|
|
|
Frequently ask Questions What do we do?
Expert Witness Witness Locate Cellular Records Financial Information Pre-Marital Screening Online Dating Louisiana Coverage Areas: Lafayette Alexandria Abbeville New Iberia Breaux Bridge St. Martinville Jennings Crowley Monroe Bossier City Thibodaux Houma Opelousas Morgan City Marksville Mississippi |
TRYING
A CHILD CUSTODY CASE. (a).
Burden of proof First,
identify the burden of proof applicable to your particular custody case.
If a parental custody dispute has never been heard by a court, the burden
of proof will only be the best interest test. If a court receives evidence of
parental fitness, any resulting judgment between parents will be considered
a "considered decree" and subsequent modifications require a heavy
burden of proof. A judgment that is reached by consent is a "stipulated judgment"
and subsequent modifications still require a material change
in circumstances. See Evans
v. Lungrin,
708 So.2d 731 (La. 1998). One
of the most significant Louisiana custody cases is Bergeron v. Bergeron,
492 So. 2d 1193 (La. 1986). Bergeron involved a modification of a
prior custody decree. Therein, the Supreme Court defined the burden of proof
necessary to modify a considered custody decree (see endnote 9), as follows: When
a trial court has made a considered decree of permanent custody,
the party seeking a change bears a heavy burden of proving
that the continuation of the present custody is so deleterious to
the child as to justify modification of the custody decree, or
of proving by clear and convincing evidence that the harm likely to
be caused by a change in environment is substantially outweighed by
its advantages to the child. Bergeron,
like its precursor, Turner
v. Turner, 455
So. 2d 1374 (La. 1984),
was concerned with the repeated appearances in court and changes of
custody sought by parents. The court clearly felt that the constant fighting between
the parties, the repeated charges and recriminations back and forth,
including attacks on the parents and their morals, and numerous hearings,
were destructive not only to the parties, but to the children -thus, the
jurisprudential need for the higher burdens of proof. Several
courts have applied Bergeron
to
modifications of considered decrees
in custody disputes between parents and non-parents. See e.g., Bragg
v. Horne, 764
So.2d 1177 (La. App. 2nd Cir. 2000); Noe
v. Noe, 640 So.2d
537 (La. App. 3rd Cir. 1994); Miller
v. Andrasko,
640 So.2d 368 (La. App.
1st Cir. 1994) (see endnote 10). Note, however, that Bergeron may be inapplicable
to non-parent motions to divest or substantially modify parental
custody. In Robert
v. Gaudet, 691
So.2d 780 (La. App. 1st Cir. 1997),
the court held that the non-parent must still prove that parental custody
will result in substantial harm to the child. See also Matter of Landrum,
704 So.2d 872 (La. App. 3rd Cir. 1997). Failure
to plead a change of circumstances subjects the pleading to a no
cause of action exception. Menge
v. Menge, 545
So. 2d 674 (La. App. 5th Cir.
1989). For examples of what constitutes a change in circumstances, see Long
v. Dossett, 732 So. 2d 773 (La. App. 3d Cir. 1999); Kyle v. Leeth, 727 So.
2d 497 (La. App. 1st Cir. 1998). Bergeron
is used
synonymously by courts and practitioners alike for the heavy
burden of proof stated above. However, in the author's opinion, Bergeron
stands for
more than that and Lungrin
somewhat
clarifies the jurisprudential
import of Bergeron.
It is this author's view that the different burdens
of proof in child custody matters are as follows: (a).
Initial Custody The
initial setting of child custody depends first on what the relationship of
the litigating parties are:- –
parents -joint custody required unless clear and convincing evidence to
the contrary or best interests of child(ren) or family violence history
require otherwise; –
non-parent(s) against parent(s)- substantial harm standard for the
divestiture of parental custody). The court then has to address
the best interest of the child(ren). (b).
Custody Modification A
modification of a child custody decree on the other hand, depends
on the type of decree in place i.e.- consent or considered? A consent
decree requires proof that there has been a material change in circumstances
since the prior decree before
the best
interest of the child(ren)
is addressed. A considered decree requires proof that the existing
custody arrangement is "so deleterious to the child(ren) as to justify
a modification" or clear and convincing proof that the "harm likely
to be caused by the change in environment is substantially outweighed by
its advantages to the child". The latter "clear and convinc- ing"
standard is not frequently found in case law as it appears to be more
difficult to overcome. See Sheppard
v. Hood, 605
So.2d 798 (La. App.
2 Cir 1992). The 4th Circuit has held that a consent judgment entered
after 3 days of trial testimony is a "considered" decree which required
the Bergeron burden of proof for modification. Cherry v. Cherry,
2004-0002 (La. App. 4 Cir. 2/2/2005). In
a parent's action to modify a non-considered decree awarding custody
to a non-parent, the non-parent must show that parental custody
would result in substantial harm to the child. Bracy v. Bracy, 743
So.2d 930 (La. App. 2nd Cir. 1999); but see Miller
v. Andrasko,
640 So.2d
368 (La. App. 1st Cir. 1994) (change of circumstances rule applies
to uncontested awards to non-parents). In
light of the above, a developing trend stemming from the Bergeron
and Lungrins jurisprudential
rule for the different burdens of proof
is whether parties can stipulate to their own evidentiary standard for
future modification of custody? The First Circuit in Perkins v. Perkins,
747 So. 2d 785 (La.App. 1 Cir. 1999) and the Third Circuit in Hensgens
v. Hensgens,
653 So. 2d 48,49 (La.App. 3 Cir. 1995), do not allow
it in light of the jurisprudential rationale that repeated custody litigation
is harmful to minor children. On the other hand, the Fifth Circuit
in Ponze
v. Ponze, 614
So. 2d 720 (La.App. 5 Cir. 1993) writ denied,
617 So.2d 941 (La. 1993), allowed it. Caveat.
The issue went up to the Supreme Court in Bergeron
v. Clark,
836 So. 2d 54 (La. 2003) as a "side issue" but was not addressed.
|
|
|
|
