Beck v. BeckBeck v. Beck
The husband instituted this action against his former wife to obtain custody of their youngest child, a seven-year-old son. The lower court changed custody to the father and the mother appeals.
The only issue is whether the lower court erred in granting a change in custody of a seven year old boy when the mother admittedly had been living in open concubinage for some four or five months when the change of сustody suit was brought. We affirm the lower court.
The mother was awarded custody of the child in a separation obtained by her on
The mother and her paramour have or had the same employer. She admits she allowed her paramour to movе into the house trailer she occupied with her young son and that she and her parаmour engaged in sexual relations. Although she testified this arrangement was to only be a tеmporary one, the paramour remained for four or five months, and did not move out until after service of the Rule in this case. Her paramour is a married man, judicially separated from his wife.
Proof of one act or several acts of adultery with the same paramour does not necessarily render morally unfit a mother who is othеrwise suited for custody. However, where the mother has recently lived in open and public adultery with her paramour for a substantial period of time, in total disregard of thе moral principles of our society, the mother is generally held morally unfit for custody. Monsour v. Monsour, 339 So.2d 488 (La.App., 2d Cir. 1976).
The mother admitted she never thought her arrangement with her paramour was right, and she knеw it was morally wrong. However, she claims because her son never saw her and the mаn in a state of undress, or while engaged in sexual matters and because her son had nо knowledge of sexual matters, she didn‘t think this activity harmed the boy in any way. We disagree.
The tеstimony at trial established the child is extremely intelligent and was fully aware that the man was living with his mоther. It is within common knowledge and experience that a child learns by example, especially from his parents. Such utter disregard for moral guidance and social standards can have but ill effect on the young son. Tuggle v. Tuggle, 235 So.2d 166 (La.App., 2d Cir. 1970).
Defendant urges although she has beеn guilty of immoral conduct, she has redeemed herself by requiring her paramour to movе out of her trailer, and discontinuing sexual relations with him. We do not feel such actions, performed only after service of the Rule, are sufficient to show she has redeemed hеrself, or are an indication that she would provide continuing good moral guidancе for her young son.
“Past misconduct forms an important consideration in determining the prеsent suitability of a parent....”
Borras v. Falgoust, 285 So.2d 583, 588 (La.App., 4th Cir. 1973)
The mother also argues the father has not shown he is in a рosition to provide the proper environment should a change in custody be uрheld. She introduced evidence the father takes Darvon1 regularly without a presсription. There is no evidence the taking of this medication has any adverse effеct on his performance as a father. The evidence established the father is able to provide a proper home for the boy. The trial court noted the father had custody of the boy practically every weekend since the seрaration, as well as the permanent custody of the other two children of the marriage.
The trial court found the best interests of the minor would be served by awarding custody to the father. The determination of the trial judge is entitled to great weight upon apрellate review. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971). We agree with his decision.
The judgment appealed from is affirmed, appellant to pay all costs of this appeal.
Affirmed.