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In Streetman v. Streetman, 2018-1603 (La. App. 1 Cir. 3/20/19), 2019 WL 1292362 at *2 (unpublished opinion), this court handled the father's appeal from the trial court judgment retaining sole custody with the mother and awarding the father supervised visitation to be set up at a specific center and as agreed upon by the parties.
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2018 CU 1603 2018 CU 1604
03-20-2019
THOMAS STREETMAN v. RAVEN STREETMAN CONSOLIDATED WITH RAVEN STREETMAN v. THOMAS STREETMAN
Thomas A. Streetman Morgan City, LA Plaintiff/Appellant Pro se Raven B. Streetman Morgan City, LA Defendant/Appellee Pro se
NOT DESIGNATED FOR PUBLICATION On Appeal from the Sixteenth Judicial District Court In and for the Parish of St. Mary State of Louisiana
No. 128,808 consolidated with No. 130,771, Div. "F" The Honorable Gregory P. Aucoin, Judge Presiding Thomas A. Streetman
Morgan City, LA Plaintiff/Appellant
Pro se Raven B. Streetman
Morgan City, LA Defendant/Appellee
Pro se BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ. HOLDRIDGE, J.
In this custody proceeding, the father appeals a trial court judgment retaining sole custody with the mother and awarding him supervised visitation. Based on a careful review of the record before us, we affirm.
FACTS AND PROCEDURAL HISTORY
Raven and Thomas Streetman were married on December 14, 2014. One child, R.B.J.S., was born of the marriage on September 22, 2015. Before the child's birth, Raven filed a petition for protection from abuse pursuant to La. R.S. 46:2131-2143. She alleged in the petition that she was thirty-four weeks pregnant and was afraid Thomas would hurt her or their unborn child because he punched or threw things at her if she refused sex. The trial court issued a temporary restraining order and set the matter for hearing, but on Raven's later motion, dismissed the petition for protection from abuse and issued a general civil "stay away" order to keep the parties apart.
Although we are not required to use initials to protect and maintain the privacy of the minor children involved in child custody cases pursuant to Uniform Rules, Courts of Appeal, Rule 5-1 and Rule 5-2, we choose to use the initials of the minor child in this opinion. See Jupiter v. Jupiter, 2014-0395 (La. App. 1 Cir. 9/24/2014), 154 So.3d 1241, 1241 n. 1, writ denied, 2014-2301 (La. 1/23/15), 159 So.3d 1058; Rodock v. Pommier, 2016-809 (La. App. 3 Cir. 2/1/17), 225 So.3d 512, 515 n.1, writ denied, 2017-0631 (La. 5/1/2017), 221 So.3d 70.
Shortly after the child was born, Raven filed an unopposed motion to be awarded custody. On the same date, October 9, 2015, the parties entered into a consent judgment wherein Raven was awarded sole custody and Thomas was awarded supervised visitation "as agreed upon by the parties." On December 8, 2015, Thomas filed a petition for divorce pursuant to La. C.C. art. 103, based on the parties' physical separation, and he also filed a separate petition wherein he sought custody of and visitation with the child.
The judgment also provided that Thomas was to attend mental health counseling and to provide proof to Raven that he had done so before exercising any unsupervised visitation with the child. The previously issued "stay away" order was dismissed.
On September 15, 2016, Raven filed another petition for protection from abuse wherein she alleged that on September 14, 2016, the day after Thomas left a mental hospital, he was dropped off at her house. According to Raven, when Thomas was asked to leave, he tried to choke her father, punched her repeatedly, and pushed her stepmother, causing her to fear for their lives. Raven alleged that in the past Thomas had shoved and kicked her, forced her to have sex, "dropped my daughter on the floor because he was angry with me," and threatened her. The trial court issued a temporary restraining order on the same date and set the matter for hearing.
Raven had filed a second petition for protection from abuse on December 11, 2015, wherein she alleged, among other assertions, that Thomas threatened to take their child and to send Raven "to jail for something." The petition was dismissed with prejudice based on Raven's failure to meet her burden of proof as to her allegations, but a general civil "stay away" order was issued and Thomas was ordered to pay child support monthly.
After a hearing, the trial court issued a protective order on September 29, 2016. The trial court awarded Thomas supervised visitation with the child for two hours every other week at the Keeping Kids in Domestic Situations Safe (KKIDSS) Center. The visitation order stated that the reasons for referral to the visitation program were domestic violence allegations or history, schizo-affective disorder, psychosis, and PTSD. The trial court also ordered Thomas to enroll in and successfully complete the Batterer's Intervention Program. However, on December 22, 2016, the trial court signed a judgment ordering that a bench warrant was to be issued because Thomas had failed to attend the Batterer's Intervention Program. According to a minute entry for February 1, 2017, the trial court gave Thomas an additional ninety days to complete the program. Thomas filed two separate motions to dissolve the protective order, on March 8, 2017, and January 24, 2018, respectively; both were denied.
Thomas filed a notice of intent to seek writs from the trial court's later ruling on March 5, 2018, and the court set a return date. However, Thomas did not file a writ with this court and he has not raised the issue of the denial of his motions to dissolve the protective order in this appeal.
Thomas filed another petition for divorce pursuant to La. C.C. art. 102 in a separate suit on March 3, 2017. On March 28, 2017, the parties entered into an interim consent judgment providing that Raven was to have sole custody and Thomas was to have "liberal" visitation periods at the KKIDSS Center every weekend for two hours. Raven answered Thomas's divorce petition and filed a reconventional demand seeking a divorce pursuant to La. C.C. art. 103(5), which provides that a divorce shall be granted if a protective order or injunction was issued during the marriage against the other spouse to protect the spouse seeking the divorce or a child of one of the spouses from abuse. On April 3, 2017, the trial court signed a judgment granting the divorce based on La. C.C. art. 103(5).
The consent judgment also contained an order consolidating this suit with the earlier suit in which Raven filed the requests for a protective order and for custody and in which Thomas filed his earlier divorce petition.
On May 23, 2017, Thomas filed a rule for contempt, alleging that Raven cancelled his visitation on May 20, 2017, because she did not have gas money to get to the KKIDDS Center. On May 31, 2017, the parties entered into a consent judgment where, among other items, Raven was found to be in contempt of court for violating the visitation order on May 20, 2017, and both parents were ordered to take an online CoParenting course. On October 11, 2017, the hearing officer reconvened her conference and issued findings of fact, determining in pertinent part that Thomas had only visited the child on twelve occasions since February 18, 2017, although he had visitation every Saturday and could have visited the child over thirty-four times since then. The hearing officer also found that both parties had completed their parenting classes. The hearing officer recommended that the prior orders as to custody should remain in place, and she also ordered that Thomas was to request visitation on Sundays at the KKIDDS Center so that he could begin to exercise his visitation on a regular basis.
Thomas objected to the hearing officer's findings of fact and recommendations, particularly challenging the hearing officer's maintenance of sole custody in Raven. The trial court heard the matter on May 23, 2018.
On June 11, 2018, the trial court signed a judgment maintaining Raven's sole custody and ordering that Thomas exercise supervised visitation every weekend for two hours at the KKIDSS Center "with the visitation hours to be set up by the KKIDDS Center, and as agreed upon by the parties." From this judgment, Thomas appeals, raising several assignments of error. We summarize the issues raised as follows: that the trial court erred in its failure to award him joint custody, in its application of the Post-Separation Family Violence Relief Act (PSFVRA), in its consideration of his mental illness diagnosis, in its failure to issue a custody implementation order, in its evidentiary rulings at the custody hearing, and in its visitation judgment.
APPLICABLE LAW
The court shall award custody in accordance with the best interest of the child. See La. C.C. art. 131. Under La. C.C. art. 132, if the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the provisions of La. R.S. 9:364 apply or the best interest of the child requires a different award. Subject to the provisions of La. R.S. 9:364, in the absence of an agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent. La. C.C. art. 132.
Louisiana Civil Code articles 132, 134, and 136 and Louisiana Revised Statutes 9:341 and 9:364 were amended by 2018 La. Acts, No. 412 §§ 1, 2, effective May 23, 2018. See 2018 La. Acts, No. 412 § 3. The custody hearing in this case took place on May 23, 2018. Although Thomas in his brief refers to the older versions of the articles and statutes, the amended versions are applicable.
A party seeking modification of a physical custody decree set forth in a stipulated or consent judgment such as in this case must meet the two-prong test of proving: (1) that there has been a change in circumstances materially affecting the welfare of the children since the original decree, and (2) that the proposed modification is in the best interest of the children. Burns v. Burns, 2017-0343 (La. App. 1 Cir. 11/3/17), 236 So.3d 571, 573.
In determining the best interest of the child, the court shall consider all relevant factors, and such factors may include those enumerated in La. C.C. art. 134. Ehlinger v. Ehlinger, 2017-1120 (La. App. 1 Cir. 5/29/18), 251 So.3d 418, 422. Because of the trial court's better opportunity to evaluate witnesses, and taking into account the proper allocation of trial and appellate court functions, great deference is accorded to the decision of the trial court. Id. A trial court's determination regarding child custody will not be disturbed absent a clear abuse of discretion. Id. Likewise, the trial court is vested with vast discretion in matters of child visitation, and its determination as to visitation is entitled to great weight and will not be disturbed on appeal unless an abuse of discretion is clearly shown. Shaw v. Dupuy, 2006-0546 (La. App. 1 Cir. 2/9/07), 961 So.2d 5, 6, writ denied, 2007-0505 (La. 3/21/07), 951 So.2d 1092.
Additionally, as in most child custody cases, the trial court's determination as to what is in the best interest of the child is based heavily on factual findings. Ehlinger, 251 So.3d at 422. It is well-settled that an appellate court may not set aside a trial court's findings of fact in the absence of manifest error or unless those findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse those findings even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Ehlinger, 251 So.3d at 422.
CUSTODY
Thomas contends that the trial court erred in its failure to award him joint custody, in its application of the PSFVRA, in its evidentiary rulings at the custody hearing, and in its failure to issue a custody implementation order and order a mental health evaluation.
The PSFVRA was enacted in 1992 to address the problem of family violence. It applies only if there is a history of "family violence," which "includes but is not limited to physical or sexual abuse and any offense against the person as defined in the Criminal Code of Louisiana, except negligent injuring and defamation, committed by one parent against the other parent or against any of the children." La. R.S. 9:362(4). Where a history of family violence exists, La. R.S. 9:364(A) provides in pertinent part:
There is created a presumption that no parent who has a history of perpetrating family violence, as defined in R.S. 9:362, or domestic abuse, as defined in R.S. 46:2132 ... shall be awarded sole or joint custody of children. The court may find a history of perpetrating family violence if the court finds that one incident of family violence has resulted in serious bodily injury or the court finds more than one incident of family violence.Louisiana Civil Code article 134(B) similarly provides that in cases involving a history of committing family violence as defined in the PSFVRA, whether or not a party has sought relief under any applicable law, the court is to determine an award of custody or visitation in accordance with La. R.S. 9:341 and La. R.S. 9:364. Louisiana Revised Statutes 46:2132(3) defines "domestic abuse" in pertinent part as including, but not limited to, "physical or sexual abuse and any offense against the person, physical or non-physical, as defined in the Criminal Code of Louisiana, except negligent injury and defamation, committed by one family member, household member, or dating partner against another." "Family members" are defined as spouses, former spouses, parents and children, stepparents, stepchildren, foster parents, and foster children. La. R.S. 46:2132(4). "Household members" are defined as "any person presently or formerly living in the same residence with the defendant and who is involved or has been involved in a sexual or intimate relationship with the defendant and who is seeking protection under this Part." Id.
The presumption that no parent who has a history of perpetrating family violence should be awarded sole or joint custody can be overcome, as provided by La. R.S. 9:364(B), in pertinent part:
B. The presumption shall be overcome only if the court finds all of the following by a preponderance of the evidence:
(1) The perpetrating parent has successfully completed a court-monitored domestic abuse intervention program as defined in R.S. 9:362, or a treatment program designed for sexual abusers, after the last instance of abuse.
(2) The perpetrating parent is not abusing alcohol or using illegal substances scheduled in R.S. 40:964.
(3) The best interest of the child or children, considering the factors listed in Civil Code Article 134, requires the perpetrating parent's participation as a custodial parent because of the other parent's absence, mental illness, substance abuse, or other circumstance negatively affecting the child or children.
In oral reasons for judgment, the trial court set forth its reasons for determining that there had not been a material change in circumstances warranting a modification of custody. The trial court maintained sole custody with Raven with continued visitation for Thomas as in the best interest of the child. The trial court noted Thomas's "history," specifically commenting on Thomas's testimony about his "bipolar schizophrenic condition" and his inability to maintain the proper medication that was prescribed to help him, for financial or other reasons. The trial court informed Thomas that he had to prove that he was ready to take on the responsibility of fatherhood by taking the proper medications for his condition, maintaining steady employment, and completing his Anger Management course. The trial court stated that visitation would be continued as scheduled by the hearing officer until Thomas could produce evidence that his "mental and physical condition [had] stabilized."
While the trial court referred to an Anger Management course, it appears that he meant the Batterer's Intervention Program Thomas was ordered to attend.
At the hearing, Raven and her father, Troy Wiggins, both testified about the September 2016 incident that was the subject of the most recent protective order. Troy stated that Thomas and Raven had lived with him throughout their marriage. According to Troy and Raven, Thomas went to the Wiggins' house after he was released from a "mental institution." Thomas and Raven were arguing while Raven was holding the baby. After being asked to leave, Thomas immediately grabbed Troy, who only had one arm, by his shirt, hit him, and dragged him to the back door. Raven came forward and Thomas pushed her, while she was holding the baby, whereupon the baby fell on the floor. Troy testified that Thomas then grabbed him again by his neck, and he could not breathe. Thomas dragged Troy out through the door and threw him onto the corner of the porch. Raven tried to get Thomas off of Troy, and Thomas released Troy and started attacking her. Thomas attacked each of them alternately. Then Troy's wife (and Raven's stepmother), who was recovering from recent cancer surgery, came to the back door, and started screaming, "Please don't kill my husband," because Troy was yelling, "[H]e's killing me." Thomas then shoved Troy's wife into the washing machine and dryer and returned to grab Troy. A neighbor heard their screams for help and intervened, stopping Thomas. According to Troy, Thomas "went to attack the neighbor .... [T]hen [Thomas] took off running .... My shirt was tore, everything. I had marks all over me, so did my daughter."
Raven introduced into evidence the minute entries for November 9, 2016, which showed that Thomas was charged with domestic abuse battery-first offense-child present and two counts of simple battery. According to the first minute entry, Thomas pled guilty to domestic abuse battery, first offense-child present, on that date. The second minute entry for November 9, 2016 was for a probation revocation hearing based on Thomas's guilty plea to domestic abuse battery, for which the court conducting the criminal hearing found Thomas in contempt of court for failure to abide by the conditions of probation. When the minute entries were introduced into evidence, the trial court conducting the custody hearing questioned Thomas about the reference to the probation revocation hearing; Thomas then informed the court he was "on probation and that he was sentenced in 2012 to unauthorized entry in a place of business."
The minute entry showed that Thomas was immediately sentenced to six months imprisonment in the St. Mary Parish jail. The trial court suspended the execution of all but fifty-seven days of that portion of the sentence with credit given for time served and placed Thomas on unsupervised probation for one year with the condition that Thomas have no contact with Troy. As to the probation revocation, Thomas was sanctioned to serve fifty-seven days in the St. Mary Parish jail to run concurrently with the other sentence, with credit given for time served.
Troy testified that there were other previous incidents of violence, such as when Raven was four months pregnant and Thomas harassed her and kicked her in the stomach. Troy additionally testified, "I've witnessed him throwing things at her, punching the walls, hitting her. Ninety percent (90%) of the times that he shoved her, pushed her or hit her she was holding the baby." According to Troy, Thomas "had to go" to a "mental institution" "[b]ecause of his violence. He would turn [himself] in. ... It was like the next day he attacked my daughter in my bedroom and threw her up against the wall while he was holding a baby. That's why he went the third time."
Raven testified that Thomas had been "institutionalized" three times. She stated that the first and second times "he turned [himself] in" because he had "urges to hurt [her]," and on the third occasion, she asked him to go. When the trial court asked her what Thomas's diagnosis was, she replied that over the years "they've had problems properly diagnosing, but . . . he was recently diagnosed at the third mental institution [as] schizoaffective." According to Raven, before the third "institutionalization," he was diagnosed as "manic bipolar."
Thomas, who represented himself, questioned Raven as to her allegation in her protective order that he would only do things for her if she had sex with him. He sought to introduce into evidence bank statements that he alleged showed withdrawals of over $1,000.00 in the days before the restraining order was issued. He stated that the evidence was relevant to show that Raven was on the bank account and was able to withdraw money or purchase something with a debit card. The trial court refused to admit the bank statements into evidence, stating that they were not relevant. When asked by Thomas if she was willing to promote a positive relationship between him and his child, Raven replied affirmatively.
Thomas took the stand and informed the court that he should be given joint custody because he loved his child and wanted to be more a part of the child's life. Thomas acknowledged making mistakes in the past. Thomas admitted hitting Troy, but he denied ever committing violence upon his wife or child.
The trial court asked Thomas about his three "institutionalizations" after he was married. Thomas stated that he had never once said while "institutionalized" that he was going to hurt his wife. Thomas testified that he was diagnosed as bipolar and given medication. He added that his most recent diagnosis after the parties' divorce was hyperactivity, which was causing severe agitation. According to Thomas, he was prescribed Adderral for the hyperactivity and it worked very effectively. However, he testified that his medical insurance changed and he had to switch doctors, so he was not on his medication at the time of the hearing and was going to have to go to St. Mary Mental Health. Thomas stated that he had his own residence and worked at a fast food restaurant. He testified that he had previously moved to north Louisiana to avoid running into Raven, and "[t]hings turned south for me up there, so I ended up moving back."
The trial court asked Thomas if he had enrolled in the Anger Management course that he was ordered to complete. He replied that he had attended some sessions in the Batterer's Intervention Program, but he was not able to complete the course because he moved, and when he was living in north Louisiana, he enrolled in the program there and attended two sessions. He testified that "[i]t's going to take some time for my transportation issue to get better to make it to Franklin for counseling."
See footnote 7.
While the trial court did not specifically refer to the PSFVRA in its reasons for denying Thomas's motion to modify custody, the court initially referred to Thomas's "history." The trial court's ruling indicates that it credited Troy's testimony regarding several incidents where Thomas hit or pushed Raven, at times when she was holding their child, over Thomas's denials of any violence against Raven. An appellate court is required to give great deference to the factual conclusions of the trial court which are based on reasonable evaluations of credibility and inferences of fact. Kirsch v. Kirsch, 2015-0281 (La. App. 1 Cir. 7/29/15), 180 So.3d 417, 422, writ denied, 2015-1626 (La. 9/18/15), 178 So.3d 153. These multiple instances where Thomas hit or pushed Raven, including those that were the basis for the protective order issued by the same trial judge who was presiding over the custody matter, constitute a history of family violence as defined in La. R.S. 9:362(4) and La. C.C. art. 134(B). Thomas' contention that Raven did not meet her burden of proving family violence with clear and convincing evidence, based on the picture of a bruise on her arm that he introduced at the hearing, lacks merit. Where there is more than one incident of physical abuse or an offense against the person, those incidents do not have to produce serious bodily injury to be considered as part of a history of perpetrating family violence. See La. R.S. 9:364(A). Additionally, Thomas argues that the PSFVRA is not applicable because he was found guilty of domestic abuse battery on Troy. However, both Troy and Raven testified that Thomas hit and pushed her, sometimes when she was holding the baby, which would constitute domestic abuse battery under La. R.S. 14:35.3(A), (B)(4) and (5).
While some of the instances of family violence occurred while Raven was pregnant, and thus, before the consent judgment, this court has held that application of the change in circumstances rule does not automatically preclude the introduction of all evidence of facts occurring prior to the stipulated custody judgment. Nettles v. Nettles, 2013-1164 (La. App. 1 Cir. 12/27/13), 2013 WL 6858325 *3 n. 6 (unpublished opinion). To the contrary, the trial court should not exclude evidence in a custody modification proceeding if that evidence is relevant and material to an issue that the parties have not previously had a full and fair opportunity to litigate. Id.
We note that while Thomas contends that Raven had the burden of proving a history of family violence by clear and convincing evidence, La. R.S. 9:364 specifically refers to a "clear and convincing" burden of proof where the court must determine if a parent has sexually abused his or her child or children, which is not applicable here. La. R.S. 9:364(F). As to an initial finding of a history of perpetrating family violence, La. R.S. 9:364(A) does not specify a burden of proof. However, La. R.S. 9:364(B) does state that the presumption that no parent who has a history of perpetrating family violence shall be awarded sole or joint custody shall be overcome only if the trial court makes specific findings by a preponderance of the evidence.
"Domestic abuse battery is the intentional use of force or violence committed by one household member or family member upon the person of another household member or family member." La. R.S. 14:35.3(A). "Family member" means spouses, former spouses, parents, children, stepparents, stepchildren, foster parents, and foster children. La. R.S. 14:35.3(B)(4) "Household member" means any person presently or formerly living in the same residence with the offender and who is involved or has been involved in a sexual or intimate relationship with the offender, or any child presently or formerly living in the same residence with the offender, or any child of the offender regardless of where the child resides. La. R.S. 14:35.3(B)(5).
Thomas's contentions that the trial court did not consider all of the factors listed under La. C.C. art. 134 and gave improper weight to his mental health history also have no merit. Louisiana Civil Code article 134(A), which sets out the factors to be considered in determining the best interest of the child, excepts those factors from consideration where a history of committing family violence applies. Louisiana Civil Code article 134(B) specifically provides that in cases involving a history of family violence, "the court shall determine an award of custody or visitation in accordance with R.S. 9:341 and 364."
Thomas also raises certain issues for the first time on appeal. He complains that that the trial court should have ordered a mental health evaluation before deciding custody and that no custody implementation orders were issued. As a general rule, appellate courts will not consider issues raised for the first time in this court, which are not pleaded in the court below and which the court below has not addressed. See Geiger v. State ex rel. Dept. of Health & Hosp., 2001-2206 (La. 4/12/02), 815 So.2d 80, 86.
Once the trial court finds that there is a history of committing family violence, the presumption in La. R.S. 9:364(A) is triggered whereby the parent who has a history of perpetrating family violence is not entitled to be awarded sole or joint custody of the child. That presumption shall only be overcome if the trial court finds that the requirements of La. R.S. 9:364(B) were met, which includes the completion of a court-monitored domestic abuse intervention program. See La. R.S. 9:364(B)(1). The trial court questioned Thomas about his attendance at the court-ordered domestic abuse intervention program, and upon hearing Thomas's testimony that he had not completed the program, advised Thomas that he must complete the program. Thus, the presumption against joint custody was not overcome, and the trial court had no option but to maintain sole custody with Raven under La. R.S. 9:364(A) and (B).
Louisiana Revised Statutes 9:362(3) defines a court-monitored domestic abuse intervention program. The court-monitored domestic abuse intervention program is required to be comprised of a minimum of twenty-six in-person sessions that follows a model designed specifically for perpetrators of domestic abuse where the providers have specific experience pertaining to domestic violence. La. R.S. 9:362(3).
Regarding Thomas's contention that the trial court improperly excluded the child's medical records from evidence, while Thomas stated at the hearing that he had the medical records, he never actually offered those records into evidence at the hearing and therefore, cannot complain about the trial court excluding them. As to the trial court's ruling that the bank statements Thomas sought to introduce into evidence were irrelevant and therefore inadmissible, Thomas questioned Raven about her statement in the first protective order that if he did anything for her, sex was expected. He sought to introduce the bank statements to show that before the restraining order was issued, withdrawals of over $1,000 were made. The standard of review for evidentiary rulings of a trial court is abuse of discretion, and a trial court's ruling will not be disturbed unless it is clearly erroneous. Bristol v. Gonzales Police Dep't, 2017-0675 (La. App. 1 Cir. 12/21/17), 240 So.3d 232, 243-44, writ denied, 2018-0146 (La. 3/23/18), 239 So.3d 296. We find no abuse of discretion in the trial court's ruling because even accepting that the bank statements would prove that Raven had access to the money in the account, they would not disprove her contention; moreover, the checking account evidence was not relevant to the family violence issue.
We have thoroughly reviewed the testimony and evidence regarding custody and we cannot say that the trial court abused its discretion in maintaining sole custody with Raven. Although the trial court did not specifically refer to the PSFVRA in its reasons for judgment, it appears that the trial court considered the PSFVRA because the issue of family violence was raised in the pleadings below, testimony and evidence regarding that abuse was presented at trial without objection, and the trial court had issued a protective order based on domestic violence prior to the custody hearing. See Lowe v. Bacon, 2018-0766 p. 9 (La. App. 1 Cir. 11/6/18), 2018 WL 5817280 (unpublished opinion); Nettles v. Nettles, 2013-1164 n. 2 (La. App. 1 Cir. 12/27/13), 2013 WL 6858325 (unpublished opinion). As discussed above, we find no abuse of the trial court's discretion when applying the PSFVRA to its custody award. Thus, Thomas's contentions as to custody have no merit.
VISITATION
Thomas contends that the trial court erred in not granting reasonable visitation pursuant to La. C.C. art. 136. The judgment orders that Thomas exercise supervised visitation every weekend for two hours at the KKIDSS Center "with the visitation hours to be set up by the KKIDDS Center, and as agreed upon by the parties."
Pursuant to La. C.C. art. 136(A), "Subject to R.S. 9:341 and 364, a parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would not be in the best interest of the child." The applicable provision on supervised visitation in the PSFVRA, La. R.S. 9:364(E), states, "If the court finds that a parent has a history of perpetrating family violence, the court shall allow only supervised child visitation with that parent pursuant to R.S. 9:341." Because La. R.S. 9:364 applies in this case, the visitation must be supervised. Louisiana Revised Statutes 9:362(7) states that "supervised visitation" means:
See footnote 6.
face-to-face contact between a parent and a child which occurs in the immediate presence of a supervising person approved by the court under conditions which prevent any physical abuse, threats, intimidation, abduction, or humiliation of either the abused parent or the child. The supervising person shall not be any relative, friend, therapist, or associate of the parent perpetrating family violence. With the consent of the abused parent, the supervising person may be a family member or friend of the abused parent. At the request of the abused parent, the court may order that the supervising person shall be a police officer or other competent professional. The parent who perpetrated family violence shall pay any and all costs incurred in the
supervision of visitation. In no case shall supervised visitation be overnight or in the home of the violent parent.
Louisiana Revised Statutes 9:341(A) states that the court shall allow only supervised visitation between the abusive parent and the abused child or children until such parent proves by a preponderance of the evidence at a contradictory hearing that the abusive parent has successfully completed a court-monitored domestic abuse intervention program, as defined in R.S. 9:362, since the last incident of domestic violence or family abuse. The trial court in this case informed Thomas that he had to complete the court-ordered domestic abuse intervention program.
At the hearing to be held when the abusive parent has completed a court-monitored domestic abuse intervention program, the trial court must consider evidence of the abusive parent's current mental health condition and the possibility the abusive parent will again subject his children, stepchildren, or other household member to family violence or domestic abuse. La. R.S. 9:341(A). The court is to order visitation only if the abusive parent proves by a preponderance of the evidence that visitation would be in the best interest of the child, considering the factors in La. C.C. art. 134, and would not cause physical, emotional, or psychological damage to the child. Id. Should visitation be allowed, the court shall order such restrictions, conditions, and safeguards necessary to minimize any risk of harm to the child, including continued supervision. Id.
At the hearing before the trial court, Raven acknowledged missing one or two visits at the KKIDDS Center due to lack of transportation, but she testified that she had taken the child to the KKIDDS Center for every scheduled visit since then. According to Raven, Thomas had only seen the child at most once in the two months prior to the hearing, and less than ten times in the past six months. She stated that Thomas was permitted visitation every Saturday, but she agreed to change the time to Sunday to accommodate his schedule; however, Thomas still did not exercise his visitation on Sundays. While Raven agreed that she wanted to promote a relationship between Thomas and the child, she testified that she was uncomfortable with unsupervised visitation based on Thomas's violent history. Thomas testified that he did not exercise his visitation during the time he lived in north Louisiana due to the distance.
When the trial court began giving its reasons for its ruling, Thomas informed the court that he could not travel to Franklin every week for his visitation. He asked that if the visitation was to be supervised, that it take place where he could exercise it, in Morgan City. Thomas stated that it cost him $110.00 to travel to Franklin because he did not have transportation. He indicated that he could not afford this expense because he had to pay rent and child support. The trial court asked Raven where she lived, and she stated that she lived in Bayou Vista. The court then asked if there was a place in Morgan City where visitation could be exercised and was informed by Raven's counsel that there was a safe exchange at the police department, but there was no visitation center. The trial court stated, "I feel for your situation, but I'm afraid that the visitation has to be maintained at the center in Franklin until such time that y'all can reach an agreement on it." Thomas indicated that an agreement would not be reached.
Unlike Lowe, in this case the court established a set visitation schedule at the KKIDDS Center. The court further acknowledged that visitation could be changed to another location with the consent of the parties if Thomas met all of the requirements set by the court and filed for additional visitation. --------
We do not find that the trial court abused its discretion in ordering that the supervised visitation continue to take place in Franklin at the KKIDDS Center, considering that Thomas did not provide the trial court with an available alternative site. While the visitation hours were to be "set up by the KKIDDS Center, and as agreed upon by the parties," the testimony did not indicate that the issues Thomas had in failing to exercise visitation in the past were due to lack of the parties' agreement. Moreover, unlike the visitation provision in the Lowe case, in this case the visitation is based on the hours that the KKIDDS Center offers and upon which both parties agree. We also note, as did the trial court, that if Thomas completes the Batterer's Intervention Program and he can prove at a hearing that unsupervised visitation is in the best interest of the child, based on his current mental health condition, then he may request that the court modify the visitation order to award him greater visitation rights. For these reasons, Thomas's contentions regarding the visitation order have no merit.
DECREE
For the above and foregoing reasons, we affirm the June 11, 2018 judgment maintaining sole custody with Raven Streetman and ordering that Thomas Streetman exercise supervised visitation. The costs of this appeal are assessed to Thomas Streetman.
AFFIRMED.