T.D. v. F.X.A.
148 So. 3d 187
La. Ct. App. 5th2014Background
- This is a Louisiana custody proceeding involving T.D. (mother) and F.X.A. (father) over V.D., with prior joint custody and T.D. as domiciliary parent.
- January 25, 2012 hearing awarded custody considerations but kept joint custody and T.D.’s domiciliary status; evidence showed V.D.’s placement and schooling issues.
- February 13, 2012 judgment directed V.D. to attend a Utah therapeutic boarding school (Diamond Ranch Academy) against T.D.’s wishes, triggering a potential custody modification under Bergeron.
- F.X.A. filed a rule to modify custody, contending V.D. needed structure, and alleging parental alienation and noncompliance by T.D.
- October 10, 2012: district court denied T.D.’s exception, found T.D. in contempt on four counts, awarded sole custody to F.X.A., and barred contact with V.D. and family pending further orders.
- October 30, 2012: judgment entered; appellate reversal of contempt findings and of the sole-custody/visitation portion; costs taxed to F.X.A.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bergeron applies to modify custody after a considered decree | T.D. argues Bergeron applies to any change from a considered decree; no clear and convincing evidence presented | F.X.A. asserts change warranted by evidence showing deleterious effects without T.D.’s cooperation | Bergeron applies; February 2012 decree was a considered decree requiring Bergeron standard to modify custody |
| Whether contempt findings were supported by substantial evidence | TD asserted she did not commit criminal contempt; evidence insufficient | F.X.A. contends actions violated court orders | Counts 1 and 2 and 3; not proven beyond reasonable doubt; contempt reversed |
| Whether the custody award and visitation restriction were an abuse of discretion | Continued domiciliary status with TD and visitation rights should remain intact | Transfer of custody to F.X.A. was in V.D.’s best interest and supported by evidence | Reversed; order granting sole custody and restricting visitation reversed; visitation rights must be considered |
Key Cases Cited
- Bergeron v. Bergeron, 492 So.2d 1193 (La. 1986) (heavy burden to show harm from change of custody in considered decrees; Bergeron standard)
- Hensgens v. Hensgens, 653 So.2d 48 (La.App. 3 Cir. 1995) (considered decree concept; need heavy burden for modification)
- Evans v. Lungrin, 708 So.2d 731 (La. 1998) (clear and convincing standard for modification of custody)
- Voelkel v. Voelkel, 712 So.2d 633 (La.App. 1 Cir. 1998) (court substantial discretion in custody determinations)