Maxwell v. LeBlanc

Decision Date04 April 1983
Docket NumberNo. 82-C-1801,82-C-1801
Citation434 So.2d 375
PartiesGlenn E. MAXWELL v. Darleen LEBLANC.
CourtLouisiana Supreme Court

Leonard K. Fisher, Jr., Boutte, for applicant.

Darlene LeBlanc Wester, Steven Griffith, Sr., Destrehan, for respondents.

DENNIS, Justice.

This case concerns the visitation rights of the father of an acknowledged natural child, the burden of proof in actions for visitation rights, and the allocation of that burden upon the respective parties. The father appealed a district court judgment in favor of the mother dismissing his demand for visitation rights with his natural child. The court of appeal affirmed. We reverse and remand the case to the trial court for further action consistent with the views expressed in this opinion.

Glenn E. Maxwell and Darleen LeBlanc lived together for several years. A child, Michelle Marie Maxwell, was born during their cohabitation in November of 1977. In July of 1979, Maxwell and LeBlanc stopped living together. Maxwell left the child under the care of LeBlanc. He paid LeBlanc child support of $25 per week and visited with Michelle two to three times per week. In early 1980, when LeBlanc became involved with another man, who eventually became her husband, she refused further support checks and prevented Maxwell from visiting with Michelle.

Maxwell filed suit on March 19, 1980 asking that the court set visitation rights. LeBlanc answered, praying for rejection of visitation and, in the alternative, asked the court to set support payments at $300 per month. The trial judge dismissed the suit, finding that the plaintiff's demand for visitation was not in the best interest of the child. Since defendant prevailed on the main demand, the trial court did not rule on her alternative request for fixed support payments. The plaintiff appealed, and the court of appeal, in an unpublished opinion, affirmed, finding that the decision of the trial judge was within the wide latitude of discretion that was uniquely his province in child welfare cases.

The right of visitation for a non-custodial parent is a natural right with respect to his children, and this right is enforceable in a civil action when the custodial parent denies visitation access. 1 Roshto v. Roshto, 214 La. 922, 39 So.2d 344 (1949); Johnson v. Johnson, 214 La. 912, 39 So.2d 340 (1949); Pierce v. Pierce, 213 La. 475, 35 So.2d 22 (1948); Jacquet v. Disimone, 175 La. 617, 143 So. 710 (1932). See H. Clark, Jr., The Law of Domestic Relations § 17.4(g) (1968). French Civil Code article 288 specifically provides the non-custodial parent with the rights of visitation and hebergement, which is defined by French jurisprudence to include such rights as (1) the right of correspondence, (2) the right of both parents to enjoy the presence and the love of their children, even though both may not have the right to continuing custody, and (3) the right to enjoy the presence of one's children during special occasions such as holidays or during the annual vacation. Blakesley, Child Custody and Parental Authority in France, Louisiana and Other States of the United States: A Comparative Analysis, 4 B.C. Inter'l and Comp.Law Rev. 283, 312 (1981). We have recognized similar rights in Louisiana as a species of custody under Civil Code articles 146 and 157, and the latest revision of these articles, while not specifically providing for rights of visitation, strongly suggest that visitation should be considered in any plan for custody. See La.Civ.Code art. 146(A)(1)(b) and (2), and art. 157, as amended by 1982 La. Acts, No. 307, § 1.

In restating the heavy burden of proof which is required before a parent can be deprived of the custody of his child, we observed in Deville v. LaGrange, 388 So.2d 696 (La.1980) that:

There is no reason to restrict the applicability of these principles to parent-child relationships which the law defines as legitimate. No one would argue that the weight of a mother's right to the custody of her child should be reduced simply because she is not married to the child's father and has not performed a formal act of legitimation. There may be a misguided tendency to view the situation in a different light when the parent whose right is at stake is the father, but this is so only because of a failure to distinguish between the right which flows from the fact of parenthood, whether that parenthood is legitimate or not, and the possibility of a subsequent forfeiture of parenthood through abandonment or negligent, which may be greater when the relationship between the child's father and its mother, or between the father and the child, has not been formalized. Parenthood itself confers a right of custody ....

388 So.2d at 698. Visitation is a species of custody. Downey v. Downey, 183 La. 424, 164 So. 160 (1935); Lewis v. Lewis, 148 So.2d 420 (La.App. 1st Cir.1962), writ denied 150 So.2d 588 (La.1963). See Davis v. Davis, 212 Ga. 217, 91 S.E.2d 487 (1956); Note, A Father's Right to Visit His Illegitimate Child, 27 Ohio St.L.J. 738, 743 n. 46 (1966). Thus, rights to visitation also belong to all parents regardless of illegitimacy of parenthood. Firmin v. Miller, 355 So.2d 977 (La.App. 3rd Cir.1977); Taylor v. Taylor, 295 So.2d 494 (La.App. 3rd Cir.), writ denied, 299 So.2d 799 (La.1974). See Gay v. Cairns, 298 N.W.2d 313 (Iowa 1980); Pearson v. Clark, 382 So.2d 482 (Miss.1980); J.M.S. v. H.A., 242 S.E.2d 696 (W.Va.1978); State ex rel. Wingard v. Sill, 223 Kan. 661, 576 P.2d 620 (Kan.1978); Sullivan v. Bonafonte, 172 Conn. 612, 376 A.2d 69 (1977); Gardner v. Rothman, 370 Mass. 79, 345 N.E.2d 370 (1976); Willmott v. Decker, 56 Haw. 462, 541 P.2d 13 (1975); Turner v. Saka, 90 Nev. 54, 518 P.2d 608 (1974); Slawek v. Stroh, 62 Wis.2d 295, 215 N.W.2d 9 (1974); In re One Minor Child, 295 A.2d 727 (Del.1972); Commonwealth v. Rozanski, 206 Pa.Super. 397, 213 A.2d 155 (1965); Bagwell v. Powell, 267 Ala. 19, 99 So.2d 195 (1957); Ex Parte Hendrix, 186 Okl. 712, 100 P.2d 444 (1940); Phillips v. Horlander, 535 S.W.2d 72 (Ky.App.1975); In re Guardianship of Harp, 6 Wash.App. 701, 495 P.2d 1959, app. denied, 80 Wash.2d 1010 (1972); Mixon v. Mize, 198 So.2d 373 (Fla.App.) cert. denied, 204 So.2d 211 (Fla.1967); People ex rel. Francois v. Ivanova, 14 App.Div.2d 317, 221 N.Y.S.2d 75 (1961); Strong v. Owens, 91 Cal.App.2d 336, 205 P.2d 48 (1949); Baker v. Baker, 81 N.J.Eq. 135, 85 Atl. 816 (1913).

The right of visitation is not without its limitations. The rights of any parent are always subservient to the best interests of the child. Larroquette v. Larroquette, 293 So.2d 628 (La.App. 4th Cir.1974). The visitation rights of a person whose child is illegitimate is no different. See Gay v. Cairns, supra; Pearson v. Clark; supra; J.M.S. v. H.A., supra, State ex rel. Wingard v. Sill, supra. Sullivan v. Bonafonte, 172 Conn. 612, 376 A.2d 69 (1977); Gardner v. Rothman, supra; Commonwealth v. Rozanski, supra. Cf. Deville v. LaGrange, supra. It is the burden of the parent seeking to deny access or visitation, however, to prove that the visitation would not be in the best interest of the child. Phillips v. Horlander, supra. See Baker v. Baker, supra; Strong v. Owen, supra; and Ex Parte Hendrix, supra, discussed in Note, A Father's Right to Visit His Illegitimate Child, 27 Ohio St.L.J. 738, 740 n. 22 (1966). But see Sullivan v. Bonafonte, supra.

The trial judge is vested with great discretion in evaluating the case presented by the custodial parent who seeks to deny parental visitation rights to the other. Spencer v. Spencer, 273 So.2d 605 (La.App. 4th Cir.1973). However, the judge should be guided by several factors in deciding whether to deny or limit visitation: (1) the love, affection, and other emotional ties existing between the parties and the child, Litton v. Litton, 299 So.2d 458 La.App. 2nd Cir.1974) (father's remarriage emotionally upset child), Favrot v. Favrot, 219 So.2d 594 (La.App. 1st Cir.1968) (visitation caused emotional upsets in children), In re Lathrop, 2 Kan.App.2d 90, 575 P.2d 894 (Kan.App.1978) (father prevented by mother from establishing close relationship with child), Radford v. Matczuk, 223 Md. 483, 164 A.2d 904, 88 A.2d 140 (1960) (father abandoned child for ten years), In re Heller, 184 Misc. 709, 54 N.Y.S.2d 734 (1945) (visitation from father would have caused neurotic state in child because of child's relationship with mother); (2) the capacity and disposition of the parties involved to give the child love, affection, guidance and continuation of the educating and raising of the child, Lawson v. Lawson, 311 So.2d 624 (La.App. 3rd Cir.1975) (visitation limited in mother's home since that home had atmosphere of fear and hostility, harsh punishment and vile and abusive language whereas father's home had atmosphere of peace and trust), Franz v. Franz, 230 So.2d 450 (La.App. 4th Cir.1970) (visitation with mother denied because of her frequent "drunken condition" and her use of "vile and abusive language"), Grant v. Grant, 231 So.2d 411 (La.App. 1st Cir.1970) (visitation allowed but conditioned upon father's not drinking), (3) the capacity and disposition of the parties involved to provide the child with material needs, Roshto v. Roshto, supra (failure to pay support is not necessarily determinative of visitation forfeiture), Matter of Pierce v. Yerkovich, 80 Misc.2d 613, 363 N.Y.S.2d 403 (1974) (father established $59,000 irrevocable trust), Annot., 51 A.L.R.3d 520 (1973), (4) the length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity, Ogden v. Ogden, 220 So.2d 241 (La.App. 1st Cir.1969) (visitation limited since children were emotionally upset at having "two homes"); (5) the relationship of the child's mother and father, Goode v. Goode, 415 So.2d 321 (La.App. 2d Cir.1982) (visitation with father ordered despite opposition by mother and daughter because mother's animosity and use of child as weapon constituted abuse of child), Gay v. Cairno...

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