86 So. 3d 148
La. Ct. App.2012Background
- S.S. is a developmentally delayed six-year-old in Sabine Parish; custody dispute between Jennifer Stewart (mother) and Harold Stewart (father).
- S.S. attends Zwolle Elementary School; trial court kept him at his current school; both parents have roles in his life.
- Father has a felony conviction and five years of supervised probation; restitution paid; he operates family business interests.
- During divorce proceedings, mother filed multiple protection-from-abuse petitions, all denied.
- Interim orders in 2010 provided alternating weekly physical custody; final custody hearing in June 2011 produced joint legal custody, shared physical custody, co-domiciliary status, school designation, and family counseling with shared costs.
- Appeal challenges the custody decree; appellate court affirms, finding no abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether co-domiciliary designation without a separate implementation plan was error. | Stewart argues La.R.S. 9:335 requires an implementation plan and good cause for omitting one. | Saunders contends the joint custody decree itself serves as the implementation plan. | No reversible error; decree qualifies as implementation plan. |
| Whether Art. 134 factors were properly addressed. | Stewart contends the trial court failed to discuss one of the 12 factors. | Saunders contends no exhaustive Art. 134 analysis is required. | Trial court did not abuse discretion; not required to discuss all factors in detail. |
| Whether weekly alternating custody and lack of a single domiciliary parent were proper. | Stewart challenges the weekly alternating plan and absence of a sole domiciliary designation. | Saunders argues statute allows best-interest-driven shared custody without equal symmetry. | No abuse; plan acceptable under 9:335(A)(2)(b) to the extent in child’s best interest. |
| Whether the court properly admitted the court-appointed evaluator and rejected Dr. Logan's testimony. | Stewart challenges Lowrey’s qualifications and asserts Dr. Logan should be qualified in developmental disabilities. | Saunders supports Lowrey’s qualifications; Dr. Logan not qualified in developmental disabilities. | Lowrey properly admitted; Dr. Logan not qualified; no abuse in evidentiary rulings. |
Key Cases Cited
- Caro v. Caro, 671 So.2d 516 (La.App.1 Cir. 1995) (joint custody decree can serve as implementation plan under La.R.S. 9:335)
- Angelette v. Callais, 68 So.3d 1122 (La.App.1 Cir. 2011) (La.R.S. 9:335 does not require a specific form for implementation plan)
- Molony v. Harris, 60 So.3d 70 (La.App.4 Cir. 2011) (co-domiciliary designation debated; court discusses statutory authority)
- Gremillion v. Gremillion, 966 So.2d 1228 (La.App.3 Cir. 2007) (abuse of discretion standard in custody cases; deference to trial court)
- Rosell v. ESCO, 549 So.2d 840 (La. 1989) (clear-error standard for factual findings in custody cases)
- Hawthorne v. Hawthorne, 676 So.2d 619 (La.App.3 Cir. 1996) (great weight given to trial court’s custody determinations)
- State v. Brannon, 971 So.2d 511 (La.App.3 Cir. 2007) (Daubert-related gatekeeping for expert testimony in Louisiana)
- State v. Foret, 628 So.2d 1116 (La.1993) (Daubert framework applied to expert testimony in Louisiana)
- State v. Chauvin, 846 So.2d 697 (La. 2003) (Daubert standard adopted for reliability of expert testimony)