Tracie F. v. Francisco D.

• Decision Date: 15 March 2016
• Docket Number: No. 2015–CJ–1812.,2015–CJ–1812.
• Citation: 188 So.3d 231
• Parties: TRACIE F. v. FRANCISCO D.
• Court: Louisiana Supreme Court

188 So.3d 231

TRACIE F.

v.FRANCISCO D.

No. 2015–CJ–1812.

Supreme Court of Louisiana.

March 15, 2016.

WEIMER, Justice.

This matter involves a custody contest between the biological father and the maternal grandmother, who was designated as the domiciliary parent in a consent decree.¹ Because of conflicting analysis of this issue by the courts of appeal, we granted a writ to determine the standard for adjudicating a request for increased custodial rights brought by a biological parent who shares joint custody with a grandparent, and the biological parent has earlier stipulated that the grandparent should be designated as having the rights and responsibilities of a domiciliary parent.

Grappling with whether a child should be moved from what is oftentimes perceived as the stable and long-standing environment provided by a non-parent who has been awarded custody as a domiciliary parent, the appellate courts have developed different approaches for evaluating the request of a biological parent to be awarded domiciliary parent status. For example, some courts—like the appellate court in this case—have placed the burden of proof on the biological parent to show "rehabilitation" to be presently fit to be the domiciliary parent and to show that the environment provided by the person currently serving as the domiciliary parent has "materially changed." Another appellate court has instead placed the burden of proof on the domiciliary parent (who is a non-biological parent) to show that substantial harm to the child will result if domiciliary status is awarded to a biological parent.

For the reasons discussed in this opinion, we are especially guided by La. C.C. art. 131and the legislative comments to its revision, and we hold that the overarching inquiry in an action to change custody is "the best interest of the child." Moreover, consistent with our prior jurisprudence regarding stipulated custody awards, we further hold that a biological parent with joint custody, who seeks modification of a stipulated custody award to obtain greater custodial rights, must prove: 1) there has been a material change in circumstances after the original custody award; and 2) the proposed modification is in the best interest of the child. See Evans v. Lungrin, 97–0541, 97–0577, p. 13 (La.2/6/98), 708 So.2d 731, 738; cf. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986).

Applying this standard, we find that the biological father satisfied the first element of proof. Specifically, the significantly increased involvement-albeit recent-by the biological father in the life of his child, coupled with the child embracing this new parent-child relationship, satisfies the first element. However, we find that the biological father failed to prove that a modification from the long-standing and stable environment the child has experienced while domiciled in the home of the child's grandparent would be in the child's best interest. Although our reasoning differs, we ultimately affirm the decision of the appellate court, maintaining the joint custody arrangement with the grandparent as the domiciliary parent.

FACTUAL and PROCEDURAL BACKGROUND

On May 29, 2006, D. was born to Tracie F., who was unmarried. Tracie indicated that D.'s father was Francisco D.² Tracie and Francisco met shortly before Hurricane Katrina. They never lived together, nor did they have a committed relationship. After Tracie informed Francisco that she was pregnant, Francisco, who was in his early 30s, asked her to terminate the pregnancy.

Several months after D.'s birth, Tracie filed a petition for sole custody or, alternatively, for joint custody with Francisco but with Tracie being named as the domiciliary parent. On January 7, 2007, by stipulated judgment, the court awarded joint custody, designating Tracie as the domiciliary parent. Francisco was granted reasonable visitation and was ordered to pay $400 per month as child support and to maintain health insurance on the child.

By all accounts, including his own stipulation, Francisco had little involvement in D.'s upbringing for approximately the first seven years of D.'s life. During that timeframe, Francisco seldom exercised his visitation rights and took virtually no role in D.'s education. Tracie also proved to be less than a model parent. When D. was still an infant, Tracie deferred numerous responsibilities to her mother, Kathy B., and stepfather, Michael B. Indeed, Tracie and D. moved into Kathy and Michael's house when D. was approximately six months old. This living arrangement proved to be a long-standing one. As D. grew beyond infancy, so, too, did Kathy and Michael's role. Kathy and Michael enrolled D. in a private school, and Kathy paid the tuition. Michael coached D.'s baseball team. Kathy and Michael nurtured D.'s religious upbringing and promoted his participation in cub scouts.

Meanwhile, although the record is unclear as to whether Francisco met all of his child support obligations, the record establishes that whatever payments Francisco made, Tracie did not turn over any portion to Kathy and Michael. Along with many of the logistics of raising D., Kathy and Michael bore the bulk of the financial responsibilities.

In early 2013, Kathy became especially alarmed about Tracie's behavior, including her supervision of D. Through counsel, Kathy contacted Francisco to apprise him of her concerns. Kathy's counsel informed Francisco that Tracie was embroiled in a physically abusive relationship with her boyfriend and had begun abusing drugs and prescription medication. Kathy proposed that D. be removed from Tracie's custody. Francisco agreed and, on May 28, 2013, he joined Kathy in a pleading styled as a "Petition to Change Custody to Non–Parent and Petition of Intervention for Custody of Minor Child." Concurrently with the joint petition, a proposed order was submitted granting Kathy temporary custody with a rule to show cause why Francisco should not be relieved of child support obligations "with the change in custody to Kathy." The district court issued the temporary custody order.

In Kathy and Francisco's petition, Tracie was named as a defendant. Ultimately, however, on July 18, 2013, all three parties consented to a judgment by which D. was permanently removed from Tracie's custody and joint custody was awarded to Kathy and Francisco. By the same stipulated judgment, Kathy was designated as the domiciliary parent.³ There was no requirement in the stipulated judgment for Francisco to pay child support.

Less than a year later, on March 24, 2014, Francisco filed a petition to annul the stipulated judgment. Alternatively, Francisco requested a "Rule to Change Custody, Set Visitation, and Other Relief." Francisco alleged that the judgment of joint custody "was obtained by fraud or ill practices" and should, therefore, be annulled. Francisco elaborated: "the maternal grandmother 'lured' the child's father into joining her Petition by promises of accommodation and increased time he would now have with his son." Francisco complained that Kathy allowed him insufficient visitation. His prayer for relief included an award of sole custody with "reasonable and supervised visitation" allowed to Tracie. Francisco also sought to preclude Kathy from having any visitation rights unless the court determined that allowing Kathy visitation was in the best interest of the child.

Francisco later abandoned his contention that the stipulated judgment was procured by fraud or ill practices. On August 7, 2014, Francisco, through new counsel, filed an "Amended Rule to Change Custody, Set Visitation and Other Relief and Memorandum of Law to Exception of No Cause of Action." Francisco's pleading was prefaced with the statement that "circumstances have changed to such a material extent and degree affecting the welfare of the child to warrant a modification of custody." Francisco alleged Kathy "has not and does not exchange any information with [Francisco] about any aspect of the minor child's health, education and his welfare." He contended that "[t]he minor child has expressed a strong preference to primarily live with his father and step-mother, as he should and because a parent has paramount parental right over a non-parent." His request for sole custody was reiterated.

Francisco's rule to change custody was referred to a hearing officer. The hearing officer refused Francisco's request, citing the fact that there was a stipulated judgment assigning custody and finding "[n]o circumstances have changed since then." The hearing officer also explained that removing D. from his long-standing home was "such a profound step" that to do so would "require [ ] a trial before the district judge." Accordingly, Francisco's request to change custody was set for trial.

Both Kathy and Francisco filed pretrial memoranda. Each argued that the other party had the burden of proof relative to Francisco's request for a change in custody. There is no indication in the record that the district court decided in advance of the trial which party would have the burden of proof. A remark by Francisco's counsel during the trial shows, instead, that the question of who carried the burden was indeed still unresolved.

As will be further discussed, both parties presented evidence of their current and extensive involvement in D.'s life and upbringing, with Francisco acknowledging that he became actively involved in D.'s life only within the past year. At the conclusion of trial, the district court awarded sole custody to Francisco. In written reasons, the court indicated that Kathy had the burden of proof at trial, but failed to meet her burden, as follows:

[Kathy] failed to meet her burden of proving the father having custody of the minor child would result in substantial harm to the minor child. See La. C.C. Art. 133. To the contrary, the evidence adduced at trial proved that custody to the child's biological father would provide the child with a wholesome, stable, above adequate, loving and

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