53 So. 3d 720
La. Ct. App.2010Background
- Frances Givens and Kenneth Givens, married in 1979, have two children (Victoria and Olivia); Frances filed for divorce alleging adultery and sought sole custody of Olivia.
- Kenneth admitted adultery but requested joint custody with Frances as domiciliary parent and liberal physical custody in his favor; Frances moved Olivia to New Orleans with relatives without Kenneth’s notice.
- Initial custody trial began July 5, 2007; Kenneth was granted limited weekend visitation pending trial; a joint custody plan and a domiciliary parent designation for Frances were later entered July 24, 2009.
- The joint custody plan awarded Kenneth specific overnight custody: alternating weekends, certain holidays, and four weeks in summer, with Frances as domiciliary parent.
- Frances challenged the overnight custody, the Mississippi residence inspection denial, and the trial court’s handling of expert testimony and Barbara Givens’ involvement.
- On appeal, the court held the trial court’s overnight custody award was in Olivia’s best interest and affirmed the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether overnight custody for Kenneth was in Olivia's best interests | Givens argues overnight time was not in Olivia’s best interest | Givens asserts joint custody with overnight access is feasible and beneficial | Overnight custody found to be in Olivia’s best interest |
| Whether the trial court erred by denying inspection of Barbara Givens’ Mississippi home | Frances contends inspection is relevant to best interest and discovery | Kenneth argues inspection of nonparty’s home is improper and invasive | Trial court did not abuse its discretion; denial affirmed |
| Whether the trial court properly weighed expert and other evidence on custody | Frances alleges trial court rejected her experts and relied improperly on others | Kenneth contends trial court appropriately weighed all evidence and credibility | No manifest error; trial court’s evaluation of experts and findings upheld |
Key Cases Cited
- Rosell v. ESCO, 549 So.2d 840 (La. 1989) (manifests standard for reviewing factual credibility)
- Stobart v. State, DOTD, 617 So.2d 880 (La. 1993) (credibility not disturbed where multiple reasonable views exist)
- Evans v. Lungrin, 708 So.2d 731 (La. 1998) (best interest standard; custody factors evaluation)
- Martello v. Martello, 960 So.2d 186 (La. App. 1st Cir. 2007) (fact-intensive custody determinations defer to trial court)
- Caro v. Caro, 671 So.2d 516 (La. App. 1st Cir. 1995) (trial court discretion in determining feasible custody periods)
- Moak v. Illinois Central Railroad Co., 631 So.2d 401 (La. 1994) (broad discovery discretion in custody context)
- Griffith v. Latiolais, 48 So.3d 1058 (La. 2010) (moral misconduct may be considered only if affecting welfare)
- Perry v. Monistere, 4 So.3d 850 (La. App. 1st Cir. 2008) (best interests and discretionary weighting of factors)