Molony v. Harris

60 So. 3d 70, 2010 La.App. 4 Cir. 1316, 2011 La. App. LEXIS 243, 2011 WL 976510
CourtLouisiana Court of Appeal
DecidedFebruary 23, 2011
DocketNo. 2010-CA-1316
StatusPublished
Cited by12 cases

This text of 60 So. 3d 70 (Molony v. Harris) 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
Molony v. Harris, 60 So. 3d 70, 2010 La.App. 4 Cir. 1316, 2011 La. App. LEXIS 243, 2011 WL 976510 (La. Ct. App. 2011).

Opinion

PATRICIA RIVET MURRAY, Judge.

|! This is a contentious child custody dispute. Duncan Molony appeals the trial court’s judgment awarding him and his former spouse, Meredith Harris, joint eus-tody of their minor child and designating the parties as co-domiciliary parents. For the reasons that follow, we affirm the joint custody award, reverse the trial court’s co-domiciliary designation, and remand for either the designation of a domiciliary parent or the issuance of an implementation order allocating the parties’ decision-making responsibilities.1 On remand, we also order that the trial court consider appointing a parenting coordinator pursuant to La. R.S. 9:358.1-9:358.9.

FACTUAL AND PROCEDURAL BACKGROUND

On April 29, 2005, Mr. Molony and Ms. Harris were married. One child was born of the marriage: a boy, CM. CM was born on December 13, 2005; he was four years old when the judgment appealed from was rendered. From a previous marriage to Michael Harris, Ms. Harris has another son, AH.2 AH was born on February 10, 1999; he was eleven years old when the judgment appealed from was ^rendered. Ms. Harris is AH’s domiciliary parent. She has physical custody of AH during the week, and his father has custody of him on weekends.

Following their marriage, Mr. Molony and Ms. Harris established their matrimonial domicile in New Orleans, although they lived in North Carolina a short period of time following Hurricane Katrina. They returned to New Orleans in 2006 and reestablished domicile there. It is undisputed Ms. Harris had an alcohol abuse problem during the period following Hurricane Katrina and CM’s birth. This contributed to the demise of the parties’ marriage and gave rise to this custody dispute.

[73]*73On November 14, 2008, Mr. Molony filed for a divorce from Ms. Harris alleging that she had an “alcohol dependency problem.” He further alleged that he “has been the primary care giver for [CM] since his birth.” He requested emergency, temporary sole custody of CM or that he be designated the domiciliary parent and Ms. Harris be allowed supervised visitation. He further requested that Ms. Harris be ordered to submit to random alcohol and drug screenings.

Ms. Harris answered and filed a recon-ventional demand seeking joint custody and designation as the domiciliary parent. She alleged that she had been CM’s primary caretaker since his birth, that she was capable of caring for the child, and that she was not a danger to CM or AH. In support of those allegations, she attached a copy of a letter from her therapist, E. Taylor Aultman, Jr., L.C.S.W., in which Mr. Aultman opined that Ms. Harris, who was attending AA meetings and undergoing weekly therapy, was “a devoted mother” and was not “a danger to her children in any way.”

On December 4, 2008, the trial court entered an interim consent judgment (the “Consent Judgment”) ratifying the parties’ agreement regarding temporary | ¡¡shared physical custody of CM. The Consent Judgment awarded physical custody to Mr. Molony except for a period from 8:00 p.m. on Tuesday until 8:00 a.m. on Wednesday each week. The judgment authorized Mr. Molony to remove CM from the custody of Ms. Harris whenever he believed, based upon observable evidence, that Ms. Harris was under the influence of alcohol or drugs. The judgment ordered Ms. Harris to attend daily AA meetings and to continue her weekly therapy. Finally, the court ordered that Dr. Ellen Gandle, a mental health professional, perform an evaluation, pursuant to La. R.S. 9:331, to assess issues of custody, visitation, and alleged substance abuse by Ms. Harris. The parties were also ordered to meet within thirty days of the date of the hearing to reevaluate the current physical custody schedule.

On January 8, 2009, Ms. Harris filed an Emergency Rule to Modify Visitation. She alleged that the parties had met, but Mr. Molony had refused to provide her with a reasonable increase in visitation. Testimony, which was taken on this issue on January 30, and February 2, 2009, was summarized by the trial court in its reasons for judgment:

Ms. Harris has a history of alcohol abuse and mental health issues predating the filing of the petition for divorce. Ms. Harris’ therapist, Mr. Aultman, has been treating Ms. Harris since March 15, 2007. Mr. Aultman diagnosed Ms. Harris with Alcohol Abuse, Adjustment Disorder with depression and anxiety. She is on Klonipin and Lexapro which were prescribed by Dr. Barnes.
Mr. Aultman, the only mental health professional who testified, opined that he did not feel that Ms. Harris was incapable of managing her two children nor did he believe that Ms. Harris would pose a danger to [CM] or [AH]. Mr. Aultman noted that prior to this divorce action, Ms. Harris had tried to stop drinking but could not sustain her alcohol abstinence. However, he believes Ms. Harris’ current efforts are sincere based upon his treatment of her and his experience with alcohol abusers. He also cited her continued AA attendance. |4Ms. Harris admits she is an alcohol abuser. She testified that she has been sober since November 16, 2008, and has been attending daily AA meetings from two-to-three times per day. Ms. Harris’ AA attendance was corroborated by two AA attendees and Ms. Harris’ sponsor. Ms. Joan Ellen Young, an addiction re[74]*74covery resource therapist, described Ms. Harris as a loving mother. Ms. Young testified that she babysits [AH] while Ms. Harris attends her AA meetings. Michael Harris, Ms. Harris’ first husband and the father of [AH], testified that he has no concerns about Ms. Harris’ sobriety when she has their minor son. According to Mr. Harris, [AH] has never voiced any concerns about his mother’s behavior. Mr. Molony testified that he separated from Ms. Harris because of her alcohol abuse. Mr. Molony believes that Ms. Harris loves their son; but, he is concerned that she may endanger [CM] by falling “off the wagon.” Mr. Molony described Ms. Harris’ past acts of drunkenness, including an incident where he videoed Ms. Harris on the floor next to bed with [CM] asleep next to her.3 Mr. Molony could not cite to any examples of child endangerment since Ms. Harris began her self imposed sobriety. Ms. Harris has had [CM] on two overnight visits every week since December 4, 2008, without incident.

On February 2, 2009, the trial court rendered judgment finding it was in CM’s best interest for him to “spend more time with his mother.” The trial court thus modified the physical custody schedule by ordering that Ms. Harris' be allowed to pick CM up from day care on Tuesdays and Wednesdays and to return him to day care the following day. He also ordered that she have visitation on alternating weekends. The order also provided that Ms. Harris continue attending daily AA meetings as well as continue her therapy with Mr. Aultman and Dr. Barnes.

In January 2010, Dr. Gandle issued her report and recommendation. In performing the custody evaluation, Dr. Gandle interviewed the parties (Mr. Molony and Ms. Harris), Dr. Barnes (Ms. Harris’ psychiatrist), Mr. Aultman (Ms. Harris’ therapist), Sarah Molony (Mr. Molony’s sister with whom he lives), UMarian Lebeau (Ms. Harris’ AA sponsor), Mr. Harris (Ms. Harris’ former husband), and two of CM’s day care teachers.

As part of the evaluation, Dr. Gandle’s assistant, Gina Manguno-Mire, Ph.D., administered psychological testing to both parties. As to Mr. Molony, the testing showed no mental health disorder. As to Ms.

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Bluebook (online)
60 So. 3d 70, 2010 La.App. 4 Cir. 1316, 2011 La. App. LEXIS 243, 2011 WL 976510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/molony-v-harris-lactapp-2011.