Mulkey v. Mulkey
2013 La. LEXIS 1073
| La. | 2013Background
- Married 1993; one child Matthew (b. 1998); divorce 2001; two consent decrees granting seven-day custody mix.
- 2003 petition to modify; Vicki sought domiciliary custody, child support, and medical expenses; Phillip sought domiciliary status.
- 2004 judgment awarded Vicki domiciliary custody with Phillip as non-domiciliary; trial court later denied modification until 2011.
- 2011 Vicki filed for medical expenses, contempt and child support; Phillip moved to modify custody to make him domiciliary parent.
- Trial court found no harm in modification but held Bergeron burden satisfied; named Phillip primary domiciliary parent and weighed harm vs. advantages.
- Court of Appeal reversed, reinstating the 2004 custody decree; Louisiana Supreme Court granted writ to review and reinstates trial court’s modification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Bergeron burden standard application in modification | Mulkey argues Bergeron allows modification if advantages outweigh harm | Mulkey contends the Bergeron test was misapplied; clear-and-convincing not required | Bergeron burden satisfied; modification affirmed |
| Material change in circumstances since 2004 decree | There was a material change affecting Matthew’s welfare | Record showed change but not deleterious effect; Bergeron applies | Material change established; Bergeron analysis applicable |
| Weight given to child’s custodial preference | Matthew’s preference should be given substantial weight due to maturity | Preference must be weighed with other factors; not solely controlling | Court correctly weighedMatthew’s preference; supported modification |
| Impact of medical and health issues on modification | Phillip capable of managing medical care; no harm from move | Vicki carried medical burden; medical needs not adequately addressed by Phillip | Medical considerations do not negate the modification; favorable outcome supported |
Key Cases Cited
- Bergeron v. Bergeron, 492 So.2d 1198 (La. 1986) (sets Bergeron burden: harm must be outweighed by advantages or be deleterious to modify)
- Gray v. Gray, 65 So.3d 1247 (La. 2011) (custody decisions consider child’s best interests and parental roles)
- Evans v. Lungrin, 708 So.2d 731 (La. 1998) (best interest of child standard and considerations in custody)
- AEB v. JBE, 752 So.2d 756 (La. 1999) (notations on deference to trial court’s factual findings)
- Fulco v. Fulco, 254 So.2d 603 (La. 1971) (historical context for custody considerations)