The opinion
NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
26-12
ZACHARY JOEL SEAY
VERSUS
KIRBY JANE BANKS
**********
APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NUMBER 100,937, DIVISION B
HONORABLE C. ANTHONY EAVES, DISTRICT JUDGE
**********
SHARON DARVILLE WILSON
JUDGE
**********
Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and Sharon Darville
Wilson, Judges.
AFFIRMED.
Elvin C. Fontenot, Jr.
LAW OFFICE OF ELVIN C. FONTENOT, JR.
110 East Texas Street
Leesville, Louisiana 71446
(337) 239-2684
COUNSEL FOR PLAINTIFF/APPELLEE:
Zachary Joel Seay
Jonathan T. Jarrett
THE JARRETT FIRM
1304 Lafayette Street
Lafayette, Louisiana 70501
(337) 291-9833
COUNSEL FOR DEFENDANT/APPELLANT:
Kirby Jane Banks
WILSON, Judge.
In this custody proceeding, the mother, Kirby Jane Banks (Ms. Banks),
appeals the trial court judgment awarding sole custody of the two minor children to
their father, Zachary Joel Seay (Mr. Seay). We affirm.
I.
ISSUES
Ms. Banks asserts the following six assignments of error:
1. The trial court failed to properly consider the history of domestic
violence between the parties in evaluating the custody factors in
La.[Civ.Code] art. 134.
2. The trial court improperly failed to admit evidence concerning
the history of domestic violence between the parties.
3. The trial court failed to comport with the requirements of the Post
Separation Family Violence Relief Act concerning awards of custody
or visitation to parents with a history of family violence.
4. The [t]rial [c]ourt failed to apply the proper legal standard in
awarding [s]ole [c]ustody to the Father.
5. The trial court failed to allow Mother finite and enforceable time
periods in its considered decree of child custody, in violation of her
constitutional rights and authority as a parent.
6. The trial court failed to admit testimony of Mother’s treating
physician, which would have influenced the outcome of the case.
II.
STANDARD OF REVIEW
The trial court is in a better position to evaluate the best interest
of the child from its observances of the parties and witnesses; thus, a
trial court’s determination in a child custody case is entitled to great
weight on appeal and will not be disturbed unless there is a clear abuse
of discretion.
Hawthorne v. Hawthorne, 96-89, p. 12 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, 625,
writ denied, 96-1650 (La. 10/25/96), 681 So.2d 365. Ms. Banks, however, argues
that a de novo review of the record is warranted based on alleged legal errors by the
trial court. Having determined that the trial court did not make any error of law, as
discussed more fully below, we review this matter under the manifest error and abuse
of discretion standards of review: the trial court’s factual findings are reviewed for
manifest error while “the actual custody issue is subject to an abuse of discretion
evaluation.” Hebert v. Blanchard, 97-550, p. 6 (La.App. 3 Cir. 10/29/97), 702 So.2d
1102, 1106.
III.
FACTS AND PROCEDURAL HISTORY
Mr. Seay and Ms. Banks were married on August 20, 2005, and were divorced
by judgment dated February 21, 2013, 1 in Lafayette Parish, Louisiana. Three
children were born of or legitimized by that union: E.S., M.S., and C.S. 2 E.S.
reached the age of majority during the pendency of these custody proceedings, which
span thirteen years and two jurisdictions.
The parties initially entered into a consent judgment as to custody on February
23, 2012, before C.S. was born. That judgment provided for joint custody of E.S.
and M.S. with Ms. Banks being designated as the domiciliary parent. The parties
abided by that consent judgment until May 25, 2018, when a Lafayette parish judge
granted Ms. Banks immediate temporary custody of E.S., M.S., and C.S. Ms. Banks
had filed two petitions for protection of abuse and had been granted a protective
1
Ms. Banks filed divorce on December 15, 2011.
2
While Uniform Rules—Courts of Appeal, Rules 5–1 and 5–2 do not mandate the use of initials
to protect and maintain the privacy of the minor children in this case, we choose to use them. See
Rodock v. Pommier, 16-809 (La.App. 3 Cir. 2/1/17), 225 So.3d 512, writ denied, 17-631 (La.
5/1/17), 221 So.3d 70.
2
order on July 10, 2017. Mr. Seay filed a reconventional demand seeking joint
custody.
On September 21, 2018, the parties entered into a consent judgment providing
for joint custody of the three children and naming Ms. Banks as the domiciliary
parent. The parties abided by this consent judgment3 until April 27, 2021, when they
entered into a written stipulation4 giving Mr. Seay domiciliary rights to M.S., who
was ten years old, and he went to live with Mr. Seay at the time.
On February 28, 2022, Mr. Seay filed an ex parte petition for custody seeking
sole custody of the three children in the Thirtieth Judicial District Court. On March
2, 2022, Judge C. Anthony Eaves signed an ex parte custody order giving Mr. Seay
immediate temporary custody. Ms. Banks filed a motion to vacate that ex parte order
and to transfer the case to the Fifteenth Judicial District Court. She also filed
exceptions of lis pendens, improper jurisdiction, improper venue, forum non
conveniens, and forum shopping.
On June 26, 2022, the Thirtieth Judicial District Court issued an interim order
of joint custody with Ms. Banks being designated as domiciliary parent of E.S. Mr.
Seay was designated as domiciliary parent of M.S. and C.S. Ms. Banks was ordered
to complete drug abuse/addiction education classes, parenting classes, and anger
management classes.
Mr. Seay filed the instant petition for modification of joint custody, along with
a rule for contempt and for suspension of visitation, on February 1, 2024. He filed
a first supplemental and amended petition seeking to have Ms. Banks submit to a
3
This judgment was later designated by the Thirtieth Judicial District Court as the judgment from
which any modifications by that court might be made.
4
The document itself states: “This document was signed on May 7, 2021[,] but made effective
April 27, 2021[,] in front of the notary public.”
3
10-panel hair follicle drug screen. He sought sole custody of M.S. and C.S. subject
to visitation in favor of Ms. Banks once she completed the classes previously ordered.
A March 26, 2024 interim order made the judgment of the Fifteenth Judicial
District Court the judgment of the Thirtieth Judicial District Court for the purposes
of modification, ordered Ms. Banks to submit to a 10-panel hair follicle drug screen,
and suspended Ms. Banks’ visitation until a drug screen with a clear result was
provided to the court. In response, on July 15, 2024, Ms. Banks filed a motion for
expedited hearing, rule for modification of prior custody judgment (seeking sole
custody), and rule for contempt.
Trial began on October 29, 2024, with Ms. Banks representing herself. When
the trial could not be completed on that day, it was recessed until December 12, 2024.
Ms. Banks retained counsel and asked for multiple continuances. The trial resumed
on May 13, 2025, and the trial court issued oral reasons for ruling that day. The trial
court found that there was a material change in circumstances and awarded sole
custody of M.S. and C.S. to Mr. Seay. The ruling was reduced to writing and signed
on July 10, 2025.5 The judgment denied the exceptions of lis pendens, improper
jurisdiction, improper venue, forum non conveniens, forum shopping, and no right
of action as well as the rule for contempt filed by Ms. Banks. The judgment further
ordered Ms. Banks to undergo mental health and substance abuse evaluations with
Laura Knight at the Kite Clinic in Lafayette.
5
This court notes that the judgment is dated July 10, 2024, and states “Ordered in Open
Court on March 7, 2024.” The first page of the judgment clearly states that trial was held on March
13, 2025, and the notice of judgment states that judgment was rendered on July 10, 2025.
4
IV.
LAW AND DISCUSSION
History of Domestic Violence
The first three assignments of error alleged by Ms. Banks involve the
application of the Post Separation Family Violence Relief Act, La.R.S. 9:361–369,
and the admissibility of evidence and testimony concerning the history of domestic
violence in this case. Ms. Banks argues that despite the trial court receiving
uncontroverted evidence concerning the history of domestic violence, the trial court
found that domestic violence was not a factor.
Ms. Banks, who was representing herself at the time, questioned Mr. Seay
about a protective order issued in 2017 and an arrest in June of 2017. Ms. Banks
attempted to introduce pleadings that were filed in Lafayette Parish and to question
Mr. Seay about them. Mr. Seay’s attorney objected to the relevance of things that
happened prior to the 2018 consent judgment. The trial court sustained the
objection. On redirect, Mr. Seay testified that he was arrested, charged with rape,
abuse, and violation of a protective order. He further testified that he was tried and
found not guilty on all charges.
In rendering its ruling, the trial court stated:
In that section of Article 134 both have to do with abuse[,] and I don’t
find - - there was [sic] some old allegations obviously that was [sic] just
barely mentioned, but it was brought up in previous litigation in
Lafayette, but I don’t find that the father - - I don’t find those to be an
issue in relation to the father in this situation. So I don’t find that they
are applicable to the current situation.
According to Ms. Banks, this was a legal error, and she argues that once a
history of domestic violence exists, the trial court must award custody and visitation
in accordance with La.R.S. 9:341 and 364. Ms. Banks’ argument, however, fails to
5
recognize the significance of the fact that she entered into a consent judgment on
September 21, 2018. We are mindful that “the trial court should not exclude
evidence in a custody modification proceeding if that evidence is relevant and
material to an issue that the parties have not previously had ‘a full and fair
opportunity to litigate.’” Smith v. Smith, 615 So.2d 926, 932 (La.App. 1 Cir. 1993).
“For evidence of facts occurring before a stipulated judgment to be admissible, the
evidence must meet the criteria of relevance and the balancing test as set forth in the
Louisiana Code of Evidence. See [La.Code Evid.] arts. 401–403.” Raney v. Wren,
98-869, p. 6 (La.App. 1 Cir. 11/6/98), 722 So.2d 54, 58.
We have considered the testimony of the parties and note that Ms. Banks does
not make any allegations that Mr. Seay abused the children or abused her after the
2018 consent judgment. Thus, we cannot say that the trial court abused its discretion
in excluding evidence of the alleged history of family violence. These three
assignments of error are without merit.
Sole Custody
Next, in assignment of error number four, Ms. Banks argues that the trial court
failed to apply the proper standard in awarding sole custody of M.S. and C.S. to Mr.
Seay. She argues that La.Civ.Code art. 132 “mandates that the Court must find clear
and convincing evidence that awarding custody to one of the parents is not in the
best interests of the minor child.” Ms. Banks cites Griffith v. Latiolais, 10-754 (La.
10/19/10), 48 So.3d 1058. In that case, this court reversed the trial court’s award of
joint custody, finding that it was inconsistent with the trial court’s factual findings
that the father “had little to no involvement” in the child’s life and behaved in a
“devious, manipulative, and retaliatory” manner. Id. at 1066. In reversing this
court’s award of sole custody, the Louisiana Supreme Court noted that it “granted
6
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.
Louisiana Civil Code Article 132 states:
If the parents agree who is to have custody, the court shall award
custody in accordance with their agreement unless the provisions of
R.S. 9:364 apply or the best interest of the child requires a different
award. Subject to the provisions of R.S. 9:364, in the absence of
agreement, or if the agreement is not in the best interest of the child, the
court shall award custody to the parents jointly; however, if custody in
one parent is shown by clear and convincing evidence to serve the best
interest of the child, the court shall award custody to that parent.
It is well settled that there are two types of custody awards (i.e., considered
decrees and stipulated judgments) and that “different burdens of proof apply to each
of the two types of [] awards.” Tracie F. v. Francisco D., 15-1812, p. 10 (La.
3/15/16), 188 So.3d 231, 239. Bergeron v. Bergeron, 492 So.2d 1193, 1200
(La.1986), established that:
[w]hen 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 a modification of the custody decree, or of proving by clear and
convincing evidence that the harm likely to be caused by a change of
environment is substantially outweighed by its advantages to the child.
But, “[i]n cases where the underlying custody decree is a stipulated judgment, and
the parties have consented to a custodial arrangement with no evidence as to parental
fitness, the heavy burden of proof enunciated in Bergeron . . . is not applicable.”
Beem v. Beem, 20-897, p. 5 (La.App. 1 Cir. 4/20/21), 324 So.3d 682, 686.
Since the custody decree in this case is a stipulated judgment rather than a
considered decree, Mr. Seay bears the burden of proving that: “(1) a material change
of circumstances has occurred since the stipulated judgment was entered, and (2) his
proposed modification is in the best interest of the children.” Simpson v. Jagneaux,
7
24-386, p. 12 (La.App. 3 Cir. 3/12/25), 408 So.3d 1095, 1104. “The burden on the
parent seeking sole custody is to demonstrate that the granting of custody to that
parent alone will be in the best interest of the child[,]” and the court utilizes the
factors set forth in La.Civ.Code art. 134 to determine the best interest of the child.
Griffith, 48 So.3d at 1068. “The weight to be given each factor is left to the
discretion of the trial court.” Mullaly v. Baudoin, 24-1201, p. 17 (La.App. 1 Cir.
5/23/25), 417 So.3d 811, 822.
In its oral reasons for ruling of May 13, 2025, the trial court considered all of
the testimony and evidence and discussed each factor listed in La.Civ.Code art. 134.
The trial court found that the “old allegations” of abuse were “not an issue in relation
to the father in this situation.” The trial court went on to find that the factors
enumerated in art. 134 all weighed in favor of Mr. Seay but cautioned that Mr. Seay
needed to work at facilitating and encouraging a close and continuing relationship
between the children and Ms. Banks. The trial court also considered the testimony
of both boys that it was their preference to remain with Mr. Seay. The trial court
found that Ms. Banks had substance abuse and mental health issues that constituted
a material change in circumstances warranting the award of sole custody to Mr. Seay.
Ms. Banks’ entire argument hinges on her assertion that La.R.S. 9:364
prevents Mr. Seay from being awarded sole or joint custody of the minor children.
However, since we have concluded that the trial court did not err in its finding that
the allegations of abuse occurring before the consent judgment were not relevant to
the current custody determination, we find this argument to be without merit.
Moreover, the father in Smith v. Smith, 20-597 (La.App. 3 Cir. 5/26/21)
(unpublished opinion), made a similar argument concerning the trial court’s failure
to apply the clear and convincing standard before awarding sole custody to the
8
mother in her action to obtain sole custody after entering into two prior consent
judgments. This court cited Griffith, 48 So.3d 1058, and noted that the clear and
convincing standard required a showing that the existence of a disputed fact is much
more probable than its non-existence. This court went on to say:
There is absolutely nothing in the record before this court that
indicates that the trial court used a lesser burden of proof in making its
determination. Simply because the trial court did not use “clear and
convincing evidence” as magic words in its reasons does not indicate
that the standard was not applied. To the contrary, the trial court issued
explicit, detailed, thorough, and lengthy reasons for judgment, which
indicate that the trial court clearly found it highly probable that sole
custody was in the best interest of the child.
Smith, 20-597, pp. 5–6.
Such is the case here, as detailed above, and after careful review of the record,
this court finds that the trial court did not abuse its discretion in determining that
there is a material change in circumstances meriting the award of sole custody to Mr.
Seay.
Visitation
“[A] parent not granted custody or joint custody of a child is entitled to
reasonable visitation rights unless the court finds, after a hearing, that visitation
would not be in the best interest of the child.” La.Civ.Code art. 136(A).
In assignment of error number five, Ms. Banks alleges that the trial court’s
judgment is deficient because it fails to award her any periods of visitation. The
judgment orders Ms. Banks to undergo mental health and substance abuse
evaluations and follow through with any and all recommendations. The judgment
states:
[U]pon the completion of the mental health evaluation and the
substance abuse evaluation and KIRBY JANE BANKS is following
through with the recommendations of Laura Knight, she may begin
visiting with her children at Whistle Stop in Lake Charles, Louisiana
9
under supervision for four hours at a time, every other weekend for a
minimum of two months, with graduated visitation once the required
evaluations are completed along with all recommendations of Laura
Knight. Said visitation will start August 1, 2025, if KIRBY JANE
BANKS has completed both evaluations and is going forward with the
recommendations of Laura Knight.
“In visitation matters, as in custody, much discretion is vested in the trial
judge, whose discretion will not be disturbed absent an abuse of discretion.” Verret
v. Verret, 34,982, p. 17 (La.App. 2 Cir. 5/9/01), 786 So.2d 944, 954. “That discretion
extends to the determination of what constitutes reasonable visitation.” Smith, 20-
597, p. 9.
We note the following: (1) the stipulated judgment of September 21, 2018,
required Ms. Banks to complete the Clearstart assessment process; (2) a November
25, 2019 order lifting the monitoring restrictions on Ms. Bank’s visitation still
contained the requirement that Ms. Banks follow all recommendations of Clearstart;
and (3) a June 22, 2022 interim order required Ms. Banks to enroll in and complete
drug abuse/addiction education classes, parenting classes, and anger management
classes. There is no evidence in the record that Ms. Banks has complied with any of
the conditions set forth by the court to begin visitation.
We find no abuse of discretion in the trial court’s finding that it was in the
best interest of the children to require Ms. Banks to meet certain conditions before
awarding visitation.
Testimony of Matthew deClouet, NP
“[T]his court reviews evidentiary rulings regarding the admissibility of expert
testimony under the abuse of discretion standard.” Tillman v. LAMMICO, 24-419,
p. 7 (La.App. 4 Cir. 8/27/24), 399 So.3d 687, 692, writ denied, 24-1185 (La.
12/11/24), 396 So.3d 968.
10
Matthew deClouet (Mr. deClouet) is a psychiatric mental health nurse
practitioner who has been treating Ms. Banks since 2015. Mr. Seay testified that
Mr. deClouet was his and Ms. Banks’ high school classmate.
Mr. deClouet was deposed on February 15, 2025. Ms. Banks sought to have
him testify at trial. At the time she was representing herself, she asked if Mr.
deClouet’s testimony could be taken out of order, and the trial court responded: “It
depends on who’s pleading. I think . . . Mr. Fontenot’s client filed first.” The trial
court went on to explain: “usually the person that files first is the one that gets to go
first because they have the burden to prove something. Now, if Mr. Fontenot would
like to call your provider out of order, that’s Mr. Fontenot’s, because he gets to
present his case.” Ms. Banks responded: “Okay.”
Ms. Banks asked for and was granted a continuance of the December 19, 2024
hearing date. She then asked for and was granted a continuance of the January 30,
2025 hearing date. One of the reasons for requesting the continuance was to depose
Mr. deClouet. When Ms. Banks’ counsel attempted to introduce the deposition into
evidence, Mr. Seay’s counsel objected on the grounds that Mr. deClouet was not an
expert in the field of drug testing or analysis of drug testing results. The following
colloquy occurred:
BY THE COURT:
What purpose are you trying to use the deposition for, Mr.
Bailey?
[BY MR. BAILEY]:6
Your honor, Judge, what we had done the deposition for was
because of the - - a letter was given by - - a letter was given to Ms.
Banks concerning her usage of prescribed drugs[] and when she got
6
We note that the transcript labels this response as “BY THE COURT.” But it is clearly
Mr. Bailey responding to the trial court’s question.
11
these prescribed drugs. Your Honor, at some point in time I think you
wanted to have it expanded whether that was the proper amount or she’s
doing - - she’s using that within the boundaries of what she is supposed
to do it. Mr. - - this nurse practitioner is the one who prescribe[s] it[,]
and, therefore, that’s why we deposed him so that we could expand
upon that aspect of the letter and her prescription use.
....
BY MR. FONTENOT:
That’s my objection.
BY THE COURT:
It’s a - - I mean, it’s a test result from a drug test that your client
took which showed amounts that are substantially more than the testing
amount to register. I don’t know what is in this deposition.
....
BY THE COURT:
- - I don’t, you know, I don’t know if in there he said I prescribed
at this level and this is what it should be, you know?
BY MR. FONTENOT:
Well, that’s my objection. He candidly said that he wasn’t an
expert in any analysis to say what milligram would be appropriate or
not.
BY THE COURT:
Right.
BY MR. FONTENOT:
And that’s what I - - because he wasn’t qualified as an expert in
any field.
BY MR. BAILEY:
He wasn’t, and, Judge, that’s not what we’re trying to do[;] we’re
trying to make sure she was on prescription meds pertinent to the letter
- - pertinent to what he prescribed[,] and that’s what we’re trying - -
12
BY THE COURT:
Being on prescription meds means nothing. The point would be
is - - for the Court would be, one, what was she prescribed[;] two, was
she taking that[;] and then the third thing was would like prescription
around then equate to those test results. I mean, that’s the real - - the
three things. . . . The issue isn’t whether or not she was prescribed[,]
it’s whether she, in fact, she is prescribed[,] if she is following the
prescription or she is taking more than she is supposed to.
....
BY THE COURT:
. . . The question the Court, I, have is does whatever she [is]
prescribed equal up to that test result.
....
BY MR. BAILEY:
My issue, Judge, is that we gave [sic] the person that actually
prescribed the medicine testified about her usage to [sic] that medicine,
and that’s what we’re offering to the Court is an explanation as to what
she is doing that’s all. I think that’s - -
BY THE COURT:
I mean, I think you can offer it, and I think I can admit for the
purposes of saying he prescribed her medication, I mean, I don’t - -
BY MR. BAILEY:
I think that’s a trier of fact issue. If you read through the
deposition it may shed light on what you’re looking to receive from that
too, Judge. So without looking at it - -
....
BY THE COURT:
- - by Mr. Fontenot and he[] says that those - - that cause of [sic]
link between the drugs prescribed and the amount isn’t in there[,] and
the second thing is that your guy whether he be a PA or a nurse
practitioner is not qualified as an expert. So if he wasn’t qualified as
an expert in that deposition[,] he can’t give anything that is asked into
an opinion. He’s a fact witness only at that point. So I’ll let you proffer
that deposition[.]
13
The deposition was proferred.7 Mr. deClouet testified that he obtained a bachelor's
degree in nursing and a master’s degree in psychiatric mental health nurse
practitioner. That degree allows him to perform psychiatric evaluations, to treat
patients with medications, and to provide therapy. Mr. deClouet testified that he had
never been qualified as an expert in court. Ms. Bank’s counsel noted: “we’re not
trying to qualify [Mr. deClouet] as an expert at, in this - - in this aspect because we’re
just seeking what you have been treating Ms. Kirby Smith with.” Mr. deClouet went
on to testify about Ms. Banks’ psychiatric diagnoses and the medications he
prescribed to her. When questioned about the results of the hair analysis and how
certain drugs would show up on a drug test, Mr. deClouet responded: “And I’m no
expert with the hair test, but I just - - I know metabolism of medicine, and I know
with drug interactions . . . you can’t make an assumption just because it’s out of the
reference range that someone is abusing the medicine.”
At that point, Mr. Seay’s counsel objected. Ms. Banks’ counsel then stated: “So all
we’re asking you, sir, is that what you prescribed, not about any particular drug test
all, but when it will show up, it will show up as an Adderall and as an amphetamine?”
Mr. deClouet responded in the affirmative.
Mr. deClouet gave several reasons that levels for amphetamine could be
elevated. As the trial court noted, the pertinent issue was whether the medication
and dosages she was prescribed were equivalent to the concentration of substances
found in the drug test. Mr. deClouet’s testimony does not, and could not, answer
that question. He was not qualified or tendered as an expert in that field and,
therefore, could not give an opinion as to whether the medications that showed up
7
We note that deposition transcript is included with the defense exhibits rather than in a
separate envelope as a proffer.
14
on 10-panel hair follicle drug screen8 matched the amount prescribed to Ms. Banks.
Therefore, we find that the trial court did not abuse its discretion in excluding Mr.
deClouet’s testimony.
V.
CONCLUSION
We find no manifest error in the factual findings of the trial court and no abuse
of discretion in its decision to award sole custody to Zachary Joel Seay. We affirm
the judgment of the trial court in its entirety. Costs of this appeal are assessed to
Kirby Jane Banks.
AFFIRMED.
This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2–16.3.
8
We note that trial court’s order for Ms. Banks to submit the drug screen was dated March
26, 2024. The hair sample was collected on June 13, 2024.
15