JUSTIN HODGES v. AMY HODGES (Parish of Livingston)
No. 2015-CJ-0585
Supreme Court of Louisiana
November 23, 2015
181 So. 3d 648
WEIMER, J.
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF LIVINGSTON
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #059
FROM: CLERK OF SUPREME COURT OF LOUISIANA
Thе Opinions handed down on the 23rd day of November, 2015, are as follows:
BY WEIMER, J.:
2015-CJ-0585 JUSTIN HODGES v. AMY HODGES (Parish of Livingston)
Accordingly, we remand this matter to the trial court for a prompt hearing and determination on how joint custody should be implemented, consistent with our opinion herein, which excludes the possibility of designating both parents as “co-domiciliary parents.”
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
KNOLL, J., additionally concurs with reasons.
HUGHES, J., dissents with reasons.
SUPREME COURT OF LOUISIANA
NO. 2015-CJ-0585
JUSTIN HODGES
VERSUS
AMY HODGES
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH
WEIMER, Justice.
We granted certiorari in this child custody matter to review the designation of both parents as “co-domiciliary parents,” a designation which has divided the courts of appeal. Additionally, we must review the related question of whether the trial court issued a valid joint custody implementation order. After analyzing
FACTS AND PROCEDURAL HISTORY
Justin Hodges (“father“) and Amy Hodges (“mother“) were married in Ascension Parish on January 22, 2011, and, thereafter, established their matrimonial domicile in Livingston Parish. One child was born of the marriage on June 25, 2012.
On May 28, 2014, the father instituted divorce proceedings in Livingston Parish. Both the father and the mother sought joint custody of the minor child, M.H., as well as to be designated as the child‘s domiciliary parent. After a hearing, the trial court granted joint custody to the parents, ordered equal physical custody to be alternated weekly, and designated both parties as “co-domiciliary parents.”
The mother appealed the trial court decision, contending that its designation of both parents as “co-domiciliary parents” is not authorized by
On application of the mother, this court granted a writ of certiorari. See Hodges v. Hodges, 15-0585 (La. 5/15/15), 169 So.3d 380.
LAW AND ANALYSIS
In a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child.
If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award.
The list of factors provided in Article 134 is nonexclusive, and the determination as to the weight to be given each factor is left to the discretion of the trial court. See
In short, there are a number of factors which must be evaluated by a court in arriving at the decision to award joint custody to the parents. However, once that decision is reached,
A. (1) In a proceeding in which joint custody is decreed, the court shall render a joint custody implementation order except for good cause shown.
(2)(a) The implementation order shall allocate the time periods during which each parent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents.
(b) To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally.2
(3) The implementation order shall allocate the legal authority and responsibility of the parents.
B. (1) In a decree of joint custody the court shall designate a domiciliary parent except when there is an implementation
order to the contrary or for other good cause shown. (2) The domiciliary parent is the parent with whom the child shall primarily reside, but the other parent shall have physical custody during time periods that assure that the child has frequent and continuing contact with both parents.
(3) The domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order provides otherwise. All major decisions made by the domiciliary parent concerning the child shall be subject to review by the court upon motion of the other parent. It shall be presumed that all major decisions made by the domiciliary parent are in the best interest of the child.
C. If a domiciliary parent is not designated in the joint custody decree and an implementation order does not provide otherwise, joint custody confers upon the parents the same rights and responsibilities as are conferred on them by the provisions of Title VII of Book I of the Civil Code.3 [Emphasis added.]
In this case, the mother contends that the trial court‘s judgment is insufficient to constitute a joint custody implementation order. According to the mother, the judgment addresses physical custody, but fails to designate which parent has decision-making authority for the child. The mother also contends the trial court legally erred in designating both parents as “co-domiciliary parents,” rather than designating a single “domiciliary parent.” The mother urges that under
Of the two issues presented, we first analyze whether, under
Mindful of our civilian mandate, our analysis begins with the words of the statute itself. See
Section (2)(a) then indicates that when rendered, an implementation order “shall allocate time each parent shall have physical custody,” with the goal of joint custody being “that the child is assured of frequent and continuing contact with both parents.” Another goal of joint custody, described in section (2)(b), is that as long as it is feasible and in the child‘s best interest, “physical custody of the children should be shared equally.”
A pivotal provision at issue in this case, section (B)(1), makes logistical arrangements for some of the variables that the earlier statutory provisions recognized may exist within joint custody. Because one goal of joint custody is that “physical custody ... should be shared equally” (section (A)(2)(b)), yet an implementation order is not always required (section (A)(1)), it is logical that the court “designate a domiciliary parent” (section (B)(1)) so the parents and child are clear as to who has legal authority and responsibility.
Indeed, the very next provision in
The possibility of more than one domiciliary parent is also logically excluded by the next provision of the statute. Under section (B)(3), “unless an implementation order provides otherwise,” the authority of singular domiciliary parent is elevated in comparison to the non-domiciliary parent: “[t]he domiciliary parent shall have authority to make all decisions affecting the child,” but the authority of the “domiciliary parent” can be challenged in court by “the other parent.” Moreover, section (B)(3)
Read as a whole, therefore, we conclude the plain language of
when parties are awarded joint custody, the court must designate a domiciliary parent unless the implementation order provides otherwise, or for other good cause shown.“). The appellate court, therefore, erred in holding there can be more than one parent designated as a domiciliary parent.
The appellate court in the instant case is hardly alone in this error. One of the reasons we granted review of this case was to resolve differing results within the appellate courts as to whether both parents
On the other hand, three appellate court decisions have expressly held that
Thus, the jurisprudence on the issue of whether there can only be one domiciliary parent is inconsistent. The First, Third, and Fifth Circuit decisions, expressly or impliedly, have determined that a “co-domiciliary” designation does not run afoul of
Our review of the jurisprudence would not be complete, however, without some further observations. The appellate court decisions that have affirmatively designated or at least allowed the designation of co-domiciliary parents are more numerous than those that did not. We believe the numerosity of such decisions may stem from a well-intentioned, but erroneous, belief that it is necessary for a court to use the term “co-domiciliary parents” in order to provide both parents with shared legal and physical custody. Although
We recognize that trial and family courts facing the myriad challenges in fashioning remedies in joint custody cases need as many arrows in their judicial quiver as possible. Designating both parents as “co-domiciliary” parents might seem to be an alluring target for quelling an acrimonious dispute between the parents. However, any satisfaction both parties may derive from being bestowed that designation is likely to be vitiated by the legal uncertainties stemming from its use. As previously discussed, uncertainty and confusion are the likely results of using the designation “co-domiciliary parents,” a designation which is contrary to the framework of
In short, the legislature envisioned the joint custody implementation order allocating both physical and legal custody. It is therefore unnecessary and contrary to the plain language of
We now turn to the question of whether the trial court‘s judgment suffices as a joint custody implementation order. The trial court signed a judgment decreeing that: the parties have joint custody of the child; the parties share equally in the physical custody of the child “on a week to week basis,” with the parties exchanging the child between 6:00 and 7:00 p.m. on Wednesdays; the party retrieving the child has the responsibility for his transportation; and the parties must “work together such that they equally share physical custody of [the child] during the holidays.” The judgment also ordered that: the mother must maintain the current health insurance policy for the child; the parents are to be proportionally responsible for any uncovered medical costs, with 50.4 percent to be paid by the father and 49.6 percent to be paid by the mother; the child‘s daycare costs are to be paid by the parent who has physical custody of the child at the time the costs are incurred; the father has the right to claim the child on his tax return in odd-numbered years and the mother has the right to do so in even-numbered years; and the father owes the mother $107.30 per month in child support.12
Significantly, this is the same judgment in which the court decreed: “the parties shall be designated as co-domiciliary parents.”
We‘ve got a two year old little boy here. Despite your problems, it sounds like you both care and love him very deeply. You have worked out an -- an arrangement that sounds like it‘s been working for at least a little while now. And I know it‘s not going to be a long-term solution. At some point [the child] is going to be of school age. But for at least the next couple of years, the court is going to maintain joint custody, subject to a week to week plan of visitation.
. . . .
I will maintain the current exchange at between 6:00 and 7:00, with the party to retrieve the child doing the transportation. I‘ll designate you both as co-domiciliary parents.
. . . .
If [the parties] can‘t work [a holiday schedule] out, the court will set a specific holiday schedule.13 ...
. . . .
I‘d like to say this is the last time I‘ll see you in court, but given the fact that [the child] is two years old, I know this plan may only work for the next couple of years, ma‘am, with you living in Baton Rouge and, sir, with you living in Livingston Parish. If you aren‘t able to ... work out a plan that works for [the child] when he becomes school age, the court will be happy to hear from you again and see how things are going.
As an initial matter, even though no separate “joint implementation order” was issued by the trial court,
With respect to what items must be included within a joint custody implementation order,
While the judgment here has no formal defects and specifies time periods during which each parent shall have physical custody, the second requirement is unmet, that is, the judgment fails to “allocate the legal authority and responsibility of the parents.”
As we indicated in our earlier analysis, the trial court judgment‘s designation of “co-domiciliary parents” does not comport with
CONCLUSION
We hold that
Further, we find that
In conclusion, we reverse the appellate court‘s decision, to the extent the appellate court upheld the trial court‘s designation of “co-domiciliary parents.” We agree with the appellate court inasmuch as we find that no valid joint custody implementation order has been rendered.
Because we have corrected an error of law by the trial court in designating both parents as “co-domiciliary parents,” we must determine a procedure to best resolve this case. We find the following observations instructive:
Typically where ... legal errors have interdicted the fact finding process, if the record is otherwise complete, the
appellate court should make its own independent de novo review of the record. Landry v. Bellanger, 2002-1443 (La.5/20/03), 851 So.2d 943, 954; Ferrell v. Fireman‘s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742, 745; Ragas v.
Argonaut Southwest Insurance Co., 388 So.2d 707, 708 (La. 1980). However, we have also recognized that de novo review is not the best course of action in every case. Ragas, 388 So.2d at 708. This Court explained in Ragas:
This is not to say ... that the appellate court must find its own facts in every such case. There are cases where the weight of the evidence is so nearly equal that a first-hand view of witnesses is essential to a fair resolution of the issues. The appellate court must itself decide whether the record is such that the court can fairly find a preponderance of the evidence from the cold record. Where a view of the witnesses is essential to a fair resolution of conflicting evidence, the case should be remanded for a new trial.
Wegener v. Lafayette Ins. Co., 10-0810, 10-0811, p. 19 (La. 3/15/11), 60 So.3d 1220, 1233.
Here, because the trial court did not choose one parent over the other but instead ruled that both parents should be “co-domiciliary parents,” we find that “the weight of the evidence is so nearly equal that a first-hand view of witnesses is essential to a fair resolution of the issues.” See Wegener, 10-0810, 10-0811 at 19, 60 So.3d at 1233. Accordingly, we remand this matter to the trial court for a prompt hearing and determination on how joint custody should be implemented, consistent with our opinion herein, which excludes the possibility of designating both parents as “co-domiciliary parents.”
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
KNOLL, J., additionally concurring.
I fully concur with the majority opinion in this case. I write separately to address some of the charges leveled by the dissent and to underscore the soundness of the majority‘s comprehensive interpretation of the term “domiciliary parent“—a concept that is unique to our civil law tradition. We granted writ of certiorari in this case to answer a simple and straightforward question—does Louisiana law permit a court to designate “co-domiciliary parents” in a child custody matter?
A. (1) In a proceeding in which joint custody is decreed, the court shall render a joint custody implementation order except for good cause shown.
(2)(a) The implementation order shall allocate the time periods during which each parent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents.
(b) To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally.
(3) The implementation order shall allocate the legal authority and responsibility of the parents.
B. (1) In a decree of joint custody the court shall designate a domiciliary parent except when there is an implementation order to the contrary or for other good cause shown.
(2) The domiciliary parent is the parent with whom the child shall primarily reside, but the other parent shall have physical custody during time periods that assure that the child has frequent and continuing contact with both parents.
(3) The domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order provides otherwise. All major decisions made by the domiciliary parent concerning the child shall be subject to review by the court upon motion of the other parent. It shall be presumed that all major decisions made by the domiciliary parent are in the best interest of the child.
C. If a domiciliary parent is not designated in the joint custody decree and an implementation order does not provide otherwise, joint custody confers upon the parents the same rights and responsibilities as are conferred on them by the provisions of Title VII of Book I of the Civil Code.
This statute addresses two different concepts—joint custody and the designation of a “domiciliary parent.” As the majority opinion acknowledges, joint custody has two elements—physical custody and legal custody.2 As we explained in Evans v. Lungrin,
The term “custody” is usually broken down into two components: physical or “actual” custody and legal custody. The typical joint custody plan will allocate time periods for physical custody between parents so as to promote a sharing of the care and custody of the child in such a way as to ensure the child of frequent and continuing contact with both parents. George D. Ernest, III, Joint Custody and Parents’ Liability Under Civil Code Article 2318, 44 La. L.Rev. 1791 (1984).
Legal custody, by contrast, has previously been defined as “the right or authority of a рarent or parents, to make decisions concerning the child‘s upbringing.” See Ernest, supra note 5, at 1792.3
The dissent proceeds from the well-intentioned notion that this Court should provide trial judges with “every tool in the box” in cases where parents share custody of a child. Respectfully, the dissent fundamentally misunderstands Louisiana‘s child custody laws if it believes that it is necessary for a court to use the term “co-domiciliary parents” in order to provide
In short, the Legislature envisioned the joint custody implementation order allocating both physical and legal custody. The ability to allocate custody by means of a joint custody implementation order empowers the court to craft a custody arrangement on a case by case basis that works to further “the best interest of the child.”
Because the trial court already has the power to allocate physical custody and legal authority in this way, the dissent‘s interpretation of
Justin Hodges argues that these exceptions for “when there is an implementation order to the contrary or for other good cause shown” suggest that a court could designate “co-domiciliary parents” if it provided for such a designation in the “implementation order” or “for other good cause shown.” Although the statute does express the Legislature‘s preference for the designation of a sole domiciliary parent, the exception provides the court with the discretion to craft an implementation order that allocates physical and legal custody between the parents. It plainly does not authorize a court to designate “co-domiciliary parents” because that would render meaningless the Legislature‘s description of the term “domiciliary parent” in
Amy Hodges’ argument that
The parent owing the greater amount of child support shall owe to the other parent the difference between the two amounts as a child support obligation. The amount owed shall not be higher than the amount which that parent would have owed if he or she were a domiciliary parent.10
In response to this clear indication that the Legislature contemplated situations when no domiciliary parent would be designated, the dissent argues:
[T]he other alternative allowed by the majority opinion - of naming no domiciliary parent - also results in one parent, the father, having a greater share of the legal authority over the child than the other parent, the mother, pursuant to
LSA-R.S. 9:335(C) (“If a domiciliary parent is not designated in the joint custody decree and an implementation order does not provide otherwise, joint custody confers upon the parents the same rights and responsibilities as are conferred on them by the provisions of Title VII of Book I of the Civil Code.“). Contained within Title VII of Book I of the Civil Code isCivil Code Article 216 , which, on the issue of parental authority, provides in pertinent part that “[i]n case of difference between the parents, the authority of the father prevails.” Therefore, if any matter subject to the decision-making authority of the parents is inadvertently omitted from the custody order and a dispute on such an issue thereafter arises between the parents,Article 216 directs that “the authority of the father prevails.” Clearly, ifArticle 216 is triggered by such an eventuality, the mother would be deprived of thedesired equal legal authority over the minor child.
This charge—that the Court‘s decision will disadvantage mothers in cases in which the trial court does not designate a domiciliary parent—is without merit.
Moreover, there is no civilian legal scholarship that supports the position that a court could designate “co-domiciliary parents.” As the Court acknowledges, Katherine Spaht, the foremost scholar in this area, has referred to the term “co-domiciliary parents” as “oxymoronic.” Commenting on
The section first defines the term “split” custody as a situation in which “each party is the sole custodial or domiciliary parent of at least one child to whom support is due.” The use of “domiciliary” parent in the definition of split custody assumes that there is a true domiciliary parent, defined as the parent with whom the child primarily resides, not the oxymoronic “co-domiciliary parents.” The calculation for split custody should only apply in instances where each child resides primarily or exclusively with one parent.11
Addressing specifically the statute that is at issue in the case before us, Professor Spaht remarked:
La. R.S. 9:335(B) provides for the designation of a domiciliary parent in a joint custody order which fails to include an implementation plan as described in Paragraph A. The domiciliary parent is defined as “the parent with whom the child primarily resides.” Most joint custody orders designate a domiciliary parent and Paragraph B governs who exercises legal and physical custody of the child. By definition, however, there can be only one domiciliary parent-the parent with whom the child primarily resides. The designation of co-domiciliary parents creates an oxymoron.12
Professor Spaht‘s objection to this term is grounded in the plain language of the statute and in her unparalleled understanding of our unique child custody system in Louisiana.
The civilian concept of the “domiciliary parent” is unique in that it provides a default rule that, at least in the abstract, should lead to less litigation. If the “domiciliary parent” has the authority “to make all decisions affecting the child” with all “major decisions” presumed to be in the best interest of the child, then the “other parent” is highly incentivized to be cooperative with the “domiciliary parent.”13 By placing power firmly, but not inextricably, in the hands of one party, the parties really are incentivized to work together more than they would be if they operated on equal footing. Nevertheless, what Justin Hodges should be advocating for is a
The dispute that the Court‘s decision correctly resolves today involves much more than mere semantics. While the common law majority preference is for shared physical and legal custody, the Louisiana Legislature has expressed a reasoned preference for a single domiciliary parent. The interpretation of
JUSTIN HODGES VERSUS AMY HODGES
NO. 2015-CJ-0585
SUPREME COURT OF LOUISIANA
11/23/15
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH OF LIVINGSTON
HUGHES, J.
HUGHES, J., dissenting.
I respectfully dissent from the majority opinion, holding that
The trial judge in the instant case was presented with testimony demonstrating that prior to trial the parents had been sharing equal physical custody of their minor child, M.H., and the parents had been making all decisions regarding the child jointly. No testimony was presented to indicate that any disagreements had occurred between the parents on these issues. The mother nevertheless sought to be named the sole domiciliary parent, contending that she would be better qualified than the father, due to her more advanced formal education, to make decisions regarding two-year-old M.H.‘s future education. After a hearing, the trial judge denied the mother‘s request and directed the parties to continue to consult with one another as to decisions affecting the child, as “co-domiciliary parents,” and should any disagreement arise, the parties could return to court. In so ruling, the trial judge based his decision on the facts and circumstances with which he was presented on the date of trial.
The record does not demonstrate that the trial judge was manifestly erroneous in his factual findings; therefore, the only issue before this court is whether
The operative provision of
In this case there was an implementation order to the contrary, which directed that the parents equally share the physical custody and the legal custody of M.H., making each parent a domiciliary parent - hence the denomination of “co-domiciliary parents.”
In ruling that
However, the majority opinion fails to adequately take into account
This court has consistently applied
Applying
Despite the explicit applicability of
Nonetheless, resort to the principles stated in
There is no question as to the meaning of “domiciliary parent” in this case, as
This court has held that legislative language will be interpreted on the assumption that the legislature was aware of existing statutes, rules of construction, and judicial decisions interpreting those statutes. See M.J. Farms, Ltd. v. Exxon Mobil Corporation, 07-2371 (La. 7/1/08), 998 So. 2d 16, 27; Fontenot v. Reddell Vidrine Water District, 02-0439 (La. 1/14/03), 836 So. 2d 14, 24. Therefore, in enacting
The majority further states that, because
The majority also holds that the definition provided in
Yet, the concept of “shared custody” demonstrates that it is quite possible for a child to have a domicile with each parent. “Shared custody” is defined by
Further, it is jurisprudentially and statutorily recognized that, in shared custody, two primary residences are established for the child, one with each parent (see State in Interest of Travers v. Travers, 28,022 (La. App. 2 Cir. 12/6/95), 665 So.2d 625, 628 (“Co-domiciliary parents, by definition, maintain two homes for their children.“)), and, obviously, the maintenance of two residences for a child results in additional expenses to the parents. The additional expenses necessitated by the equal sharing of physical custody are incorporated into the calculation of the child support obligations by
When a child lives with married parents, he has one domicile2 - that of his parents. When a child of parents, who do not live together, lives “primarily” (or “mostly“) with only one parent, then the domicile of that parent is the domicile of the child, and that parent is the child‘s “domiciliary parent” as set forth in
However, naming one parent as the sole domiciliary parent places a greater share of the legal authority over the child with that domiciliary parent. See
The majority further holds that the interpretation advanced by the appellate court in this case (that, in a co-domiciliary arrangement, the parent with whom the child is residing at the time would have decision-making authority during the time the child resides with the parent) would “invite second-guessing, discord, and uncertainty for the child because major decisions could vacillate with each parent.” (See Op. at pp. 8-9.) Nevertheless, a co-domiciliary designation would counteract, to an extent, the tendency that a parent might have to exercise parental authority in an irresponsible manner or without consulting with the other parent as required by
As indicated hereinabove, the only method by which it can be assured that both parents have equal legal custody over their child is to designate both parents as domiciliary parents in a shared physical custody scenario. The district courts, as well as the First, Third, and Fifth Circuits, in numerous decisions, evidently have reached this conclusion, in generally finding that a “co-domiciliary” designation conforms with
Given the fact that the designation of “co-domiciliary parents” has been deemed necessary to accomplish an equality of legal custody between parents by the great weight of jurisprudence, it hardly seems appropriate, as the majority opinion does out-of-hand, to declare that
[T]he plain language of
La. R.S. 9:335 manifests the legislature‘s clear intent to establish a custodial system in which a child has a domiciliary parent and no more than one such parent. The text is clear. Although each parent can share physical custody, the court can only designate a single domiciliary parent.
(See Op. at p.9.) It would seem that the effect of
When the language of a law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. See
The purpose of laws pertaining to child custody is to ensure that an award of child custody is in the best interest of the child. See
An important factor in determining the best interest of the child, as listed in
In the instant case, the trial court attempted to maintain continuity for M.H. by continuing in effect the “responsibility for the care and rearing of the child previously exercised by each part[ies]” (pursuant to
The trial court ordered that the parties in this case actually share equal physical custody of their child, by exchanging the physical custody of the child, M.H., every week on Wednesday,5 and the trial court implicitly concluded that it was in the best interest of M.H. that both parents be designated as domiciliary parents.
In child custody cases, the decision of the trial court is to be given great weight and overturned only where there is a clear abuse of discretion. See C.M.J. v. L.M.C., 156 So.3d at 28-29; Gathen v. Gathen, 10-2312 (La. 5/10/11), 66 So.3d 1, 8 n.4; Thompson v. Thompson, 532 So.2d 101, 101 (La. 1988) (per curiam); Stephenson v. Stephenson, 404 So.2d 963, 966 (La. 1981); Fulco v. Fulco, 259 La. 1122, 1129, 254 So.2d 603, 605 (1971). See also
This court has previously recognized in SWAT 24 Shreveport Bossier, Inc. v. Bond, 00-1695 (La. 6/29/01), 808 So. 2d 294, 302, that the object of the court in construing a statute is to ascertain the legislative intent and, where a literal interpretation would produce absurd consequences, the letter must give way to the spirit of the law and the statute construed so as to produce a reasonable result.
The failure of the majority opinion to apply
In this case the trial judge very specifically addressed the fact that the matter might have to be revisited when the child
Those who have made decisions in family court know that every tool in the box is often needed to make both parents invested in the result and working together for the best interest of the child. It simply makes no sense to deprive trial judges of this tool when it has been used so successfully as shown by the number of cases cited above.
Notes
A child remains under the authority of his father and mother until his majority or emancipation.
In case of difference between the parents, the authority of the father prevails.
Id. We note that the majority opinion adopts the view expressed by Katherine Shaw Spaht, in The Two “ics” of the 2001 Louisiana Child Support Guidelines: Economics and Politics, 62 La. L. Rev. 709, 771 n.73 (2002), that “[t]he designation of co-domiciliary parents creates an oxymoron.” Notwithstanding, in order to be an “oxymoron,” a term must be “a combination of contradictory or incongruous words,” as defined in the Merriam-Webster Dictionary (see http://www.merriam-webster.com/dictionary/oxymoron). Certainly, in a situation in which a minor child does not spend an equal amount of time with each parent, there is no “shared” custody, and the naming of “co-domiciliary parents” would be inappropriate since the child would live “primarily” with only one parent. However, the pre-fix “co-” means “together.” See http://www.merriam-webster.com/dictionary/co?show=1. Therefore, when the term “co-domiciliary parents” is applied in a shared custody and shared legal authority situation, it is not oxymoronic since the child has two domiciles and each parent exercises legal authority over the child as a domiciliary parent; therefore, such parents are co-domiciliary parents.Katherine Shaw Spaht, The Two “ICS” of the 2001 Louisiana Child Support Guidelines: Economics and Politics, 62 LA. L. REV. 709, 728 n.73 (2002).
La. R.S. 9:335(B) provides for the designation of a domiciliary parent in a joint custody order which fails to include an implementation plan as described in Paragraph A. The domiciliary parent is defined as “the parent with whom the child primarily resides.” Most joint custody orders designate a domiciliary parent and Paragraph B governs who exercises legal and physical custody of the child. By definition, however, there can be only one domiciliary parent-the parent with whom the child primarily resides. The designation of co-domiciliary parents creates an oxymoron.