APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 755-387, DIVISION
"I" HONORABLE NANCY A. MILLER, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLEE, SHAHRZAD TALEBINEJAD
BOURGEOIS Jacqueline F. Maloney
COUNSEL FOR DEFENDANT/APPELLANT, DANNY PAUL BOURGEOIS, JR.
Mark D. Plaisance Harley M. Brown
composed of Jude G. Gravois, Robert M. Murphy, and Hans J.
G. GRAVOIS JUDGE
child custody matter, defendant/appellant Dr. Danny Bourgeois
appeals a trial court judgment that maintained the
parties' shared custody of their minor son, A.C.B.,
awarded domiciliary status to Dr. Bourgeois's ex-wife,
plaintiff/appellee Dr. Shahrzad Talebinejad, after she had
sought a modification of the parties' prior Consent
Judgment on custody. Dr. Talebinejad sought the custody
modification on the basis that A.C.B. was then three and a
half years old and would soon be eligible to enroll in a
"pre-K 4 program, " and because of her desire to
enroll him full time in a pre-kindergarten program in
appeal, Dr. Bourgeois argues that the trial court erred in
finding that Dr. Talebinejad proved a material change in
circumstances warranting a modification of the previous
custody judgment because as a four-year-old, A.C.B. was not
of "school age" as per La. R.S. 17:221 and 17:222.
He further argues that it is not in A.C.B.'s best
interest for A.C.B. to have to travel more than 90 miles
twice per day to and from school in Metairie, Louisiana,
during the weeks that Dr. Bourgeois exercises physical
custody of A.C.B. at his home in Zachary, Louisiana. Next, he
argues that the trial court erred in granting Dr. Talebinejad
domiciliary status when she failed to rebut the presumption
against custody found in La. R.S. 9:364, specifically that
Dr. Talebinejad's history of violence and abuse towards
him is sufficient to deny her domiciliary status. He also
argues that the trial court erred in denying his request to
admit into evidence an alleged text message between the
parties as evidence of her abusive behavior. Finally, he
argues that if a modification of the Consent Judgment on
custody is warranted, he should be named as domiciliary
following reasons, finding no merit to Dr. Bourgeois's
assignments of error, we affirm the trial court's
judgment under review.
AND PROCEDURAL HISTORY
record reflects that the parties, Dr. Bourgeois and Dr.
Talebinejad, met in 2008 in Metairie, Louisiana, when Dr.
Bourgeois was a surgical resident at Ochsner Hospital in
Metairie and Dr. Talebinejad was a medical student. The
parties had a stormy and troubled relationship, and both
agreed that the relationship would have ended had Dr.
Talebinejad not gotten pregnant in 2011. Prior to being
married in October of 2011, the parties resided in Jefferson
Parish. A.C.B, their son, was born on April 11, 2012.
Dr. Bourgeois completed his surgical residency in 2013, he
obtained a job as a surgeon at Lane Memorial Hospital in East
Baton Rouge Parish. Meanwhile, Dr. Talebinejad entered a
surgical residency at Ochsner Hospital in Metairie. In an
effort to balance the needs of their careers and their child,
in 2013 the parties purchased a home in LaPlace, Louisiana,
which was approximately one-third closer to Dr.
Bourgeois's job in Zachary. However, the parties'
relationship continued to be troubled. Dr. Bourgeois was
unfaithful several times, which led to numerous fights
between the couple, some where Dr. Talebinejad lost her
temper and admittedly caused some minor property damage at
their home. The parties decided to separate and divorce. In
June of 2014, Dr. Talebinejad moved back to Jefferson Parish.
Bourgeois filed for divorce in St. John the Baptist Parish
(40th Judicial District Court) on July 7, 2014. On
August 21, 2014, the parties entered into a Consent Judgment
in the divorce proceeding regarding child custody, with the
parents being awarded "joint/shared" custody of
A.C.B., with alternating weeks of physical custody, and
co-domiciliary status. Dr. Bourgeois continued living in LaPlace
until April of 2015, when he moved to Zachary, where he is
from, to live in his grandmother's house and to be close
to his job and his extended family. The parties were divorced
in October of 2015 by judgment of the 40th
Judicial District Court. They continued with shared custody
under the Consent Judgment, with A.C.B. spending one week at
a time in the physical custody of each parent
respectively. When with his father, A.C.B. attended
Bright Beginnings Day Care, which is close to Dr.
Bourgeois's home in Zachary, where A.C.B. had been
enrolled since 2013. When with his mother in Metairie, A.C.B.
was cared for by a nanny when his mother worked in her
A.C.B. approached the age of four and became eligible to
enroll in pre-kindergarten, Dr. Talebinejad sought to enroll
him in the program at Metairie Academy, a well-regarded
public magnet elementary school close to her home. A.C.B. was
accepted into the program, but Dr. Bourgeois disagreed with
A.C.B.'s enrollment at Metairie Academy. Initially Dr.
Bourgeois felt that their son could remain at day care in
Zachary and with the nanny in Metairie and not start school
until kindergarten. He later proposed that A.C.B. could
attend Metairie Academy every other week, when he was with
his mother, or could attend another school in Zachary on the
weeks when A.C.B. was with Dr. Bourgeois.
being unable to resolve the issue of their son's
schooling and custody, on November 12, 2015 Dr. Talebinejad
filed a Rule to Show Cause why custody should not be
modified, arguing that a modification was warranted given
that A.C.B. was then three and a half years old and would
soon be eligible to enroll in a "pre-K 4 program"
and that it was in his best interests to attend school full
time.She sought domiciliary custody, primary
physical custody, and permission to enroll A.C.B. in
pre-kindergarten for the 2016-2017 school year in Jefferson
Parish, particularly at Metairie Academy.
February 1, 2016, Dr. Bourgeois filed a reconventional
demand, alleging a material change in circumstances since the
custody decrees were rendered, seeking to be named
domiciliary parent, and seeking an order for permission to
enroll A.C.B. in the Zachary Community School District
"when he reaches the age of preschool
enrollment." On February 2, 2016, the parties
stipulated to the appointment of Dr. Karen Van Beyer to
conduct a custody evaluation of the parties and A.C.B. The
trial court conducted a custody hearing on July 13, 2016, in
which the parties and several witnesses testified, including
Dr. Van Beyer, whose report was entered into evidence. The
trial court took the matter under advisement and rendered a
judgment in open court on July 21, 2016, with the parties
present, granting Dr. Talebinejad's request to be named
as domiciliary parent and giving permission for A.C.B. to be
enrolled full time in pre-kindergarten classes at Metairie
Academy, but maintaining the parties' shared week-to-week
custody arrangement. A written judgment and reasons for
judgment were also rendered that same day. This timely
noted by the court in Hanks v. Hanks, 13-1442
(La.App. 4 Cir. 4/16/14), 140 So.3d 208, 214-215 (internal
child custody cases, the following principles are
• Appellate courts will not disturb a trial court's
custody award absent a manifest abuse of discretion.
• In most child custody cases, the trial court's
rulings are based heavily on its factual findings. "[A]
court of appeal may not set aside a trial court's or a
jury's finding of fact in the absence of 'manifest
error' or unless it is 'clearly wrong.'"
• "[E]ach child custody case must be viewed in
light of its own particular set of facts and circumstances,
with the paramount goal of reaching a decision that is in the
best interest of the child."
• In determining the best interest of the child,
"[e]ach case must be viewed in light of the child's
age, the situation of the parents, and any other factor
relevant to the particular case."
• To aid courts in making this factual determination,
La. C.C. art. 134 enumerates twelve factors for the court to
• The best interest of the child standard-codified in
La. C.C. arts. 131 and 134-is "a
fact-intensive inquiry requiring the weighing and balancing
of factors favoring or opposing custody in the competing
parties on the basis of the evidence presented in each
• "Because the trial judge is in the best
position to ascertain the best interest of the child based
on the particular circumstances of the particular case, the
trial court's custody determination is entitled to
great weight and will not be disturbed by an appellate
court absent a clear showing of abuse of discretion."
party seeks to change custody entered pursuant to a consent
judgment or stipulation of the parties, the party seeking
modification must prove "(1) that there has been a
material change of circumstances since the original custody
decree was entered, and (2) that the proposed modification is
in the best interest of the child." Evans v.
Lungrin, 97-0541 (La. 2/06/98), 708 So.2d 731, 738
(internal citation omitted). This is a lesser burden of proof
than required when a party seeks modification of a
"considered decree." Id.
C.C. art. 134 provides that the court shall consider all
relevant factors in determining the best interest of ...