65 So. 3d 724
La. Ct. App.2011Background
- custody dispute in Louisiana between Emily and Eric Silbernagel over 11-year-old Matthew; district court modified custody to co-domiciliary parents and adjusted visitation from alternating seven-day periods; Matthew to remain at St. Louis King of France school; Bergeron standard invoked for modification of a previously considered decree; prior ruling in 2006 maintained Emily as domiciliary parent and school attendance; evidence included safety concerns about a long highway drive, Matthew’s school absences/tardies, and social/m extracurricular interests; expert social worker opined Matthew’s best interests favor time with both parents and presence in Metairie; on appeal the court affirmed the modification based on material changes and Devin adherence to Bergeron
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bergeron standard applies to modifying a considered decree | Eric argues decree was provisional; Bergeron not required | Court should apply Bergeron because decree is final considered custody | Bergeron standard applies; decree is final and modification requires Bergeron |
| Whether trial court correctly removed Emily as domiciliary parent and ordered co-domiciliary status | Modification warranted due to material changes | Co-domiciliary arrangement appropriate given evidence | Yes; court did not abuse discretion in adopting co-domiciliary status |
| Whether the visitation modification from seven-day periods was appropriate | Modification necessary to reflect changes in circumstances | Visitation should remain as previously ordered or be adjusted differently | Affirmed modification to visitation arrangement |
| Whether Matthew should remain at St. Louis King of France school | School stability and educational environment benefit Matthew | Possible to reevaluate school placement due to commute | Affirmed; continued attendance at St. Louis King of France |
Key Cases Cited
- Bergeron v. Bergeron, 492 So.2d 1193 (La. 1986) (heavy Bergeron standard governs custody modification from a considered decree)
- Poole v. Poole, 948 So.2d 382 (La.App. 2 Cir. 2007) (interim custody order analogue; finality depends on trial on merits)
- Silbernagel v. Silbernagel, 958 So.2d 13 (La.App. 5 Cir. 2007) (prior affirmance of domiciliary status and school placement)