The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
11-166
BRADLEY GRIFFITH
VERSUS
RESA LATIOLAIS
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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT,
PARISH OF LAFAYETTE, NO. C-20055193, DIV. H3
HONORABLE DAVID A. BLANCHET, DISTRICT JUDGE
**********
J. DAVID PAINTER
JUDGE
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Court composed of Sylvia R. Cooks, J. David Painter, and James T. Genovese,
Judges.
AFFIRMED.
Bradford H. Felder
G. Andrew Veazey
Huval, Veazey, Felder, & Renegar, L.L.C.
2 Flagg Place
Lafayette, LA 70508
Counsel for Defendant/Appellant:
Resa Latiolais
Julie Vaughn Felder
Julie Koren Vaughn Felder, APLC
P.O. Box 80399
Lafayette, LA 70598
Counsel for Defendant/Appellant:
Resa Latiolais
D. Reardon Stanford
Hoyt & Stanford, L.L.C.
315 S. College Road, Ste. 165
Lafayette, LA 70503
Counsel for Plaintiff/Appellee:
Bradley Griffith
PAINTER, Judge.
The Louisiana Supreme Court remanded this case to the trial court for
reconsideration of its joint custody implementation plan in light of the supreme
court’s designation of the mother as domiciliary parent and for amendment if the trial
court found it to be appropriate. Following the trial court’s modification of the joint
custody implementation plan on remand, the mother appealed. For the following
reasons, we affirm the trial court’s ruling.
FACTUAL AND PROCEDURAL BACKGROUND
The factual and procedural background of this case is well known to this court
and was set forth by the Louisiana Supreme Court in Griffith v. Latiolais, 10-754, pp.
1-13 (La. 10/10/10), 48 So.3d 1058, 1060-67 (footnotes omitted), as follows:
In this highly acrimonious custody battle, Bradley Griffith
(“Brad”) filed suit in October, 2005 against Resa Latiolais (“Resa”), the
mother of his son, Cole Griffith (“Cole”), seeking sole custody of Cole.
Cole was born on November 19, 2001 and lived with Resa from that
time until the commencement of this litigation. Brad and Resa were not
married. Brad visited Cole freely at Resa’s home during this time, but
Resa was his sole caretaker. Resa also has a daughter from a prior
marriage, Lana Latiolais, who was 16 at the commencement of the
litigation.
In September of 2005, Resa, Cole, Lana, and Greg Chappell,
Resa’s new boyfriend, evacuated together to escape Hurricane Rita.
When they returned, Brad picked up Cole, who evidently told Brad that
he, Resa, and Greg slept in the same bed during the evacuation and that
Greg was hurting Resa. From this Brad inferred that Resa and Greg had
sexual relations in Cole’s presence. On October 5, 2005, Brad filed a
petition seeking sole custody of Cole, alleging Resa had “lately not
made choices which are in the child’s best interest and has been hurtful
to the child.” Resa answered the petition denying the allegations.
Further, she sought joint custody and to be named the domiciliary
parent.
Later in October of 2005, Lana left her mother’s home and went
to the home of a friend where she reported that she had previously been
struck in the mouth by her mother and that on October 26, 2006, her
mother struck her in the back. She also reported that her mother had
whipped Cole with a wooden spoon as a means of discipline. Lana
subsequently recanted these allegations and the Office of Child Services
investigated these claims and found no child abuse had occurred.
Although Brad filed no subsequent pleadings asserting any other
grounds for sole custody, he later asserted that his reasons were that
Resa had sexual relations with Greg in Cole’s presence during the
evacuation, that Resa and her father spanked Cole during Cole’s third
birthday party, and that Resa was abusive to Cole and Lana.
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On November 28, 2005, the trial court signed an “Order for
Mental Health Evaluation” appointing Dr. Lyle LeCorgne, Ph.D., to
perform a custody evaluation of the parents and Cole, as well as Lana,
Greg Chapell, and Cindy Hebert, the mother of Brad’s 15-year-old
daughter, Paige. Dr. LeCorgne issued a written report containing his
findings and recommendations on April 27, 2006, in which he made the
following recommendations:
1. On the basis of the present assessments, it is the opinion
of this examiner that the best interests of Cole Griffith are
served by Brad Griffith being declared the domiciliary
parent and Cole living primarily with his father. Resa
Latiolais shall be granted reasonable visitation consisting
of alternating weekends, with a condition of supervision,
and no overnight visits until such time that Resa Latiolais
has engaged in individual psychotherapy with a qualified
mental health professional. Upon the recommendation of
that qualified mental health professional the condition of
supervision is subject to be removed and the visitation
gradually increased to include alternating weekends from
Thursday through Monday mornings. It is also
recommended that Cole Griffith and Lana Latiolais be
referred for individual psychotherapy to assist each of them
in reconciling their respective emotional distress.
2. Once the condition of supervision has been removed,
summer visitation shall be divided equally between the
parents, with Cole spending alternating weeks with each
parent. Major holidays and vacations during the school
year shall be alternated and evenly distributed according to
a schedule that is mutually agreeable to the parties.
3. All of the parties in this matter shall facilitate,
encourage, and support the child’s natural loyalty to the
other parent. No adult in this matter shall make any
critical, denigrating, or derogatory comments about any of
the other adults to Cole or in his presence.
4. Each of the parties shall enroll in and complete the
Children Cope with Divorce classes sponsored by the
Family Tree Parenting Center in Lafayette, Louisiana, if
they have not already done so.
5. Each of the parties shall enroll in and complete the
Cooperative parenting classes sponsored by the Family
Tree Parenting Center in Lafayette, Louisiana, if they have
not already done so. Resa Latiolais shall also enroll in and
complete a course in anger management in a program
deemed acceptable to the Court.
On May 1, 2006, the trial court appointed Dr. Kenneth Bouillion
to counsel the minor child, and ordered that Resa undergo individual
counseling, which she began with Margot Hasha, LCSW, BCD. The trial
court also ordered that Resa’s custodial periods be supervised until Dr.
LeCorgne was satisfied that she had progressed sufficiently in individual
therapy to lift the supervision. The parties stipulated that Brad would
participate in a psychological evaluation to be performed on the parties
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and the minor child by a mental health professions [sic] of Resa’s
choosing. This evaluation was performed by Drs. Owen Scott, Ph.D.
and Mary Lou Kelley, Ph.D. Drs. Scott and Kelley issued a report on
August 17, 2006, recommending the following:
1. That Cole alternate weeks between his mother and his
father’s homes from Friday to Friday. Also, we
recommend that he spend four hours to one day during the
week with the alternate parent and split or alternate
holidays with each parent.
2. That Ms. Latiolais be the domiciliary parent and
decision maker regarding schooling and medical concerns.
She has a long history of being the primary caretaker who
made these decisions and her therapist views her as a
competent parent. However, Ms. Latiolais and Mr. Griffith
should discuss and attempt to reach a decision in all
significant matters involving Cole.
3. That Cole continue to attend Ms. Shannon’s preschool
given his positive adjustment to the environment. Also,
that Cole attend the preschool every regular school day
irrespective of the parent with whom he resides.
4. That Cole’s parents meet monthly with Dr. Bouillion,
Cole’s therapist[,] to discuss parenting issues.
5. That Cole’s parents refrain from saying negative things
about one another. In particular, we recommend that Mr.
Griffith stop perpetuating accusations of Ms. Latiolais as
a “batterer” or abuser. All concerns should be discussed
with Ms. Latiolais present in meetings with Dr. Bouillion.
At trial, the above experts testified regarding their findings and
recommendations, as did numerous fact witnesses attesting to various
faults, misdeeds, and attributes of the parties. As for the experts, Dr.
LeCorgne testified consistent with his report that Brad should be named
the domiciliary parent with the goal being shared custody, while Drs.
Kelley and Scott testified that Resa should be the domiciliary parent.
Dr. Scott explained their reasoning for this as follows:
Well, we felt like that because of Brad’s lack of
belief in her, that it was going to be difficult for them to
work together, and that his attitude towards her was more
negative than her attitude towards him. And we felt like
she would be better able to factor in Brad being involved
as a father than he would be able to factor in Resa being
involved as a mother. We felt like she would be more
likely to make decisions that would be balanced in that
regard that would not try to exclude him.
Dr. LeCorgne testified he lifted the condition of supervised
visitation in August of 2006. Dr. Bouillion testified as to the progress
made by the parents, and testified while he thought Dr. LeCorgne’s
recommendation was reasonable, he was not going to make a
recommendation about custody because he was Cole’s therapist. He
gave his opinion that both parents needed to continue co-parenting
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classes, that both were making good progress, and that both needed to
continue to see him until the conflicts were resolved. Margot Hasha
testified that on May 10, 2006, she wrote a letter to Dr. LeCorgne
recommending that Resa be allowed unsupervised visitation based on
the progress she was making in individual therapy. She testified that
while Resa admitted to her that she hit Cole with a wooden spoon and
had “struck Lana,” she did not think Resa had an anger problem or was
abusive to her children. Hasha testified that Resa had complied with
everything the court had ordered, including 6 weeks of co-parenting
classes, and 8 weeks of anger management classes, and that she had no
concerns about her ability to be a safe and effective parent. She
recommended that Resa continue to see her once a month and that she
continue co-parenting with Dr. Bouillion.
The trial court described its findings about Brad’s behavior as
follows:
The Court finds that the reason Brad instituted this
instant action is because he was upset over the relationship
between Resa and Mr. Chappell. Brad clearly desired to
control Resa and her relationship with Mr. Chappell.
Throughout this twelve (12) day trial, the Court observed
Mr. Griffith to be calm and collected, never becoming
angry or upset. The testimony of Lafayette Parish Sheriff's
Deputy Ronald Robicheaux was very telling. On October
28, 2005, Deputy Robicheaux received a “keep the peace”
call to supervise an exchange of Cole between Resa and
Brad. In his testimony, Deputy Robichaux indicated that
Brad was “pretty irate” because Resa had another man with
her. He described Brad as screaming, hollering, and
aggressive, though not in a physical way, as well as being
upset and irrational. Although Brad claimed that this was
because Mr. Chappell was videotaping the exchange,
Deputy Robichaux testified that he never saw a camera in
Mr. Chappell’s possession.
....
While the Court finds the parties are fairly even on
the remaining factors, they have both fallen woefully short
in encouraging a close and continuing relationship between
the minor child and the other parent. Though Brad has
claimed to want a good working relationship with Resa,
and even paid for co-parenting therapy, he has engaged in
an intentional pattern of conduct designed to place her
under severe stress and destabilize her life. Also, Brad has
appeared to follow this Court’s suggestions throughout this
litigation while surreptitiously setting his own agenda.
Further, Brad has shown a propensity to manipulate people,
especially females, to fulfill his agenda of winning custody,
while at the same time crushing Resa psychologically,
financially, and criminally.
At the conclusion of a hearing in this matter on
January 19, 2006, this Court strongly suggested to Brad
that he distance himself from Jan Huffman, and her
daughter, Jessica Harbin. Both of these women had overly
4
involved themselves in this situation by encouraging Lana
to turn against her mother [in reporting abuse by Resa] and
supporting Brad’s quest for sole custody. The Court
stated:
I really think you need to be careful about Ms.
Huffman. Make it very clear to her that she
needs to, please, stay out of your business;
you will stay our of hers.
In discussing Ms. Huffman and her daughter, the Court stated:
I don’t know if they are troublemakers, or she
saw something that she thought she saw, or
what the deal is. But again, I don’t think I
would put a lot of stock in what Ms. Huffman
and her daughter had to say about the
situation from here on out, Mr. Griffith. You
need to set some boundaries with them.
There is a little too much going on with them.
After reviewing the massive numbers of telephone
communications and hours of telephone calls between Brad
and Jan Huffman, and Brad and Jessica Harbin, as well as
the timing of these calls, the Court has no doubt that Brad
not only ignored this Court’s strong suggestion, but
actually used these women to attempt to get Resa in
criminal trouble and cause her stress and anxiety as a tactic
to win custody of Cole. Brad’s testimony that these many
hours of phone calls were to discuss politics in St. Landry
Parish and matters other than this custody litigation is
simply not credible. Jan Huffman and Jessica Harbin have
harassed Resa with false criminal charges of stalking and
a false allegation that Resa tried to run Jessica Harbin over
with her van. These complaints resulted in police officers
being dispatched to Resa’s home while Cole was in her
care. Also, the Court finds by a preponderance of the
evidence that Brad encouraged Jan Huffman and Jessica
Harbin to stalk Resa, and encouraged Jessica Harbin to
make harassing telephone calls to her for which Ms. Harbin
was criminally charged.
....
Also, this Court made it clear to both parties, after
consulting with Dr. LeCorgne and Dr. Bouillion that the
child should remain at Learning Express Daycare and
should attend three (3) days per week instead of two (2)
days per week. Again, Brad ignored this Court’s directive
and sabotaged the situation by involving a private
investigator, Robert Williamson, who appeared at the
daycare with him on several occasions and who made
inquiries concerning the owners of the daycare to Karl
Breaux at Breaux’s Minute Mart. This resulted in the child
being dismissed from the daycare center by the owners,
Bernadette and Dale Roberts. At the recommendation of
Dr. Bouillion, the child was then placed in Ms. Shannon’s
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Daycare and did very well there. Though the change in
daycares may have actually benefitted the child, this does
not excuse Brad’s behavior in ignoring both the
recommendations of Dr. LeCorgne and Dr. Bouillion, as
well as the directive of the Court, in order to carry out his
own agenda believing the Roberts were somehow
favorable to Resa. Yet another adjustment Cole had to
endure.
The Court is also concerned about Brad’s efforts to
turn Lana against her mother in the course of this litigation.
Again, he used the help of his cohorts, Jan Huffman and
Jessica Harbin, to accomplish his mission. The Court finds
it wholly inappropriate to have involved Lana Latiolais in
this custody dispute by attempting to drive a wedge
between her and her mother. The Court views this
behavior as further evidence of Brad’s pattern of
manipulating women.
The Court also notes that Brad attempted to pressure
Juvenile Officer Alex Montgomery, III, to make a finding
of child abuse against Resa. The Court finds that Brad
went so far as to have then State Senator Donald Cravins
contact Officer Montgomery in an effort to obtain the
result he wanted--a finding that Resa had physically abused
Lana and Cole.
Though Brad was initially invited to join First
Baptist Church by Mike Plasek, the Court finds that Brad
was well aware that Resa had already been attending that
church. However, he chose to become a member, in part,
to garner favor with this Court and to sully Resa's
reputation. Once he joined the church, Brad set about to
ingratiate himself with the pastor, Perry Sanders, by
personally handing him donations comprised of cash and
checks. Also, Brad wore a yellow bracelet to church which
he explained to church members was a demonstration of
support for victims of child abuse, which included Cole at
the hands of Resa. Brad chose to sit in close proximity to
Resa in the church sanctuary to place pressure on her
during the church services, eventually resulting [in] her
leaving the church and joining another local Baptist
church. The Court also finds the statement made by the
mother of Brad’s other child, Cindy Hebert, in a telephone
conversation with attorney Julie Vaughn Felder which
occurred on August 15, 2006 to be credible. In that
conversation, Ms. Hebert indicated that the reason Brad
became involved with First Baptist Church and Reverend
Perry Sanders was he believed that this Court would be
“crazy” to go against a minister of a church of 10,000
people in this community.
....
The Court also finds that the incident that occurred
between Resa and Cindy Hebert at Opelousas General
Hospital on November 30, 2005, was orchestrated by Brad.
6
It is clear from the cell phone records that Brad spoke to
Officer Roylis Brent Gallow of the Opelousas Police
Department prior to appearing at the hospital. Brad
admitted knowing Officer Gallow previously, though he
denied speaking to him that day. Again, the Court finds
that Brad’s testimony in this regard, as well as the
testimony of Officer Gallow, is not credible. That morning
Brad was bringing the minor child to Opelousas General
Hospital for some lab tests associated with a urinary tract
infection and was to meet Resa at the hospital. Because of
their past acrimony, the Court believes Brad was confident
that if he brought Cindy Hebert with him, that Resa would
become upset and lose control. Further, he wanted to
document Resa’s conduct by having Officer Gallow
present as a witness. Again, this was a manipulation by
Brad to bait Resa into acting inappropriately in a public
place and to document her actions. Sadly, Resa predictably
took the bait and actually battered Cindy Hebert in the
process by shoving her with her elbows as Resa held Cole
in her arms. Again, all of this occurred in the presence of
the minor child, and was yet another traumatic experience
for him involving parental conflict and police officers.
After considering the experts’ testimony, the testimony relating
Brad’s behavior during the proceedings, and other testimony, the trial
court finally rendered a final judgment granting Resa and Brad joint
custody of Cole, with neither parent designated as the domiciliary
parent. Custody was evenly shared and detailed in a document attached
to the judgment. Brad and Resa were ordered to continue co-parenting
sessions with Dr. Bouillion, and Greg Chappell was ordered to join
them, and they were ordered to follow his recommendations with regard
to co-parenting Cole. Brad was ordered to begin counseling with Dr.
Lynn Aurich, Ph.D. and Resa was ordered to continue counseling with
Margot Hasha. It was further ordered that neither party engage in any
form of corporal punishment of Cole. In its Reasons for Judgment, the
trial court explained that, in spite of Brad’s behavior, it was awarding
the parties joint custody with no domiciliary parent because it was also
concerned with some of Resa’s issues. Namely, the trial court found
Resa has a “problem with dependency on men,” and that, she committed
food stamp and medical benefit fraud in an attempt to become
financially independent from Brad. Further, the trial court found that
while Resa was pursuing her education, she did this “at the expense of
her children” and “her ability to manage and care for the children was
severely diminished, resulting in inappropriate discipline.” The trial
court also found that while Resa’s use of a wooden spoon to discipline
Cole “did not rise to the level of child abuse, ... [it] constitute[s]
excessive and inappropriate discipline.” The trial court found fault with
her relationship with Greg Chappell and her approach to counseling.
However, the court found both parties had made a lot of progress with
the help of Dr. Bouillion, there was less conflict between them, and Cole
was progressing very well. The court found “good cause exists not to
name a domiciliary parent” as “[b]oth parents have deficiencies, and
while they have shown improvement, there is still work to be done.”
Although suit was filed in October 2005, the trial court did not
issue its final judgment until October 9, 2008. This three year delay was
caused by six preliminary hearings which delayed the trial on the merits
7
until August 21, 2006, thirteen days of testimony spanning from August
21, 2006 to January 28, 2008, two months of having the case under
advisement, and five more months for the trial court to execute a
judgment incorporating its reasons for judgment into the final judgment.
The court of appeal reversed, and awarded Resa sole custody of
Cole, even though she never asked for sole custody in her pleadings.
Griffith v. Latiolais, 09-0824 (La.App. 3 Cir. 3/3/10), 32 So.3d 380.
The court of appeal faulted the trial court for looking beyond Brad’s
allegations for seeking custody, i.e., that Resa had engaged in sexual
relations with Greg Chappell in Cole’s presence during the evacuation
and that Resa had physically abused Cole, both of which the trial court
found were not proven. When those allegations are set aside, the court
of appeal found the balancing factors found in La. C.C. art. 134 clearly
fell in Resa’s favor. Griffith, 32 So.3d at 389. Further, the court of
appeal found subsequent events during the course of the trial
“improperly expanded the issues and impacted the ultimate result.” Id.
at 390. The court of appeal then summarized the trial court’s lengthy
analysis of Brad’s bad behavior and scant findings of any bad behavior
on the part of Resa. Id. at 390-92. Accordingly, the court of appeal
found no manifest error in the trial court’s factual findings, but found
error in its “equal balancing of Resa’s actions against Bradley’s
transgressions.” Id. at 392. Particularly, the court of appeal stated:
In summary, the trial court found factually that
Bradley is devious, manipulative, and retaliatory, and that
these base characteristics particularly come to the surface
in his dealings with women; that he had little or no
involvement in Cole’s life prior to filing this suit; that not
only was the initial suit without merit, but Bradley’s
motivation for filing suit was not Cole’s best interest, but
jealously [sic]; and that Bradley was engaged in a
continuing campaign to discredit Resa and influence the
trial court decision without regard to the dishonesty of his
tactics or the falsity of his assertions. On the other hand,
the trial court found that Resa bore the singular
responsibility for raising Cole from his birth until after this
litigation began; that during that time, she allowed and
encouraged Bradley’s involvement in Cole’s life; that she
began an attempt to better educate herself to become more
independent of her manipulative former lover and to better
care for her son; and that her retaliatory actions between
the filing of suit and judgment were directly in response to
Bradley’s antics.
Id. at 393-94. The court of appeal found that the trial court erred
in awarding Brad an “equal-sharing custody arrangement-a judgment
that is inconsistent when compared to the factual findings.” Id. at 394.
The court of appeal found that the evidence was clear and
convincing that sole custody be awarded to Resa and faulted the trial
court for using Dr. Bouillion to regulate Brad’s behavior and
substituting resolution of the parents’ problems for Cole’s best interest.
Id. at 396, 398. The court of appeal found that although Resa did not
ask for sole custody in her initial pleading, “the ‘best interest’
requirement of La. Civ.Code art. 132 mandated an award of sole
custody.” Id. at 394, n. 18. Finally, the court of appeal found the trial
8
court erred in “mandat[ing] that the parties delegate their right to make
parental decisions to mental health care professionals on a continuing
basis.” Id. at 397. It found this to be error because the statutes limit the
involvement of expert testimony to assisting the trial of fact as allowed
by La. C.E. art. 702 and continued professional involvement is only
allowed by La. R.S. 9:358.1 whereby a parenting coordinator may be
appointed to assist the parties in resolving disputes but only “if the court
has previously entered a judgment establishing child custody, other than
an ex parte order.” Id. at 397-98. The court noted that the comments
to La. R.S. 9:358.1 indicate the “purpose of this limitation is to prevent
the court from using the parenting coordinator process as a means of
abdicating its responsibility to make the initial custody determination,”
which it found the trial court had done in this case. Id. at 398. Further,
the court of appeal reversed the portion of the judgment prohibiting
corporal punishment and assessed all costs against Brad. Id. at 398-99.
Finally, Brad was granted visitation as follows: the first and third
weekends of each month from 6:00 p.m. on Friday until 8:00 p.m. on
Sunday of each weekend; equally shared holiday visitation as provided
by the trial court; and three weeks summer visitation beginning at 6:00
p.m. on the first Friday of July and ending at 6:00 p.m. on the third
Sunday of July. Id. at 399-400.
The Louisiana Supreme Court “granted Brad’s writ application to determine
whether the court of appeal erred in granting Resa sole custody of Cole, especially
where she did not ask for sole custody in her pleadings.” Id. at 1067. Ultimately, the
supreme court reversed this court’s award of sole custody to Resa and found that the
trial court’s grant of joint custody was not manifestly erroneous. Further, the supreme
court designated Resa as the domiciliary parent. The supreme court upheld both this
court’s reversal of the trial court’s order that “neither party shall engage in any form
of corporeal punishment of the minor whatsoever” and the assessment of one hundred
percent of the court costs to Brad. Brad filed a motion for clarification of the supreme
court’s ruling, which was granted. In the order granting the motion for clarification,
the supreme court stated that this “case is remanded to the trial court to reconsider its
joint custody implementation plan in light of this Court’s designation of Resa
Latiolais as the domiciliary parent and to amend the plan if it deems appropriate.”
Griffith v. Latiolais, 10-754, (La. 11/17/10), 54 So.2d 1092, 1093.
On remand, the trial court reconsidered its previous joint custody
implementation plan and changed it to provide that Resa would be named domiciliary
parent, deleted a provision that read “Neither parent may change the current health
care providers without the agreement of both parties or further orders of this Court,”
9
changed a provision regarding the procedure should Brad disagree with medical and
dental care for Cole that was of a non-emergency nature, and deleted a provision that
provided for Cole’s attendance at Ascension Day School “unless another school is
mutually agreed upon by the parties.”
Resa now appeals. She argues that the trial court abused its discretion in
reinstating its original award of shared custody between her and Brad on a fifty-fifty
basis rather than a schedule of visitation with Cole spending time primarily with her,
and with Brad having alternating weekends, one day in the off week, and alternating
holiday periods. She also argues that the trial court included several provisions in the
joint custody plan that were inconsistent with her status as domiciliary parent.
DISCUSSION
We previously set forth the standard of review in this case as follows:
It is well settled that an appellate court cannot set aside a trial
court’s findings of fact in the absence of manifest error or unless those
findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).
If the findings are reasonable in light of the record reviewed in its
entirety, an appellate court may not reverse those findings even though
convinced that had it been sitting as the trier of fact, it would have
weighed the evidence differently. Id. Each child custody case must be
viewed in light of its own particular set of facts and circumstances with
the paramount goal of reaching a decision that is in the best interest of
the child. Barberousse v. Barberousse, 556 So.2d 930 (La.App. 3
Cir.1990). The best interest evaluation is fact-intensive and requires the
weighing and balancing of factors favoring or opposing custody of the
competing parties on the basis of the evidence presented in each case.
Romanowski v. Romanowski, 03-124 (La.App. 1 Cir. 2/23/04), 873
So.2d 656. The trial court is vested with broad discretion in deciding
child custody cases and its decision will not be disturbed absent a clear
abuse of discretion. Bagents v. Bagents, 419 So.2d 460 (La.1982);
Stephens v. Stephens, 02-402 (La.App. 1 Cir. 6/21/02), 822 So.2d 770.
However, as recognized by our supreme court, “[a]n award of custody
is not a tool to regulate human behavior.” Everett v. Everett, 433 So.2d
705, 708 (La.1983).
Griffith, 32 So.3d at 386.
Both parties in this case are attempting to have us use the award of custody as
a “tool to regulate human behavior.” This we cannot do. Again, as we did on our
earlier review, we find no manifest error in the factual findings of the trial court.
Indeed, our supreme court has upheld this finding. However, the supreme court has
also provided guidance in that it reinstated the trial court’s original award of joint
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custody and modified that only insofar as it named Resa as the domiciliary parent.
Further, upon motion for clarification, the supreme court explained that the case
should be remanded to the trial court for reconsideration of the joint custody
implementation plan. But, the supreme court stated that the plan need only be
amended if the trial court deemed such amendment appropriate. The original joint
custody implementation plan provided that physical custody of Cole be shared by the
parties on an alternating weekly schedule from Friday at 6:00 p.m. until the following
Friday at 6:00 p.m., with alternating holidays as provided in the plan. The supreme
court, by reinstating this plan, inherently found no abuse of discretion by the trial
court in the award of shared physical custody of Cole. Accordingly, we cannot now
reverse the trial court’s award of fifty-fifty shared physical custody.
Resa further alleges that several provisions of the joint custody implementation
plan are inconsistent with her status as domiciliary parent and thereby weaken her
position. Specifically, she finds fault with the following fourteen provisions: (1)
requiring that she provide forty-eight hours advance notice to Brad before spending
the night away from home and providing a name and location where she and Cole
will stay and a telephone number where they can be reached; (2) requiring that she
offer Brad the right to baby-sit if she is away from home overnight; (3) requiring her
to provide advance notice if a baby-sitter will be staying with Cole overnight; (4)
requiring her to provide reasonable access to Cole by Brad when Cole is in her
custody; (5) requiring her to allow Brad to visit with Cole during her custodial
periods; (6) requiring her to communicate concerning all factors affecting the health,
education, and welfare of the child; (7) requiring her to provide Brad all medical and
other information regarding Cole’s health and welfare upon receipt; (8) requiring
Resa and Brad to discuss all of the information exchanged between them; (9)
requiring her not to ignore the authority and input of Brad by failure to communicate;
(10) requiring that Cole receive treatment from doctors specified by the trial court;
(11) prohibiting Resa’s spouse from attending Cole’s healthcare appointments “until
these parties have reached a more effective level of communication and civil
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discourse;” (12) requiring extracurricular activities to be by mutual agreement; (13)
granting Brad the natural co-tutorship of Cole; and (14) granting Brad authority to
administer Cole’s property.
Louisiana Revised Statutes 9:335(B)(3) provides, in part, that “[t]he
domiciliary parent shall have authority to make all decisions affecting the child unless
an implementation order provides otherwise.” This recognizes that the trial court has
discretion in placing conditions upon the decision making authority of the domiciliary
parent. We further note that all of the provisions cited by Resa are made reciprocal
by the trial court’s plan. We do not find that any of these provisions are outside the
trial court’s discretion or inconsistent with the trial court’s power to create a joint
custody implementation plan.
DECREE
For all of the foregoing reasons, the trial court’s judgment is affirmed. All
costs of this appeal are assessed to Defendant/Appellant, Resa Latiolais.
AFFIRMED.
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