Neathery v. Neathery

216 So. 3d 251, 2017 WL 655487, 2017 La. App. LEXIS 235
CourtLouisiana Court of Appeal
DecidedFebruary 17, 2017
DocketNo. 51,388-CA
StatusPublished
Cited by3 cases

This text of 216 So. 3d 251 (Neathery v. Neathery) 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
Neathery v. Neathery, 216 So. 3d 251, 2017 WL 655487, 2017 La. App. LEXIS 235 (La. Ct. App. 2017).

Opinion

STONE, J.

h Tiffany F. Neathery (“Tiffany”), appeals a trial court judgment awarding her and Brian and Martha Aucoin (“the Au-coins”) joint custody of Tiffany’s minor daughter, B.N., and designating the Au-coins domiciliary parents. For the reasons stated herein, we affirm.

[252]*252FACTS

Timothy Neathery, Sr., (“Timothy”) and Tiffany are the legal parents of 12-year-old B.N.1 A child custody judgment was rendered on April 18, 2006, awarding Tiffany sole custody of B.N., and further denying Timothy any visitation rights. Despite the child custody judgment, B.N. resided with the Aucoins from her birth on November 25, 2004, until she was approximately 9 years old.2 The record indicates the Aucoins assumed the role of B.N.’s parents and were her primary caretakers.

Between the summer and fall of 2014, Martha informed B.N, that when she turned 12 years old, B.N. could decide if she wanted to live with Tiffany or the Aucoins. B.N. subsequently repeated this statement to Tiffany. Apparently, miffed with Martha’s statement, Tiffany insisted B.N. live with her exclusively, and eventually terminated all contact between B.N. and the Aucoins.

On February 2, 2015, the Aucoins filed a rule for custody requesting sole custody of B.N.3 To assist the trial court in a visitation determination, the trial court ordered the parties undergo a custody evaluation with licensed | ¡^professional counselor, Donna George (“George”) at the Wellspring Counseling & Family Development Center. The custody evaluation required Tiffany and the Aucoins to submit to psychological evaluations with Dr. Bobby Stephenson (“Dr. Stephenson”).

Upon consideration of George’s custody evaluation, a hearing officer recommended the Aucoins be granted sole custody of B.N. with Tiffany exercising physical eus-tody of B.N. on alternate weekends from 6:00pm Friday until 6:00pm Sunday and at any other times agreed upon by the parties. The trial court signed an interim order adopting the recommendation of the hearing officer.

The trial court issued a final judgment on the matter on August 26, 2016. The trial court granted the Aucoins and Tiffany joint custody of B.N. and designated the Aucoins domiciliary parents. Tiffany was given unsupervised visitation with B.N. every other weekend from the end of school on Friday until the start of school on Monday. Tiffany now appeals.

DISCUSSION

Tiffany alleges the trial court erred in finding substantial harm would result from her having sole custody of B.N. Tiffany argues the trial court did not properly apply La. C.C. art. 138 in determining B.N. should be removed from her and placed in the custody of nonparents.

Louisiana law requires that “the best interest of the child [be] the guiding principle in all child custody litigation.” Street v. May, 35,589 (La.App. 2d Cir. 12/05/01), 803 So.2d 312; Mills v. Wilkerson, 34,694 (La. App. 2d Cir. 03/26/01), 786 So.2d 69, 73; La. C.C. art. 131. Determining the best interest of a child is a fact-intensive inquiry requiring a court to balance the factors supporting or opposing an award of custody to the ^litigating parties based on the evidence presented. May, supra; Warlick v. Warlick, 27,389 (La.App. 2d Cir. 09/29/95), 661 So.2d 706. A court must [253]*253consider all relevant factors in determining the best interest of the child and is provided with guiding factors to assist in its consideration; however, the list is not exhaustive. La. C.C. art. 134. Turner v. Turner, 84-0557 (La. 1984), 455 So.2d 1374. Every child custody case is to be viewed on its own peculiar set of facts and the relationships involved, with the paramount goal of reaching a decision which is in the best interest of the child. Pender v. Pender, 38,649 (La.App. 2d Cir. 05/12/04), 890 So.2d 1.

Where an award of joint or 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 who is able to provide an adequate and stable environment for the child. La. C.C. art. 133.

Substantial harm under art. 133 includes parental unfitness, neglect, abuse, abandonment of rights, and is broad enough to include “any other circumstances, such as prolonged separation of the child from its natural parents, that would cause the child to suffer substantial harm.” Mills v. Wilkerson, supra; Hughes v. McKenzie, 20,322 (La. App. 2d Cir. 02/22/89), 539 So.2d 965.

In custody disputes between a parent and a nonparent, the parent enjoys the paramount right to custody and may be deprived of this right only for compelling reasons. Street v. May, supra; Mills v. Wilkerson, supra. At an initial custody contest between a parent and a nonparent, the burden of proof is on the nonparent to show that granting custody to the parent would be detrimental to the child, and that the best interest of the child requires an Laward of custody to the nonparent. La. C.C. art. 133, Comment (b); Martin v. Dupont, supra; Bracy v. Bracy, 32,841 (La.App. 2d Cir. 10/27/99), 743 So.2d 930; Tennessee v. Campbell, 28,823 (La.App. 2d Cir. 10/30/96), 682 So.2d 1274.

The trial court is in the best position to determine the best interest of the child, and findings of fact in custody disputes will not be set aside on appeal unless they are manifestly erroneous or clearly wrong. Street v. May, supra.

Testimony at trial revealed Tiffany is the mother of eight children, including B.N. Two of the children, a 4-year-old set of twins, reside with Tiffany part-time in a poorly conditioned mobile home and part-time with Tiffany’s mother. Tiffany’s 18-year-old daughter resides with her boyfriend part-time and with Tiffany part-time. The 18-year-old is a senior in high school but has previously had to repeat two grades. Tiffany’s four older children were primarily raised by someone other than Tiffany, and three have dropped out of school without receiving a diploma or GED. Those three children also have criminal arrest records.

When she was approximately 3 to 6 months old, B.N. began staying with the Aucoins from Tuesday to Saturday while Tiffany worked overnight. Tiffany did not provide the Aucoins with any assistance. The Aucoins provided B.N. with all her needs including food and clothing. The Au-coins also provided B.N. with her own room and maintained all her medical and dental appointments. Once B.N. started school, Tiffany gave the Aucoins authority to interact directly with the school on any matters concerning B.N.

The testimony further revealed B.N. suffers from a receptive learning disorder that affects her ability to read and comprehend. To aid with B.N.’s ^learning disorder, the Aucoins paid for B.N. to attend Sylvan Learning Center as well as speech and language therapy at the University of [254]*254Louisiana in Monroe (“ULM”). The Au-coins also involved B.N. in extracurricular activities, including travel softball. The Au-coins transported B.N. to all her practices and games.

B.N.’s school transcripts admitted into evidence revealed she was primarily an A and B student when she predominantly lived with the Aucoins and attended ULM. However, after Tiffany severed all ties between the Aucoins and B.N. B.N.’s grades severely declined to Ds and Fs.

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Bluebook (online)
216 So. 3d 251, 2017 WL 655487, 2017 La. App. LEXIS 235, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neathery-v-neathery-lactapp-2017.