Kern v. Kern

659 So. 2d 734, 1995 La. LEXIS 2192, 1995 WL 553051

Opinion

PER CURIAM

Footnotes

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Writ Granted. The preliminary injunction issued by the trial court is vacated. The case is remanded to the trial court for further proceedings. The stay order issued herein by this court is recalled. R.S. 9:335(B)(3) provides:

The domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order provides otherwise. All major decisions made by the domiciliary parent concerning the child shall be subject to review by the court upon motion of the other parent. It shall be presumed that all major decisions made by the domiciliary parent are in the best interests of the child.

Essentially, this was the jurisprudential rule under the joint custody law prior to the enactment of R.S. 9:335(B)(3). Smith v. Smith, 459 So.2d 646, 648 (La.Ct.App. 4th Cir.1984) (“[W]e ... give the mother, who has custody of the children during the school year and who must primarily help them with their homework and work with the school teachers and staff, the final decision on the children’s education.”); Plemer v. Plemer, 436 So.2d 1348 (La.Ct.App. 4th Cir.1983). The record in this ease indicates there has been no full evidentiary hearing or any other showing from which a court could reasonably override the presumption that the domiciliary parent’s major decision as to the school the children will attend is in the best interests of the children.

MARCUS, J., not on panel. JOHNSON, J., would deny the writ. VICTORY, J., would deny the writ.

Marcus, J., not on panel. Rule IV, Part 2, § 3.