Overstreet v. Overstreet
| Decision Date | 08 February 1971 |
| Docket Number | No. 4256,4256 |
| Parties | Elizabeth Ann WIEDEMAN, divorced wife of John James OVERSTREET v. John James OVERSTREET. |
| Court | Court of Appeal of Louisiana — District of US |
Cabral & Cabral, Harry R. Cabral, Jr., Metairie, for plaintiff-appellee.
Mmahat, Gagliano, Duffy & Giordano, Lucas J. Giordano, Metairie, for defendant-appellant.
Before CHASEZ, LEMMON and GULOTTA, JJ.
In April of 1965 plaintiff-appellee, Elizabeth Ann Wiedeman, wife of John James Overstreet, was granted a judgment of separation based on cruel treatment. Custody of their minor child, Julie, was awarded to the mother. The judgment of divorce was granted in May of 1967 but no mention was made with regard to custody of the child.
On May 22, 1968 judgment was entered awarding permanent custody of the minor child to the mother, Elizabeth Ann Wiedeman.
On September 5, 1969 a rule was filed by John James Overstreet alleging that Elizabeth Ann Wiedeman was not fit to retain custody of the child, further alleging that he, John James Overstreet, was fit to be awarded custody of the child and, in the alternative, should the court find he was not the proper person for custody, that Mrs. Joyce Overstreet, te paternal grandmother of the child, was the proper person to be awarded custody of the minor child.
On September 8, 1969 a motion for contempt was filed by Elizabeth Ann Wiedeman against John James Overstreet, on the grounds that Mr. Overstreet had failed to return the child to its mother at the end of his visitation period with the child, in violation of the Court Order granting the mother custody.
The rule of the father for change of custody and the motion of the mother for contempt were tried together and judgment was entered on December 22, 1969, dismissing the motion to find Mr. Overstreet in contempt and dismissing the rule filed by Mr. Overstreet for a change of custody of the child.
Mr. Overstreet appealed from the dismissal of his rule to change custody but Mrs. Overstreet did not answer the appeal or appeal herself from the dismissal of her motion to find Mr. Overstreet in contempt. Therefore, the only question on appeal is whether the trial court erred in dismissing the change of custody rule filed by defendant-appellant, John James Overstreet.
The law controlling the area is without doubt. Always in custody cases the pramount concern is the interest and welfare of the child. Stouder v. Stouder, La.App., 224 So.2d 855 (4th Cir. 1969) and the many cases cited therein. As a general rule the mother is awarded custody of the child. Estopinal v. Estopinal, 223 La. 485, 66 So.2d 311 (1953), but the presumption that the mother will be awarded custody is refuted if it is proven that the mother is morally unfit to have custody of the child. State ex rel. Stokes v. Stokes, La.App., 222 So.2d 573 (1st Cir. 1969). If the mother is found to be unfit, the father has the presumptive right to custody. Shilling v. Doyle, La.App., 218 So.2d 72 (3rd Cir. 1969). And if, for some reason, both mother and father and found to be unfit to have custody of the child, custody may properly be awarded to a grandparent. Stokes, supra; Roller v. Roller, La.App., 213 So.2d 161 (3rd Cir. 1968.)
It is also well settled that the party seeking to change a judgment which awarded permanent custody to the mother or the father must not only prove that the present environment in which the child is living is detrimental to his welfare and best interest, but must also prove that he or she is able to provide the child with a more suitable environment. Poitevent v. Poitevent, La.App., 152 So.2d 256 (4th Cir. 1963); Fletcher v. Fletcher, La.App., 170 So.2d 144 (2nd Cir. 1964).
The facts indicate that Elizabeth Ann Wiedemann, former wife of John James Overstreet, admitted living with her present husband, Daniel Castrillo, from the latter part of July 1969 until September, 1969, at which time they were married. The child Julie lived with her mother at the same address. Julie had her own bedroom and, according to the testimony of her mother, was not aware of the relationship between Dan Castrillo and herself.
Complaint was also made by the father that the child was allowed to walk some nine or ten blocks to school supervised only by some older children with whom she walked. This in fact did occur at the beginning of the school year, but was later corrected.
The...
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