Hanks v. Hanks
140 So. 3d 208
La. Ct. App.2014Background
- Parties: Ann and Raymond Hanks, Jr.; married 2005, two minor children (EH and ZH). Ann filed for divorce Nov. 22, 2010; parties separated Dec. 4, 2010 after an emotional incident that led to emergency response and Ann’s brief hospitalization.
- Interim stipulation (Dec. 15, 2010; reduced to judgment Mar. 2, 2011): joint/shared legal custody with a week-on/week-off (50/50) physical schedule, no domiciliary parent designated; Ray had use of the former matrimonial home; constraints on communications and mutual injunctions.
- Custody evaluator (Dr. Niemann) recommended maintaining the week-on/week-off schedule; recommended Ray as domiciliary parent but said co-domiciliary designation would be acceptable if parents could cooperate.
- Trial occurred May 2012 after multiple continuances; trial court (June 28, 2013) awarded shared joint custody and maintained the existing 50/50 rotating schedule and declined to designate a domiciliary parent.
- Appeal: Ann challenges (1) continuation of the 50/50 arrangement (Article 134 factors), (2) refusal to designate her domiciliary parent (La. R.S. 9:335). Court affirms custody arrangement but remands to revisit domiciliary issue, to issue a joint custody implementation order, and to consider appointing a parenting coordinator.
Issues
| Issue | Plaintiff's Argument (Ann) | Defendant's Argument (Ray) | Held |
|---|---|---|---|
| Whether the existing week-on/week-off 50/50 shared custody should be continued | The arrangement harms children; court over-relied on the interim status quo and ignored evidence (children’s distress, Ann’s primary-caregiver role, Ray’s conduct and mental-health concerns) | The interim 50/50 plan has functioned for years; evaluator supports maintaining it; stability and continuity favor continuation | Affirmed: trial court did not abuse discretion; maintaining 50/50 was in children’s best interest under the facts |
| Whether a domiciliary parent should be designated under La. R.S. 9:335(B) | Trial court erred by not naming Ann domiciliary given Ray’s alleged manipulative conduct and poor co-parenting; Ann is friendly parent and primary caregiver | No abuse of discretion in declining to name a domiciliary parent because parties had operated without one for years and no significant problems were shown | Remanded: appellate court pretermits deciding good-cause; trial court instructed to revisit domiciliary issue in light of stale record and delays |
| Whether a joint custody implementation order and parenting coordinator are required/appropriate | (Implicit) Implementation order and resources to aid co-parenting needed to protect children and clarify decision-making | (Implicit) An implementation order should be entered if required; parenting coordinator appropriate given conflict | Remanded with instructions: trial court must issue a joint custody implementation order (La. R.S. 9:335) unless good cause shown; consider appointing parenting coordinator (La. R.S. 9:358.1–.9) |
Key Cases Cited
- Palazzolo v. Mire, 10 So.3d 748 (La. App. 4th Cir. 2009) (discusses Article 134 factors and appellate deference to trial court’s custody findings)
- Evans v. Lungrin, 708 So.2d 731 (La. 1998) (distinguishes physical and legal custody; explains domiciliary parent concept)
- Bergeron v. Bergeron, 492 So.2d 1193 (La. 1986) (standards for modifying a considered custody decree)
- Barber v. Green, 134 So.3d 1223 (La. App. 2d Cir. 2014) (approves week-on/week-off 50/50 schedule in rare cases fitting specific factors)
- Wolfe v. Hanson, 991 So.2d 13 (La. App. 1st Cir. 2008) (found domiciliary parent necessary where parties couldn’t communicate and police involvement occurred)
- Dunklin v. Dunklin, 86 So.3d 741 (La. App. 2d Cir. 2012) (held false or unfounded abuse allegations can demonstrate unwillingness to foster the other parent and affect domiciliary designation)