Benny Council v. Tameka Collins Livingston
364 So.3d 410
La. Ct. App.2020Background
- Parents (both Louisiana attorneys) share a seven-year-old son, BDC; the child has always primarily lived with mother (Livingston).
- A considered decree (Sept. 7, 2016) awarded joint custody, designated mother as domiciliary parent, set a graduated visitation plan for father (Council), ordered both parents to attend therapy, and set child support.
- Implementation problems arose; father filed a Rule to Modify (Mar. 21, 2019) alleging mother’s unstable living situation, mental instability, interference with visitation, and safety concerns.
- One-day trial held after exceptions were overruled; father and mother testified (each called two witnesses).
- Trial court (Aug. 14, 2019) continued joint legal custody, kept mother as domiciliary parent, expanded father’s physical visitation (alternating weekends and holidays), appointed a parenting coordinator, imposed a 75-mile travel restriction without written consent, and scheduled a March 5, 2020 review hearing.
- On appeal, the court affirmed the domiciliary-parent ruling (finding no abuse of discretion) but amended the judgment to delete the review-hearing provision.
Issues
| Issue | Plaintiff's Argument (Council) | Defendant's Argument (Livingston) | Held |
|---|---|---|---|
| Whether the trial court erred in maintaining the mother as domiciliary parent under La. C.C. art. 134 | Mother’s mental instability and nomadic living pose risk to child; no reasonable application of Article 134 could favor mother; trial court ignored Article 134 factors | There was a reasonable basis to maintain mother as domiciliary parent; father’s proof was speculative and the court heard conflicting testimony | Affirmed: appellate court held trial court did not legally err in applying Article 134 (factors are non‑exclusive guide) and did not abuse its discretion in keeping mother domiciliary |
| Whether a civil custody judgment may properly include a future "review hearing" date | Review hearing was improper in a civil custody matter; juvenile statutes allow periodic reviews, but not in private custody cases | Review hearing unnecessary; either party may seek modification if circumstances change | Judgment amended to delete the review-hearing order; appellate court held a standing review hearing was improper in civil custody context |
Key Cases Cited
- Bergeron v. Bergeron, 492 So.2d 1193 (La. 1986) (establishes standard for modifying custody in considered decrees).
- Tracie F. v. Francisco D., 188 So.3d 231 (La. 2016) (best interest of the child is the overarching custody inquiry).
- AEB v. JBE, 752 So.2d 756 (La. 1999) (Bergeron requirements apply to modifications of considered decrees).
- Alfonso v. Cooper, 146 So.3d 796 (La. App. 4 Cir. 2014) (Article 134 factors are illustrative; courts need not mechanically analyze each factor).
- Braud v. Braud, 261 So.3d 950 (La. App. 4 Cir. 2018) (discussing Revision Comments and non‑exclusive nature of Article 134 factors).
- Gathen v. Gathen, 66 So.3d 1 (La. 2011) (explains abuse‑of‑discretion review in family law determinations).
- Frase v. Barnhart, 840 A.2d 114 (Md. 2003) (explains why periodic review hearings are proper in juvenile/CINA proceedings but inappropriate as a routine device in private civil custody judgments).