Opinion
No. 14840.
May 10, 1982. Writ Denied July 2, 1982.
APPEAL FROM FOURTH JUDICIAL DISTRICT COURT, PARISH OF OUACHITA, STATE OF LOUISIANA, HONORABLE JOHN R. JOYCE, J.
Davenport, Files, Kelly Marsh by Thomas W. Davenport, Jr., Monroe, for plaintiff-appellant.
Guerriero, Smith, Hingle Anzalone by Joe D. Guerriero, Monroe, for defendants-appellees.
Before PRICE, HALL, MARVIN, FRED W. JONES, Jr., and SEXTON, JJ.
In this child custody dispute, the mother appeals a judgment granting custody of her six-year-old son to the child's maternal grandparents. We reverse and award custody to the mother. Deville v. LaGrange, 388 So.2d 696 (La. 1980); Burt v. McKee, 384 So.2d 489 (La.App. 2d Cir. 1980).
The original consideration by a three-judge panel of this appeal produced the result contemplated by LSA-Const. Art. 5, § 8(B) and this appeal was submitted to a five-judge panel as the Constitution requires.
The mother was 16 years old when she gave birth to her son in January 1976 and was never married to the father of the child. She voluntarily surrendered temporary custody of her son to her parents in juvenile court proceedings in June 1976. She led a rather checkered life between that time and December 1978 when she married Charles Smith. In April 1979 she gave birth to a second son, the first of two children of this marriage. The mother was eight months pregnant with the second child of this marriage when this case was tried in July 1981.
In July 1979 the mother petitioned for custody of her son and alternatively for visitation privileges after her father, allegedly on the advice of a juvenile officer, refused to allow the child to visit with his mother and her second son, away from her father's home. In a consent decree, visitation privileges were awarded the mother, which she exercised regularly until she and her family moved from Monroe to Jennings where her husband found employment in January 1981. With less regularity, she continued to exercise visitation privileges after moving to Jennings. This action was provoked when the mother refused to return her son from Jennings to the grandparents in Monroe in July 1981 after a two-week visitation period.
The trial court observed:
". . . Both the mother and the grandparents] dearly love the child . . . [F]or several years [the mother] led a less than desirable life . . . [The grandparents] have raised this child as their child [for] approximately 5 1/2 years. The court finds nothing unfit about [the mother] . . . at the present time . . . [but her] actions over the past . . . years are somewhat indicative of an abandonment, tacitly so . . . The court questions [whether the son] . . . should be . . . uprooted . . . placed in a situation where he will be competing with another sibling for the attention of the mother . . . if [he is] left [with the grandparents] . . . [he] would get 100 percent attention.
Between July 1976 and April 1978, the mother was in and out of her parents' home and accepted almost no responsibility for the care of her son. She continued seeing various men during this period and stayed with several of them without returning home to her child for days at a time. She had a miscarriage. She used marijuana regularly (although she denied the use of other drugs) and temporarily associated with members of a motorcycle gang. After the mother began living with Charles Smith in 1978 she ceased using marijuana and being promiscuous.
"[The mother] is well on her way to establishing herself as a reliable and responsible [mother] capable of handling and managing a large family but to uproot. . . [the son] . . . and place him in a strange environment where he will be competing for attention would not be in the best interest of the child."
Charles Smith has a 10-year-old daughter by a prior marriage who visits him and his family.
In Deville, supra, the Supreme Court emphasized that:
"In Wood v. Beard [ 290 So.2d 675] . . . we enunciated as a rule of law the principle that . . . the parent has the paramount right to the custody of the child, and may be deprived of that custody only when there are compelling reasons. We also indicated what forms these compelling reasons may take: proof that the parent has forfeited his or her right to parenthood, that he or she is unfit, or that he or she is unable to provide a home for the child." 388 So.2d at 698 (citations omitted)
There the trial court had awarded the custody of an illegitimate child to the maternal grandparents in a dispute with the natural father. The Supreme Court concluded:
"The trial court correctly noted the paramount nature of the father's right to custody and the strong showing which a nonpayment must make in order to overcome the right, but it then proceeded to `balance the reasons for giving custody to the [father] against those for not giving him custody.' By so doing, [the trial court] lost sight of the great weight to which the parental right to custody is entitled." ibid. Bracketed material supplied.
We must find here that the trial court in this action similarly erred in concluding that ". . . to uproot . . .[the son] . . . would not be in [his] best interest", where the court also finds "nothing unfit" about the mother when the custody issue is tried.
In Burt, supra, we observed that it is not proper to merely compare the parent's situation with that of the grandparent and award custody on a best interest comparison because the parent enjoys the paramount right to custody over a non-parent. See and compare LaCroix v. Cook, 383 So.2d 59 (La.App. 2d Cir. 1980); Powell v. Barsavage, 399 So.2d 1308 (La.App. 4th Cir. 1981); Juneau v. Bordelon, 380 So.2d 208 (La.App. 3d Cir. 1980). Also compare Snell v. Snell, 347 So.2d 511 (La.App. 2d Cir. 1977), and Cawthorne v. Williams, 313 So.2d 915 (La.App. 2d Cir. 1975).
This record shows that the mother sought to establish a parental relationship with her son when he was about 3 1/2 years old and supports the trial judge's conclusion that since that time she has been a "fit" mother and homemaker. The dissolute life led by the mother between the birth of her first son and her marriage in 1978 is not a compelling reason to overcome her paramount right to custody. Deville, supra. Lapointe v. Menard, 412 So.2d 223 (La.App. 3d Cir. 1982).
At appellee's cost, the judgment appealed is reversed and it is hereby ordered that defendants-appellees forthwith surrender custody of the minor, Nathan Wade Johnson, to his mother, Laura Elaine Johnson Smith, in whom permanent custody shall be maintained.
REVERSED AND RENDERED.
FRED W. JONES, Jr. and SEXTON, JJ., dissent for reasons assigned by SEXTON, J.
I respectfully dissent from the decision of the majority.
Appellant's activities have caused her parents much agony and torment. They first learned of her pregnancy with Nathan on their way to court for the trial of a young man who helped her climb out of a window of their home. Apparently after serious consideration of the issue, the family decided that appellant and the child would return after the birth of the child to the home of her parents. There it was hoped that appellant would gradually take on more and more responsibility of the care of the child. Initially she was only to prepare the child's bottle, a task which she failed to accomplish more often than not. She was in and out of the house accepting almost no responsibility for the care of the child. She continued seeing various men during these periods and stayed with several of them without returning home for days at a time. She has conceded that she used marijuana regularly (although she denied the use of other drugs) and that she engaged in various activities with the "Satan's Tramps" motorcycle group, although she contended she was never a member thereof.
One day, after her mother had asked appellant to fix the baby's bottle while she bathed him, appellant having not prepared the bottle, came in the bathroom where the grandmother and the child were and announced that she was leaving and not returning. She was pregnant at that time by someone other than this child's father, we gather. This pregnancy subsequently resulted in a miscarriage.
Appellant then drifted about, returning home from time to time for security and assistance when she felt it necessary. During these occasions, she virtually ignored the baby, leaving its care primarily to her mother. She eventually left to live with her current husband, who was the fourth or fifth man with whom she had taken up residence. They were married in December of 1978 after living together for some eight months and now have two children. Through all of this appellant's parents did not take the child from her or force her out of the house. They obviously reluctantly tolerated her conduct and now are understandably concerned that, although appellant and her husband have been married for some two years, her stability and responsibility are not sufficiently established to warrant this change of custody. Certainly there is a significant chance that appellant will tire of current circumstances and revert to her previous lifestyle.
Thus we have a six-year-old child reared almost entirely by his grandparents subsequent to his clear abandonment by his mother, who virtually ignored him for three and one-half to four years. Now during the last two years she has lived a stable life and is apparently capable of providing a fit and proper home for her child.
The majority has made particular reference to Deville v. LaGrange, 388 So.2d 696 (La. 1980), where a sharply divided Supreme Court affirmed the Court of Appeal's reversal of the District Court and awarded the two-year-old child to the father after it had been with the grandparents for one month. The contest occurred subsequent to the death of the mother who was separated from the father. The Supreme Court specifically held that the father had not forfeited his paramount right to the child.
Deville is based on Wood v. Beard, 290 So.2d 675 (La. 1974), which was a reversal of the Court of Appeal in awarding an approximately two-year-old child to the parent after the child had been with the grandparents some 16 months. The Wood court emphasized the importance of a child of tender years being with the parent. The court also was specific to point out that its mother had not abandoned or forfeited the child. The child was born while the mother was in jail and had been released to the grandparents because of that. After getting out of jail and spending a month with her parents, she attempted to take the child with her to California to be with her husband who was still in jail there. Her parents refused. So, obviously that mother did not abandon or forfeit the child.
I do not believe that the result of our majority is mandated by either Wood or Deville and believe that much of the appellate jurisprudence is an inappropriate extension of these cases. At least two cases cited by the majority which evolved from Wood and Deville resulted in the uprooting of a child from a long-standing, stable environment. In Powell v. Barsavage, 399 So.2d 1308 (La.App. 4th Cir. 1981), the Court of Appeal reversed the District Court and awarded an eight-year-old child to the father after the child had been with the grandparents some five years. Likewise in Juneau v. Bordelon, 380 So.2d 208 (La. App. 3d Cir. 1980), the Third Circuit affirmed an award of a child some six years of age to the parent after about five years with the grandparents.
However in Cawthorne v. Williams, 313 So.2d 915 (La.App. 2d Cir. 1975), now Justice Dennis distinguished Wood and left an abandoned seven-year-old child with the grandparents after some six and one-half years, though concededly the mother in Cawthorne was not nearly so well re-established as appellant here.
In neither Wood nor Deville was there a clear abandonment. Furthermore Wood and Deville both note that forfeiture (Justice Dennis spoke in terms of "abandonment" in Cawthorne) may deprive the parent of the normal "paramount right to the child." In Wood, at p. 677, the court stated:
"When the parent competes with nonparents of the child, the parent's right to custody is superior, unless the parent is unable or unfit, having forfeited parental rights. [citations omitted] No such forfeiture has been found by either court below, and the evidence will not support such a finding."
In Deville the court, at p. 698, noted:
"Parenthood itself confers a right to custody, but that right of parenthood may be forfeited by conduct which denies or rejects one's child." [footnote omitted]
Surely there is some point beyond which a parent ought not to be able to uproot a child from a stable environment. Is it 15 years, is it 10 years? It is not 6 years if our majority is correct. I see a clear abandonment (forfeiture) here though I agree a good bit of it can be said to be disinterest. However, at some point disinterest certainly becomes abandonment.
In my view this cause presents three factors which when taken together have not been squarely presented to our highest court; i.e.(1) abandonment, (2) that abandonment being of long-standing, and (3) rehabilitation of the parent. I suggest that under all these circumstances the evaluation should be based on what is in the best interest of the child, with stability of environment as a major consideration.
That is the analysis undertaken by the trial judge here, and I find no manifest error in his result. I therefore respectfully dissent.
FRED W. JONES, Jr., J., dissents for the reasons assigned by SEXTON, J.