Parker v. Parker

424 So. 2d 479
Louisiana Court of Appeal·Decided December 9, 1982·No. 82-CA-75, 82-CA-76·Published·Cited by 2 cases

Opinion

424 So.2d 479 (1982)

Fred Archie PARKER
v.
Deborah Slie, Wife of Fred Archie PARKER.
Deborah Slie, Wife of Fred Archie PARKER
v.
Fred Archie PARKER.

Nos. 82-CA-75, 82-CA-76.

Court of Appeal of Louisiana, Fifth Circuit.

December 9, 1982.
Writ Denied January 21, 1983.

Nelson J. Cantrelle, Jr. and Alan Gandolfi, Gretna, for plaintiff-appellee.

Wiley J. Beevers and Michael O'Farrell, Metairie, for defendant-appellant.

Before SAMUEL, KLIEBERT and GRISBAUM, JJ.

SAMUEL, Judge.

This matter (No. 82-CA-75) is a proceeding by Fred Archie Parker against his former wife, Deborah Slie, to effect a change of custody of their 7 year old son, James, *480 from the defendant mother to himself. The other matter (No. 82-CA-76), consolidated in the trial court, is an older suit for separation filed by the present defendant against the present plaintiff.

In May, 1982, plaintiff filed a verified petition seeking temporary custody and eventual permanent custody of the child on the basis that "irreparable psychological harm might come to the minor child when taken out of the state of Louisiana ..." The trial judge awarded plaintiff temporary custody by ex parte order (because he feared the child would be removed from his jurisdiction before a hearing could be held), and set the matter for hearing on May 28, 1982. The mother filed exceptions of lack of jurisdiction and improper venue, which the trial court referred to the merits. After a three-day hearing, there was judgment in favor of the plaintiff awarding him permanent custody of the child, thus impliedly overruling the exceptions. The defendant mother has appealed from that judgment.

On September 10, 1976, the Twenty-Fourth Judicial District Court for the Parish of Jefferson rendered a judgment of separation from bed and board between the parties. The judgment also provided that the mother constantly was to keep the father informed of the whereabouts of the child. By consent, custody of the child was given to the mother, with liberal visitation privileges in favor of his father.

The parties moved from Jefferson Parish, and on May 11, 1977, the Sixteenth Judicial District Court for the Parish of Iberia rendered a judgment of divorce between them. In the divorce judgment, custody of the child was granted to the father. On February 10, 1978, after a contested hearing, the same court changed custody from the father to the mother. This judgment awarded the father visitation privileges and also required that the mother keep the father informed of his son's whereabouts.

Subsequently, the mother moved several times to other places in Louisiana without informing the father of the child's whereabouts. In October, 1980, she took the child from Alexandria, Louisiana to live in Boulder, Colorado, but she did not inform the father of this move. The father attempted to visit the child in Alexandria, and there could only learn his former wife had taken the boy to an unknown Colorado location.

The mother's parents still live in Jefferson Parish, and the father attempted to locate his son by having their residence watched from time to time (plaintiff then lived and now lives in Raceland, Lafourche Parish, Louisiana) in the hope the child would be discovered on a visit to his grandparents. These efforts were fruitless until January, 1982, when he learned the child had been living with his maternal grandparents in Jefferson Parish since June, 1981 and had been attending school there since the beginning of the 1981 school year. The child had been in Colorado for approximately 8 or 9 months during which time he lived in two or more different places and attended two different schools.

Plaintiff began to visit his son on a fairly regular basis from January until May, 1982. In early May he learned the defendant was scheduled to come to Jefferson Parish to take possession of the child again. He was told she was going to the Bahamas either on vacation or to live, and he felt such a move would jeopardize his visitation privileges and might harm the child.

Prior to the end of the school year, he ascertained the boy had sufficient days in attendance in the Jefferson Parish school system so that an early removal from one school to another in another parish would not cause him to forfeit credit. At that time, plaintiff commenced this proceeding to obtain custody.

First addressing ourselves to the jurisdictional exception, we do not agree with defendant's contention that the district court had no jurisdiction. She argues she changed her domicile to Colorado, that pursuant to Louisiana law the domicile of a child is that of its custodial parent,[1] and *481 that under the Uniform Child Custody Jurisdiction Act (R.S. 13:1700, et seq.) a Louisiana court does not have jurisdiction.

The record is devoid of evidence showing, with sufficient certainty, that the defendant mother actually changed her domicile from Louisiana to Colorado. Although she testified she did move to Colorado with her son, she also stated that while there she moved on four different occasions within that state. The record contains none of the customary elements normally used to establish intent to live on a permanent basis in a parish other than Jefferson or in another state. Defendant did not show she was a Colorado voter, she did not produce a Colorado driver's license or Colorado tax returns, nor did she produce any evidence whatever to corroborate her testimony that she intended to live permanently in Colorado.

Even assuming, as both litigants suggest, that the determining law is our Uniform Child Custody Jurisdiction Act,[2] we hold the trial court had jurisdiction. The act contains the following provision (R.S. 13:1702) as to jurisdiction over custody matters:

"§ 1702. Jurisdiction
A. A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) This state (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child's home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; or
(2) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships; or
(3) The child is physically present in this state and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
(4)(i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with Paragraphs (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.
B.

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