his
underwear with a toothbrush. She would force him to sit on the toilet for long periods
of time and spank him for accidents. The encopresis was even becoming a problem
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 04-1649
JOSHUA ARRINGTON
VERSUS
DELOIS JAMES CAMPBELL
**********
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 216,979 HONORABLE GEORGE CLARENCE METOYER, JR, DISTRICT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Billy Howard Ezell, Judges.
Cooks, J., concurs in the majority opinion, finding only the allegations of sexual abuse amount to a material change in circumstance affecting the child’s welfare since the September, 2003 consent judgment changing the custody of the child.
REVERSED, RENDERED, AND REMANDED.
Lloyd E. Hennigan, Jr. Hennigan and Walters P. O. Drawer 1970 Jena, LA 71342 (318) 992-4105 Counsel for: Defendant/Appellee Delois James Campbell
Susan Ford Fiser Attorney at Law P.O. Box 12424 Alexandria, LA 71315-2424 (318) 442-8899 Counsel for: Plaintiff/Appellant Joshua Arrington EZELL, JUDGE.
In this appeal, J.A.1 appeals the decision of the trial court refusing to grant him
sole custody of his son, K.A. We find that the trial court failed to consider the best
interests of K.A. in reaching its decision and, accordingly, reverse the decision of the
trial court, render a decision, and remand for further proceedings in accordance with
this ruling.
K.A. was born on September 8, 1998. His parents were never married. By
judgment rendered May 5, 2000, J.A. and D.C., the child’s mother, agreed to joint
custody of K.A. D.C. was designated as the primary custodial parent, and J.A. was
awarded reasonable visitation. On September 30, 2003, the parties signed a consent
judgment changing the custody of K.A. The new agreement retained joint custody,
with the father becoming the primary custodial parent and the mother receiving
visitation. After an incident involving K.A. and another child at school, J.A. filed for
a protective order and for a change in custody of K.A., seeking sole custody with
supervised visitation only for the mother.
At trial on the matter, despite very disturbing testimony regarding allegations
of cruelty and sexual abuse toward K.A., the trial court denied the rule to change
custody. From this decision, J.A. appeals. J.A. asserts seven assignments of error on
appeal. As his first assignment of error, J.A. claims that the trial court committed
legal error in applying an incorrect standard of review in determining the custody of
K.A., and that therefore, a de novo review is required of this court. We agree.
Because we agree with the first assignment of error, we need not address the others.
1 Although we are not required to use initials to insure the confidentiality of minors in child custody cases under the Uniform Rules of Louisiana Courts of Appeal Rule 5-2, we will do so here due to the nature of the allegations contained in this claim.
1 This court has clearly stated the standard of review for an appellate court in
child custody matters. “The trial court is in a better position to evaluate the best
interest of the child from its observances of the parties and witnesses; thus, a trial
court’s determination in a child custody case is entitled to great weight on appeal and
will not be disturbed unless there is a clear abuse of discretion.” Hawthorne v.
Hawthorne, 96-89, p.12 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, 625, writ denied
96-1650 (La. 10/25/96), 681 So.2d 365. Under Louisiana Civil Code Article 131,
decisions regarding custody of the children are made with the best interest of the child
being paramount. Louisiana Civil Code Article 134 provides a number of factors to
be considered in making the best interest determination. These factors are merely
suggested factors, and the trial court is free to use other factors to make its
determination. Aucoin v. Aucoin, 02-756 (La.App. 3 Cir. 12/30/02), 834 So.2d 1245.
However, the trial court should consider the totality of the facts and circumstances in
its analysis of the best interest of the child.
It is clear from the record that the trial court below did not consider the best
interest of K.A. at all in reaching its decision. In its oral reasons, the trial court
simply stated that “one of the strongest rights in the law is a parent’s right to have
unfettered access to his or her children, to be free of supervision and to be free from
outside influences from any third parties, including family members.” There was no
mention of any of the factors set forth in Louisiana Civil Code Article 134, nor was
there any mention of K.A.’s best interest in general. The trial court apparently only
considered the rights of the mother, which are clearly subservient to the best interest
of the child in any custody matter. La.Civ. Code art. 131. Because the trial court
committed legal error in applying an incorrect standard of review, we shall perform
a de novo review of this case.
2 Because the custody agreement between J.A. and D.C. was not a considered
decree by the court, J.A.’s burden in changing the present custody arrangement
requires that he prove: 1) a material change in circumstances affecting the welfare
of the child has occurred since the original decree, and 2) the proposed modification
is in the best interest of the child. See Weaver v. Weaver, 01-1656 (La.App. 3 Cir.
5/29/02), 824 So.2d 438. It is clear from the record that J.A. has met both of these
requirements.
After the second joint custody agreement awarding J.A. with domiciliary parent
status, K.A. was caught in the restroom of his kindergarten with another child,
touching each other inappropriately. J.A. was called by the principal and forced to
pick K.A. up from school. When the child was questioned about his actions, K.A. felt
as if he had done nothing wrong, stating that he was only playing a game he learned
from his mother’s new brother-in-law, Bud. When asked by J.A. if Bud had touched
him, K.A. said yes. When asked how, the child pulled down his pants and began
masturbating. K.A. also told his step-mother, J.A.’s wife, that Bud had taught him
the game he had been caught playing with the other boy. Furthermore, K.A. told Dr.
Kenneth Binns, his child psychologist, that “Bud put his bird in my bobo.” When
asked to elaborate, the child refused, stating, “my mom told me not to talk about that.”
An investigation is still ongoing into the possible molestation of K.A.
Besides the allegations of sexual abuse, there was also evidence of cruel
treatment to K.A. by his mother in trying to potty train the child. At the time of trial
K.A. was five years old and suffered from encopresis, or a failure to control his bodily
functions. In essence, he was still not completely potty trained. The child exhibited
fear when confronted with the toilet. He would scream, kick, and bite to not get on
the potty. Most of this fear seemed to be generated from the mother’s home. K.A.
3 would make great strides in his potty training at his father’s home, only to experience
regression and setbacks after contact with his mother. At one point, after an accident,
D.C. forced K.A. to kneel in front of the toilet and scrub his feces out of his
underwear with a toothbrush. She would force him to sit on the toilet for long periods
of time and spank him for accidents. The encopresis was even becoming a problem
at school. None of the evidence regarding the treatment of K.A. in his potty training
or the allegations of sexual abuse was refuted in any way by D.C.
The allegations of possible sexual abuse and the repeated cruelty towards K.A.
in his potty training, along with the regression he suffers after contact with his
mother, are clearly changes in circumstances affecting the welfare of the child. It is
also clear that a modification of the custody arrangement are in K.A.’s best interests.
It is obvious to this court that the child’s best interest lies in J.A. having sole custody
of K.A., with D.C. being allowed supervised visitation. Dr. Binns was clear in his
opinion that D.C. should be forced to take parenting classes before having visitation
with K.A., and thereafter, visitation should be supervised. Her rights to her child
simply do not outweigh his best interest. La. Civ. Code art. 131.
Accordingly, the decision of the trial court is reversed. Judgment is herein
rendered in favor of J.A., awarding him sole custody of K.A. D.C. is to be granted
supervised visitation only after the completion of parenting classes. Furthermore,
K.A. is not to have any contact whatsoever with his uncle Bud. This case is hereby
remanded to the trial court for arrangements to be made concerning parenting classes
for D.C., for the structuring of supervised visitation thereafter, and for the issuance
of a protective order in favor of K.A. against his Uncle Bud. Costs of this appeal are
assessed against D.C.
4 5