Distinguished
Distinguished by Howes v. Howes, 388 So. 2d 1182 (1980)
We conclude the consent judgment on March 9, 1979 is not a "considered judgment" and (3) of Fulco is inapplicable.
Distinguished by Johnson v. Johnson, 1980 La. App. LEXIS 3548 (1980)
The father, on the other hand, contends the heavy burden of the Fulco rule is inapplicable to this situation because the mother had custody by virtue of a consent judgment rather than a “considered decree.
The opinion
*1131 SANDERS, Justice
(dissenting).
The majority correctly summarizes the law applicable to child custody. It then, in my opinion, misapplies the law to the facts of this case.
Both lower courts found that the mother had carried on an illicit relation with a Shreveport dentist from June, 1969, until after the filing of the rule to change custody in August, 1970. Both courts found that the relationship was adulterous. Both courts also found that frequently the association with the paramour took place in the presence of the children.
The trial judge described the relationship as “sordid” and “in utter disregard of the rules of propriety.” He found Mrs. Fulco unworthy of belief.
Without more, any court would be compelled to hold that the situation was detrimental to the welfare of the children.
After the custody rule was filed, however, Mrs. Fulco and her children moved to the residence of her parents in Shreveport. The question presented is what effect this move has on the outcome of this litigation.
The Court of Appeal found:
“Instead of relieving the condition by moving in with her mother, Mrs. Fulco has made it possible to continue her misconduct.”
Contrary to the Court of Appeal, the-majority now finds:
“There is no evidence of immoral conduct since the move, although Mrs. Fulcoadmits that she continues to see the dentist. There are indications in the evidence that she hopes to marry him when, both divorces are final.”
In my opinion/ the mother should be divested of custody under either finding,, continued immorality or continued association directed toward marriage.
The result of the majority holding is that a parent-custodian can suspend adulterous conduct after a rule to change custody has been filed and retain the custody-of children. It endows a temporary adjustment made after the custody-changing machinery has already begun to operate with the power to wipe out all past misconduct of the custodian. Such a rule is unsound and inconsistent with the judicial goal of promoting the welfare of children.
For the reasons assigned, I respectfully dissent.