Appealed from the 22nd Judicial District Court. In and for
the Parish of St. Tammany, State of Louisiana. Case No.
2011-15863. The Honorable Dawn Amacker, Judge Presiding.
McCool, Mandeville, Louisiana, Counsel for
Defendant/Appellant, Kristin Kay Kirsch.
C. Rather, Jr., Mandeville, Louisiana, Counsel for
Plaintiff/Appellee, Karl Joseph Kirsch.
GUIDRY, THERIOT, AND DRAKE, JJ.
0281 La.App. 1 Cir. 2] THERIOT, J.
child custody case, the mother appeals a judgment in which
the trial court granted sole custody of the parties'
minor children to the father. For the following reasons, we
affirm the judgment of the trial court.
& PROCEDURAL HISTORY
matter involves a protracted and contentious custody dispute
between Karl Kirsch and Kristin Kirsch [together, " the
parties" ]. The parties were married on January 12,
2001. Two children were born
of the marriage: MK born August 16, 2001, and SK, born
December 20, 2003. The parties separated and ceased living
together in September 2011.
filed a complaint with the Department of Children and Family
Services [" DCFS" ] on September 8, 2011, alleging
that Karl had been physically abusive to her and physically
and sexually abusive to the children. DCFS closed the case,
finding it was inconclusive for sexual abuse, invalid for
physical abuse, and valid for lack of supervision on the part
of both parents.
September 14, 2011, Kristin filed a petition for protection
from abuse, alleging that Karl had physically abused both her
and the children. Following an October 19, 2011 hearing, the
parties reached a consent agreement that enacted an 18-month
protective order against Karl in favor of Kristin, but not in
favor of the children. The consent agreement further granted
Kristin temporary custody and provided for Karl to have
supervised visitation until he completed an anger management
course and a parenting course.
0281 La.App. 1 Cir. 3] Karl filed a Petition for Divorce
pursuant to La. C.C. art. 102 on October 12, 2011, requesting
joint custody of the children and to be the designated
November 28, 2011, and December 8, 2011, DCFS received
reports of suspected child abuse or neglect by Karl against
the children and opened investigations into the reports.
There was some dispute as to who filed the November 28, 2011
report, but it appears that both reports were filed by
Kristin. The November 28, 2011 complaint was closed with
Sexual abuse disclosures were never consistent and the boys
appeared to be coached... Mrs. Kirsch's family members do
not believe the abuse occurred... Both boys are disclosing
sexual abuse by their father. The disclosures are not
consistent... The boys say they are afraid of their father
but do not act fearful in front of him.
December 7, 2011, Kristin filed an Answer and Reconventional
Demand in forma pauperis, seeking sole custody with
supervised visitation pursuant to the Post-Separation Family
Violence Relief Act, La. R.S. 9:361 et seq. ["
the Act" ], spousal support, and child support. Kristin
alleged that Karl was not entitled to joint custody due to a
history of family violence against Kristin and the
initial Hearing Officer Conference [" HOC" ] was
held on December 13, 2011. Recommendations were issued
awarding joint custody to both parents, with Kristin as the
designated domiciliary parent. A
new [2015 0281 La.App. 1 Cir. 4] visitation schedule
was agreed upon, and Karl's visitation was to be
supervised by his mother. Regarding Kristin's request for
an injunction pursuant to the Act, the HOC
Report/Recommendations provided that the request " must
January 6, 2012, Karl filed an Answer to Kristin's
Reconventional Demand, in which he sought sole custody of the
two minor children because Kristin had made false allegations
of neglect and abuse against him, and alleging that Kristin
should only be awarded supervised visitation with the
second HOC was held on February 13, 2012, and was
memorialized in a February 15, 2012 Consent Judgment that
awarded temporary joint custody, lifted the supervision
requirements on Karl's visitation, and named Kristin the
domiciliary parent. Regarding Kristin's request for an
injunction pursuant to the Act, the HOC
Report/Recommendations provided that the request " shall
be addressed at the follow-up" HOC.
February 29, 2012, DCFS notified Karl by letter that the DCFS
investigations into the November 28, 2011, and December 8,
2011, complaints had been completed, and there was not
sufficient information to support a finding of abuse or
April 20, 2012, Karl subpoenaed the records of the Slidell
Police Department [" SPD" ]. He also filed a motion
to unseal the DCFS records and compel the deposition of
Detective Brian Brown, alleging that Kristin had repeatedly
falsely accused Karl of physical and sexual abuse of the
children [2015 0281 La.App. 1 Cir. 5] in an attempt to
improperly influence the custody and related financial
determinations. He further alleged that the requested
information was critical to his claim for sole custody.
report dated June 27, 2012, summarizing the June 22, 2012
HOC, reflected Karl's allegations that Kristin had
falsely accused him of sexual abuse of the children. It was
Kristin's testimony that the children had made alarming
statements, which she reported to the appropriate
authorities. Kristin's reports of sexual abuse had been
made prior to the February 13, 2012 HOC, and all resulting
investigations had been closed by the time of the June 22,
2012 HOC; thus, the June 27, 2012 HOC Report recommended
joint custody, with Kristin as the domiciliary parent, and
denied Kristin's request for an injunction pursuant to
the Post-Separation and Family Violence Relief Act.
filed an objection to the June 27, 2012 HOC report
recommendations with the trial court, specifically objecting
to the award of joint custody, the designation of domiciliary
parent, and the visitation schedule. Karl filed a Pre-Trial
Memorandum alleging that since the fall of 2011, Kristin had
been filing and reporting false allegations of child abuse,
both sexual and physical, against him for the sole purpose of
influencing the court's determination of pending custody
matters. Karl maintained that Kristin submitted false reports
to the City of Slidell, DCFS, and various hospitals and
medical facilities in Mississippi and Louisiana, subjecting
both children to invasive, humiliating, and potentially
damaging physical examinations and forensic evaluations. Karl
further alleged that Kristin had coached the children into
falsely accusing him of sexual abuse. Karl
alleged that Kristin's rights to custody, unsupervised
visitation, child support and spousal support should be
terminated as a result.
0281 La.App. 1 Cir. 6] Following a July 24, 2012 hearing
before the trial court, an Interim Consent Judgment upheld
the previous joint custody arrangement with Kristin as the
domiciliary parent. The judgment also ordered both parties to
submit to a full mental health examination by Dr. Alan James
Klein, who would be granted access to all court records. A
hearing to establish temporary custody was set, but was twice
continued because Dr. Klein was unable to complete his
evaluations and issue reports before the hearing date.
matter went to trial on August 5 and 7, 2013. The trial court
rendered its decision in open court on August 7, 2013, and
gave extensive oral reasons for judgment. On August 8, 2013,
the trial court signed a judgment consistent with its August
7 ruling, granting Karl sole custody of the children and
further providing that upon presentation by the parties, the
court would execute the judgment addressing the other issues
upon which it had ruled. On September 5, 2013, Kristin filed
a Motion and Order for Devolutive Appeal from the final
judgment rendered in the action.
September 9, 2013, the trial court signed a second judgment
reiterating that Karl had been awarded sole custody, and,
among other specific orders, provided that Kristin would have
only supervised visitation on alternating weekends, and that
neither party should publicly disclose any facts or details
of the proceedings nor discuss them with the children.
court shall award custody of a child in accordance with the
best interest of the child. La. C.C. art. 131. In determining
the child's best interest, the court shall consider all
the factors that are relevant to that specific case. La. C.C.
art. 134. The trial court's decision in child custody
matters is entitled to great weight and it will not be
overturned absent a clear [2015 0281 La.App. 1 Cir. 7]
showing of an abuse of discretion. Bergeron v.
Bergeron, 492 So.2d 1193, 1196 (La. 1986).
of Error No. 1
first assignment of error, Kristin argues that the trial
court erred in awarding sole custody to Karl and permitting
only supervised visitation by Kristin because Karl failed to
put forth evidence that such was in the best interests of the
children, and because Karl failed to prove that Kristin
coached the children to make false allegations against him.
also challenges the qualification of Investigator Brian Brown
of the Louisiana Department of Justice, who testified
regarding his belief that Kristin coached the children, as an
expert witness in " criminal investigation of the sexual
abuse of children." Brown was the SPD Detective who
investigated the allegations of sexual abuse against Karl.
However, as Kristin failed to object to the ...