APPEAL FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT PARISH
OF ST. JAMES, STATE OF LOUISIANA NO. 34, 913 C/W 38, 1,
DIVISION "D" HONORABLE JESSIE M. LEBLANC, JUDGE
COUNSEL FOR PLAINTIFF/APPELLEE, ELIZABETH MELANCON Anne
COUNSEL FOR DEFENDANT/APPELLANT, DARIELLE RUSSELL DaShawn P.
composed of Judges Marc E. Johnson, Hans J. Liljeberg, and
John J. Molaison, Jr.
J. LILJEBERG JUDGE
appeals the trial court's judgment awarding sole custody
of the parties' minor children to the plaintiff/mother
pursuant to the Post-Separation Family Violence Relief Act.
He also challenges the denial of his Motion for New Trial.
For the following reasons, we affirm.
AND PROCEDURAL HISTORY
parties, Elizabeth Melancon and Darielle Russell, are the
parents of two minor children, O.T.R. (born 3/22/09) and
S.G.R. (born 3/26/12). The parties were never married. On
June 12, 2015, they entered into a stipulated judgment,
providing that Elizabeth would have sole custody of the minor
children, with Darielle to have one telephone call per week
with the children. The record reveals Darielle was
incarcerated at the time the parties entered into this
November 10, 2016, Darielle filed a Motion to Modify Child
Custody, in which he indicated that he was no longer
incarcerated and that joint custody would be in the best
interest of the children. On December 12, 2016, the trial
court approved a "Court Form Stipulation,"
providing that Elizabeth would maintain sole custody of the
children, pending further orders of the court. It further
provided that Darielle would have supervised visitation with
the children, with his mother present at all
on February 6, 2017, Elizabeth filed an Answer and
Reconventional Demand, seeking to maintain sole legal custody
of the children. In her pleading, she asserted that she has
been the primary caretaker of the children due to
Darielle's "drug abuse and violent lifestyle."
Elizabeth asserted that Darielle has an extensive criminal
history, as well as a history of domestic violence against
her. She also requested that Darielle be ordered to resume
payment of his child support obligation, which was suspended
during his incarceration, and that he be ordered to make
payments toward his child support arrears, which exceeded
13, 2017, the trial court held a hearing on Darielle's
Motion to Modify Custody and Elizabeth's Reconventional
Demand, as well as other motions not at issue on appeal. At
the hearing, Darielle testified that he was released from
jail in December of 2015, and that he is currently employed.
Darielle testified that he has a good relationship with his
daughters, who were ages eight and five at the time of the
hearing, that he has never abused them, and that he was
seeking joint custody. He admitted that he has smoked
marijuana in the past, but he indicated that he took a drug
test a few days before this hearing and it was
cross-examination, Darielle acknowledged that he has failed
to pay child support since he was released from jail,
claiming "I don't know where [Elizabeth] stays
at." He also admitted that he did not pay child support
prior to his incarceration because he was not talking to
Elizabeth, and that he has not paid child support in at least
five years. Darielle acknowledged that his visitation with
the children pending this hearing was ordered to be
supervised, and he denied that he ever exercised his
visitation without his mother being present. Darielle
testified that he has never hit Elizabeth or threatened her
with harm. He admitted that he was incarcerated in 2015
because he had shot someone.
testified that she has experienced domestic abuse at the
hands of Darielle on more than one or two occasions. She
recalled an incident in 2009 when she was pregnant during
which Darielle pushed her out of the door and slammed the
door on her stomach, causing her to be hospitalized for
complications with her pregnancy. Elizabeth also testified
regarding an incident in 2009, during which she was driving
with Darielle and baby O.T.R. as passengers. She stated that
they got into an argument and Darielle put his hands around
her neck and slammed her head against the window. Then, as
she drove over some railroad tracks, Darielle put her car in
neutral, causing the car to stop on the tracks. She stated
that after "struggling a little bit," she was able
to put the car in drive and leave the railroad tracks.
also testified regarding an incident in December of 2010,
when Darielle hit her three or four times in the face while
she was holding O.T.R., causing her face to hit O.T.R.'s
cheek. She also testified about an incident in May 2012 when
Darielle broke into her parent's house through a kitchen
window, and she had to leave the house and go down the street
to her uncle's house to call the police. Additionally,
Elizabeth testified about an incident when O.T.R. was one or
two years old, where Darielle put his hands around her neck
and threatened to hit her.
also testified that on many occasions, Darielle has
threatened to kill her, and she has filed for protective
orders several times. She testified about threatening text
messages she received from Darielle, and the printouts from
several text messages were admitted into evidence.
testified that S.G.R. has told her that Darielle said he shot
someone because they were "messing" with him. She
believes the girls are scared of Darielle, and she has
obtained mental health treatment for O.T.R. for anxiety and
other emotional issues that have arisen since he was released
from jail and "got back into their lives."
According to Elizabeth, O.T.R. has also expressed that she is
afraid she may go to jail if she makes a bad choice.
Elizabeth requested that the trial court deny Darielle's
Motion to Modify Custody "due to the instability and the
violence and the drugs" she believes he would bring into
the children's lives.
conclusion of the hearing, the trial court found that
Darielle has a history of perpetuating family violence on
Elizabeth, triggering the application of the Post-Separation
Family Violence Relief Act, La. R.S. 9:361, et seq.
("PSFVRA"). In accordance with the provisions of
the Act, the trial court awarded sole custody to Elizabeth,
with Darielle to have supervised visitation every Saturday
from 2:00 p.m. to 6:00 p.m., as well as specified holidays.
The trial court ordered that the supervisor for visitation
shall be a police officer or other competent professional,
and not a relative, friend, therapist, or associate of
Darielle. Finally, the trial court ordered that unsupervised
visitation shall only be allowed if it is shown by a
preponderance of the evidence that Darielle has successfully
completed a court-approved domestic abuse intervention