FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-04304,
DIVISION "D" Honorable Nakisha Ervin-Knott, JUDGE
C. Lowe Suzette Marie Smith Jeffrey M. Hoffman LOWE STEIN
HOFFMAN ALLWEISS & HAUVER COUNSEL FOR PLAINTIFF/APPELLEE,
HEATHER ROPER KAPTEIN
H. Williams ATTORNEY AT LAW COUNSEL FOR DEFENDANT/APPELLANT,
composed of Judge Terri F. Love, Judge Daniel L. Dysart,
Judge Terrel J. Broussard, Pro Tempore)
J. Broussard, Pro Tempore Judge
custody dispute, appellant/defendant, Jesse Kaptein, appeals
a trial court's decision that awarded sole custody of
C.E.K.  to appellee/plaintiff, Heather Kaptein,
continued the suspension of FaceTime visitation, and
determined that reasonable visitation with him was not in the
best interest of the child. For the reasons that follow, we
hereby affirm the trial court's judgment that awarded
sole custody of C.E.K. to Ms. Kaptein, but reverse that part
of the judgment regarding the suspension of FaceTime
visitation with Mr. Kaptein.
AND PROCEDURAL HISTORY
parties' daughter, C.E.K., was born on February 25, 2013.
On April 30, 2014, Ms. Kaptein filed a petition for divorce
and requested sole custody of C.E.K. After a hearing, on May
19, 2015, the trial court awarded Ms. Kaptein interim sole
custody, while Mr. Kaptein was awarded interim supervised
visitation with C.E.K. each month from the first Saturday
until the second Sunday for a minimum time period of two (2)
hours to a maximum of eight (8) hours each day, and FaceTime
visits. Mr. Kaptein was also ordered to pay Ms. Kaptein
interim spousal support of $15, 000 per month and child
support of $5, 000 per month. In her reasons for judgment,
the judge stated as follows:
The Court finds Mr. Kaptein's lifestyle and travel are
not stable. Mr. Kaptein admitted to engaging in multiple
extra-marital affairs, with not one, but multiple women in
several different countries. He also admitted to paying the
travel expenses for such women, so he could not only have sex
with them, but have unprotected sex with them, thereby
jeopardizing his health, and that of his wife, Mrs. Kaptein.
Mr. Kaptein's testimony and admitted indiscretions
demonstrate a reckless disregard for his personal safety,
which calls into question the safety of the minor child.
Adultery alone does not demonstrate a lack of moral fitness
on behalf of Mr. Kaptein, but his precarious nature,
including the frequency, location, and disregard for safety -
exhibited by unprotected sex with women in different
countries - does. Mr. Kaptein does not have a stable home, he
does not live or work in the United States, nor will he be in
this country for an extended period of time. Although Mr.
Kaptein's accomplishments as a businessman are
commendable, his choices to pursue a career and a scandalous
lifestyle away from his family, weigh against him. Therefore,
this Court finds it in the best interest of the minor child
to award interim sole custody to Mrs. Kaptein.
November 9, 2015, Mr. and Ms. Kaptein stipulated that the
retroactive amount of child support and interim spousal
support arrears was $41, 500.00. At that time, the trial
court ordered Mr. Kaptein to pay one-half of the arrearage
($20, 750.00) by November 30, 2015, and the remaining
one-half by January 15, 2016.
December 7, 2015, Ms. Kaptein filed a rule for contempt
alleging that Mr. Kaptein had (1) failed to make the December
5, 2015 child support and interim spousal support payments,
(2) failed to pay the $20, 750.00 arrearage payment that was
due on November 30, 2015, and (3) paid only $1, 750.00 on
December 6, 2015.
January 15, 2016, Ms. Kaptein filed an amended and
supplemental rule for contempt alleging that Mr. Kaptein (1)
failed to make the January 5, 2016 child support and interim
spousal support payments, (2) paid only $1, 750.00 on January
6, 2016, (3) failed to pay the $20, 750.00 arrearage payment
due on January 15, 2016, and (4) failed to produce financial
documents as ordered on multiple occasions by the trial
court. Ms. Kaptein also alleged that Mr. Kaptein had not
visited with C.E.K. since September 2015.
hearing held on January 26, 2016 on Ms. Kaptein's
contempt rule and amended contempt rule, the trial court
signed a written judgment on February 4, 2016, that (1)
granted Ms. Kaptein's rule for contempt and found that as
of the date of the hearing, Mr. Kaptein owed $78, 000.00 in
past due support, (2) ordered Mr. Kaptein to pay $2, 225.50
in attorney's fees and $47.00 in court costs, (3) ordered
Mr. Kaptein to pay $25, 000.00 within 30 days from date of
the hearing or otherwise spend 30 days in Orleans Parish
Prison for his failure to abide by the judgments of May 19,
2015, and October 29, 2015, and (4) suspended Mr.
Kaptein's rights to visitation through FaceTime pending
further orders from the trial court. At that time, the trial
court set the final custody hearing on July 1, 2016.
March 7, 2016, attorney Cindy H. Williams filed a notice of
limited appearance on behalf of Mr. Kaptein seeking to appear
only as appellate counsel for him in his appeal of the
February 4, 2016 judgment. 
9, 2016, Ms. Kaptein filed a trial subpoena requesting the
court-appointed mental health evaluator's, Dr. Daliah
Bauer, appearance at the custody hearing set on July 1, 2016.
On May 17, 2016, Ms. Kaptein served Mr. Kaptein through Mr.
Brett Bonin, who was appointed by the trial court on January
26, 2016 as agent for service of process, with a notice of
perpetuation deposition notifying him of her intent to
"take the perpetuation deposition of Dr. Daliah Bauer,
Ph.D., on June 17, 2016." On May 20, 2016, Mr. Bonin
emailed that notice to Mr. Kaptein and Ms. Williams, and no
27, 2016, the trial court denied Mr. Kaptein's (1) June
23, 2016 motion to continue the custody trial scheduled for
July 1, 2016, and (2) motion to enroll Ms. Williams as his
trial counsel. However, on June 28, 2016, Ms. Williams was
allowed to enroll as trial counsel without a continuance.
hearing on Ms. Kaptein's motion for sole custody was
tried on July 1, 2016, whereby the trial court granted Ms.
Kaptein sole custody, maintained its previous order
suspending Mr. Kaptein's FaceTime visitation, and held
that "reasonable visitation with Mr. Kaptein is not in
the best interest of the child." In its reasons for
judgment, the trial court stated:
In any determination of child custody, the paramount
consideration is the best interest of the child. La. C.C.
art. 131. 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. The court shall consider all relevant factors in
determining the child's best interest. La. C.C. art. 134.
The list of factors provided by La. C.C. art. 134 is
nonexclusive, and the determination of the weight to be given
each factor is left to the discretion of the trial court. See
Comment (B), La. C.C. art. 134. The Court finds Ms. Kaptein
met her burden in showing by clear and convincing evidence
that sole custody is in the best interest of the child.
(1) The love, affection, and other emotional ties
between each party and the child.
Ms. Kaptein has strong emotional ties with C.[E.]K.
Contrarily, no evidence was presented to show that the child
has strong ties to Mr. Kaptein. Mr. Kaptein has failed to
demonstrate a willingness to be a part of C.[E.]K.'s
life. Ms. Kaptein testified, on cross-examination, that
C.[E.]K. has never asked the whereabouts of her father. This
factor weighs strongly in favor of Ms. Kaptein.
(2) The capacity and disposition of each party to
give the child love, affection, and spiritual guidance and to
continue the education and rearing of the child.
Mr. Kaptein has shown little interest in providing C.[E.]K.
with love and guidance. He has not seen C.[E.]K. for over
half of her life because he has resided in a different
country. Mr. Kaptein has previously testified he is an
atheist. Ms. Kaptein has been the sole caretaker of C.[E.]K.
and testified she takes C.[E.]K. to church and preschool
during the week. Ms. Kaptein shows a genuine desire to see
C.[E.]K. prosper academically and in extracurricular
activities like swimming, dance, and music. No evidence,
aside from Mr. Kaptein's alleged desire to lift the
FaceTime visitation suspension, was presented to show Mr.
Kaptein is interested in seeing or rearing his child.
(3) The capacity and disposition of each party to
provide the child with food, clothing, medical care, and
other material needs.
Ms. Kaptein testified she is not currently employed. She
testified her intention is to secure a job once this
litigation has ended. The evidence shows that Mr. Kaptein is
a successful businessman with the means to provide food and
material needs for the child. Mr. Kaptein is under orders to
pay support to Ms. Kaptein, and Mr. Kaptein has been held in
contempt for his failure to follow those orders.
(4) The length of time the child has lived in a
stable, adequate environment, and the desirability of
maintaining continuity of that environment.
The best interest of the minor child is served by keeping the
child in New Orleans, where the child has lived for ...