98 So. 3d 347
La. Ct. App.2012Background
- Elizabeth and Doug, never married, shared joint custody of Devon since birth under a seven/seven rotating plan with Elizabeth as domiciliary parent.
- Elizabeth moved to West Virginia with Devon after Tim Romero’s transfer, triggering a relocation dispute since Louisiana statute requirements were not followed.
- Doug opposed the relocation and sought the child’s domiciliary status in Louisiana, arguing it was in Devon’s best interest to remain and maintain contact with him.
- A 2009 interim consent judgment temporarily modified custody to a 28-day rotating schedule pending litigation, with visitation provisions for Doug.
- The trial court granted joint custody with Elizabeth domiciliary and ordered Devon reside in West Virginia; Doug appealed.
- The appellate court reversed, rendering Doug as domiciliary parent in Louisiana and awarding Elizabeth visitation under a modified custody plan.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether relocation was in Devon’s best interest under 9:355 et seq. | Doug contends relocation violated the statute’s factors. | Elizabeth argues relocation is in Devon’s best interest and allowed by 9:355 et seq. | Relocation denied; domicile awarded to Doug; custody reversed. |
| Whether the trial court erred by not applying relocation factors and relying only on Article 134. | Doug argues mandatory relocation factors were ignored. | Elizabeth contends best-interest factors suffice. | Court conducted de novo review applying 9:355 factors and Article 134. |
| What is the appropriate burden of proof given a consent decree custody modification. | Doug asserts heavy burden due to prior consent decree. | Elizabeth argues modification requires only a change in circumstances and best interests. | Because the decree was by consent, burden is ‘change materially affecting welfare’ and best interest analysis. |
| What disposition most faithfully serves Devon’s best interests, given the substantial Louisiana ties. | Doug shows stability and extended family in Louisiana favors domiciliary status there. | Elizabeth asserts stability and new life in West Virginia support relocation. | Louisiana domicile chosen; joint custody reversed; Elizabeth’s plan inverted to reflect Doug as domiciliary parent. |
Key Cases Cited
- Bergeron v. Bergeron, 492 So.2d 1193 (La. 1986) (heavy burden for considered decree modifications; best interests apply to consent decrees)
- Evans v. Lungrin, 708 So.2d 731 (La. 1998) (prejudicial legal error may require de novo factual review)
- Lasha v. Olin Corp., 625 So.2d 1002 (La. 1993) (prejudicial legal error requires independent review of record)
- Gray v. Gray, 65 So.3d 1247 (La. 2011) (relocation factors and burden in relocation disputes)
- Johnson v. Spurlock, 986 So.2d 724 (La. App. 5th Cir. 2008) (relocation burden and feasibility considerations)
- Bonnecarrere v. Bonnecarrere, 69 So.3d 1225 (La. App. 1st Cir. 2011) (Article 134 factors may be considered alongside relocation factors)