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Graver v. Leach

Court of Appeals of Louisiana, Fifth Circuit

December 28, 2018

CHRIS GRAVER & VANESSA GRAVER
v.
OLIVIA G. LEACH

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 773-311, DIVISION "C" HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, CHRIS GRAVER AND VANESSA GRAVER Edward A. Ready

          COUNSEL FOR DEFENDANT/APPELLANT, OLIVIA G. LEACH Pat M. Franz Michael Baham

          COUNSEL FOR MINOR/APPELLEE, L. G. Cheryl P. Buchert Maura K. Toups, Student Practioner Meaghan A. Jeansonne, Student Practioner Rowan O. Whitehurst, Student Practioner

          Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Stephen J. Windhorst

          FREDERICKA HOMBERG WICKER JUDGE

         Appellant-mother, Olivia Leach, appeals the trial court judgment granting paternal grandparents, Chris and Vanessa Graver, visitation with Olivia's minor child, London. For the following reasons, we affirm the trial court judgment.

         FACTUAL AND PROCEDURAL HISTORY

         The minor child in this litigation, London, was born on April 16, 2013, to her biological parents, Olivia Leach and Shanon Graver. Olivia and Shanon were never married but lived together in Gulfport, Mississippi for a brief period from March 2012 to September 2013, and separated when London was approximately 5 months old. Thereafter, they returned to Louisiana and shared joint custody of London, with Olivia designated the domiciliary parent by court order in district court case number 755-983 of the 24th Judicial District Court, and with Shanon granted supervised visitation twice weekly. The record reflects that Shanon, a military member, suffered PTSD after he returned home from deployment to Afghanistan, and struggled with substance abuse issues. On September 23, 2016, Shanon and Olivia executed a consent judgment whereby Shanon's visitation was suspended, without prejudice, pending further court proceedings. Shanon died shortly thereafter on January 28, 2017.

         On June 22, 2017, Chris and Vanessa Graver-Shanon's parents and London's paternal grandparents-filed suit in the 24th Judicial District Court, seeking court-ordered visitation with London. Olivia filed an answer to the petition, objecting to the Gravers' requested visitation. The court appointed the Loyola Law Clinic to represent the interest of the minor child. At two pretrial hearings, the trial court determined that both statutes governing grandparent visitation, La. R.S. 9:344 and La. C.C. art. 136, applied in this case and, further, that the legal standard of proof the Gravers must meet to support their claim for grandparent visitation is preponderance of the evidence.

         The matter proceeded to trial. At trial, Vanessa Graver testified that, prior to Olivia and Shanon's separation, she and her husband Chris would visit Olivia, Shanon, and London in Gulfport Mississippi every other weekend to see London as an infant. She further stated that Olivia and Shanon would return to New Orleans to visit fairly regularly, and that she would visit with them at either her home or Olivia's parents' home when they were in town. After Olivia and Shanon separated, Vanessa saw London less regularly but did spend holidays with her and celebrated London's first and second birthdays with her.[1]

         Vanessa testified that she did not feel comfortable visiting with London at Olivia's parents' home during Shanon's visitation because during a November 2015 visitation, Olivia's mother, Marcy Leach, instructed Vanessa that the visitation was between only Shanon and London and instructed Vanessa to wait on the front porch or in her car until the visitation ended.[2] She acknowledged that, for the last 10 minutes of that visit, she was allowed to come off of the porch and into the house to visit with London. She testified that she and her husband did not attempt to seek separate visitation rights while Shanon was alive because they were advised by Shanon's attorney to "step back" and allow Shanon to first work on his visitation and relationship with London.[3] Vanessa testified that, after her son's death, she and her family attempted to contact Olivia to visit with London but generally received no response.

         Vanessa testified that she has three other grandchildren: her son, Casey, has two daughters (18 months old and a newborn), who live in Atlanta, and her son, Steven, has a fifteen-month-old son who lives locally. She testified that she loves spending time with her other grandchildren and that they bring her great joy.[4] She testified that she would love for her grandchildren to meet London and for London to meet her cousins. Vanessa further testified that, if visitation were granted, she would respect Olivia's parenting decisions concerning everything for London her diet, bedtime, etc. Vanessa admitted that Olivia is a fit parent, but testified that she is not a "nice person" because she has withheld London from two loving grandparents and the entire paternal side of London's family.

         Olivia testified that London is five years old and attends preschool three days a week. She further testified that the Gravers have not seen London since November of 2015, because they have not attempted to contact her or see her since that time.[5] Olivia stated that, other than one visit in July 2015, she never told the Gravers they were unwelcome during Shanon's visitation.[6] She testified that she objects to any court-ordered visitation because she contends it violates her constitutional right to parent and to determine who visits with her child. Olivia asserts that the Gravers are racist and homophobic, and that Chris Graver has an alcohol abuse issue. She further testified that to her belief the Gravers approve of corporal punishment, which is against her beliefs. Both Olivia and her mother, Marcy, testified that they have never mentioned Shanon, the biological father, to London, nor have they ever discussed the fact that she has paternal grandparents. Olivia objects to the Gravers speaking about Shanon in front of London and requests that, if visitation is granted, the Gravers be introduced to London again as family friends.[7]

         Dr. Kristen Luscher, a clinical psychologist, testified that she evaluated Chris and Vanessa Graver to determine if they are fit for grandparent visitation with London. Dr. Luscher met with the Gravers, and also conducted multiple collateral interviews of the Gravers' other family members, friends, and co-workers. Dr. Luscher also conducted personality tests and other psychological testing on both Vanessa and Chris and found no concern for substance or alcohol abuse. She further found no indication, after collateral interviews and other evaluation, that either Chris or Vanessa was racist or homophobic.

         Dr. Luscher also conferred with Dr. Karen Van Beyer, the psychologist appointed in the prior custody proceedings between Shanon and Olivia, who indicated her support for the Gravers to have grandparent visitation. Dr. Luscher testified that, since London was of such a young age when she had a relationship with the Gravers and since London has not seen the Gravers in some time, reunification and visitation should be done slowly and with the assistance of a mental health professional.

         Following a three day trial, the court took the matter under advisement. On May 11, 2018, the trial judge granted the Gravers' petition for visitation.[8] The trial judge further appointed Dr. Van Beyer to assist London and the Gravers to initiate visitation and ordered that the Gravers may not consume alcohol during visitation with London.[9] This timely appeal follows.

         LAW AND ANALYSIS

         Olivia appeals the trial court's judgment, contending that the trial court erred in (1) failing to apply the amended version of La. C.C. art. 136[10]; (2) applying a preponderance of the evidence standard of proof; and (3) awarding grandparent visitation with insufficient evidence to show that it is in London's best interest and over the objection of her only biological parent's wishes.

         First, concerning the trial court's application of La. C.C. art.136, we find that the trial judge correctly applied the version of La. C.C. art. 136 in effect at the time of trial and judgment. La. C.C. art. ...


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