113 So. 3d 327
La. Ct. App.2013Background
- Orphaned M.S.E. was in custody dispute between his maternal grandfather and Davin Evans and Heather Evans after Missy’s death.
- Missy (M.S.E.’s mother) died by suicide in 2011; Mikey Evans had died in Iraq in 2005, leaving M.S.E. with Missy’s family.
- Temporary custody was with Missy’s father (the maternal grandfather) before trial; Evanses pursued permanent custody.
- Custody evaluations were conducted by Drs. Klein (favoring Hebert) and Carbone (described issues for M.S.E.), with Dr. Kunen criticizing Klein’s methodology.
- Trial evidence showed Evanses’ stable home, two young children, Catholic schooling options, and willingness to foster M.S.E.’s attachment to both families; Hebert argued for continuity with his grandfather and his extended family.
- Trial court ultimately awarded permanent custody to Davin and Heather Evans with liberal visitation for Mr. Hebert, affirming the decision on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Article 133 applies in orphan custody cases | Hebert argues Article 133 should govern non-parent custody. | Evanses contend Article 133 is inapplicable between non-parents; best interest standard applies. | Article 133 not applicable; best interest standard governs. |
| Whether Article 134 factors were properly considered | Hebert asserts trial court ignored Article 134 factors and time with Evanses. | Evanses maintain court weighed Article 134 factors without mechanical enumeration. | Court properly considered Article 134 factors; no abuse of discretion. |
| Whether trial court erred by not adopting Klein’s recommendations | Hebert argues Klein’s custody evaluation should control. | Evanses and court disagree with Klein; other expert testimony supports Evanses’ custody. | Trial court may reject expert testimony; no error in weighing Dr. Klein’s findings. |
Key Cases Cited
- Stephens v. Smith, 704 So.2d 943 (La.App. 2 Cir. 1997) (best interest standard governs custody in orphan cases)
- Robertson v. Robertson, 64 So.3d 354 (La.App. 5 Cir. 2011) (trial court may weigh Article 134 factors non-mechanically)
- McFall v. Armstrong, 75 So.3d 30 (La.App. 5 Cir. 2011) (expert testimony is weighed by trial court, not binding)