Street v. May

803 So. 2d 312, 2001 WL 1542415
CourtLouisiana Court of Appeal
DecidedDecember 5, 2001
Docket35,589-CA
StatusPublished
Cited by23 cases

This text of 803 So. 2d 312 (Street v. May) 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
Street v. May, 803 So. 2d 312, 2001 WL 1542415 (La. Ct. App. 2001).

Opinion

803 So.2d 312 (2001)

James Edward STREET and Terry Elaine Street, Plaintiffs-Appellants,
v.
Kathy Lynn MAY and Charles Darren DeCelle, Defendants-Appellees.

No. 35,589-CA.

Court of Appeal of Louisiana, Second Circuit.

December 5, 2001.

*313 Robert Presnell McLeod, Jr., Linda Kay Ewbank, Monroe, Counsel for Appellants.

David Carlton McMillin, Monroe, Counsel for Appellee, Beryl Lynn May.

Holly Angelene Chambers, Monroe, Counsel for Appellee, Kathy Lynn May DeCelle.

Lavalle B. Salomon, Monroe, Counsel for Appellee Charles Darren DeCelle.

Before WILLIAMS, CARAWAY and PEATROSS, JJ.

CARAWAY, Judge.

In this child custody case, the trial court determined that the child's mother and his putative father posed a risk of substantial harm to the child, and awarded custody jointly to the child's maternal and paternal grandparents, who now appeal. Finding *314 no error in the trial court's ruling for joint custody, we affirm the decision but amend the judgment regarding the visitation rights of the mother.

Facts

James Street and Terry Street ("James" and "Terry" or "the Streets") are the grandparents[1] of five-year-old Elijah May ("Elijah") and live in Shreveport. Beryl Lynn May ("Lynn") is Elijah's maternal grandmother and lives in West Monroe. When Elijah was born, Terry's son, Charles Darren DeCelle ("Darren"), lived with Elijah's mother, Kathy May DeCelle ("Kathy"), and the Streets and Darren believed that Darren was Elijah's father.

In November, 1996, James and Terry filed a petition for custody of Elijah alleging that Darren and Kathy were unable to provide for Elijah's physical and emotional needs. Kathy and Darren got married in December, 1996. Subsequently, the parties stipulated that custody was no longer an issue, and James and Terry instead sought overnight visitation with Elijah. A consent judgment awarding James and Terry visitation with Elijah for two days per month was signed shortly after Elijah's second birthday on August 31, 1998.

On June 19, 2000, James and Terry filed their second rule for Elijah's custody against Darren and Kathy, alleging that both parents were unfit due to their alcohol and drug abuse problems. The petition further alleged that Darren and Kathy had physically separated in December, 1998, and that Kathy was presently living with another woman, Susan Savage. At James and Terry's urging, and with their financial support, Kathy and Elijah had lived in Shreveport from June through December, 1999, but then returned to West Monroe. James and Terry again sought primary domiciliary custody of Elijah.

Kathy answered the petition alleging that Darren was not Elijah's biological father and that no grandparent relationship existed between the Streets and Elijah. Lynn intervened in the proceeding on July 14, 2000, alleging that she had been Elijah's primary caregiver virtually since he was born, as well as the primary caregiver for Kathy's older son, Kristian, then age 7 (Elijah's half-brother). She sought Elijah's primary custody subject to reasonable visitation for his parents and the Streets. A series of interim orders indicate that Elijah lived in Shreveport with the Streets from the time they filed the second rule for custody, apparently until the trial was concluded in February, 2001.

Following her mother's intervention in this action, on September 21, 2000, Kathy filed a stipulation that "she will not pursue any further efforts to retain custody of Elijah as his natural mother ... and [that she] declares that it is in the best interest of Elijah that her mother, Beryl Lynn May, be named the primary domiciliary custodian of Elijah."

The trial was conducted over eight days in late 2000 and early 2001. The trial court's written reasons were signed February 21, 2001, and incorporated into the judgment dated April 17, 2001. The trial court awarded joint custody of Elijah to the Streets and Lynn pursuant to a Joint Custody Plan of Implementation, which terms were incorporated into the judgment. Lynn was to exercise physical custody over Elijah during the school year and the Streets would exercise their physical custody primarily during the summer with other periods of visitation throughout *315 the year.[2] The trial court further found that any award of custody in favor of Elijah's putative father, Darren, or Elijah's mother, Kathy, would result in substantial harm. Finally, the judgment provided that in the event Kathy resumed living in Ouachita Parish at any time prior to May 31, 2003, the periods of physical custody established in the Joint Custody Plan of Implementation "shall reverse ... without the necessity of a judicial hearing or a transfer of a joint custody order." It is from this judgment that the parties appeal.

Applicable Law

The best interest of the child is the guiding principle in all child custody litigation. La. C.C. arts. 131, 134; Mills v. Wilkerson, 34,694 (La.App. 2d Cir.3/26/01), 785 So.2d 69. In 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. Mills v. Wilkerson, supra; Martin v. Dupont, 32,490 (La.App. 2d Cir.12/8/99), 748 So.2d 574; 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.

Custody awards to nonparents are governed by La. C.C. art. 133. In Re: Tutorship of M.A.H., 33,717 (La.App.2d Cir.8/23/00), 765 So. 2d 1181. La. C.C. art. 133 provides as follows:

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.

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 award of custody to the nonparent. La. C.C. art. 133, Comment (b); Mills v. Wilkerson, supra; Martin v. Dupont, supra; Bracy, supra; Tennessee v. Campbell, supra.

Regarding the visitation rights of grand-parents, La. C.C. art. 136 provides that "[u]nder extraordinary circumstances, a relative, by blood or affinity, or a former stepparent or stepgrandparent, not granted custody of the child may be granted reasonable visitation rights if the court finds that it is in the best interest of the child."

The best interest of the child test under Civil Code articles 131 and 134 is a fact-intensive inquiry requiring the weighing and balancing of factors favoring or opposing custody in the competing parties on the basis of the evidence presented in each case. Warlick v. Warlick, 27,389 (La.App. 2d Cir.9/29/95), 661 So.2d 706. Each child custody case must be viewed within its own peculiar set of facts. Galjour v. Harris, 00-2696 (La.App. 1st Cir.3/28/01), 795 So.2d 350, writs denied, 01-1238, 01-1273 (La.6/1/01), 793 So. 2d 1229, 1230, cert. denied, ___ U.S. ___, 122 S.Ct. 545, 151 L.Ed.2d 422. The trial *316 court is in the best position to ascertain the best interest of the child given each unique set of circumstances. Id.

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Bluebook (online)
803 So. 2d 312, 2001 WL 1542415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/street-v-may-lactapp-2001.