Hodges v. Hodges
| Citation | 181 So.3d 700 |
| Decision Date | 23 November 2015 |
| Docket Number | No. 2015–CJ–0585.,2015–CJ–0585. |
| Parties | Justin HODGES v. Amy HODGES. |
| Court | Supreme Court of Louisiana |
Justin HODGES
v.
Amy HODGES.
No. 2015–CJ–0585.
Supreme Court of Louisiana.
Nov. 23, 2015.
Downs, Saffiotti & Boudreaux, LLP, Laurie Nelson Marien, for Applicant.
Leslie Bankston Kidder, Mack Law Firm, Sherman Q. Mack, Albany, LA, Ellyn Julia Clevenger, for Respondent.
WEIMER, Justice.
We granted certiorari in this child custody matter to review the designation of both parents as "co-domiciliary parents," a designation which has divided the courts of appeal. Additionally, we must review the related question of whether the trial court issued a valid joint custody implementation order. After analyzing La. R.S. 9:335, we reverse that portion of the appellate court decision upholding the trial court's designation of "co-domiciliary parents." We agree with the court of appeal that the
custody judgment rendered by the trial court failed to comply with the requirements for a joint custody implementation order, as stated in La. R.S. 9:335(A)(3). Given the absence of either a proper designation of a sole domiciliary parent or a valid joint custody implementation order, we remand to the trial court for a prompt hearing and determination on how joint custody should be implemented.
FACTS AND PROCEDURAL HISTORY
Justin Hodges ("father") and Amy Hodges ("mother") were married in Ascension Parish on January 22, 2011, and, thereafter, established their matrimonial domicile in Livingston Parish. One child was born of the marriage on June 25, 2012.
On May 28, 2014, the father instituted divorce proceedings in Livingston Parish. Both the father and the mother sought joint custody of the minor child, M.H., as well as to be designated as the child's domiciliary parent. After a hearing, the trial court granted joint custody to the parents, ordered equal physical custody to be alternated weekly, and designated both parties as "co-domiciliary parents."
The mother appealed the trial court decision, contending that its designation of both parents as "co-domiciliary parents" is not authorized by La. R.S. 9:335 ; she sought to be named as the sole domiciliary parent. The appellate court affirmed the "co-domiciliary" designation, but ruled that no valid joint custody implementation order had been rendered and remanded the case to the trial court "for the entry of a joint custody implementation order allocating the legal authority and responsibility of the parents with regard to the health, education, and welfare of the child." See Hodges v. Hodges, 14–1575 (La.App. 1 Cir. 3/6/15), 166 So.3d 348, 356.
On application of the mother, this court granted a writ of certiorari. See Hodges v. Hodges, 15–0585 (La.5/15/15), 169 So.3d 380.
LAW AND ANALYSIS
In a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child. La. C.C. art. 131. The best interest of the child is the sole criterion to be met in making a custody award, as the trial court sits as a sort of fiduciary on behalf of the child and must pursue actively that course of conduct which will be of the greatest benefit to the child. C.M.J. v. L.M.C., 14–1119 (La.10/15/14), 156 So.3d 16, 28, quoting Turner v. Turner, 455 So.2d 1374, 1378 (La.1984). It is the child's emotional, physical, material and social well-being and health that are the court's very purpose in child custody cases; the court must protect the child from the real possibility that the parents are engaged in a bitter, vengeful, and highly emotional conflict. Id. The legislature has mandated that the court look only to the child's interests so that the court can fulfill its obligations to the child. Id. at 28–29.
If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award. La. C.C. art. 132. In the absence of an 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.1 Id.
As provided in La. C.C. art. 134, all relevant factors in determining the best interest of the child must be considered by the court; such factors may include: (1) the love, affection, and other emotional ties between each party and the child; (2) the capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child; (3) the capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs; (4) the length of time the child has lived in a stable, adequate environment and the desirability of maintaining continuity of that environment; (5) the permanence, as a family unit, of the existing or proposed custodial home or homes; (6) the moral fitness of each party, insofar as it affects the welfare of the child; (7) the mental and physical health of each party; (8) the home, school, and community history of the child; (9) the reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference; (10) the willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party; (11) the distance between the respective residences of the parties; and (12) the responsibility for the care and rearing of the child previously exercised by each party.
The list of factors provided in Article 134 is nonexclusive, and the determination as to the weight to be given each factor is left to the discretion of the trial court. See La. C.C. art. 134, 1993 Revision Comment (b). The illustrative nature of the listing of factors contained in Article 134 gives the court freedom to consider additional factors; and, in general, the court should consider the totality of the facts and circumstances of the individual case. See La. C.C. art. 134, 1993 Revision Comment (c).
In short, there are a number of factors which must be evaluated by a court in arriving at the decision to award joint custody to the parents. However, once that decision is reached, La. R.S. 9:335, which is at the heart of the present case, governs a court's determination of the details of the custody arrangement. With emphasis on the provisions especially relevant to the issues of domiciliary parent designation and implementation order, we reproduce the statute in full:
A. (1) In a proceeding in which joint custody is decreed, the court shall render a joint custody implementation order except for good cause shown.
(2)(a) The implementation order shall allocate the time periods during which each parent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents.
b) To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally.[2 ]
(3) The implementation order shall allocate the legal authority and responsibility of the parents.
B. (1) In a decree of joint custody the court shall designate a domiciliary parent except when there is an implementation
order to the contrary or for other good cause shown.
(2) The domiciliary parent is the parent with whom the child shall primarily reside, but the other parent shall have physical custody during time periods that assure that the child has frequent and continuing contact with both parents.
(3) The domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order provides otherwise. All major decisions made by the domiciliary parent concerning the child shall be subject to review by the court upon motion of the other parent. It shall be presumed that all major decisions made by the domiciliary parent are in the best interest of the child.
C. If a domiciliary parent is not designated in the joint custody decree and an implementation order does not provide otherwise, joint custody confers upon the parents the same rights and responsibilities as are conferred on them by the provisions of Title VII of Book I of the Civil Code.[3 ][Emphasis added.]
In this case, the mother contends that the trial court's judgment is insufficient to constitute a joint custody implementation order. According to the mother, the judgment addresses physical custody, but fails to designate which parent has decision-making authority for the child. The mother also contends the trial court legally erred in designating both parents as "co-domiciliary parents," rather than designating a single "domiciliary parent." The mother urges that under La. R.S. 9:335, there can only be one domiciliary parent.
Of the two issues presented, we first analyze whether, under La. R.S. 9:335, there can only be one domiciliary parent. Because that issue addresses what the statute permits, resolving that issue should aid our resolution of the second issue, i.e., whether the trial court's judgment sets forth an implementation order.
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