Trying a Child Custody Case
Trying a child custody case can be difficult, it is important to first understand the Child Custody Laws. Hiring a private investigator such as Scott Frank Investigators who clearly understands the laws can help you win your case.
(a) Burden of proof:
First, identify the burden of proof applicable to your particular custody case. If a parental custody dispute has never been heard by a court, the burden of proof will only be the best interest test. If a court receives evidence of parental fitness, any resulting judgment between parents will be considered a “considered decree” and subsequent modifications require a heavy burden of proof. A judgment that is reached by consent is a “stipulated judgment” and subsequent modifications still require a material change in circumstances. See Evans v. Lungrin, 708 So.2d 731 (La. 1998). One of the most significant Louisiana custody cases is Bergeron v. Bergeron, 492 So. 2d 1193 (La. 1986). Bergeron involved a modification of a prior custody decree. Therein, the Supreme Court defined the burden of proof necessary to modify a considered custody decree (see endnote 9), as follows:
When a trial court has made a considered decree of permanent custody, the party seeking a change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change in environment is substantially outweighed by its advantages to the child.
Bergeron, like its precursor, Turner v. Turner, 455 So. 2d 1374 (La. 1984), was concerned with the repeated appearances in court and changes of custody sought by parents. The court clearly felt that the constant fighting between the parties, the repeated charges and recriminations back and forth, including attacks on the parents and their morals, and numerous hearings, were destructive not only to the parties, but to the children -thus, the jurisprudential need for the higher burdens of proof.
Several courts have applied Bergeron to modifications of considered decrees in custody disputes between parents and non-parents. See e.g., Bragg v. Horne, 764 So.2d 1177 (La. App. 2nd Cir. 2000); Noe v. Noe, 640 So.2d 537 (La. App. 3rd Cir. 1994); Miller v. Andrasko, 640 So.2d 368 (La. App. 1st Cir. 1994) (see endnote 10). Note, however, that Bergeron may be inapplicable to non-parent motions to divest or substantially modify parental custody. In Robert v. Gaudet, 691 So.2d 780 (La. App. 1st Cir. 1997), the court held that the non-parent must still prove that parental custody will result in substantial harm to the child. See also Matter of Landrum, 704 So.2d 872 (La. App. 3rd Cir. 1997). Failure to plead a change of circumstances subjects the pleading to a no cause of action exception. Menge v. Menge, 545 So. 2d 674 (La. App. 5th Cir. 1989). For examples of what constitutes a change in circumstances, see Long v. Dossett, 732 So. 2d 773 (La. App. 3d Cir. 1999); Kyle v. Leeth, 727 So. 2d 497 (La. App. 1st Cir. 1998). Bergeron is used synonymously by courts and practitioners alike for the heavy burden of proof stated above. However, in the author’s opinion, Bergeron stands for more than that and Lungrin somewhat clarifies the jurisprudential import of Bergeron. It is this author’s view that the different burdens of proof in child custody matters are as follows: (a). Initial Custody The initial setting of child custody depends first on what the relationship of the litigating parties are:- – parents -joint custody required unless clear and convincing evidence to the contrary or best interests of child(ren) or family violence history require otherwise; – non-parent(s) against parent(s)- substantial harm standard for the divestiture of parental custody). The court then has to address the best interest of the child(ren). (b). Custody Modification A modification of a child custody decree on the other hand, depends on the type of decree in place i.e.- consent or considered? A consent decree requires proof that there has been a material change in circumstances since the prior decree before the best interest of the child(ren) is addressed. A considered decree requires proof that the existing custody arrangement is “so deleterious to the child(ren) as to justify a modification” or clear and convincing proof that the “harm likely to be caused by the change in environment is substantially outweighed by its advantages to the child”. The latter “clear and convinc- ing” standard is not frequently found in case law as it appears to be more difficult to overcome. See Sheppard v. Hood, 605 So.2d 798 (La. App. 2 Cir 1992). The 4th Circuit has held that a consent judgment entered after 3 days of trial testimony is a “considered” decree which required the Bergeron burden of proof for modification. Cherry v. Cherry, 2004-0002 (La. App. 4 Cir. 2/2/2005). In a parent’s action to modify a non-considered decree awarding custody to a non-parent, the non-parent must show that parental custody would result in substantial harm to the child. Bracy v. Bracy, 743 So.2d 930 (La. App. 2nd Cir. 1999); but see Miller v. Andrasko, 640 So.2d 368 (La. App. 1st Cir. 1994) (change of circumstances rule applies to uncontested awards to non-parents). In light of the above, a developing trend stemming from the Bergeron and Lungrins jurisprudential rule for the different burdens of proof is whether parties can stipulate to their own evidentiary standard for future modification of custody? The First Circuit in Perkins v. Perkins, 747 So. 2d 785 (La.App. 1 Cir. 1999) and the Third Circuit in Hensgens v. Hensgens, 653 So. 2d 48,49 (La.App. 3 Cir. 1995), do not allow it in light of the jurisprudential rationale that repeated custody litigation is harmful to minor children. On the other hand, the Fifth Circuit in Ponze v. Ponze, 614 So. 2d 720 (La.App. 5 Cir. 1993) writ denied, 617 So.2d 941 (La. 1993), allowed it. Caveat. The issue went up to the Supreme Court in Bergeron v. Clark, 836 So. 2d 54 (La. 2003) as a “side issue” but was not addressed.