Huber v. MidkiffHuber v. Midkiff
In this case, the district court declared
FACTS AND PROCEDURAL HISTORY
The record is replete with highly inflammatory allegations of outragеous conduct by both sides in pleadings and in briefs filed with this Court. There has been no trial on the merits, so there are few facts we can glean as true from the record.
We do know that Jennifer Midkiff married Rodney Huber in January 1997, and Raven Frost Huber was born to that union. Following Rodney‘s arrest and incarceration, Jennifer filed for divorce. In the divorce proceedings, she was granted sole custody with Rodney having supervised visitation. She later moved in with her parents, Alice and Ronald Midkiff,1 where they lived for three years. The battle over custody and visitation with Raven began in October 2000, when Jennifer rented her own apartment, and she and Raven moved out.
This action began in the district court as a Petition for Domestic Abuse Protection, filed on November 22, 2000, where Jennifer Huber sought a restraining order
The record indicates that the protective order was dismissed on Januаry 17, 2001, and that Judge Craig Cimo, the domestic commissioner for the district court, granted a preliminary injunction against the Midkiffs for six months, preventing them from harassing, contacting, and/or interfering with Ms. Huber‘s custody of Raven or her employment. The Midkiffs asserted that they voluntarily consented to the six months protective order in exchange for an informal visitation with Raven, which never took place. Accоrding to the Midkiffs, Ms. Huber initially requested that a family member or friend supervise the visitation, to which the Midkiffs consented. Then, Ms. Huber requested that she supervise the visitation. The Midkiffs disagreed with this plan. After several unsuccessful attempts to visit with Raven, the Midkiffs filed, on February 12, 2001, an Ex-Parte Motion for Temporary Visitation Pending Hearing; Motion for Expedited Hearing on Rule for Interim Visitation and for Appointment of a Mental Hеalth Professional, alleging that “immediate and irreparable injury has resulted and will continue to result” from Ms. Huber‘s refusal to allow the Midkiffs to visit with Raven.
On March 5, 2001, Ms. Huber filed Peremptory Exceptions of No Cause of Action and No Right of Action due to the Unconstitutionality of Civil Code article 136(B).3
On March 6, 2001, District Judge Kernan A. Hand denied the Midkiffs’ request for temporary visitation pending the hearing. On March 28, 2001, the record indicates that a Consent Judgment was read into the record where Ms. Huber consented to allow the Midkiffs one two-hour visitation with Raven.
On May 14, 2001, the district court appointed Gail Pesses, MSW, LCSW, as custody evaluator, ordered all parties to participate in any interview and/or testing conducted by the evaluator, and ordered the evaluator to submit a written report of her findings. Ms. Pesses interviewed Ron and Alice Midkiff, Ms. Huber, Raven, Ms. Huber‘s fiancé, Steve Creech, Melissa Midkiff and John Midkiff (Jennifer‘s biological sister and brother) to determine the most appropriate domiciliary and visitation arrangements for Raven. She interviewed with these parties from April 4, 2001 to August 22, 2001, and thеn prepared a report of her findings. Ms. Pesses summarized her findings and recommendations as follows:
This custody action appears to have everything to do with the dynamics in the extended family and actually little to do with Raven‘s day to day care.... Jennifer‘s philosophy of child rearing seems appropriate and reflects her educational level. She expresses a сommitment to her child‘s welfare even under the extreme stress of fighting her own family for her child.... Ron and Alice‘s insistence that Raven is being harmed by Jennifer has little factual foundation.... The emotional overtones in this custody fight overshadow their ability to be objective in applying their knowledge of how children thrive in the elementary grade classroom to their grandchild‘s situation.... They did not present any solid evidence that Raven was being mistreated or hurt by her mother and that they could do a better job in raising her....
The central issue here is more likely about control. Ron and Alice, feeling rejected by Jennifer‘s insistence that she be able to make her own decisions for Raven and for herself, are attempting to regain control in whatever way they can. This includes marshaling the family into taking sides, identifying Gerald Heausler (Jennifer‘s biological father) as the enemy, harassing Jennifer, Steve, Steve‘s family as well as sitters for Raven and continually keeping things stirred up to such an extent that the entire family system suffers from the stress and pressure....
As a result, Ms. Pesses recommended that Ms. Huber retain sole custody and the Midkiffs be granted supervised visitations with Raven.4
On October 26, 2001, the Midkiffs filed a Motion to Enforce Visitation, alleging that Ms. Huber violated the initial Consent Judgment which allowed them to visit Raven. On November 14, 2001, the Midkiffs filed a memorandum in opposition to Ms. Huber‘s Exceptions, alleging that grandparents may be granted custody and/or visitation under
On November 15, 2001, the district court granted Ms. Huber‘s Exceptions of Unconstitutionality and No Cause of Action, finding it “unconstitutional to apply LSA-C.C. art. 136(B) to the situation where grandparents are attempting to gain visitation of their grandchild from their own child.” In oral reasons for judgment, the district court noted that article 136(B) is found within Title V (Divorce) of the Civil Code, and specifically, within Chapter 2 of that title, addressing provisional and incidental proceedings, and stated:
Therefore, it is clear that Article 136 contemplates a grant of reasonable visitation to relatives upon the divorce of the child‘s parents, if there are extraordinary circumstances and upon finding by the court that such an award is in the best interest of the child.
It is the opinion of the Court that the legislature, in drafting the provisions of the Civil Code which deal with grandparent visitation, intended for the mandates of Article 136(B) to apply to those situations where the minor child‘s parents are divorced and the grandparents of the parent without custody are attempting to gain visitation privileges in an effort to keep the extended family of the minor child intact. This Court does not feel that the Legislature intended for Articlе 136(B) to apply to grandparents attempting to gain visitation of their grandchild from their own child. By allowing this, the legislature and the Court would be overstepping the authority of a parent granted custody of a minor child.
DISCUSSION
In considering the constitutionality of a statute, this jurisprudence recognizes the general presumption of a statute‘s constitutionality. Brown v. State, Department of Public Safety & Corrections, 96-2204 (La.10/15/96); 680 So.2d 1179. The party that challenges the statute‘s constitutionality carries the burden of proving specific constitutional infirmities. Id. Once the statute‘s constitutionality is assailed, this Court requires that the attorney general be notified by certified mail of the proceeding and, at his discretion, he shall be allowed to represent the state‘s interest. Specifically,
Prior to adjudicating the constitutionality of a statute of the state of Louisiаna, the courts of appeal and the Supreme Court of Louisiana shall notify the attorney general of the proceeding and afford him an opportunity to be heard. The notice shall be made by certified mail. No judgment shall be rendered without compliance with the provisions of this Section; provided where the attorney general was not notified of the procеeding, the court shall hold adjudication of the case open pending notification of the attorney general as required herein.
In Vallo v. Gayle Oil Co., Inc., 94-1238 (La.11/30/94); 646 So.2d 859, this Court held that the attorney general must be served with a copy of the proceeding and is entitled to represent the state‘s interest in the proceeding when the constitutionality of a statute is questioned. In Vallo, a claimant bought a workers’ comрensation action against his employer for failure to pay compensation and medical expenses. In the pre-trial memorandum, the claimant, who underwent surgery at Baylor Medical Center in Dallas, Texas, challenged
In Lemire v. New Orleans Public Service, Inc., 458 So.2d 1308 (La.1984), this Court declined to consider the constitutional challenge of whether
Although Louisiana‘s long-standing jurisprudence requires that a statutе‘s constitutionality be questioned in the trial court and specifically pled and the grounds particularly claimed in a pleading, jurisprudence also mandates that the attorney general be served a copy of the pleading challenging the statute‘s constitutionality. Chamberlain v. State through the Department of Transportation and Development, 624 So.2d 874 (La.1993);7Reeder v. North, 97-0239 (La.1997); 701 So.2d 1291; In Re Medical Review Panel of Harris, 97-1970 (La.App. 1st Cir.9/28/98); 725 So.2d 7; Jeter v. Shamblin, 32,618 (La. App. 2 Cir.2000); 750 So.2d 521.
This challenge to the constitutionality of
Additionally, prior to signing the final judgment, Judge Hand issued an order holding this matter open for an additional thirty (30) days so that the Attorney General‘s office would be given appropriate notice to this judgment. Despite the representation by counsel, it is clear that the Attorney General‘s office was not notified with a copy of this proceeding, which related to the constitutionality of
For the above reasons, we find that this constitutional challenge is not properly before this Court according to
DECREE
REVERSED and REMANDED.
WEIMER, J., concurs and assigns reasons.
VICTORY, J., concurs in result.
WEIMER, J., concurring.
I concur in the result, but write separately regarding the following.
The provision at issue,
B. Under extraordinary circumstances, a relative, by blood or affinity, or a former stepparent or stepgrandparent, not granted custody of the child may be granted reasonable visitation
rights if the court finds that it is in the best interest of the child. In determining the best interest of the child, the cоurt shall consider: (1) The length and quality of the prior relationship between the child and the relative.
(2) Whether the child is in need of guidance, enlightenment, or tutelage which can best be provided by the relative.
(3) The preference of the child if he is determined to be of sufficient maturity to express a preference.
(4) The willingness of the relative to encourage a close rеlationship between the child and his parent or parents.
(5) The mental and physical health of the child and the relative.
No trial was conducted in this matter. Thus, we cannot determine from the record whether “extraordinary circumstances” exist or whether reasonable visitation with the grandparents would be “in the best interest of the child.”
I do not believe the provision is facially unconstitutional. In Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), in a plurality decision, the United States Supreme Court held the Washington statute unconstitutional because the statute was “breathtakingly broad.” This provision is more limited. Additionally, I do not believe the trial court was required to reach the constitutionality of the provision. Dauzat v. East Baton Rouge Parish Metropolitan Council, 01-1168, p. 4 (La.5/25/01), 785 So.2d 812, 815. If the trial court does not find the existence of “extraordinary circumstances” or finds that the visitation is not “in the best intеrest of the child,” then there is no need to address the constitutionality of the provision.
To avoid any constitutional issues related to Article 136(B) and in recognition of the constitutionally based fundamental right of parents to make decisions concerning the care, custody, and control of their children,1 I also believe that the “extraordinary circumstances” must be those which are “[a] highly unusual set of facts that are not commonly associated with a particular thing or event.” BLACK‘S LAW DICTIONARY 236 (7th ed.1999). Not every unique set of circumstances will justify imposing visitation, only those circumstances which are truly extraordinary.