FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-00672,
DIVISION "K" Honorable Bernadette D'Souza,
COUNCIL PRO SE PLAINTIFF/APPELLANT
JENNIFER CARTER DE BLANC WINDSOR V. RICHMOND DE BLANC LAW
FIRM, L.L.C. COUNSEL FOR DEFENDANT/APPELLEE
composed of Chief Judge James F. McKay, III, Judge Rosemary
Ledet, Judge Sandra Cabrina Jenkins
CABRINA JENKINS, JUDGE
child custody/child support case, Benny Council appeals the
trial court's September 7, 2016 judgment (the
"Judgment") giving Mr. Council and appellee,
Tamika Collins Livingston, joint custody of their
minor child, BDC, 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.
AND PROCEDURAL BACKGROUND
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.
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
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
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.
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.
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
Bauer's Mental Health and Custody Evaluation
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
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
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.
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
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.
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
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
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
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 to communicate regarding the
trial of this matter was held on July 25, July 29, and August
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.
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.
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
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
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.
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.
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.
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.
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.
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.
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.
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 ...