By: Jamie H. - Title: Louisiana: Appeals Court Holds that Co-Domiciliary Parents is Legal Modification to Joint Custodial Arrangement

Link for Opinion: https://scholar.google.com/scholar_case?case=3419803426122682341&hl=en&as_sdt=6,24 Title: Louisiana: Appeals Court Holds that Co-Domiciliary Parents is Legal Modification to Joint Custodial Arrangement The Louisiana Court of Appeals, First Circuit, held in DISTEFANO v. DISTEFANO, No. 2014 CU 1318 (La. Ct. App. Jan. 22, 2015), that the parents of said children can be named as co-domiciliary parents and share joint custody, and that the parent requesting a change of a current considered custody decree, does not have to show that the arrangement is deleterious to the children to justify modification, but that if the modification is made, the advantages to the child outweigh any harm. In this case, the mother of the children, Christina Distefano, and father Ryan Distefano had a considered/contested custody agreement/decree from the trial court dated September 3, 2013, in which the court awarded the parties joint custody of their two children and designated Ryan Distefano the domiciliary parent (parent with the authority to make decisions for the child) and Christina with physical custody periods (visitation) every other weekend and Wednesday evenings, with modifications made during the summer, holidays and birthdays. In March, 2014,Christina filed a motion to modify the custody agreement, due to her moving closer to her ex-husband’s residence (same neighborhood) and the children expressing their want of having more time with their mom, and Ryan’s uncooperativeness with the children having a further relationship with their mother. The mother asked for designation as domiciliary parent, equal physical custody, and increased custodial time with the children. On April 29, 2014, the court entered judgment keeping the joint custody the same, but designated both parents as co-domiciliary parents and sharing physical custody on a 50/50 basis (alternating weeks) and slight changes to the holidays and special occasions. Ryan appealed the judgment stating that Christina failed to show her burden of proof. The issues in this case were if Christina bore her burden of proof in showing that: 1) if the current custody agreement were to stay, that the situation was deleterious (harmful or damaging)to the children, or that by changing the current agreement the harm likely caused, did not outweigh the advantages to the children by changing it; and 2) that a change in circumstances had happened since the September 2013 agreement. The appellate court held that the trial court, according to Bergeron v. Bergeron, 492 So.2d 1193 (La. 1986), and Mulkey v. Mulkey, 2012-2709 (La. 5/7/13), 118 So.3d 357, showed that Christina bore her burden of proof to change the current custody agreement. First, Christina satisfied the change in circumstances by showing that she made the move to be closer to her ex-husband’s home (three streets away) and the children’s school and location of activities and such so that there would be more continuity in the raising of the children and their daily schedules. When the court originally set Ryan as the domiciliary parent it was using the twelve factors of La. C.C. art. 134 in determining the best interest of the children. Second, the appellate court held that Christina fulfilled her burden of proof to modify the physical custody allocation of the joint custody agreement, giving Christina more physical time with the children. Using the standard in Bergeron, Christina had to prove that “the harm” that a change in the custody agreement to give her more time, and change the children’s current schedule, had more advantages than harm. See Bergeron, 492 So.2d at 1199-1200. Even though the situation with the father and the current agreement did not create a deleterious situation, Christina did not have to prove that to get a modification to the custody agreement. The court agreed that in allowing the children to spend more time with their mother, especially when living so close to the other parent, there were only advantages and not harm. The appellate court affirmed the trial court’s decision in modifying the custody decree, and that giving the mother, Christina more physical custody time, would not cause an upheaval in the children’s daily schedules and routines and allow the children to spend more time with each parent equally, and only changed the schedule by one week.