Kirsch v. Kirsch

180 So. 3d 417, 2015 La.App. 1 Cir. 0281, 2015 La. App. LEXIS 1471, 2015 WL 4557120
CourtLouisiana Court of Appeal
DecidedJuly 29, 2015
DocketNo. 2015 CU 0281
StatusPublished
Cited by3 cases

This text of 180 So. 3d 417 (Kirsch v. Kirsch) 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
Kirsch v. Kirsch, 180 So. 3d 417, 2015 La.App. 1 Cir. 0281, 2015 La. App. LEXIS 1471, 2015 WL 4557120 (La. Ct. App. 2015).

Opinion

THERIOT, J.

|2In this child custody case, the mother appeals a judgment in which the trial court granted sole custody of the parties’ minor children to the father. For the following reasons, we affirm the judgment of the trial court.

FACTS & PROCEDURAL HISTORY

This matter involves a protracted and contentious custody dispute between Karl Kirsch and Kristin Kirsch [together, “the parties”]. The parties were married on January 12, 2001. Two children were born [419]*419of the marriage: MK1, born August 16, 2001, and SK, born December 20, 2003. The parties separated and ceased- living together in September 2011.2

Kristin filed a complaint with the Department of Children and Family Services [“DCFS”] on September, 8, 2011, alleging that Karl had been, physically abusive to her and physically and sexually abusive to the children. DCFS closed the case, finding it was inconclusive for sexual .abuse, invalid for physical abuse, and valid for lack of supervision on the part of both parents.

On September 14, 2011, Kristin filed a petition for protection from abuse, alleging that Karl had physically abused both her and the children. Following an October 19, 2011 hearing, the parties reached a consent agreement that enacted- an 18-month protective order against Karl in favor of Kristin, but not in favor of the children. The consent agreement further granted Kristin temporary custody and provided for Karl to have supervised visitation until he completed an anger management course and a parenting course,

laKarl filed a Petition for Divorce pursuant to La. C.C. art. 102 on October 12, 2011, requesting joint custody of the children and to be the designated domiciliary parent.

On: November 28,-2011, and December 8, 2011, DCFS received reports of suspected child abuse or neglect by Karl against the children and opened investigations into the reports. There was some dispute as to who filed the November 28, 2011 report, but it appears that both reports were filed by Kristin. The November 28, 2011 complaint was closed with notes reading:

Sexual abuse disclosures were never consistent and the boys appeared to be coached... Mrs. Kirsch’s family members do not believe the abuse occurred ... Both boys are disclosing sexual abuse by their father. The disclosures are not consistent... The boys say they are afraid of their father but do not act fearful in front of him.

On December 7, 2011, Kristin filed an Answer and Recoriventional Demand in forma pauperis, seéking sole custody with supervised visitation pursuant to the Post-Separation Family Violence Relief Act, La. R.S. 9:361 et seq. [“the Act”], spousal support, and child support. Kristin alleged that Karl was not entitled to joint custody due to a history of family violence against Kristin and the children.3

The initial Hearing Officer Conference [“HOC”] was held on December 13, 2011. Récommendations were issued awarding joint custody to both parents, with Kristin as the designated domiciliary parent.4 A [420]*420new ^visitation schedule was agreed upon, and Karl’s visitation was to be supervised by his mother. Regarding Kristin’s request for an injunction pursuant to the Act, the HOC Report/Recommendations provided that the request “must be tried.”

On January 6, 2012, Karl filed an Answer to Kristin’s Reconventional Demand, in which he sought sole custody of the two minor children because Kristin had made false allegations of neglect and abuse against him, and alleging that Kristin should only be awarded supervised visitation with the children.

The second HOC was held on February 13, 2012, and was memorialized in a February 15, 2012 Consent Judgment that awarded temporary joint custody, lifted the supervision requirements on Karl’s visitation, and named Kristin the domiciliary parent. Regarding Kristin’s request for an injunction pursuant to the Act, the HOC Report/Recommendations provided that the request “shall be addressed at the follow-up” HOC.

On February 29, 2012, DCFS notified Karl by letter that the DCFS investigations into the November 28, 2011, and December 8, 2011, complaints had been completed, and there was not sufficient information to support a finding of abuse or neglect.5

On April 20, 2012, Karl subpoenaed the records of the Slidell Police Department [“SPD”]. He also filed a motion to unseal the DCFS records and compel the deposition of Detective Brian Brown, alleging that Kristin had repeatedly falsely accused Karl of physical and sexual abuse of the children |sin an attempt to improperly influence the custody and related financial determinations. He further alleged that the requested information was critical to his claim for sole custody. An HOC report dated June 27, 2012, summarizing the June 22, 2012 HOC, reflected Karl’s allegations that Kristin had falsely accused him of sexual abuse of the children. It was Kristin’s testimony that the children had made alarming statements, which she reported to the appropriate authorities. Kristin’s reports of sexual abuse had been made prior to the February 13, 2012 HOC, and all resulting investigations had been closed by the time of the June 22, 2012 HOC; thus, the June 27, 2012 HOC Report recommended joint custody, with Kristin as the domiciliary parent, and denied Kristin’s request for an injunction pursuant to the Posi^Separation and Family Violence Relief Act.

Karl filed an objection to the June 27, 2012 HOC report recommendations with the trial court, specifically objecting to the award of joint custody, the designation of domiciliary parent, and the visitation schedule. Karl filed a Pre-Trial Memorandum alleging that since the fall of 2011, Kristin had been filing and reporting false allegations of child abuse, both sexual and physical, against him for the sole purpose of influencing the court’s determination of pending custody matters. Karl maintained that Kristin submitted false reports to the City of Slidell, DCFS, and various hospitals and medical facilities in Mississippi and Louisiana, subjecting both children to invasive, humiliating, and potentially damaging physical examinations and forensic evaluations. Karl further alleged that Kristin had coached the children into falsely accusing him of sexual abuse. Karl [421]*421alleged that Kristin’s rights to custody, unsupervised visitation, child support and spousal support should be terminated as a result.

| ijFollowing a July 24, 2012 hearing before the trial court, an Interim Consent Judgment upheld the previous joint custody arrangement with Kristin as the domiciliary parent. The judgment also ordered both parties to submit to a full mental health examination by Dr. Alan James Klein, who would be granted access to all court records. A hearing to establish temporary custody was set, but was twice continued because Dr. Klein was unable to complete his evaluations and issue reports before the hearing date.

The matter went to trial on August 5 and 7, 2013. The trial court rendered its decision in open court on August 7, 2013, and gave extensive oral reasons for judgment.

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Cite This Page — Counsel Stack

Bluebook (online)
180 So. 3d 417, 2015 La.App. 1 Cir. 0281, 2015 La. App. LEXIS 1471, 2015 WL 4557120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirsch-v-kirsch-lactapp-2015.