169 So. 3d 437
La. Ct. App.2015Background
- Parents Ryan and Christina Distefano share two minor children; divorce judgment (Jan 18, 2012) followed by a considered custody trial leading to a September 3, 2013 decree designating Ryan domiciliary parent and allocating Christina specific alternate weekends and Wednesdays.
- Prior to the September 2013 decree the parties had been sharing week-to-week physical custody while living in the same community; at the 2013 decree Christina planned to move to a different parish/school district.
- Christina moved back into the same subdivision as Ryan (three streets away) after the September 2013 decree and sought modification (filed March 2014) to equalize physical custody (alternating weekly) and to be co-domiciliary.
- Trial court (April 4, 2014; judgment Apr 29, 2014) maintained joint custody but modified physical custody to alternating weeks and designated the parties co-domiciliary parents.
- Ryan appealed, arguing Christina failed to meet the heavy burden required to modify a considered custody decree (no material change; not shown continuation was deleterious nor that benefits outweighed harm).
Issues
| Issue | Plaintiff's Argument (Christina) | Defendant's Argument (Ryan) | Held |
|---|---|---|---|
| Whether there was a material change in circumstances since the considered September 2013 decree | Christina: her move into the same subdivision as Ryan materially changed logistics and made a different allocation feasible | Ryan: no material change — parties already shared custody and arrangement was appropriate | Court: Christina’s move into same neighborhood was a material change supported by the record |
| Whether continuation of prior custody was "so deleterious" (Bergeron standard) | Christina: Ryan’s refusal to facilitate extra contact and isolation from mother harmed children; change would benefit children | Ryan: no evidence of harm; change would upset established primary caregiver and routine | Court: no evidence custody was deleterious, but Bergeron alternative satisfied — harm from change minimal and outweighed by advantages |
| Whether advantages of changing custody substantially outweigh harm (Bergeron alternative) | Christina: closer proximity means more time with mother with minimal disruption; advantages outweigh any minimal harm | Ryan: change would be disruptive and a ‘‘drastic upheaval’’ from primary caregiver | Court: advantages (greater maternal contact given proximity) substantially outweighed any minimal harm; Bergeron burden met |
| Whether court could designate parties co-domiciliary and modify physical custody to alternating weekly | Christina: co-domiciliary status appropriate to allocate decision-making when children are with each parent | Ryan: challenged modification and consequences | Court: modification and co-domiciliary designation affirmed (court relied on implementation authority and precedent; designation means each parent has primary authority while children are in that parent’s custody) |
Key Cases Cited
- Bergeron v. Bergeron, 492 So.2d 1193 (La. 1986) (establishes heavy burden to modify a considered custody decree and the alternative clear-and-convincing "advantages outweigh harm" standard)
- Mulkey v. Mulkey, 118 So.3d 357 (La. 2013) (discusses application of Bergeron standards to custody modification)
- Evans v. Lungrin, 708 So.2d 731 (La. 1998) (best-interest standard and distinction between considered and non-considered decrees)
- Major v. Major, 849 So.2d 547 (La. App. 1st Cir. 2003) (explains considered decree concept and burden for modification)
- Rosell v. ESCO, 549 So.2d 840 (La. 1989) (standard for appellate review of factual findings)
- Stobart v. State, DOTD, 617 So.2d 880 (La. 1993) (articulates manifest-error/clearly-wrong review standard for fact findings)