STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-51
LUCILLE MCCORMIC AND JASON RAY CRAFT
VERSUS
JUDITH ANN RIDER
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU, NO. 2006-1922 HONORABLE GUY E. BRADBERRY, DISTRICT JUDGE
J. DAVID PAINTER JUDGE
Court composed of Sylvia R. Cooks, Oswald A. Decuir, and J. David Painter, Judges.
REVERSED.
William Cutrera 910 Ford Street Lake Charles, LA 70601 Plaintiffs-Appellees: Lucille McCormic and Jason Ray Craft
Todd H. Melton P.O. Box 847 Lake Charles, LA 70602 Counsel for Defendant-Appellant: Judith Ann Rider PAINTER, Judge.
Judith Ann Rider (Rider) appeals the trial court’s judgment granting joint
custody of the minor child to Rider, the child’s adoptive mother, and Jason Ray Craft
(Craft) and Lucille Marie McCormic (McCormic), the child’s biological parents, and
naming McCormic as the domiciliary parent. For the following reasons, we reverse
the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
McCormic gave birth to a son, Tyler, on May 31, 2000. Craft is his father.
McCormic and Craft were never married. Craft’s mother, Rider, adopted the child
on or about April 27, 2001. While McCormic testified that she did not realize that
she was signing adoption papers at the time and thought she was only giving Rider
temporary custody, she never contested the adoption.
Not long after the adoption, Rider left Tyler with McCormic and Craft for
approximately six months, from September 2002 until February 2003, while she went
to California to stay with her brother, who was ill. Rider returned to Louisiana and,
at some point, she and Tyler began living on the other side of duplex from Craft and
McCormic. In September 2005, Craft and McCormic ended their relationship. Even
though Craft moved, the living arrangement at the duplex between Rider, Tyler, and
McCormic continued. McCormic evicted Rider in November 2006.
On April 24, 2006, Craft and McCormic filed a petition for custody of Tyler.
The petition alleged that Rider was in ill health and unable to properly care for the
child. In August of 2006, Tyler was removed from Rider’s care by the State; however
he was returned to Rider some time later. Tyler remained in Rider’s custody at the
time of trial. Rider was unemployed, and she and Tyler were living in temporary
1 housing at a hotel provided by FEMA. McCormic was employed and living in the
duplex she and Craft had previously purchased. Craft was employed and living with
his girlfriend.
The trial court ruled that the evidence warranted a change in custody such that
all three parties would be awarded joint custody of Tyler, with each party having
custody of Tyler for a week at a time for six weeks. After the six week period and
after receiving the assessment of Danielle Caraway, from Family and Youth
Counseling Agency, the trial court noted that it would designate one of three as
domiciliary parent. By the time of the next hearing, Rider was employed as a
substitute teacher at Henry Heights Elementary School and had moved into a three-
bedroom home. She had also moved Tyler from Lake Charles Christian School to
Henry Heights Elementary. Thereafter, the trial court issued judgment maintaining
joint custody; however, the trial court named McCormic as domiciliary parent such
that Tyler would primarily reside with her. Rider and Craft were each given visitation
of one weekend per month. McCormic would also be allowed to enroll Tyler in a
school of her choosing. Rider now appeals this judgment.
DISCUSSION
This matter is controlled by La.Civ.Code art.133, which states:
If an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment.
What makes this case unique is the adoption by the paternal grandmother that renders
this a case of non-parents, who happen to be the biological parents of the child,
seeking custody from a legal parent.
2 This court has recently stated:
We are mindful that the “concept of parental primacy is well established in Louisiana law” and that a nonparent is “required to make a very strong showing before custody should be awarded in their favor.” Wilson v. Paul, 08-382, p. 2 (La.App. 3 Cir. 10/1/08), 997 So.2d 572, 574. Furthermore, “[i]n a conflict between parents and nonparents, the parent enjoys the paramount right to custody of a child, and may be deprived of such right only for compelling reasons.” Id. (quoting Tennessee v. Campbell, 28,823, p. 6 (La.App. 2 Cir. 10/30/96), 682 So.2d 1274, 1278). As such, the nonparent bears the burden of proving that “granting custody to the parent would be detrimental to the child, and that the best interest of the child requires an award of custody to the nonparent.” Id. (quoting Tennessee, 682 So.2d at 1278).
Whitman v. Williams, 08-1133, p. 2 (La.App. 3 Cir. 2/4/09), 6 So.3d 852, 853.
To determine the best interest of the child, La.Civ.Code art. 134 provides that
the court shall consider all relevant factors, which 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.
3 (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.
In this case, the trial judge found substantial harm justifying a change in
custody. He cited six factors in support of his finding: (1) the OCS intervention being
necessary as a result of a described disciplinary tactic used by Rider that consisted of
the child being harnessed to his bed; (2) the economic status of the parties being such
that Rider’s status was, at best, questionable; (3) the testimony concerning Rider’s
lack of contact and communication with any of her seven natural children tended to
indicate that Rider would not facilitate an ongoing relationship between Tyler and his
extended family; (4) that for some period of time while the parties resided in the
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-51
LUCILLE MCCORMIC AND JASON RAY CRAFT
VERSUS
JUDITH ANN RIDER
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU, NO. 2006-1922 HONORABLE GUY E. BRADBERRY, DISTRICT JUDGE
J. DAVID PAINTER JUDGE
Court composed of Sylvia R. Cooks, Oswald A. Decuir, and J. David Painter, Judges.
REVERSED.
William Cutrera 910 Ford Street Lake Charles, LA 70601 Plaintiffs-Appellees: Lucille McCormic and Jason Ray Craft
Todd H. Melton P.O. Box 847 Lake Charles, LA 70602 Counsel for Defendant-Appellant: Judith Ann Rider PAINTER, Judge.
Judith Ann Rider (Rider) appeals the trial court’s judgment granting joint
custody of the minor child to Rider, the child’s adoptive mother, and Jason Ray Craft
(Craft) and Lucille Marie McCormic (McCormic), the child’s biological parents, and
naming McCormic as the domiciliary parent. For the following reasons, we reverse
the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
McCormic gave birth to a son, Tyler, on May 31, 2000. Craft is his father.
McCormic and Craft were never married. Craft’s mother, Rider, adopted the child
on or about April 27, 2001. While McCormic testified that she did not realize that
she was signing adoption papers at the time and thought she was only giving Rider
temporary custody, she never contested the adoption.
Not long after the adoption, Rider left Tyler with McCormic and Craft for
approximately six months, from September 2002 until February 2003, while she went
to California to stay with her brother, who was ill. Rider returned to Louisiana and,
at some point, she and Tyler began living on the other side of duplex from Craft and
McCormic. In September 2005, Craft and McCormic ended their relationship. Even
though Craft moved, the living arrangement at the duplex between Rider, Tyler, and
McCormic continued. McCormic evicted Rider in November 2006.
On April 24, 2006, Craft and McCormic filed a petition for custody of Tyler.
The petition alleged that Rider was in ill health and unable to properly care for the
child. In August of 2006, Tyler was removed from Rider’s care by the State; however
he was returned to Rider some time later. Tyler remained in Rider’s custody at the
time of trial. Rider was unemployed, and she and Tyler were living in temporary
1 housing at a hotel provided by FEMA. McCormic was employed and living in the
duplex she and Craft had previously purchased. Craft was employed and living with
his girlfriend.
The trial court ruled that the evidence warranted a change in custody such that
all three parties would be awarded joint custody of Tyler, with each party having
custody of Tyler for a week at a time for six weeks. After the six week period and
after receiving the assessment of Danielle Caraway, from Family and Youth
Counseling Agency, the trial court noted that it would designate one of three as
domiciliary parent. By the time of the next hearing, Rider was employed as a
substitute teacher at Henry Heights Elementary School and had moved into a three-
bedroom home. She had also moved Tyler from Lake Charles Christian School to
Henry Heights Elementary. Thereafter, the trial court issued judgment maintaining
joint custody; however, the trial court named McCormic as domiciliary parent such
that Tyler would primarily reside with her. Rider and Craft were each given visitation
of one weekend per month. McCormic would also be allowed to enroll Tyler in a
school of her choosing. Rider now appeals this judgment.
DISCUSSION
This matter is controlled by La.Civ.Code art.133, which states:
If an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment.
What makes this case unique is the adoption by the paternal grandmother that renders
this a case of non-parents, who happen to be the biological parents of the child,
seeking custody from a legal parent.
2 This court has recently stated:
We are mindful that the “concept of parental primacy is well established in Louisiana law” and that a nonparent is “required to make a very strong showing before custody should be awarded in their favor.” Wilson v. Paul, 08-382, p. 2 (La.App. 3 Cir. 10/1/08), 997 So.2d 572, 574. Furthermore, “[i]n a conflict between parents and nonparents, the parent enjoys the paramount right to custody of a child, and may be deprived of such right only for compelling reasons.” Id. (quoting Tennessee v. Campbell, 28,823, p. 6 (La.App. 2 Cir. 10/30/96), 682 So.2d 1274, 1278). As such, the nonparent bears the burden of proving that “granting custody to the parent would be detrimental to the child, and that the best interest of the child requires an award of custody to the nonparent.” Id. (quoting Tennessee, 682 So.2d at 1278).
Whitman v. Williams, 08-1133, p. 2 (La.App. 3 Cir. 2/4/09), 6 So.3d 852, 853.
To determine the best interest of the child, La.Civ.Code art. 134 provides that
the court shall consider all relevant factors, which 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.
3 (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.
In this case, the trial judge found substantial harm justifying a change in
custody. He cited six factors in support of his finding: (1) the OCS intervention being
necessary as a result of a described disciplinary tactic used by Rider that consisted of
the child being harnessed to his bed; (2) the economic status of the parties being such
that Rider’s status was, at best, questionable; (3) the testimony concerning Rider’s
lack of contact and communication with any of her seven natural children tended to
indicate that Rider would not facilitate an ongoing relationship between Tyler and his
extended family; (4) that for some period of time while the parties resided in the
duplex, there was some type of family unit and that Tyler thrived during that time; (5)
that there was no evidence that Tyler was deprived of housing, shelter, food, or
clothing and that Rider did the best that she could with what she had; and (6) that
Tyler was given ADHD medication under a doctor’s order but without ever being
thoroughly evaluated or assessed for that condition and that Tyler was given sleeping
medication under a doctor’s order. The trial court further stated that Rider could
“never be accused of being a person who will not do what you have to do in attending
the needs of your child.” He found her to be a loving mother who seemed to be “a
parent who would facilitate ongoing relationships.” Even so, the trial court went on
to say: “this Court can only find that the current custodial arrangement as set forth in
Civil Code Article 131 would indeed be detrimental to this child and this, as a result
4 thereof, will allow this Court to award custody to nonparents who can provide a
wholesome, adequate, stable environment.”
After the six week period, the trial court received Caraway’s report. Caraway’s
report indicated that Rider did not demonstrate a willingness to have a positive co-
parenting relationship with either Craft or McCormic which “speaks to her lack of
concern for what is in the best interest of Tyler.” Caraway found Tyler to be anxious
and confused and was concerned over his report of abusive behavior by Rider. She
recommended that domiciliary custody be shared between Craft and McCormic. It
was Caraway’s conclusion that Rider had “misinterpreted” her role in her grandson’s
life.
Again, we must note that Rider is the parent in this case by virtue of her
adoption of Tyler. This adoption has not been challenged. Thus, Rider enjoys the
paramount right of custody, and Craft and McCormic bear a heavy burden of proof.
We find it important to note that while the trial court found there was substantial
harm, it granted Rider joint custody of Tyler. Pursuant to La.Civ.Code art. 133, if
substantial harm is found, then the parent cannot have custody. The trial court’s own
comments regarding its findings as to Rider’s fitness as a parent negate its finding
that substantial harm to the child existed. Obviously, if the trial court found that
Rider was still entitled to joint custody, Craft and McCormic failed to meet the heavy
burden of proving that custody in Rider’s favor would result in substantial harm to
Tyler. Since no substantial harm was proven, the trial court was prohibited from
granting custody to the nonparents. Therefore, the trial court erred in awarding
custody the nonparents, Craft and McCormic, in this case.
5 DECREE
The trial court’s judgment is reversed in its entirety and set aside. We hereby
render judgment in favor of Rider dismissing Craft and McCormic’s demands. All
costs of this appeal are assessed to Craft and McCormic.