Mark Fuller, III v. Tracy Landrum Fuller

Shreveport LA - Divorce lawyer represented defendant with filing a petition to modify custody.

Mark and Tracy were married in 2007. Three children were born to

this union, L.F., P.F., and H.F.1

Mark filed for divorce on June 1, 2012. A

hearing officer heard the matter, and on August 2, 2012, issued a hearing

officer conference report ("HOCR”). The HOCR recommended the parties

share interim joint custody of the minor children, with Tracy designated as

the interim domiciliary parent. Because of Mark's work schedule, his

interim visitation was as follows: during the weeks that he had 5 days off, he

was entitled to have the children from when he picked them up Friday at

school until he dropped them back off at school the following Tuesday; the

following week, he was entitled to pick up the children Monday at school

and return them to school the following morning. As to the child support

calculation, the HOCR stated Mark worked at two jobs, but did not have



1 L.F. was born before the marriage and is currently 17 years old. P.F. and H.F.

are twins and are currently 12 years old.

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proof of income from one of the employers. Tracy was unemployed. Mark

was ordered to pay $1,700 per month in interim child support and $400 per

month in interim periodic spousal support. On August 8, 2012, the trial

court made the HOCR a temporary order.

The judgment of divorce was rendered January 28, 2014. A consent

judgment was filed on July 2, 2014, in which the parties agreed to joint

custody. Tracy was designated as the primary domiciliary parent, and

Mark's visitation schedule remained the same as in the temporary order.

The consent agreement also designated a schedule for holidays, school

breaks, and summer vacation. Mark's child support was set at $2,100 per

month, by agreement of the parties. Mark and Tracy agreed to alternate

claiming the children as dependents for income tax purposes.

On December 23, 2014, Mark filed a rule for modification of custody,

child support, and for contempt. He claimed circumstances changed which

warranted and justified a change in the custody arrangement, and he

requested domiciliary-parent status. He stated that he was recently engaged

and could provide a more stable, supportive, and structured environment for

the children. He also claimed Tracy did not have a stable environment and

alleged the following: she does not have stable employment; she has a

gambling addiction; she has stolen money from his parents; she was fired as

a bookkeeper for theft; she is under investigation for embezzlement of over

$100,000 from her employer; her home is under foreclosure; she did not

allow his visitation of the children at times; she plans events for the children

during his visitation times; L.F. was in need of counseling; and, he now has

flexible hours at a new employer.

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On January 14, 2015, the State filed an ex parte motion and order to

change payee, rule for contempt, and request for immediate income

assignment because Tracy alleged that Mark was behind in his child support

payments in the amount of $15,007. Tracy attached an affidavit of

arrearages, alleging Mark began missing payments in February 2013. The

trial court signed an immediate income assignment order. Tracy and Mark

both signed and filed another affidavit of arrearages, signed on the same day

as the first one, which showed Mark paid his child support obligation every

month, and was not behind on his payments.

Tracy filed peremptory exceptions of no right of action and res

judicata. She argued that Mark's allegations of a gambling addiction,

undiagnosed bipolar disorder, stolen money, and her being fired for theft

were all raised by him previously in 2012. She stated that he had no right of

action on the basis that he had an excellent support system and has a new

employer because both of these existed at the time of the consent judgment.

In addition, he was living with his now-fiancée at the time the consent

judgment was signed. Tracy then filed a rule for contempt because their

consent judgment stated neither party shall have overnight guests of the

opposite sex while the children are in the residence. She alleged that Mark

had his girlfriend spend the night when the children were visiting him.

At the hearing officer conference, the hearing officer granted Tracy's

exceptions. The HOCR stated that the father only made one or two "new”

allegations and they were irrelevant, immaterial, or he was unable to prove

them. The HOCR stated that the parents agreed to put the children in

counseling and agreed to exchange the children in a public place when the

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exchange does not occur at the children's schools. Neither party filed

objections to the HOCR. The HOCR was adopted and implemented by the

trial court on September 15, 2015.

On October 13, 2016, Mark filed a rule to modify custody and for

contempt, in which he alleged the following:

• Tracy has been evicted from and lost her residence to foreclosure. The

children must sleep on the floor when they reside with her and have not

maintained proper hygiene. They do not take regular baths at her

residence. When they do bathe at her residence, they must take cold

baths because the gas bill does not get paid.

• Tracy has filed false reports in both bankruptcy court and child support

proceedings claiming Mark is behind on child support payments.

• Tracy has openly spoken negatively about Mark to the children—stating

they do not have to speak to him, he lies, and he committed adultery

while they were married.

• Tracy has not communicated with Mark regarding L.F.'s counseling or

the name of his therapist.

• Tracy has unilaterally changed Mark's weekend visit schedule to

weekends when he worked.

• Mark remarried and is able to provide a stable home and support system.

• Mark has exercised primary responsibility for assisting the children with

their schoolwork. The children's school performance has suffered due to

Tracy's unwillingness to properly supervise.

• Tracy has not complied with the doctor's instructions regarding P.F., and

the child required surgery on her left ear due to ear infections.

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• Tracy tells the children they need to return to court and tell the judge that

they want to live with her.

• Tracy has attempted to alienate the children in the following ways:

becoming confrontational with Mark in the presence of the children,

refusing to allow the children to speak with their father or paternal

grandparents during extracurricular activities or school functions, and

offering to buy the children things if they do not speak to their father.

Tracy filed a peremptory exception of no right of action arguing that

Mark had failed to meet his burden under Bergeron.

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She stated she was not

evicted but left voluntarily; the children have not been forced to sleep on the

floor; and, she has not neglected the children's hygiene. Tracy stated Mark

was in contempt for failing to maintain dental and vision insurance for July

and August 2016, failing to provide proof of life insurance in which the

children are named beneficiaries, and failing to provide timely

reimbursement for medical expenses and extracurricular activities.

A hearing officer conference was held on February 17, 2017. The

HOCR stated that Tracy and the children lived in a three-bedroom rental

duplex, which Tracy contends is an adequate home. The hearing officer

stated that Tracy's loss of the home after telling the court she would keep

her payments current and filing a factually false affidavit with Support

Enforcement Services shows she is not necessarily truthful and does not

keep her word, but does not seem to be material enough to change

domiciliary custody. Regarding Mark's claim that Tracy would not tell him

the psychologist's name, the hearing officer was unable to determine who is



2 Bergeron v. Bergeron, 492 So. 2d 1193 (La.1986).

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telling the truth, but stated it did not harm the children and was not a

material change to modify domiciliary status. The HOCR stated the

evidence related to P.F.'s ear infection and surgery occurred prior to the

previous conference and is not a change since the last court date. The

hearing officer found that filing the false support affidavit in district court

and bankruptcy court occurred before the previous conference and "is

literally not a change in circumstances.” The allegations of not allowing the

children to speak to Mark in public were a "he said, she said” issue which

could not be resolved, but the hearing officer determined Mark could not

carry his burden of proof that day. The HOCR did not recommend a change

in the custody arrangement. The HOCR was made temporary by the trial

court on March 5, 2017.

Mark filed an objection to the HOCR. He argued Tracy's loss of the

family home warrants a change in circumstances. Mark stated that he

intended to produce evidence at trial of Tracy's alienation of the children

and that the current custody situation was not in the best interest of the

children. He objected to the hearing officer's determinations that Tracy's

failure to disclose the psychologist was not sufficient to modify custody, that

Tracy was properly addressing the needs of the children, and that she

consistently engaged in actions to alienate the children was res judicata.

Tracy also filed objections to the HOCR. She argued that all of

Mark's arguments should have been dispensed with on the exceptions of no

cause of action or res judicata. She stated these matters were either

addressed at a previous conference or are immaterial.

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Upon Mark's motion, the trial court ordered P.F. and H.F. to be

interviewed by Whitney Foster, a counselor at Family Solutions Counseling,

and Ms. Foster to render an opinion to the court at the time of trial.

On July 18, 2019, proceedings began before the trial court regarding

the objections to the HOCR. Richard Reeves, the former husband of Mark's

current wife (Andrea Fuller), testified first on behalf of Mark. Mr. Reeves

and Andrea had one child, I.R., together before divorcing. He stated that he

and Andrea did not have a contentious divorce, Andrea is domiciliary parent,

and they work together well in sharing joint custody of their child. Mr.

Reeves stated he has always been welcome in Mark's home and never had

any reason to be concerned about his daughter living there.

Mark's father, Mark Fuller, Jr., testified that he has had good

interaction with the children, Mark, and Andrea. He stated that he has seen

some strain at times in Mark and L.F.'s relationship when Mark would ask

L.F. to do something and L.F. would not do what he was asked. He stated

that it was not easy to have a relationship with Tracy, and Tracy told them

that she did not want them around. He stated visits at Mark and Tracy's

former home were not good and he could feel the "tension in the air.”

Mark's mother, Brenda Fuller, testified that she keeps the children

when Mark and Andrea are at work. She stated that she and L.F have a

close relationship. She testified that she knows of issues between Mark and

L.F. when it comes to rules in Mark's house that L.F. does not think he has

to follow. She stated that L.F. has told her he would want to live primarily

with his mom. P.F. and H.F. have never told her what they would prefer.

She stated that she believes Tracy has fewer rules than Mark. She testified

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that she believes Mark, Andrea, and the children get along well. She stated

that she did not know of any problems or negative feelings between the

children, but mentioned L.F. and I.R. may have been jealous of each other as

stepsiblings when their parents first married.

Terry Winkler, a coworker and friend of Mark's, testified that he and

his family go on vacations with Mark and Mark's family. He also stated that

he and Mark are on a deer lease together and Mark brings his kids hunting.

He testified that he has not seen any interactions between Mark, Andrea, and

the children that would raise any red flags. He stated that he witnessed them

getting along and enjoying being together.

Andrea testified that she agreed with Mr. Reeves, her ex-husband, that

they have a positive relationship and co-parent I.R. well together. She stated

that as she witnessed the interactions between Mark and Tracy, she was

"traumatized for the kids and [herself].” She testified that she feels she has a

positive relationship with L.F., P.F., and H.F. Andrea stated that there was a

little "sibling rivalry” between L.F. and I.R. when they all first moved in

together, but it did not last long. She stated that the transition of everyone

being in the same house and living as a family went smoothly. Andrea

described incidents where picking up the children from Tracy were difficult.

Andrea stated she would meet to swap the children with Tracy because it

was easier on her work schedule than Mark's schedule. She stated that after

several times of picking up the children, Tracy would not release them to her

until Mark showed up. She described instances where she and Mark thought

the pick-up time was at 6:00 p.m. and Tracy said it was at 3:00 p.m. so they

were not able to get the children that week. Andrea stated there were a

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couple of instances when they were supposed to pick the children up after

school and the children would not be at school when they got there.

Andrea testified that after L.F. began counseling, she saw a huge

improvement in his relationship with Mark. She stated that L.F. would have

tantrums and get upset when he did not get his way or did not like Mark's

rules and consequences. She stated that he would calm down after he and

Mark would talk everything over, but the tantrums became less frequent

after he started counseling. Andrea testified that Tracy does not

communicate about the children's medical appointments or extracurricular

schedules with them. She stated that she and Mark had to call around to

different doctorss offices to find out which psychologist L.F. was seeing.

She testified that P.F. had an ear surgery around Thanksgiving that they

were not aware of until P.F. told them and handed them a bag of antibiotics.

Andrea stated they were not given any discharge instructions or pain

medication from Tracy and had to call the doctor to find out if they were to

remove the packing from surgery that was still in P.F.'s ear.

Tracy testified that she has been married four times. She testified that

she has been working part-time doing clerical accounting work and her job

allows her to be home by 2 o'clock in the afternoon, which correlates with

the children's school schedule. She stated that she and Mark have not had

verbal communication in years and they primarily communicate through

email, in which both of their attorneys are cc'd. Mark's attorney questioned

why the court should believe any of her testimony when she has filed

inaccurate documents under oath. Tracy responded, "There was confusion

on the child support document that was done under oath. But my children

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have never been in ruins to where they're forced to sleep on the floor or had

cold showers.” Tracy denied telling the children anything about the divorce;

she also denied ever discouraging the children from speaking with Mark or

his family at extracurricular activities or school events. She stated that she

has never blocked Mark's phone number on the children's cell phones, but

L.F. blocked Mark's number. She testified that she did block Andrea's

number from both P.F.'s and H.F's phones.

Tracy testified that she and Mark have confusion or disagreements on

when summer vacation is to start. Tracy denied or explained away all of

Mark's allegations, especially those regarding visitation issues and

disagreements. Tracy testified that she has sent Mark medical bills for the

children and receipts for extracurricular activities and has not been

reimbursed by Mark for his portion of the payments. Tracy stated that P.F.

and H.F. do not want to stay at Mark's house because they are not treated

fairly. She stated that she takes P.F. and H.F. to church "maybe six times

within a year” (L.F. chooses not to attend) and encourages their Christian

faith.

Whitney Foster, an expert in family counseling, testified that Mark

contacted her about counseling P.F. and H.F. Ms. Foster stated that she had

to get permission from Tracy, as the domiciliary parent, before she could

begin sessions with P.F. and H.F. Ms. Foster went through her session notes

for the court. She described how P.F. recalled multiple instances of Tracy

telling them lies about Mark. P.F. stated in counseling that Tracy blocked

Mark from calling P.F.'s phone, but later removed the block. Ms. Foster

stated that P.F. had a recurring theme in counseling of wanting to live with

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both of her parents at the same time. H.F. wanted equal time with both

parents. Ms. Foster testified that in one session, H.F. stated, "I like both my

parents. I'm hoping my Dad can find a neighborhood near my Mom.”

Ms. Foster testified that both girls described instances of crying

themselves to sleep and not knowing why; P.F. reported that she is homesick

and missed her Dad. Ms. Foster stated that in her opinion, Tracy's actions

were forms of parental alienation over the children.

Mark testified that he is a registered nurse, hospital supervisor, and

teaches medical classes at a community college. He described an instance of

the children coming to his house and complaining of no baths or cold baths.

He said P.F. and H.F. would have matted hair and some of the knots would

have to be cut out because they could not be brushed. Mark testified

regarding P.F.'s ear infections. He stated that he took P.F. to the doctor's

office multiple times and sent her antibiotics, ear drops, and instructions to

Tracy's house. The nurse practitioner who examined P.F. told Mark that her

ears were healing slowly and it was imperative that she take all of her

medication. Mark stated that after speaking with the doctors, it was his

understanding that the ear infection got out of control, which led to damage

and slow healing. This out-of-control infection has been attributed to the

failure to use antibiotics appropriately and timely.

Mark stated that he helps the kids with their homework and has

enrolled them in online tutoring as needed. He testified that the children had

failing grades primarily on days which correlated with their days at Tracy's

house. Mark testified that L.F. has confronted him about abusing Tracy and

having affairs when they were married. Mark stated that he had to be firm

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with L.F. that those things did not happen and when he is old enough, he can

read the divorce papers for himself to see why they actually divorced. He

also described instances of L.F. not speaking to him in public so he would

not get in trouble with Tracy and instances of Tracy being confrontational

with him in public. Mark testified that he places an importance on the

children attending church and fostering their spiritual growth.

The trial court spoke with L.F. in a closed hearing and received letters

from P.F. and H.F., which are sealed in the record. L.F. testified in open

court regarding a protective order that was filed against Mark during the

custody proceedings. He stated that the protective order was filed because

Mark pinned him against his truck. He stated that the night before the

incident, Andrea asked for his phone because he had been staying up too late

and making too much noise. He refused to give her his phone and locked

himself in his room. He stated that he did not feel that her taking his phone

was "justified.” L.F. testified that although he thought his actions were rude,

he did not give her the phone because he did not like her. He testified that

the next evening, he was sitting outside when Mark got home from work and

they were discussing what happened the night before when Andrea asked for

his phone. He stated that Mark told him that he was disrespectful and to go

inside and set his phone on the counter, which he declined to do. Mark also

told L.F. to clean his room and mow the yard. He testified that when he

refused, Mark pinned him against the truck and took his phone.

L.F. stated that he would describe the environment at Mark's house as

"hostile” for him and his sisters and there was a lot of "psychological

abuse.” L.F. testified he has not had contact with Mark since this incident

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and would prefer supervised visitation if he continues to go to Mark's house.

He stated that H.F. did not get along well with P.F. and I.R. and was often

left out at Mark's house. L.F. testified that Andrea makes P.F. and H.F. cry

sometimes.

During the protective order hearing, L.F. was questioned about his

punishment at his mom's house versus his dad's house, and he responded, "I

don't raise hell at my mom's house like I do at my dad's house.” Mark

motioned at the hearing to have the protective order involuntarily dismissed.

The trial court agreed that there was no need to have a protective order based

on the evidence presented and involuntarily dismissed the protective order.

At the end of the hearings, the trial court issued its 26-page written

reasons for judgment, which was filed December 8, 2020. The trial court

denied Tracy's exception of res judicata. The trial court also denied Tracy's

motion to strike Mrs. Foster's testimony because she could not be both a

counselor to the children and custody evaluator. The trial court found that

Mrs. Foster testified as to issues that were reported to her by P.F. and H.F.

that could have the effect of parental alienation, but did not provide

testimony regarding her opinion as to the proper custody arrangement for the

children. The trial court found that Mark met his burden of proof as to the

material change in circumstances. As to the best interest of the child factors

outlined in La. C.C. art. 134, the trial court found the following:

1. The potential for the child to be abused—This factor is inapplicable

as neither parent has inflicted mental abuse as defined by La. Ch. C.

art. 603, nor is there any indication of any potential abuse by either

parent.

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2. Love, affection, and other emotional ties between each party and the

child—Both parents love their children, but the trial court was

"persuaded by the testimony, that Tracy has taken actions, in her

words or deeds, to damage the love, affection, and the strong

emotional ties that the children have enjoyed with their father.”

Because Tracy took "unnecessary actions in an effort to damage the

children's relationship with their father,” this factor weighed in

favor of Mark.

3. 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—Although both parents have the capacity to

give their children love and affection, Mark has shown a greater

capacity to provide for the children's education and to provide

spiritual guidance.

4. Capacity and disposition of each party to provide the child with

food, clothing, medical care, and other material needs—Both parties

had the capacity to provide for food, clothing, and other material

needs, but Mark, as a registered nurse, was in a better position to

assess the medical needs of the children.

5. The length of time the child has lived in a stable, adequate

environment, and the desirability of maintain continuity of that

environment—Tracy did not provide a consistent stable and

adequate environment for the children; her history did not allow the

trial court to infer long-term stability. Mark's living environment

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was more consistent, and he sincerely tried to engage in coparenting with Tracy. This factor weighed slightly in favor of Mark.

6. The permanence, as a family unit, of the existing or proposed

custodial home—Tracy has resided in her residence since 2017 and

Mark in his residence since 2014. Mark stated was trying to move

into the children's current school district. This factor weighed in

favor of Tracy because if Mark does not get moved into the current

school district, then moving the children to a new school district

would be detrimental to their best interests.

7. The moral fitness of each party, insofar as it affects the welfare of

the child—Tracy's perjury on two separate occasions could have

resulted in criminal prosecution and one could have caused great

harm to Mark. Tracy's willingness to engage in this conduct was an

indication of lack of moral fitness. Tracy did not present any

credible evidence that Mark was morally unfit; therefore, this factor

weighed in favor of Mark.

8. History of substance abuse, violence, or criminal activity—This

factor is inapplicable because no credible evidence was introduced

by either party.

9. Mental and physical health of each party—This factor is

inapplicable because both parties were mentally and physically

healthy.

10. Home, school, and community history of child—Again, if Mark

was unable to move into the current school district, this could be

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detrimental to the best interests of the children. This factor weighs

in favor of Tracy.

11. Reasonable preference of the child—All three children were of

sufficient age to express a preference. P.F. and H.F. would like

equal time with both parents. The trial court found that L.F.'s

preference to live with his mother has to do the with rift between

Mark and L.F. caused by Tracy's leniency toward discipline and

willingness to allow L.F. to do as he wants. The trial court stated it

was in the best interest of the children to craft a custodial

arrangement that will allow, as much as possible, equal time with

both parents. Therefore, both parents will have to properly

communicate. Tracy's efforts in communicating were found to be

inadequate.

12. The willingness and ability of each party to facilitate and encourage

a close and continuing relationship between the child and other

party—Tracy engaged in parental alienation both intentionally and

subconsciously, which is the primary reason the consent judgment

has failed. This factor overwhelmingly favors Mark, "and demands

a modification of the custody arrangement.”

13. Distance between the residences—This factor was irrelevant

because the parties lived in close proximity to each other.

14. Responsibility for the care and rearing of the child previously

exercised by each party—Tracy has had the primary responsibility

for the care and rearing of the children, but her manner and methods

have caused issues that rendered her unfit to carry on with those

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responsibilities, which were described in detail in considering the

other factors. Normally, this factor would weigh in favor of the

primary custodial parent, but did not weigh in favor of Tracy.

After considering the above factors, the trial court found that the best

interest of the children will most effectively be met by joint custody with

Mark being designated as the primary custodial parent. Tracy's visitation

consisted of having the children every other weekend, major holidays being

split 50/50, and alternating weeks in the summer. As to Tracy's rule for

contempt for Mark failing to pay his portion of the children's expenses,

using his wife as a proxy in co-parenting, not adhering to the summer

schedule, and other specified acts, the trial court found the claims did not

rise to the level of contempt. The trial court denied Mark's rule for

contempt as it was based on the same factors which formed the basis for the

custody change. Therefore, the punishment for contempt would have been

inequitable. Each party was responsible for their own court costs.

Tracy now appeals the trial court's judgment.

DISCUSSION

Modification of Custody and Domiciliary Parent

Tracy does not dispute that there has been a material change in

circumstances to warrant a review of the consent judgment. However, she

disagrees that the changes made by the trial court are in the children's best

interests. She argues that the trial court improperly considered co-parenting

issues within multiple factors.

In most child custody cases, the trial court's determination is based

heavily on factual findings. Harrel v. Harrel, 52,248 (La. App. 2 Cir.

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6/27/18), 251 So. 3d 546. Child custody decisions are reviewed under the

abuse of discretion standard. Leard v. Schenker, 06-1116 (La. 6/16/06), 931

So. 2d 355; Harrel v. Harrel, supra. The determination of the trial judge in

child custody matters is entitled to great weight, and that discretion will not

be disturbed on review absent a clear showing of abuse. Leard v. Schenker,

supra; Harrel v. Harrel, supra.

Neither party argues the trial court improperly determined there was a

material change in circumstances or improperly continued the joint custody

scheme. Therefore, the first issue we must consider is whether the trial court

erred in designating Mark as the domiciliary parent.

In designating the domiciliary parent, for purposes of joint custody

determination, consideration must be given to the factors in La. C.C. art. 134

and any other relevant factors. The principal consideration in every child

custody case is the best interest of the child. Nichols v. Nichols, 32,219 (La.

App. 2 Cir. 9/22/99), 747 So. 2d 120. La. C.C. art. 134 states, in pertinent

part:

A. Except as provided in Paragraph B of this Article, the court

shall consider all relevant factors in determining the best

interest of the child, including:

(1) The potential for the child to be abused, as defined by

Children's Code Article 603, which shall be the primary

consideration.

(2) The love, affection, and other emotional ties between each

party and the child.

(3) 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.

(4) The capacity and disposition of each party to provide the

child with food, clothing, medical care, and other material

needs.

(5) The length of time the child has lived in a stable, adequate

environment, and the desirability of maintaining continuity of

that environment.

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(6) The permanence, as a family unit, of the existing or

proposed custodial home or homes.

(7) The moral fitness of each party, insofar as it affects the

welfare of the child.

(8) The history of substance abuse, violence, or criminal

activity of any party.

(9) The mental and physical health of each party. Evidence that

an abused parent suffers from the effects of past abuse by the

other parent shall not be grounds for denying that parent

custody.

(10) The home, school, and community history of the child.

(11) The reasonable preference of the child, if the court deems

the child to be of sufficient age to express a preference.

(12) The willingness and ability of each party to facilitate and

encourage a close and continuing relationship between the child

and the other party, except when objectively substantial

evidence of specific abusive, reckless, or illegal conduct has

caused one party to have reasonable concerns for the child's

safety or well-being while in the care of the other party.

(13) The distance between the respective residences of the

parties.

(14) The responsibility for the care and rearing of the child

previously exercised by each party.

While the court is not bound to make a mechanical evaluation of all

the statutory factors listed in La. C.C. art. 134, it should decide each case on

its own facts in light of those factors. Nor is the court bound to give more

weight to one factor over another; rather, when determining the best interest

of the child, the factors must be weighed and balanced in view of the

evidence presented. The factors are provided as a guide to the court, and the

relative weight given to each factor is left to the discretion of the trial court.

Abrams v. Turner, 52,922 (La. App. 2 Cir. 9/25/19), 282 So. 3d 304.

In child custody cases where two parents are fervently competing for

custody and domiciliary status of the children, frequently the trial court must

determine the best interest of the children solely from the testimony of the

parents and their respective relatives or friends. This naturally passionate

and self-interested testimony is rarely objective, leaving it to the trial court,

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who is in the best position to view firsthand the demeanor and tone of the

witnesses, to assess the credibility of the witnesses, and decide how much

weight to give the testimony in light of the factors in La. C.C. art. 134.

Abrams v. Turner, supra.

In the case before us, the trial court found it was in the children's best

interests to grant domiciliary status to Mark. In discussing the factors, the

trial court stated multiple times that Tracy acted to damage the relationship

between Mark and the children. Testimony revealed that Tracy would

reprimand the children for speaking to their father in public, she blocked his

phone number on the children's cell phones, and Tracy engaged in parental

alienation of the children. The trial court found this to be the primary reason

that the previous custody arrangement failed and demanded modification.

The trial court found factors two, three, four, five, seven, and 12 to be

in favor of Mark and factors six and ten to be in Tracy's favor. Tracy argues

that factors two, four, seven, and 12 should not have weighed against her,

and factors three, five, 11, and 14 should have been in her favor. She asserts

that the trial court improperly considered actions of parental alienation

within multiple factors and weighed those factors against her. She argues

that Mark spoke to the children about wanting to modify the visitation

schedule to see them more; Mark has more education, but she still has the

capacity to love them and provide them with food and other necessities; the

children have done well in school while under her care; and, her false

statements in court regarding child support had no effect on the minor

children.

21

We disagree with Tracy's arguments. The trial court is in the best

position to assess witness credibility and weigh their testimonies. The fact

that both parents have struggled to properly communicate with each other

does not negate the fact that Tracy has exhibited behavior consistent with

parental alienation. The trial court is to weigh the factors in light of the

evidence presented and is given the discretion to weigh the factors as it sees

fit. The factors are not a game in which one parent "scores” a factor and the

parent with the highest "score” wins. Depending on the facts of each case,

one factor may carry more weight than it would in another case.

The trial court found that Tracy's actions of alienation and trying to

keep the children from Mark were overwhelming reasons to modify custody

and designate Mark as domiciliary parent. Even if additional factors should

have been in Tracy's favor, those few factors are not enough to overcome

the trial court's discretion in placing more weight on the alienation. In

reviewing the factors, particularly the alienation exhibited by Tracy, in light

of all the testimony presented at trial, we find that the trial court did not

abuse its discretion when weighing the factors and naming Mark the

domiciliary parent. This assignment lacks merit.

Visitation Schedule

Tracy argues that the trial court erred in substantially decreasing her

time with the children. She argues that her visitation of every other weekend

during the school year is an excessive limitation on her time with the

children. Tracy highlights that her visitation time is less than Mark's

visitation time under the previous order.

22

The trial court's finding that joint custody is in the best interest of the

child does not necessarily require an equal sharing of physical custody.

Collins v. Collins, 36,629 (La. App. 2 Cir. 10/23/02), 830 So. 2d 448.

Substantial time rather than strict equality of time is mandated by the

legislative scheme providing for joint custody of children. Abrams v.

Turner, supra. Every child custody case must be viewed on its own

particular set of facts and relationships involved, with the paramount goal of

reaching a decision which is in the best interest of the child. Nichols v.

Nichols, supra.

A joint 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. La. R.S.

9:335(A)(2)(a). Our jurisprudence has not defined "frequent and

continuing” in terms of a minimum amount of time. Frequent and

continuing contact must be determined based on the facts of each case. 3



Tracy was given every other weekend from 5:30 pm Friday to 5:30

pm Sunday during the school year, alternating weeks in the summer, and one

half of all major holidays. This amounts to four nights a month during



3

In O'Brien v. O'Brien, 30,001 (La. App. 2 Cir. 12/10/97), 704 So. 2d 933,

alternating weekends, alternating holidays, and six weeks in the summer was held not to

be frequent and continuous contact. In Ellinwood v. Breaux, 32,730 (La. App. 2 Cir.

3/1/00), 753 So. 2d 977, the court added two weeks in the summer to make the visitation

schedule frequent and continuing. The Ellinwood schedule became alternating weekends,

alternating holidays, and 6 weeks in the summer. In Collins, surpa, the court modified

the visitation schedule to give the children frequent and continuing contact—every other

week Wednesday through Sunday and 8 weeks in the summer. In Bingham v. Bingham,

42,140 (La. App. 2 Cir. 4/4/07), 954 So. 2d 842, the court stated that giving mom custody

of the children during the school year and dad custody during the summer (with some

specific visitation carved out) was frequent and continuous visitation. The Bingham

court distinguished the case from Collins because Collins involved parents who

communicated well with each other and fostered the children's relationships with the

other parent.

23

approximately nine months out of the year and approximately six weeks

during the summer, plus one half of holidays.

Under the facts of this case, we do not find this visitation schedule to

be frequent and continuing. This is not a case where the parents live so far

apart that each parent cannot get the children to school during the school

year. In fact, Mark was looking to move closer to Tracy in order for the

children to stay in the same school district. Although factors three and four

were in favor of Mark, the trial court stated that both parties have the

capacity to love and care for the needs of the children.

The major breakdowns in the previous custody agreement were the

communication between the parents and Tracy's actions of parental

alienation. Both parents must do better communicating with each other in

order to ensure the children's needs are met. Given the change in the

visitation schedule, Tracy's parental alienation actions should be less

frequent and effective, even if she is designated a few more days a month

during the school year. Additionally, the children are accustomed to seeing

both of their parents more than four days a month. Allowing Tracy a little

more visitation time during the school year will help ensure the children

have frequent and continuous contact with her.

For these reasons, we remand the visitation schedule back to the trial

court to craft a schedule that gives Tracy more than four days a month

during the school year.4





4 We note that the trial court is in the best position to determine how best to

schedule the visitation, whether it be additional nights when Tracy already has the

children or adding time to the weeks she does not have the children. As the parents

struggle to communicate, the schedule should be clear on when the school year ends and

begins in order to transition to the summer schedule.

24

Child Support and Tax Deductions

Tracy argues that if this Court finds that the trial court abused its

discretion in modifying custody and designating Mark as domiciliary parent,

then the termination of child support and award of dependency tax

deductions must also be manifestly erroneous. We did not find the trial

court to be manifestly erroneous in modifying custody and designating Mark

the domiciliary parent. Therefore, the termination of Mark's child support

payments and yearly permission to claim the children on his income taxes

were proper.

We affirm the trial court’s judgment modifying joint custody and

naming Mark the domiciliary parent, and we remand the visitation schedule

to the trial court for a modification to allow the children frequent and

continuous contact with Tracy. Each party bears its own costs associated

with this appeal