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Benny Council v. Livingston

Court of Appeals of Louisiana, Fourth Circuit

September 20, 2017


         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-00672, DIVISION "K" Honorable Bernadette D'Souza, Judge



          Court composed of Chief Judge James F. McKay, III, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins


         In this child custody/child support case, Benny Council appeals the trial court's September 7, 2016 judgment (the "Judgment") giving Mr. Council and appellee, Tamika[1] Collins Livingston, joint custody of their minor child, BDC[2], and designating Ms. Livingston as the domiciliary parent. The Judgment also established a graduated physical custody schedule for Mr. Council, during which time a parent/child play therapist would work with Mr. Council and his son. The trial court also ordered Mr. Council and Ms. Livingston to attend individual psychotherapy sessions. Mr. Council was ordered to pay Ms. Livingston $573.44 in monthly child support. For the reasons that follow, we reverse the trial court's award of child support, remand for recalculation of the child support obligation consistent with this opinion, and affirm the judgment in all other respects.


         Mr. Council and Ms. Livingston began dating in 2008, but did not live together. On April 19, 2012, their son BDC was born. Mr. Council and Ms. Livingston never married, and less than two years after BDC's birth, their relationship ended. Although BDC always lived with his mother, Mr. Council visited BDC at Ms. Livingston's home whenever he wanted.

         Mr. Council began this litigation on January 17, 2014, when he filed a Petition to Establish Paternity, Custody and Visitation, seeking joint custody of BDC and asking that the parties be designated co-domiciliary parents. In the alternative, Mr. Council asked the court to appoint a mental health coordinator to act as a parenting facilitator between the parties, or appoint a mental health expert to perform a custody evaluation to provide recommendations to the court regarding custody and domiciliary status. Mr. Council asserted that, although he and Ms. Livingston had an amicable relationship, she consistently disregarded his input as to the care and welfare of BDC, and deliberately denied him the opportunity to give his son love, affection, guidance, and nurture.

         On April 1, 2014, Ms. Livingston filed an Answer and Reconventional Demand, seeking joint custody and asking that she be designated as the domiciliary parent. Ms. Livingston alleged that, because of the age of the child, the need to provide him with a sense of safety and security, the child's inability to articulate his needs or fears, and Mr. Council's lack of experience and/or training in early child rearing, all visitation should take place at Ms. Livingston's home at mutually agreed times. In the alternative, Ms. Livingston asked the trial court to order a custody evaluation and mental health evaluation, with the cost to be shared by the parties. Ms. Livingston also sought child support.

         On April 4, 2014, the trial court ordered the parties to mediate their custody dispute and attend co-parenting classes. Although the parties attended a co-parenting class and three days of mediation, the mediator, Lakeisha Jefferson, reported to the court on November 7, 2014 that the parties had not reached an agreement.

         On January 20, 2015, Mr. Council filed a Motion to Determine Unsupervised Visitation and Overnight Schedule, and Appoint a Mental Health Evaluator and Child Custody Evaluator. Mr. Council argued that Ms. Livingston was refusing to allow him unsupervised visitation with BDC, as recommended by the court and the mediator. He also asserted that Ms. Livingston was endangering the wellbeing and safety of BDC by: (1) placing a lamp next to the bath tub while bathing him; (2) painting BDC's fingernails with nail polish; (3) driving BDC in a car without a child car seat; and (4) allowing BDC to sleep in the same bed with her and her 13-year-old daughter.

         On February 27, 2015, the court rendered an Interim Consent Judgment appointing Dr. Dahlia Bauer to conduct a psychological evaluation and custody evaluation, with the parties to share the cost. The parties agreed that Dr. Bauer had the authority to set an interim unsupervised visitation schedule prior to the completion of the custody evaluation, if appropriate. Otherwise, Mr. Council would continue to exercise supervised visitation, as agreed to by the parties. Mr. Council was ordered to pay interim child support of $500.00 monthly subject to recalculation and retroactivity when the final child support determination was made by the court.

         Dr. Bauer's Mental Health and Custody Evaluation

         On March 3, 2016, Dr. Bauer issued a written custody evaluation for the purpose of "determin[ing] a custody arrangement which would be in the best interest of the minor child [BDC]." As part of the evaluation, Dr. Bauer interviewed Mr. Council, Ms. Livingston, Mr. Council's father, Ms. Livingston's father, and observed BDC in the presence of both parents. Dr. Bauer also conducted psychological tests on each parent, known as "Minnesota Multiphasic Personality Inventory."

         Dr. Bauer reported that Mr. Council's specific concerns were that: (1) Ms. Livingston did not allow him to be a father to his child by denying him unsupervised visitation; (2) she was emotionally damaging to BDC by allowing the child to sleep with her and her daughter, by reinforcing negative behaviors such as temper tantrums, and by painting BDC's fingernails; (3) she was putting BDC in danger by not using a child car seat, bathing BDC with a lamp next to the bathtub, and becoming violent if Mr. Council expressed concern; and (4) she was depressed and incapable of making life choices independently.

         Dr. Bauer reported that Ms. Livingston's specific concerns were that: (1) Mr. Council had "unresolved issues" from his own kidnapping by his father at the age of five or six, as well as his history of physical and emotional abuse which kept him from bonding with BDC; (2) he was not aware of the impact of his childhood issues; (3) he was trying to get in his abusive father's good graces by treating BDC as his father treated him; and (4) he teased, taunted, and scared BDC instead of providing him comfort and solace.

         In response to Mr. Council's specific concerns, Dr. Bauer reported that: (1) Ms. Livingston's home appeared to be safe, with age-appropriate toys and no observable safety hazards; (2) Ms. Livingston stated that she used the child car seat for BDC; and (3) there were no reports or observations of temper tantrums by BDC, although he might be "more anxious and dependent than a typical toddler." With respect to Mr. Council's assertion that he should be the domiciliary parent, Dr. Bauer reported:

[BDC] has yet to spend any time alone with his father. He has not had the experience of typical caretaking responsibilities, such as feeding, bathing, dressing and putting to bed on a consistent basis. It is these intimate moments which allow for the development of a secure bond. Mr. Council should have opportunities for parenting activities. However, it would be very confusing and potentially frightening for a child to change their primary attachment figure abruptly at the age of three. . . . Gradual increases in time with Mr. Council does [sic] not have to be traumatic for [BDC].

         In response to Ms. Livingston's specific concerns, Dr. Bauer reported that: (1) Mr. Council appeared to significantly minimize the impact of his unstable childhood, in which he was kidnapped by his father from his mother's home and did not see her for more than a year; (2) although Mr. Council might have no intention of replicating his past (breaking the law and kidnapping BDC), he might fail to appreciate the effects of a separation between BDC and his mother; (3) Mr. Council's "teasing" of BDC involved jokes that were not harmful or abusive; and (4) Mr. Council's home appeared to be safe and age-appropriate.

         Based on Dr. Bauer's interviews, home visits, evaluation of test results, review of parenting history surveys, medical records, and photographs, she concluded that Ms. Livingston should be the domiciliary parent, with a parent coordinator used to gradually alter custody to a co-parenting arrangement "so that [BDC] may enjoy safety, security, love and guidance from both parents." With respect to Ms. Livingston, Dr. Bauer concluded as follows:

Mrs. Livingston presents as a very concerned and dedicated mother. She is a very bright woman with a history of a strong academic background. She is a member of a very close knit family. This family tends to provide support for each other and is very insular in preferring to assume caregiving responsibilities and limit involvement of others. . . . [BDC] has been in the care of Mrs. Livingston since he was born. She has been his primary parent and has provided him with a nurturing, safe and stimulating environment. She should remain his primary caregiver and domiciliary parent.
With respect to Mr. Council, Dr. Bauer concluded:
Mr. Council is a very motivated father. He has experienced significant adversity throughout his life and has persevered to complete his education, pursue athletics and acquire a successful career. He presented with a strong work ethic. His presentation also reflected a desire to be a good father for his son. He has been consistent in his efforts to be present in his son's life. However, there exists an awkward disconnection between Mr. Council and Mrs. Livingston which was present throughout much of their relationship. Consequently, Mrs. Livingston has not allowed Mr. Council to attend to [BDC] alone because she has been concerned that he is not capable of bonding with him or understanding his development level. . . . Mr. Council should have the opportunity to parent his son. In spite of . . . Mrs. Livingston's fears that Mr. Council will harm his son or parent roughly, there is no evidence that Mr. Council will abuse his son or that he will be aggressive with [BDC] to please his own father. He should have an opportunity to be a parent for [BDC] and have independent time with his son so that a more secure bond may develop between the parent and child.

         Dr. Bauer recommended that the parents use a parent coordinator to create and manage a specific schedule, with incremental increases in time for visitation between Mr. Council and BDC in order to transition to a situation in which they would co-parent BDC and in which Mr. Council would have a "more typical paternal role":

At the beginning of this process, [BDC] may need an opportunity to slowly adjust to his father's home and the experience of Mr. Council as an independent caregiver. Furthermore, Mr. Council will need guidance in helping [BDC] adjust to the changes. Visitation can be increased on a gradual basis. . . . [BDC] has not spent time away from his mother for extended periods of time and consequently, it is not recommended that [BDC] travel for extended periods of time to other states without his mother presently. [BDC] has limited verbal skills due to his tender age and may not comprehend the changes in custodial changes. Eventually, [BDC] may experience a sense of security with his father over time and may enjoy vacations with his father in the distant future. This should be a tangible goal that both therapists can address.

         Dr. Bauer also recommended that Mr. Council receive psychotherapy to address childhood and relationship issues, and that Ms. Livingston receive psychotherapy to address the anxiety that she experienced in response to Mr. Council's relationship with BDC. Dr. Bauer further recommended that Mr. Council attend "Parent Child Interaction Therapy" to help him learn to understand his child's particular temperament and development level so that he could parent appropriately.

         Shortly after Dr. Bauer issued her custody evaluation, the trial court rendered another Interim Consent Judgment setting forth specific periods of supervised visitation for Mr. Council, with the parties agreeing to choose a parenting coordinator, and agreeing to use Our Family Wizard[3] to communicate regarding the child.

         The trial of this matter was held on July 25, July 29, and August 2, 2016.

         Dr. Bauer's Testimony

         At trial, Dr. Bauer, a licensed clinical psychologist, was qualified as an expert in the fields of psychology and custody evaluations. Dr. Bauer testified that she was appointed by the trial court to perform a custody evaluation for Mr. Council and Ms. Livingston.

         Dr. Bauer testified that Mr. Council's chief concern was that Ms. Livingston was not allowing him to parent his son independently. Dr. Bauer stated that Ms. Livingston's chief concern was that she did not think that Mr. Council was capable of safely interacting with their son, and that he did not appropriately attach or bond to the child. With respect to Ms. Livingston's fear that Mr. Council would take BDC away from her in the same way that he was taken by his father, Dr. Bauer testified that she did not believe that Mr. Council would take his child away from Ms. Livingston, but that she was concerned that BDC's leaving his mother would be an adjustment for him.

         Dr. Bauer also testified that although Mr. Council's childhood experience certainly had an impact on him, she was more concerned that Mr. Council had minimized the impact of that experience, which could also impact his awareness of BDC's emotional life. She noted that Mr. Council "teased and taunted" BDC which, although it did not harm the child, might not be "relationship building." Dr. Bauer testified that she personally observed that Mr. Council was extremely interested in interacting with his son, was very excited to be in the room with him, and was very loving. Dr. Bauer saw no evidence of any neglect or harsh parenting. Her concern was that Mr. Council was "disconnected, " i.e., he might not be listening and paying close enough attention to what BDC was doing and how he was responding. Dr. Bauer testified that she was "looking forward to increased time and therapy to help these two people to develop a greater relationship."

         With respect to Mr. Council's claim that Ms. Livingston put BDC in danger by placing a lamp next to the bath tub, Dr. Bauer testified that she saw nothing dangerous in Ms. Livingston's home that caused her any concern for BDC's safety. Dr. Bauer also stated that it was not unusual for children of BDC's age to sleep with parents and siblings.

         Dr. Bauer stated that she recommended that Ms. Livingston be the domiciliary parent because it would be very confusing and potentially frightening for the child to change his primary attachment figure abruptly.

         Because Dr. Bauer found that BDC was a "very anxious" and "reticent" child, she recommended a gradual change in physical custody from two hours of visitation, to more hours of unsupervised visitation, with eventual overnights and eventual weekends and trips.

         Dr. Bauer also testified that she recommended psychotherapy for Mr. Council to help him adjust to the changes to his relationship with BDC, and to talk about his childhood history and its impact. She was not concerned about Mr. Council abusing BDC, but hoped that Mr. Council could benefit from having some guidance in interacting in a way that was attentive to the child's needs.

         Dr. Bauer also recommended parent/child interaction therapy to assess BDC's emotional reactions and to provide Mr. Council with guidance about how to read the child's cues and how to interact with the child to foster growth and a positive relationship. Dr. Bauer further recommended a parent coordinator to map out a plan to increase time and help the parties with any conflicts along the way.

         Ms. Livingston's Testimony

         Ms. Livingston testified that when BDC was born, Mr. Council did not have an apartment, and he was sleeping on a cot in his father's plumbing office. She stated that she gave Mr. Council "open access" to visit BDC at her home whenever he wanted. According to Ms. Livingston, when BDC became more active, she began to notice "problematic interactions" between Mr. Council and the child, such as not comforting BDC when he cried. She testified that Mr. Council teased and taunted the child. She said he also played age-inappropriate games that left BDC confused and frustrated. She agreed that eventually BDC would be ready for overnight visits with his father, although not at this time. Ms. Livingston was in favor of the parent/child therapy recommended by Dr. Bauer.

         Ms. Livingston stated that either she or her teen-age daughter painted BDC's finger nails with polish while they were teaching him colors and helping him to develop fine motor skills, and that BDC enjoyed it. She also testified that when she stood next to the bath tub holding a lamp while Mr. Council was bathing the child, she thought she was being "helpful" because the lights in the bathroom were not bright enough, although she acknowledged that it was a safety hazard. She insisted that she did not allow her child to ride in a car without a car seat.

         Mr. Council's Testimony

         At trial, Mr. Council testified that, during Ms. Livingston's pregnancy, he went with her to all of her doctor's appointments. He also was present when his son was born. Mr. Council is listed as the father on BDC's birth certificate. Mr. Council testified that he participated in caring for BDC and was present during milestones in the child's life, as shown in photographs and videotapes introduced at trial.

         According to Mr. Council, he and Ms. Livingston did not agree on certain parenting issues. For example, he believed that Ms. Livingston should not allow the child to throw temper tantrums. He stated that, even though he purchased a bed for BDC, Ms. Livingston permitted the child to sleep with her and her 13-year-old daughter, which upset the child's pediatrician. Mr. Council also ...

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