Appeal from the Twenty-Third Judicial District Court In and
for the Parish of Ascension State of Louisiana Docket No.
110, 689 Honorable Jason Verdigets, Judge Presiding
J. Prendergast Baton Rouge, Louisiana Counsel for
Plaintiff/Appellee Nicholas Miller.
Natalie T. Robertson Baton Rouge, Louisiana Counsel for
Defendant/ Appellant Teal Dicharry.
Dicharry Baton Rouge, Louisiana Defendant/ Appellant Pro Se.
BEFORE: McCLENDON, WELCH, AND THE RIOT, JJ.
mother appeals a trial court judgment that maintained a 50/50
custody arrangement with the child's father, granted the
child's father authority to make medical decisions, and
ordered the child be vaccinated. For the following reasons,
AND PROCEDURAL HISTORY
Dicharry and Nicholas Miller are the parents of the
minor child, H.M. After the parents' relationship ended,
Mr. Miller, on August 1, 2014, filed a petition that sought
to set custody and support. The parties stipulated to a joint
custody arrangement, which designated Ms. Dicharry as the
domiciliary parent and granted Mr. Miller physical custody on
alternating weekends and a four-hour visit once per month.
Following various motions by the parties, the trial court
eventually issued a ruling that maintained Ms. Dicharry as
domiciliary parent, but granted joint custody of the minor
child with physical custody to be shared equally. The ruling
granting Mr. Miller joint custody was affirmed by this court
in Miller v. Dicherry, 17-0699 (La.App. 1 Or.
9/27/17) (unpublished opinion) 2017 WL 4314358.
March 29, 2017, Mr. Miller filed a motion to modify the joint
custody order wherein he sought, among other things, to be
designated the domiciliary parent. Mr. Miller indicated that
he requested to be named domiciliary parent in order to make
medical decisions for H.M.
12, 2017, Ms. Dicharry filed a rule to modify visitation and
child support, a motion for contempt, and a motion for a
joint custody implementation plan. In her motions, Ms.
Dicharry sought, among other things, modification of the
50/50 equal sharing to limit Mr. Miller's exercise of
physical custody to every other weekend.
a hearing on August 7, 2017 in which the parties' motions
were considered, the trial court issued both written reasons
for judgment and a judgment on September 15, 2017. In its
judgment, the trial court maintained the 50/50 custody
arrangement with Ms. Dicharry as domiciliary parent, but
ordered that Mr. Miller would have full authority to make
medical decisions and ordered that H.M. be vaccinated. Ms.
Dicharry has appealed assigning the following as error:
1. The district court erred by not finding that Mr. Miller
resides in Texas and allowing him to continue the 50/50
2. The district court erred by granting Mr. Miller the right
to make medical decisions and ordering that the parties'
minor child be vaccinated.
parties have filed multiple pleadings with the trial court
since the rendition of the September 15, 2017 judgment.
However, none of the pleadings filed or rulings made have
affected the issues currently before this court on
first assignment of error, Ms. Dicharry contends that the
trial court erred in allowing the 50/50 custody arrangement
to continue because Mr. Miller lives, works, and resides in
Texas. Ms. Dicharry avers that Mr. Miller never provided
verification from his employer to show when he is off from
work and that he will be able to exercise physical custody in
Louisiana. Ms. Dicharry avers that Mr. Miller, in accordance
with past practice, will likely bring H.M. to Texas during
his custodial week.
paramount consideration in any determination of child custody
is the best interest of the child. LSA-C.C. art. 131.
However, in actions to change custody decisions rendered in
considered decrees, an additional jurisprudential requirement
is imposed. Evans v. Lungrin, 97-0541 (La. 2/6/98),
708 So.2d 731, 738. A considered decree is an award of
permanent custody in which the trial court receives evidence
of parental fitness to exercise care, custody, and control of
children. Id.; Major v. Major, 02-2131 (La.App. 1
Cir. 2/14/03), 849 So.2d 547, 551. By contrast, an
uncontested decree in which no evidence is presented as to
the fitness of the parents is not a considered decree.
Major, 849 So.2d at 552. When a trial court has made
a considered decree of permanent custody, the party seeking a
change bears the heavy burden of proving that the
continuation of the present custody is "so deleterious
to the child as to justify a modification of the custody
decree, " or of proving by "clear and convincing
evidence that the harm likely to be caused by the change of
environment is substantially outweighed by its advantages to
the child." Bergeron v. Bergeron, 492 So.2d
1193, 1200 (La. 1986). "Although the trial court retains
a continuing power to modify a child custody order, there
must be a showing of a change in circumstances materially
affecting the welfare of the child before the court may
consider making a significant change in the custody
order." Bergeron, 492 So.2d at 1194.
It is a
well-recognized tenet of Louisiana jurisprudence that an
award of child custody is not a tool to regulate human
behavior. Major, 849 So.2d at 550. Every child
custody case must be viewed within its own peculiar set of
facts. Id. The trial judge is in the best position
to ascertain the best interest of the child given each unique
set of circumstances. Accordingly, a trial court's
determination of custody is entitled to great weight and will
not be reversed on appeal unless an abuse of discretion is
clearly shown. Id.
trial court noted that it rendered a considered decree of
custody on August 9, 2016. Accordingly, the trial court
recognized that the heightened standard enunciated in
Bergeron applied. In its reasons for judgment, the
trial court found that Mr. Miller had been temporarily living
in Texas during a training program for his employment.
However, the trial court also noted that Mr. Miller indicated
that once his training period - which was near completion -
was over, and assuming he was hired by the company, he would
be working on a week on/week off rotation in Texas. Mr.
Miller testified that he would be able to spend his custodial
week in Louisiana and work in Texas during his non-custodial
week. Because Mr. Miller could exercise physical custody of
H.M. in Louisiana, the trial court did not find a material
change in circumstances to warrant changing its prior 50/50
trial court also acknowledged Ms. Dicharry's concerns
about H.M. traveling to Texas and set limitations to
alleviate those concerns. Specifically, the trial court
ordered that physical custody be exercised in Louisiana.
Additionally, the trial court ordered that if Mr. Miller was
"called to work in Texas during his custodial period,
Mr. Miller will give the right of first refusal to Ms.
Dicharry." Considering the foregoing, we cannot conclude
that the trial court was manifestly erroneous in its factual
determination, nor did it abuse its discretion in declining
to change its prior custody order. Accordingly, Ms.
Dicharry's first assignment of error is without merit.
second assignment of error, Ms. Dicharry contends that the
trial court erred by granting Mr. Miller, the non-domiciliary
parent, the right to make medical decisions and ordering
immunizations for H.M. Ms. Dicharry notes that she has always
been the domiciliary parent and her decisions are presumed to
be in the best interest of the child, and Mr. Miller must
demonstrate otherwise. See LSA-R.S.
9:335(B)(3). Ms. Dicharry avers the mere fact that she
is opposed to immunizations was not sufficient grounds to
warrant granting Mr. Miller the right to make medical
decisions. Ms. Dicharry contends that the trial court
did not find that her refusal to vaccinate ...