Justin Hodges v. Amy Hodges

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #059
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 23rd day of November, 2015, are as follows:
BY WEIMER, J.:
2015-CJ-0585 JUSTIN HODGES v. AMY HODGES (Parish of Livingston)
Accordingly, we remand this matter to the trial court for a
prompt hearing and determination on how joint custody should be
implemented, consistent with our opinion herein, which excludes
the possibility of designating both parents as “co-domiciliary
parents.”
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
KNOLL, J., additionally concurs with reasons.
HUGHES, J., dissents with reasons.
Page 1 of 1
11/23/2015
SUPREME COURT OF LOUISIANA
NO. 2015-CJ-0585
JUSTIN HODGES
VERSUS
AMY HODGES
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FIRST CIRCUIT, PARISH OF LIVINGSTON
WEIMER, Justice.
We granted certiorari in this child custody matter to review the designation of
both parents as “co-domiciliary parents,” a designation which has divided the courts
of appeal. Additionally, we must review the related question of whether the trial
court issued a valid joint custody implementation order. After analyzing La. R.S.
9:335, we reverse that portion of the appellate court decision upholding the trial
court’s designation of “co-domiciliary parents.” We agree with the court of appeal
that the custody judgment rendered by the trial court failed to comply with the
requirements for a joint custody implementation order, as stated in La. R.S.
9:335(A)(3). Given the absence of either a proper designation of a sole domiciliary
parent or a valid joint custody implementation order, we remand to the trial court for
a prompt hearing and determination on how joint custody should be implemented.
FACTS AND PROCEDURAL HISTORY
Justin Hodges (“father”) and Amy Hodges (“mother”) were married in
Ascension Parish on January 22, 2011, and, thereafter, established their matrimonial
domicile in Livingston Parish. One child was born of the marriage on June 25, 2012.
On May 28, 2014, the father instituted divorce proceedings in Livingston
Parish. Both the father and the mother sought joint custody of the minor child, M.H.,
as well as to be designated as the child’s domiciliary parent. After a hearing, the trial
court granted joint custody to the parents, ordered equal physical custody to be
alternated weekly, and designated both parties as “co-domiciliary parents.”
The mother appealed the trial court decision, contending that its designation
of both parents as “co-domiciliary parents” is not authorized by La. R.S. 9:335; she
sought to be named as the sole domiciliary parent. The appellate court affirmed the
“co-domiciliary” designation, but ruled that no valid joint custody implementation
order had been rendered and remanded the case to the trial court “for the entry of a
joint custody implementation order allocating the legal authority and responsibility
of the parents with regard to the health, education, and welfare of the child.” See
Hodges v. Hodges, 14-1575 (La.App. 1 Cir. 3/6/15), 166 So. 3d 348, 356.
On application of the mother, this court granted a writ of certiorari. See
Hodges v. Hodges, 15-0585 (La. 5/15/15), 169 So. 3d 380.
LAW AND ANALYSIS
In a proceeding for divorce or thereafter, the court shall award custody of a
child in accordance with the best interest of the child. La. C.C. art. 131. The best
interest of the child is the sole criterion to be met in making a custody award, as the
trial court sits as a sort of fiduciary on behalf of the child and must pursue actively
that course of conduct which will be of the greatest benefit to the child. C.M.J. v.
2
L.M.C., 14-1119 (La. 10/15/14), 156 So. 3d 16, 28, quoting Turner v. Turner, 455
So. 2d 1374, 1378 (La. 1984). It is the child’s emotional, physical, material and social
well-being and health that are the court’s very purpose in child custody cases; the
court must protect the child from the real possibility that the parents are engaged in
a bitter, vengeful, and highly emotional conflict. Id. The legislature has mandated
that the court look only to the child’s interests so that the court can fulfill its
obligations to the child. Id. at 28-29.
If the parents agree who is to have custody, the court shall award custody in
accordance with their agreement unless the best interest of the child requires a
different award. La. C.C. art. 132. In the absence of an agreement, or if the
agreement is not in the best interest of the child, the court shall award custody to the
parents jointly; however, if custody in one parent is shown by clear and convincing
evidence to serve the best interest of the child, the court shall award custody to that
parent.1 Id.
As provided in La. C.C. art. 134, all relevant factors in determining the best
interest of the child must be considered by the court; such factors may include: (1) the
love, affection, and other emotional ties between each party and the child; (2) the
capacity and disposition of each party to give the child love, affection, and spiritual
guidance and to continue the education and rearing of the child; (3) the capacity and
disposition of each party to provide the child with food, clothing, medical care, and
other material needs; (4) the length of time the child has lived in a stable, adequate
environment and the desirability of maintaining continuity of that environment; (5)
the permanence, as a family unit, of the existing or proposed custodial home or
1
A parent not granted custody or joint custody of a child is entitled to reasonable visitation rights
unless the court finds, after a hearing, that visitation would not be in the best interest of the child.
La. C.C. art. 136(A).
3
homes; (6) the moral fitness of each party, insofar as it affects the welfare of the
child; (7) the mental and physical health of each party; (8) the home, school, and
community history of the child; (9) the reasonable preference of the child, if the court
deems the child to be of sufficient age to express a preference; (10) the willingness
and ability of each party to facilitate and encourage a close and continuing
relationship between the child and the other party; (11) the distance between the
respective residences of the parties; and (12) the responsibility for the care and
rearing of the child previously exercised by each party.
The list of factors provided in Article 134 is nonexclusive, and the
determination as to the weight to be given each factor is left to the discretion of the
trial court. See La. C.C. art. 134, 1993 Revision Comment (b). The illustrative nature
of the listing of factors contained in Article 134 gives the court freedom to consider
additional factors; and, in general, the court should consider the totality of the facts
and circumstances of the individual case. See La. C.C. art. 134, 1993 Revision
Comment (c).
In short, there are a number of factors which must be evaluated by a court in
arriving at the decision to award joint custody to the parents. However, once that
decision is reached, La. R.S. 9:335, which is at the heart of the present case, governs
a court’s determination of the details of the custody arrangement. With emphasis on
the provisions especially relevant to the issues of domiciliary parent designation and
implementation order, we reproduce the statute in full:
A. (1) In a proceeding in which joint custody is decreed, the court
shall render a joint custody implementation order except for good cause
shown.
(2)(a) The implementation order shall allocate the time periods
during which each parent shall have physical custody of the child so that
the child is assured of frequent and continuing contact with both parents.
4
(b) To the extent it is feasible and in the best interest of the child,
physical custody of the children should be shared equally.[2]
(3) The implementation order shall allocate the legal authority and
responsibility of the parents.
B. (1) In a decree of joint custody the court shall designate a
domiciliary parent except when there is an implementation order to the
contrary or for other good cause shown.
(2) The domiciliary parent is the parent with whom the child
shall primarily reside, but the other parent shall have physical custody
during time periods that assure that the child has frequent and
continuing contact with both parents.
(3) The domiciliary parent shall have authority to make all
decisions affecting the child unless an implementation order provides
otherwise. All major decisions made by the domiciliary parent
concerning the child shall be subject to review by the court upon motion
of the other parent. It shall be presumed that all major decisions made
by the domiciliary parent are in the best interest of the child.
C. If a domiciliary parent is not designated in the joint custody
decree and an implementation order does not provide otherwise, joint
custody confers upon the parents the same rights and responsibilities as
are conferred on them by the provisions of Title VII of Book I of the
Civil Code.[3] [Emphasis added.]
In this case, the mother contends that the trial court’s judgment is insufficient
to constitute a joint custody implementation order. According to the mother, the
judgment addresses physical custody, but fails to designate which parent has
decision-making authority for the child. The mother also contends the trial court
legally erred in designating both parents as “co-domiciliary parents,” rather than
2
A child has a right to time with both parents. Accordingly, when a court-ordered schedule of
visitation, custody, or time to be spent with a child has been entered, a parent shall exercise his rights
to the child in accordance with the schedule unless good cause is shown. Neither parent shall
interfere with the visitation, custody, or time rights of the other unless good cause is shown. La. C.C.
art. 136.1.
3
On the issue of parental authority, La. C.C. art. 216 provides:
A child remains under the authority of his father and mother until his majority
or emancipation.
In case of difference between the parents, the authority of the father prevails.
5
designating a single “domiciliary parent.” The mother urges that under La. R.S.
9:335, there can only be one domiciliary parent.
Of the two issues presented, we first analyze whether, under La. R.S. 9:335,
there can only be one domiciliary parent. Because that issue addresses what the
statute permits, resolving that issue should aid our resolution of the second issue, i.e.,
whether the trial court’s judgment sets forth an implementation order.
Mindful of our civilian mandate, our analysis begins with the words of the
statute itself. See La. R.S. 1:4 (“When the wording of a Section is clear and free of
ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its
spirit.”). The meaning of “domiciliary parent” derives from La. R.S. 9:335. See La.
R.S. 24:177(B)(1) (“The text of a law is the best evidence of legislative intent.”). As
La. R.S. 9:335 is laid out, its first part, section (A)(1), makes the general provision
for joint custody and indicates an “implementation order” is the default plan for joint
custody. However, section (A)(1) also indicates an “implementation order” is not
always required; there is an exception for the issuance of an “implementation order”
when there has been “good cause shown.”
Section (2)(a) then indicates that when rendered, an implementation order
“shall allocate time each parent shall have physical custody,” with the goal of joint
custody being “that the child is assured of frequent and continuing contact with both
parents.” Another goal of joint custody, described in section (2)(b), is that as long as
it is feasible and in the child’s best interest, “physical custody of the children should
be shared equally.”
However, physical custody is a separate matter from legal authority and
responsibility over a child. As we previously observed, “[t]he term ‘custody’ is
usually broken down into two components: physical or ‘actual’ custody and legal
6
custody.” Evans v. Lungrin, 97-0541, p. 19 (La. 2/6/98), 708 So. 2d 731, 737.
Accordingly, legal authority and responsibility are addressed in the next section of
La. R.S. 9:335 (section (A)(3)), which provides that an “implementation order shall
allocate the legal authority and responsibility of the parents.”
A pivotal provision at issue in this case, section (B)(1), makes logistical
arrangements for some of the variables that the earlier statutory provisions recognized
may exist within joint custody. Because one goal of joint custody is that “physical
custody … should be shared equally” (section (A)(2)(b)), yet an implementation order
is not always required (section (A)(1)), it is logical that the court “designate a
domiciliary parent” (section (B)(1)) so the parents and child are clear as to who has
legal authority and responsibility.
Indeed, the very next provision in La. R.S. 9:335, section (B)(2), provides the
definition of a domiciliary parent: “The domiciliary parent is the parent with whom
the child shall primarily reside ….” This definition is notable for its use of the
singular, i.e., “the parent.” While it is true that as a general principle of statutory
interpretation that “[w]ords used in the singular number include the plural” (La. R.S.
1:7), that rule does not necessarily hold true for specialized terms in the law. “Words
of art and technical terms must be given their technical meaning when the law
involves a technical matter.” La. C.C. art. 114. Not only is this a specialized area of
the law, but the definition provided excludes the possibility of having more than one
domiciliary parent because it is logically impossible for the stipulation in La. R.S.
4
Because the statute at issue (La. R.S. 9:335) is located within Title 9, Civil Code–Ancillaries, at
this juncture we draw from an interpretive principle of the Civil Code, but the same primacy of
specialized meaning for “technical terms” found in La. C.C. art. 11 is also found in La. R.S. 1:3
(“Technical words and phrases, and such others as may have acquired a peculiar and appropriate
meaning in the law, shall be construed and understood according to such peculiar and appropriate
meaning.”).
7
9:335(B)(2) that “[t]he domiciliary parent is the parent with whom the child shall
primarily reside” to be met by both parents.5 If the time of residence with one parent
must be primary, there must be a parent whose time of residence is secondary.6
The possibility of more than one domiciliary parent is also logically excluded
by the next provision of the statute. Under section (B)(3), “unless an implementation
order provides otherwise,” the authority of singular domiciliary parent is elevated in
comparison to the non-domiciliary parent: “[t]he domiciliary parent shall have
authority to make all decisions affecting the child,” but the authority of the
“domiciliary parent” can be challenged in court by “the other parent.” Moreover,
section (B)(3) contains a presumption, which logic dictates can only work if there is
but one domiciliary parent: “It shall be presumed that all major decisions made by
the domiciliary parent are in the best interest of the child.” Stated differently, if there
are two domiciliary parents and the implementation order does not shed light on
which of them has superior authority, there is no way to ascertain which of the
parents’ decisions must be “presumed” to be “in the best interests of the child.” La.
R.S. 9:335(B)(3). The court of appeal purported to resolve this problem by dictating
that in a co-domiciliary arrangement, the parent with whom the child is residing at the
time would have decision-making authority during the time the child resides with the
parent. Hodges, 14-1575 at 8, 166 So. 3d at 354. However, the appellate court’s
solution could invite second-guessing, discord, and uncertainty for the child because
5
The existence of a statutory definition underscores that this is a specialized area because there
would be no need to define the term if it had a generally understood meaning. See La. C.C. art. 11
(“The words of a law must be given their generally prevailing meaning.”). Parenthetically, we also
note that family law is one of the recognized areas of legal specialization in Louisiana.
6
Although a goal of joint custody under La. R.S. 9:335 is that “physical custody ... should be shared
equally,” (section (A)(2)(b)), it appears a practical recognition is contained in section (B)(2) that,
even under the most equitable arrangements, the sharing of time between parents will never be
exactly equal.
8
major decisions could vacillate with each parent in a joint custody arrangement such
as the one at issue here in which the child would alternate residency from week to
week. For this reason, and the more fundamental reason that the appellate court has
resorted to a solution at odds with the statutory language, we reject the proposition
that there can be more than one domiciliary parent whose authority is presumed to be
in the best interests of the child. See La. C.C. art. 9 (“When a law is clear and
unambiguous and its application does not lead to absurd consequences, the law shall
be applied as written ….”).7
Read as a whole, therefore, we conclude the plain language of La. R.S. 9:335
manifests the legislature’s clear intent to establish a custodial system in which a child
has a domiciliary parent and no more than one such parent. The text is clear.
Although each parent can share physical custody, the court can only designate a
single domiciliary parent. See La. R.S. 9:335(A)(2)(b) and (B)(1); see also Evans,
97-0541 at 11, 708 So. 2d at 737 (Noting that before enactment of La. R.S. 9:335, the
concept of joint legal custody “involved a sharing of the responsibilities concerning
the child including decisions about education, medical care, discipline and other
matters relating to the upbringing of the child,” but “[w]ith the enactment of Act 261
[including La. R.S. 9:335] ..., the decision-making rules have changed. Presently,
7
According to Professor Katherine Shaw Spaht, designating “co-domiciliary parents” results from
a logically flawed reading of La. R.S. 9:335. Specifically, Professor Spaht remarked:
La. R.S. 9:335(B) provides for the designation of a domiciliary parent in a joint
custody order which fails to include an implementation plan as described in
Paragraph A. The domiciliary parent is defined as “the parent with whom the child
primarily resides.” Most joint custody orders designate a domiciliary parent and
Paragraph B governs who exercises legal and physical custody of the child. By
definition, however, there can be only one domiciliary parent–the parent with whom
the child primarily resides. The designation of co-domiciliary parents creates an
oxymoron.
Katherine Shaw Spaht, The Two “ICS” of the 2001 Louisiana Child Support Guidelines: Economics
and Politics, 62 LA. L. REV. 709, 728 n.73 (2002).
9
when parties are awarded joint custody, the court must designate a domiciliary parent
unless the implementation order provides otherwise, or for other good cause
shown.”). The appellate court, therefore, erred in holding there can be more than one
parent designated as a domiciliary parent.
The appellate court in the instant case is hardly alone in this error. One of the
reasons we granted review of this case was to resolve differing results within the
appellate courts as to whether both parents could be designated as domiciliary
parents. The issue of whether a “co-domiciliary” designation is valid under La. R.S.
9:335 was specifically discussed in Hodges v. Hodges, 14-1575 (La.App. 1 Cir.
3/6/15), 166 So. 3d 348 (the instant case); Distefano v. Distefano, 14-1318 (La.App.
1 Cir. 1/22/15), 169 So. 3d 437; and Stewart v. Stewart, 11-1334 (La.App. 3 Cir.
3/7/12), 86 So. 3d 148. The appellate courts in Hodges¸ Distefano, and Stewart
decided that having more than one domiciliary parent was permissible. See also
Smith v. Smith, 07-1163, 2008WL588906 (La. App. 3 Cir. 3/5/08) (unpublished),
977 So. 2d 312 (table) (affirming the trial court’s decision maintaining the mother as
primary domiciliary custodian, but also naming the father as “co-domiciliary” to
facilitate easier access to school records and to allow him to pick up the child from
school without prior notice from the mother); Lincecum v. Lincecum, 01-1522
(La.App. 3 Cir. 3/6/02), 812 So. 2d 795, 798 (wherein the appellate court equated the
failure of the trial court to name a domiciliary parent “to essentially be co-domiciliary
parents”); Perkins v. Perkins, 99-1130 (La.App. 1 Cir. 12/28/99), 747 So. 2d 785,
writ denied as improvidently granted, 00-0269 (La. 3/24/00), 758 So. 2d 141 (per
curiam)8 (wherein the appellate court reversed a trial court’s decision, which changed
8
In recalling the writ grant, this court stated: “Upon plaintiff’s application, we granted certiorari in
this case .... After hearing oral arguments and reviewing the record of the matter, we conclude that
the judgment below does not require the exercise of our supervisory authority. Accordingly, we
10
a prior stipulated designation of “co-domiciliary parents” to name the mother as the
sole domiciliary parent and reinstated the prior consent judgment naming the parties
“co-domiciliary parents”); Remson v. Remson, 95-1951 (La.App. 1 Cir. 4/4/96), 672
So. 2d 409 (wherein the appellate court first stated that the trial court for “‘good cause
shown’ declined to name a domiciliary parent,” but thereafter stated, “We affirm the
trial court’s ... order for co-domiciliary status of the parties.”).9
On the other hand, three appellate court decisions have expressly held that La.
R.S. 9:335 provides no authority for a court to designate the parties as
“co-domiciliary parents.” See Hanks v. Hanks, 13-1442, pp. 23, 29-30 (La.App. 4
Cir. 4/16/14), 140 So. 3d 208, 224, 227 (rejecting an alternate recommendation from
a court-appointed counselor who performed a custody evaluation and testified “that
there was nothing negative about [the father] and [the mother] being designated as
co-domiciliary parents, provided they could work together,” the court observed that
there was no statutory authority for a designation of co-domiciliary parents); Molony
recall our order of February 16, 2000 as improvidently granted, and deny plaintiff’s application.”
Perkins, 788 So. 2d at 141.
9
Numerous reported cases have mentioned the designation of the parties as “co-domiciliary
parents,” either having been stipulated to, granted, or sought; however, the validity of
“co-domiciliary parents” under La. R.S. 9:335 was not an issue presented to the appellate courts for
review and was not discussed in these cases. The following are examples from just the past several
years. See, e.g., Szwak v. Szwak, 49,938 (La.App. 2 Cir. 4/15/15), 163 So. 3d 911; Cole v. Cole,
13-1442 (La.App. 3 Cir. 6/4/14), 139 So. 3d 1225; Koussanta v. Dozier, 14-0059 (La.App. 5 Cir.
5/21/14), 142 So. 3d 202; Blanc v. Hill, 13-1961, 2014WL1778354 (La.App. 1 Cir. 5/2/14)
(unpublished); Bond v. Bond, 13-1733 (La.App. 1 Cir. 3/24/14) (unpublished), writ denied, 14-1054
(La. 9/12/14), 148 So. 3d 932; Pepiton v. Turner, 13-1199 (La.App. 3 Cir. 3/5/14), 134 So. 3d 160;
Bagwell v. Bagwell, 48,913 (La.App. 2 Cir. 1/15/14), 132 So. 3d 426, writ denied, 14-0356 (La.
3/14/14), 135 So. 3d 608; Bush v. Bush, 13-0922 (La.App. 1 Cir. 12/27/13), 137 So. 3d 49; Harvey
v. Harvey, 13-0081 (La.App. 3 Cir. 6/5/13), 133 So. 3d 1, writ denied, 13-1600 (La. 7/22/13), 119
So. 3d 596; Manuel v. Bieber, 12-1303, 2013WL832362 (La.App. 3 Cir. 3/6/13) (unpublished), 110
So. 3d 293 (table); Thibodeaux v. Thibodeaux, 12-752 (La.App. 3 Cir. 12/5/12), 104 So. 3d 768;
Coleman v. Coleman, 47,080 (La.App. 2 Cir. 2/29/12), 87 So. 3d 246; Hernandez v. Hernandez,
11-0526 (La.App. 5 Cir. 12/28/11), 83 So. 3d 168, writ denied, 12-0271 (La. 3/30/12), 85 So. 3d 124;
Kingston v. Kingston, 11-1629 (La.App. 1 Cir. 12/21/11), 80 So. 3d 774; Westbrook v. Weibel,
11-0910 (La.App. 3 Cir. 12/7/11), 80 So. 3d 683, writ denied, 12-0403 (La. 3/7/12), 83 So. 3d 1048;
Bergeron v. Bergeron, 10-0964, 2011WL1938668 (La.App. 1 Cir. 5/6/11) (unpublished), 66 So. 3d
77 (table).
11
v. Harris, 10-1316 (La.App. 4 Cir. 2/23/11), 60 So. 3d 70 (ruling that the
co-domiciliary parent “designation does not comply with the mandate of La. R.S.
9:335(B) that the court ‘shall designate a domiciliary parent.’”); Ketchum v.
Ketchum, 39,082 (La.App. 2 Cir. 9/1/04), 882 So. 2d 631 (“[W]e find no authority
in the law for a designation of ‘co-domiciliary’ parents.”). Nevertheless, both the
Second and Fourth Circuits have also ruled that a trial court may designate
“co-domiciliary parents.” See St. Philip v. Montalbano, 12-1090 (La.App. 4 Cir.
1/9/13), 108 So. 3d 277, 279 n.3 (wherein the trial court designated the parents
“co-domiciliary,” and the appellate court refused to rule on the father’s assignment
of error related to the co-domiciliary status as he raised the issue for the first time on
appeal, but also stating: “Although this court in Molony v. Harris ... held that it is
legally erroneous to designate ‘co-domiciliary parents,’ an exception is recognized
when the trial court issues a valid implementation order specifying the authority and
responsibility of each parent with regard to the child. The trial court in this case
issued such an order.”); Schmidt v. Schmidt, 08-0263 (La.App. 4 Cir. 2/11/09), 6
So. 3d 197, writ denied, 09-0566 (La. 4/3/09), 6 So. 3d 779 (wherein the appellate
court affirmed the trial court’s refusal to modify its prior designation of
“co-domiciliary parents”); Craig v. Craig, 42,363 (La.App. 2 Cir. 5/9/07), 956 So. 2d
819, writ denied, 07-1349 (La. 7/27/07), 960 So. 2d 64 (wherein the appellate court
reversed a trial court’s decision to name the father as the sole domiciliary parent and
reinstated a prior joint custody implementation plan that included a “co-domiciliary”
designation).
Thus, the jurisprudence on the issue of whether there can only be one
domiciliary parent is inconsistent. The First, Third, and Fifth Circuit decisions,
expressly or impliedly, have determined that a “co-domiciliary” designation does not
12
run afoul of La. R.S. 9:335, while the Second and Fourth Circuits have handed down
mixed opinions on the issue. Our decision in the instant case resolves this
inconsistent jurisprudence by holding–as we find La. R.S. 9:335 unequivocally
requires–that there can be only one domiciliary parent.
Our review of the jurisprudence would not be complete, however, without
some further observations. The appellate court decisions that have affirmatively
designated or at least allowed the designation of co-domiciliary parents are more
numerous than those that did not. We believe the numerosity of such decisions may
stem from a well-intentioned, but erroneous, belief that it is necessary for a court to
use the term “co-domiciliary parents” in order to provide both parents with shared
legal and physical custody. Although La. R.S. 9:335(B)(1) provides that “[i]n a
decree of joint custody the court shall designate a domiciliary parent,” the legislature
provided two exceptions to this mandate–that is, (1) “when there is an
implementation order to the contrary” or (2) “for other good cause shown.”
(Emphasis added.) In other words, while La. R.S. 9:335(B)(1) provides a preference
for the designation of “a domiciliary parent,” a court could choose not to designate
a domiciliary parent at all and, instead, to allocate authority by means of an
implementation order. See Evans, 97-0541 at 11, 708 So. 2d at 737. Indeed,
according to La. R.S. 9:335(A)(1), (2)(a), and (3), when joint custody is decreed and
in the absence of “good cause shown,” a joint custody implementation order “shall
allocate the time periods during which each parent shall have physical custody of the
child”10 and “shall allocate the legal authority and responsibility of the parents.”11
(Emphasis added.)
10
La. R.S. 9:335(A)(2)(a).
11
La. R.S. 9:335(A)(3).
13
We recognize that trial and family courts facing the myriad challenges in
fashioning remedies in joint custody cases need as many arrows in their judicial
quiver as possible. Designating both parents as “co-domiciliary” parents might seem
to be an alluring target for quelling an acrimonious dispute between the parents.
However, any satisfaction both parties may derive from being bestowed that
designation is likely to be vitiated by the legal uncertainties stemming from its use.
As previously discussed, uncertainty and confusion are the likely results of using the
designation “co-domiciliary parents,” a designation which is contrary to the
framework of La. R.S. 9:335.
In short, the legislature envisioned the joint custody implementation order
allocating both physical and legal custody. It is therefore unnecessary and contrary
to the plain language of La. R.S. 9:335 to designate both parents as “co-domiciliary
parents” in order to allocate parental responsibility. By making available an
implementation order, the legislature has given courts great procedural flexibility to
craft a custody arrangement on a case-by-case basis that promotes “the best interest
of the child.” La. C.C. art. 131. Or, continuing with our earlier analogy, the
legislature has provided a full quiver for targeting the child’s best interests, and
resorting to an implement outside that legislative quiver, i.e., a designation of
“co-domiciliary parents,” is more likely to miss the mark.
We now turn to the question of whether the trial court’s judgment suffices as
a joint custody implementation order. The trial court signed a judgment decreeing
that: the parties have joint custody of the child; the parties share equally in the
physical custody of the child “on a week to week basis,” with the parties exchanging
the child between 6:00 and 7:00 p.m. on Wednesdays; the party retrieving the child
has the responsibility for his transportation; and the parties must “work together such
14
that they equally share physical custody of [the child] during the holidays.” The
judgment also ordered that: the mother must maintain the current health insurance
policy for the child; the parents are to be proportionally responsible for any
uncovered medical costs, with 50.4 percent to be paid by the father and 49.6 percent
to be paid by the mother; the child’s daycare costs are to be paid by the parent who
has physical custody of the child at the time the costs are incurred; the father has the
right to claim the child on his tax return in odd-numbered years and the mother has
the right to do so in even-numbered years; and the father owes the mother $107.30
per month in child support.12
Significantly, this is the same judgment in which the court decreed: “the parties
shall be designated as co-domiciliary parents.” In oral reasons, the trial court
indicated:
We’ve got a two year old little boy here. Despite your problems,
it sounds like you both care and love him very deeply. You have
worked out an -- an arrangement that sounds like it’s been working for
at least a little while now. And I know it’s not going to be a long-term
solution. At some point [the child] is going to be of school age. But for
at least the next couple of years, the court is going to maintain joint
custody, subject to a week to week plan of visitation.
....
I will maintain the current exchange at between 6:00 and 7:00, with the
party to retrieve the child doing the transportation. I’ll designate you
both as co-domiciliary parents.
....
If [the parties] can’t work [a holiday schedule] out, the court will
set a specific holiday schedule.[13] ...
12
Additional matters related to community property were also addressed in the judgment which are
not relevant to this proceeding and are not discussed herein.
13
When the court asked, “Is there anything else?” counsel for the father indicated, “Holidays.” The
court replied, “You can split the days,” and the father stated, “We can work that out.” We note that
this exchange, taken together with the fact that the trial court continued the plan the parties already
had in place for equal sharing of the physical custody of the child, suggests that the trial court merely
15
....
I’d like to say this is the last time I’ll see you in court, but given the fact
that [the child] is two years old, I know this plan may only work for the
next couple of years, ma’am, with you living in Baton Rouge and, sir,
with you living in Livingston Parish. If you aren’t able to ... work out
a plan that works for [the child] when he becomes school age, the court
will be happy to hear from you again and see how things are going.
As an initial matter, even though no separate “joint implementation order” was
issued by the trial court, La. R.S. 9:335 does not require a particular form for the
rendition of a joint custody implementation order. See, e.g., Caro v. Caro, 95-0173
(La.App. 1 Cir. 10/6/95), 671 So. 2d 516, 518 (“La. R.S. 9:335 does not require a
specific form be used for the implementation plan. The [custody] judgment awarded
joint custody, designated a domiciliary parent, ordered a visitation and holiday
schedule with set dates and venues included .... The judgment in the record qualifies
as the custody order and the implementation plan. The fact that the order was not
entitled ‘implementation plan,’ is of no consequence.”).
With respect to what items must be included within a joint custody
implementation order, La. R.S. 9:335 expressly states: “The implementation order
shall allocate the time periods during which each parent shall have physical custody
of the child so that the child is assured of frequent and continuing contact with both
parents. ... The implementation order shall allocate the legal authority and
responsibility of the parents.” La. R.S. 9:335(A)(2)(a) and (3) (emphasis added).
Thus, La. R.S. 9:335 expressly requires that a joint custody implementation order
gave effect to the parties’ agreement as to physical custody of the child. See La. C.C. art. 132 (“If
the parents agree who is to have custody, the court shall award custody in accordance with their
agreement unless the best interest of the child requires a different award.”). See also Shaw v. Shaw,
30,613 (La.App. 2 Cir. 6/24/98), 714 So. 2d 906, 908, writs denied, 98-2414, 98-2426 (La. 11/20/98),
729 So. 2d 556, 558 (“[T]he trial court determined that the existing Joint Custody Plan adopted in
1994 was not specific with respect to [the father's] visitation rights, but that the parties had
apparently worked out a schedule between themselves over the two years. The court thus treated the
matter as one where there had been an agreed physical custody plan and applied the law related to
consent judgments of custody ....”).
16
must contain: (1) the time periods during which each parent shall have physical
custody of the child; and (2) the legal authority and responsibility of the parents. See,
e.g., Angelette v. Callais, 10-2279, p. 4 (La.App. 1 Cir. 5/6/11), 68 So. 3d 1122, 1125
(“The … consent judgment awarded joint custody, ordered a physical custody and
holiday custody schedule with set dates and venues included, and contained
provisions for the parents’ rights and responsibilities relative to claiming [the child]
for income tax purposes, maintaining health insurance on [the child], and the payment
of child support .... The [custody] judgment qualifies as the custody order and the
implementation plan.”).
While the judgment here has no formal defects and specifies time periods
during which each parent shall have physical custody, the second requirement is
unmet, that is, the judgment fails to “allocate the legal authority and responsibility of
the parents.” La. R.S. 9:335(A)(3). Although a court is not required to issue a “joint
custody implementation order” when there is “good cause shown” (La. R.S.
9:335(A)(1)), because the trial court provided a judgment that suffices as an
implementation order in all aspects except allocating legal authority, it is apparent
that the trial court did not find “good cause” for not issuing an implementation order.
In other words, the trial court intended its judgment to serve as an implementation
order.
As we indicated in our earlier analysis, the trial court judgment’s designation
of “co-domiciliary parents” does not comport with La. R.S. 9:335. The designation
does not validly “allocate the legal authority and responsibility of the parents.” La.
R.S. 9:335(A)(3). Thus, we find the trial court’s judgment made in the instant case
cannot suffice as a joint custody implementation order.
17
CONCLUSION
We hold that La. R.S. 9:335 precludes the designation of “co-domiciliary
parents” in a joint custody arrangement. It is unnecessary and contrary to the plain
language of La. R.S. 9:335 to designate both parents as “co-domiciliary parents” in
order to allocate parental responsibility. For example, when a court wishes to depart
from the default rule that the sole domiciliary parent has superior decision-making
authority, a court can make different provisions for decision making within the joint
custody implementation order.
Further, we find that La. R.S. 9:335 does not explicitly require a particular form
for the rendition of a joint custody implementation order, and we hold the only
mandatory requirements for a joint custody implementation order stated in La. R.S.
9:335 are: (1) the time periods during which each parent shall have physical custody
of the child; and (2) the legal authority and responsibility of the parents. Here, we
find the trial court’s judgment failed to validly allocate the legal authority and
responsibility of the parents.
In conclusion, we reverse the appellate court’s decision, to the extent the
appellate court upheld the trial court’s designation of “co-domiciliary parents.” We
agree with the appellate court inasmuch as we find that no valid joint custody
implementation order has been rendered.
Because we have corrected an error of law by the trial court in designating both
parents as “co-domiciliary parents,” we must determine a procedure to best resolve
this case. We find the following observations instructive:
Typically where … legal errors have interdicted the fact finding process,
if the record is otherwise complete, the appellate court should make its
own independent de novo review of the record. Landry v. Bellanger,
2002-1443 (La.5/20/03), 851 So. 2d 943, 954; Ferrell v. Fireman’s
Fund Ins. Co., 94-1252 (La.2/20/95), 650 So. 2d 742, 745; Ragas v.
18
Argonaut Southwest Insurance Co., 388 So. 2d 707, 708 (La. 1980).
However, we have also recognized that de novo review is not the best
course of action in every case. Ragas, 388 So. 2d at 708. This Court
explained in Ragas:
This is not to say … that the appellate court must find its
own facts in every such case. There are cases where the
weight of the evidence is so nearly equal that a first-hand
view of witnesses is essential to a fair resolution of the
issues. The appellate court must itself decide whether the
record is such that the court can fairly find a preponderance
of the evidence from the cold record. Where a view of the
witnesses is essential to a fair resolution of conflicting
evidence, the case should be remanded for a new trial.
Wegener v. Lafayette Ins. Co., 10-0810, 10-0811, p. 19 (La. 3/15/11), 60 So. 3d
1220, 1233.
Here, because the trial court did not choose one parent over the other but
instead ruled that both parents should be “co-domiciliary parents,” we find that “the
weight of the evidence is so nearly equal that a first-hand view of witnesses is
essential to a fair resolution of the issues.” See Wegener, 10-0810, 10-0811 at 19,
60 So. 3d at 1233. Accordingly, we remand this matter to the trial court for a prompt
hearing and determination on how joint custody should be implemented, consistent
with our opinion herein, which excludes the possibility of designating both parents
as “co-domiciliary parents.”
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
19
11/23/2015
SUPREME COURT OF LOUISIANA
NO. 2015-CJ-0585
JUSTIN HODGES
VERSUS
AMY HODGES
KNOLL, J., additionally concurring.
I fully concur with the majority opinion in this case. I write separately to
address some of the charges leveled by the dissent and to underscore the soundness
of the majority’s comprehensive interpretation of the term “domiciliary parent”—a
concept that is unique to our civil law tradition. We granted writ of certiorari in
this case to answer a simple and straightforward question—does Louisiana law
permit a court to designate “co-domiciliary parents” in a child custody matter?
Louisiana Revised Statute 9:335 provides a simple and straightforward answer:
“The domiciliary parent is the parent with whom the child shall primarily reside,
but the other parent shall have physical custody during time periods that assure
that the child has frequent and continuing contact with both parents.”1 The statute
refers to “the domiciliary parent” and “the other parent.” It clearly does not
contemplate “co-domiciliary parents.” The word “co-domiciliary” does not appear
anywhere in the Revised Statutes or the Civil Code. Nevertheless, the dissent seeks
to impose this “co-domiciliary” designation in some perceived interest of fairness
to both parents, despite clear legislative direction to the contrary. Words have
meaning, and clear statutory language should have the force of law. Because there
is no basis in Louisiana law, in legal scholarship, in public policy, or in logic for
1
La. Rev. Stat. 9:335(B)(2) (emphasis added).
the position that a court has the discretion to designate “co-domiciliary parents,” I
concur with the majority opinion in every respect.
La. R.S. 9:335 provides, as follows:
A. (1) In a proceeding in which joint custody is decreed, the court
shall render a joint custody implementation order except for good
cause shown.
(2)(a) The implementation order shall allocate the time periods
during which each parent shall have physical custody of the child so
that the child is assured of frequent and continuing contact with both
parents.
(b) To the extent it is feasible and in the best interest of the
child, physical custody of the children should be shared equally.
(3) The implementation order shall allocate the legal authority and
responsibility of the parents.
B. (1) In a decree of joint custody the court shall designate a
domiciliary parent except when there is an implementation order to
the contrary or for other good cause shown.
(2) The domiciliary parent is the parent with whom the child shall
primarily reside, but the other parent shall have physical custody
during time periods that assure that the child has frequent and
continuing contact with both parents.
(3) The domiciliary parent shall have authority to make all
decisions affecting the child unless an implementation order provides
otherwise. All major decisions made by the domiciliary parent
concerning the child shall be subject to review by the court upon
motion of the other parent. It shall be presumed that all major
decisions made by the domiciliary parent are in the best interest of the
child.
C. If a domiciliary parent is not designated in the joint custody decree
and an implementation order does not provide otherwise, joint custody
confers upon the parents the same rights and responsibilities as are
conferred on them by the provisions of Title VII of Book I of the Civil
Code.
This statute addresses two different concepts—joint custody and the designation of
a “domiciliary parent.” As the majority opinion acknowledges, joint custody has
two elements—physical custody and legal custody.2 As we explained in Evans v.
Lungrin,
The term “custody” is usually broken down into two components:
physical or “actual” custody and legal custody. The typical joint
custody plan will allocate time periods for physical custody between
parents so as to promote a sharing of the care and custody of the child
in such a way as to ensure the child of frequent and continuing contact
with both parents. George D. Ernest, III, Joint Custody and Parents’
Liability Under Civil Code Article 2318, 44 La. L.Rev. 1791 (1984).
2
Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So. 2d 731, 737.
2
Legal custody, by contrast, has previously been defined as “the right
or authority of a parent or parents, to make decisions concerning the
child’s upbringing.” See Ernest, supra note 5, at 1792.3
The dissent proceeds from the well-intentioned notion that this Court should
provide trial judges with “every tool in the box” in cases where parents share
custody of a child. Respectfully, the dissent fundamentally misunderstands
Louisiana’s child custody laws if it believes that it is necessary for a court to use
the term “co-domiciliary parents” in order to provide both parents with shared
legal and physical custody. Although Revised Statute 9:335(B)(1) provides that
“[i]n a decree of joint custody the court shall designate a domiciliary parent,” the
Legislature provided two exceptions to this mandate—that is, (1) “when there is an
implementation order to the contrary” or (2) “for other good cause shown.”
(emphasis added). In other words, while Revised Statute 9:335(B)(1) provides a
preference for the designation of “a domiciliary parent,” a court could choose not
to designate a domiciliary parent at all and, instead, to allocate authority by means
of an implementation order. Indeed, according to Louisiana Revised Statute
9:335(A)(1), (A)(2)(a), and (A)(3), when joint custody is decreed and in the
absence of “good cause shown,” a joint custody implementation order “shall
allocate the time periods during which each parent has physical custody of the
child”4 and “shall allocate the legal authority and responsibility of the parents.”5
In short, the Legislature envisioned the joint custody implementation order
allocating both physical and legal custody. The ability to allocate custody by
means of a joint custody implementation order empowers the court to craft a
custody arrangement on a case by case basis that works to further “the best interest
of the child.”
Because the trial court already has the power to allocate physical custody
3
Id.
4
La. Rev. Stat. 9:335(A)(2)(a) (emphasis added).
5
La. Rev. Stat. 9:335(A)(3) (emphasis added).
3
and legal authority in this way, the dissent’s interpretation of Revised Statue 9:335
does not add any implements to the trial court’s judicial “tool box.” It simply
demeans the Legislature’s preferred “tool.” Indeed, the plain language of this
statute manifests the Legislature’s clear intent to establish a custodial system in
which a child has a sole domiciliary parent and no more. While the statute
contemplates that the joint implementation order “shall allocate the time periods
during which each parent shall have physical custody of the child,”6 the statute
provides that “[i]n a decree of joint custody the court shall designate a domiciliary
parent except when there is an implementation order to the contrary or for other
good cause shown.”7 The text is clear. While each parent can share physical
custody, the court shall designate a single domiciliary parent.
Justin Hodges argues that these exceptions for “when there is an
implementation order to the contrary or for other good cause shown” suggest that a
court could designate “co-domiciliary parents” if it provided for such a designation
in the “implementation order” or “for other good cause shown.” Although the
statute does express the Legislature’s preference for the designation of a sole
domiciliary parent, the exception provides the court with the discretion to craft an
implementation order that allocates physical and legal custody between the parents.
It plainly does not authorize a court to designate “co-domiciliary parents” because
that would render meaningless the Legislature’s description of the term
“domiciliary parent” in Revised Statute 9:335(B)(2): “The domiciliary parent is
the parent with whom the child shall primarily reside, but the other parent shall
have physical custody during time periods that assure that the child has frequent
and continuing contact with both parents.” (emphasis added). This description
leaves no room for Justin Hodges’ interpretation of Revised Statute 9:335. The text
contemplates a “domiciliary parent” and “the other parent.” There is nothing in the
6
La. Rev. Stat. 9:335(A)(2)(a).
7
La. Rev. Stat. 9:335(B)(1) (emphasis added).
4
text of the statute that supports the position that a child could have “co-domiciliary
parents” under Louisiana law.
Amy Hodges’ argument that Revised Statute 9:335 only provides for a child
to have a sole domiciliary parent is supported by language from surrounding
statutes. Indeed, Revised Statute 9:315.8, which deals with the calculation of the
total child support obligation, refers concomitantly to the “domiciliary” party and
the “nondomiciliary” party: “The party without legal custody or nondomiciliary
party shall owe his or her total child support obligation as a money judgment of
child support to the custodial or domiciliary party….”8 Even in the context of joint
custody, the statute only contemplates a “domiciliary” party and a
“nondomiciliary” party: “In cases of joint custody, the court shall consider the
period of time spent by the child with the nondomiciliary party as a basis for
adjustment to the amount of child support to be paid during that period of time.” 9
Notably, when defining “joint custody,” this statute provides, “‘Joint Custody’
means a joint custody order that is not shared custody as defined in R.S. 9:315.9.”
(emphasis added). Revised Statute 9:315.9 goes on to define “shared custody” as a
“joint custody order in which each parent has physical custody of the child for an
approximately equal amount of time.” (emphasis added). Granted, the statute does
not address legal custody but, interestingly, the only mention of “domiciliary
parent” in this statute suggests that, rather than designating “co-domiciliary
parents” in such an arrangement, a court would simply not designate a domiciliary
parent at all:
The parent owing the greater amount of child support shall owe to the
other parent the difference between the two amounts as a child
support obligation. The amount owed shall not be higher than the
amount which that parent would have owed if he or she were a
domiciliary parent.10
8
La. Rev. Stat. 9:315.8(D) (emphasis added).
9
La. Rev. Stat. 9:315.8(E)(1) (emphasis added).
10
La. Rev. Stat. 9:315.9 (A)(7) (emphasis added).
5
In response to this clear indication that the Legislature contemplated situations
when no domiciliary parent would be designated, the dissent argues:
[T]he other alternative allowed by the majority opinion - of naming no
domiciliary parent - also results in one parent, the father, having a
greater share of the legal authority over the child than the other parent,
the mother, pursuant to LSA-R.S. 9:335(C) (“If a domiciliary parent is
not designated in the joint custody decree and an implementation
order does not provide otherwise, joint custody confers upon the
parents the same rights and responsibilities as are conferred on them
by the provisions of Title VII of Book I of the Civil Code.”).
Contained within Title VII of Book I of the Civil Code is Civil Code
Article 216, which, on the issue of parental authority, provides in
pertinent part that “[i]n case of difference between the parents, the
authority of the father prevails.” Therefore, if any matter subject to
the decision-making authority of the parents is inadvertently omitted
from the custody order and a dispute on such an issue thereafter arises
between the parents, Article 216 directs that “the authority of the
father prevails.” Clearly, if Article 216 is triggered by such an
eventuality, the mother would be deprived of the desired equal legal
authority over the minor child.
This charge—that the Court’s decision will disadvantage mothers in cases in which
the trial court does not designate a domiciliary parent—is without merit. Louisiana
Civil Code Article 216, to which the dissent refers, has been repealed, effective
January 1, 2016. The new version of the article—Senate Bill 134 of the 2015
Regular Session, enacted as Act 260 of 2015—will now provide, as follows: “The
father and the mother who are married to each other have parental authority over
their minor child during the marriage.”
Moreover, there is no civilian legal scholarship that supports the position
that a court could designate “co-domiciliary parents.” As the Court acknowledges,
Katherine Spaht, the foremost scholar in this area, has referred to the term “co-
domiciliary parents” as “oxymoronic.” Commenting on Revised Statute 9:315.10
which provides for “split custody,” Professor Spaht wrote:
The section first defines the term “split” custody as a situation in
which “each party is the sole custodial or domiciliary parent of at least
one child to whom support is due.” The use of “domiciliary” parent in
the definition of split custody assumes that there is a true domiciliary
parent, defined as the parent with whom the child primarily resides,
not the oxymoronic “co-domiciliary parents.” The calculation for split
6
custody should only apply in instances where each child resides
primarily or exclusively with one parent.11
Addressing specifically the statute that is at issue in the case before us, Professor
Spaht remarked:
La. R.S. 9:335(B) provides for the designation of a domiciliary parent
in a joint custody order which fails to include an implementation plan
as described in Paragraph A. The domiciliary parent is defined as “the
parent with whom the child primarily resides.” Most joint custody
orders designate a domiciliary parent and Paragraph B governs who
exercises legal and physical custody of the child. By definition,
however, there can be only one domiciliary parent-the parent with
whom the child primarily resides. The designation of co-domiciliary
parents creates an oxymoron.12
Professor Spaht’s objection to this term is grounded in the plain language of the
statute and in her unparalleled understanding of our unique child custody system in
Louisiana. Section 9:335 defines “domiciliary parent” as “the parent with whom
the child primarily resides.” It cannot bear the unnecessary attempt to allow for
two “domiciliaries” when the Legislature has only provided for one.
The civilian concept of the “domiciliary parent” is unique in that it provides
a default rule that, at least in the abstract, should lead to less litigation. If the
“domiciliary parent” has the authority “to make all decisions affecting the child”
with all “major decisions” presumed to be in the best interest of the child, then the
“other parent” is highly incentivized to be cooperative with the “domiciliary
parent.”13 By placing power firmly, but not inextricably, in the hands of one party,
the parties really are incentivized to work together more than they would be if they
operated on equal footing. Nevertheless, what Justin Hodges should be advocating
for is a joint implementation order that provides him and Amy Hodges with shared
physical and legal custody. It would provide him with the authority that he wants
without robbing the word “domiciliary parent” of its meaning.
The dispute that the Court’s decision correctly resolves today involves much
11
Katherine Shaw Spaht, The Two "Ics" of the 2001 Louisiana Child Support Guidelines: Economics and Politics,
62 La. L. Rev. 709, 731 (2002).
12
Id. at 728 n. 73.
13
See La. Rev. Stat. 9:335(B)(3).
7
more than mere semantics. While the common law majority preference is for
shared physical and legal custody, the Louisiana Legislature has expressed a
reasoned preference for a single domiciliary parent. The interpretation of Revised
Statute 9:335 advocated by the dissent would change the orientation of Louisiana
child custody law. As a policy matter, well-intentioned people could disagree as to
whether or not a move toward the common law majority preference for shared
physical and legal custody is a good thing. However, if Louisiana law is to take
such a major step, it is one that is properly taken by the Legislature and not by
judicial fiat. The Court’s decision in this case is merely a reflection of its duty to
give effect to the clear dictates of the law. We have no authority to legislate from
the bench nor should we attempt to do so.
8
11/23/15
SUPREME COURT OF LOUISIANA
NO. 2015-CJ-0585
JUSTIN HODGES
VERSUS
AMY HODGES
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FIRST CIRCUIT, PARISH OF LIVINGSTON
HUGHES, J., dissenting.
I respectfully dissent from the majority opinion, holding that LSA-R.S.
9:335 does not allow a district court to designate both parents in a child custody
matter as “co-domiciliary parents.”
The trial judge in the instant case was presented with testimony
demonstrating that prior to trial the parents had been sharing equal physical
custody of their minor child, M.H., and the parents had been making all decisions
regarding the child jointly. No testimony was presented to indicate that any
disagreements had occurred between the parents on these issues. The mother
nevertheless sought to be named the sole domiciliary parent, contending that she
would be better qualified than the father, due to her more advanced formal
education, to make decisions regarding two-year-old M.H.’s future education.
After a hearing, the trial judge denied the mother’s request and directed the parties
to continue to consult with one another as to decisions affecting the child, as “co-
domiciliary parents,” and should any disagreement arise, the parties could return to
court. In so ruling, the trial judge based his decision on the facts and
circumstances with which he was presented on the date of trial.
The record does not demonstrate that the trial judge was manifestly
erroneous in his factual findings; therefore, the only issue before this court is
whether LSA-R.S. 9:335 prohibits the designation of “co-domiciliary parents.”
The operative provision of LSA-R.S. 9:335 is Paragraph (B)(1), which
states: “In a decree of joint custody the court shall designate a domiciliary parent
except when there is an implementation order to the contrary or for other good
cause shown.” (Emphasis added.)
In this case there was an implementation order to the contrary, which
directed that the parents equally share the physical custody and the legal custody of
M.H., making each parent a domiciliary parent - hence the denomination of “co-
domiciliary parents.”
In ruling that LSA-R.S. 9:335 does not allow for the designation of “co-
domiciliary parents,” the majority opinion relies on the use of the singular articles
“a” or “the” before “domiciliary parent” in LSA-R.S. 9:335, as well as LSA-R.S.
9:335(B)(2) (“The domiciliary parent is the parent with whom the child shall
primarily reside, but the other parent shall have physical custody during time
periods that assure that the child has frequent and continuing contact with both
parents.”) and LSA-R.S. 9:335(C) (“If a domiciliary parent is not designated . . .”).
Based on these provisions, the majority concludes that there are only two
alternatives available to a court when the designation of a domiciliary parent is
sought: (1) to designate only one parent as the domiciliary parent; or (2) to
designate no domiciliary parent.
However, the majority opinion fails to adequately take into account LSA-
C.C. art. 3506 (“Whenever the terms of law, employed in this Code, have not been
particularly defined therein, they shall be understood as follows: . . . The singular
is often employed to designate several persons or things: the heir, for example,
means the heirs, where there are more than one.”) and LSA-R.S. 1:7 (“Words used
in the singular number include the plural and the plural includes the singular.”).
This court has consistently applied LSA-R.S. 1:7 to statutory provisions to
read singular statutory terms as plural and plural statutory terms as singular. See
2
State v. Oelmann, 12-0507 (La. 4/27/12), 85 So. 3d 1281 (citing LSA-R.S. 1:7,
this court summarily reversed the court of appeal’s ruling that LSA-R.S. 13:587.2,
which provided that the 4th Judicial District Court could assign certain “divisions”
of the court as “a criminal section,” did not allow a single “division” to be assigned
as “a criminal section”); St. Martin v. State, 09-0935 (La. 12/1/09), 25 So. 3d 736,
739 n.4 (citing LSA-R.S. 1:7, this court rejected as “untenable” the respondent’s
contention that use of the singular term “taxpayer,” in Title 47 tax legislation, did
not encompass a class of multiple “taxpayers”); State v. Shaw, 06-2467 (La.
11/27/07), 969 So. 2d 1233, 1243 n.6 (citing LSA-R.S. 1:7, this court concluded
that the use of the singular phrase “any subsequent felony” did not indicate a
legislative intent to prohibit the enhancement of multiple sentences for multiple
felony convictions on the same date for a single course of conduct, under the
Habitual Offender Law, LSA-R.S. 15:529.1); Fontenot v. Reddell Vidrine Water
District, 02-0439 (La. 1/14/03), 836 So. 2d 14, 23 (citing LSA-R.S. 1:7, this court
held that the use of the singular phrase “a penalty,” authorized in workers’
compensation cases by LSA-R.S. 23:1201(F), did not preclude multiple penalties
for multiple violations for the failure to timely pay workers’ compensation and/or
medical benefits claims); State v. Williams, 480 So. 2d 721, 726 n.10 (La. 1985)
(citing LSA-R.S. 1:7, this court concluded that use of the singular term “act” in
LSA-R.S. 14:10(1)’s phrase “his act or failure to act” did not limit the meaning of
the phrase to a single body movement).
Applying LSA-C.C. art. 3506 and LSA-R.S. 1:7 to LSA-R.S. 9:335 allows
the singular word “parent” in the phrase “domiciliary parent” to be read as
“domiciliary parents.” Thus, a court has the authority to name domiciliary
“parents” in a shared custody situation, when the court deems the naming of both
parents as “domiciliary parents” to be in the best interest of the child.
Despite the explicit applicability of LSA-R.S. 1:7 (“Words used in the
3
singular number include the plural and the plural includes the singular.”) to LSA-
R.S. 9:335’s phrase “domiciliary parent,” the majority opinion cavalierly sweeps
aside the dictates of LSA-R.S. 1:7, stating that the “rule does not necessarily hold
true for specialized terms in the law.” The only legal authorities cited by the
majority for excepting LSA-R.S. 9:335 from the application of LSA-R.S. 1:7 are
LSA-C.C. art. 11 (“Words of art and technical terms must be given their technical
meaning when the law involves a technical matter.”) and LSA-R.S. 1:3 (“Words
and phrases shall be read with their context and shall be construed according to the
common and approved usage of the language. Technical words and phrases, and
such others as may have acquired a peculiar and appropriate meaning in the law,
shall be construed and understood according to such peculiar and appropriate
meaning”).
Nonetheless, resort to the principles stated in LSA-C.C. art. 11 and LSA-
R.S. 1:3 is unnecessary in this case since the term “domiciliary parent” is defined
in the statute (pursuant to LSA-R.S. 9:335(B)(2), the “domiciliary parent is the
parent with whom the child shall primarily reside”). The provisions of LSA-C.C.
art. 11 and LSA-R.S. 1:3 become relevant only when the words used in a law may
have different meanings. See Lockett v. State, Department of Transportation
& Development, 03-1767 (La. 2/25/04), 869 So. 2d 87, 91 (“When the language
of the law is susceptible of different meanings, it must be interpreted as having the
meaning that best conforms to the purpose of the law, and the words of law must
be given their generally prevailing meaning.”).
There is no question as to the meaning of “domiciliary parent” in this case,
as LSA-R.S. 9:335(B)(2) expressly states that the “domiciliary parent” is “the
parent with whom the child shall primarily reside.” The only question presented is
whether both parents may be named as domiciliary parents.
This court has held that legislative language will be interpreted on the
4
assumption that the legislature was aware of existing statutes, rules of
construction, and judicial decisions interpreting those statutes. See M.J. Farms,
Ltd. v. Exxon Mobil Corporation, 07-2371 (La. 7/1/08), 998 So. 2d 16, 27;
Fontenot v. Reddell Vidrine Water District, 02-0439 (La. 1/14/03), 836 So. 2d
14, 24. Therefore, in enacting LSA-R.S. 9:335, the legislature was aware of the
effect dictated by LSA-R.S. 1:7 and, if the legislature intended that LSA-R.S. 1:7
should not apply to LSA-R.S. 9:335, it could have expressly indicated in LSA-R.S.
9:335 that only one parent could be named a domiciliary parent; failing which,
“domiciliary parent” may be read as “domiciliary parents” pursuant to LSA-R.S.
1:7. See also LSA-C.C. art. 3506.1
The majority further states that, because LSA-R.S. 9:335 involves a
“specialized area of the law,” LSA-R.S. 1:7 is inapplicable; however, this
statement is belied by the jurisprudence of this court, cited hereinabove, which all
applied LSA-R.S. 1:7 to the statutory provisions at issue in therein even though the
cases involved specialized areas of the law (Martin v. State construed tax law,
Fontenot v. Reddell Vidrine Water District construed workers’ compensation
law, and State v. Oelmann, State v. Shaw, and State v. Williams construed
criminal law - all specialized areas of the law).
The majority also holds that the definition provided in LSA-R.S.
9:335(B)(2) - that the “domiciliary parent is the parent with whom the child shall
primarily reside ” - “excludes the possibility of having more than one domiciliary
parent.” The majority reasons that it is “logically impossible” for both parents to
meet this definition.
1
Civil Code Article 3506 (applicable to Title 9 of the Revised Statutes, which contains Civil
Code Ancillaries) specifically states that it is applicable “[w]henever the terms of law . . . have
not been particularly defined” and then directing that “[t]he singular is often employed to
designate several persons or things.” Since LSA-R.S. 9:335(B) does not particularly define
“domiciliary parent” as being only one parent, it may be considered as referencing more than one
parent.
5
Yet, the concept of “shared custody” demonstrates that it is quite possible
for a child to have a domicile with each parent. “Shared custody” is defined by
LSA-R.S. 9:315.9 as “a joint custody order in which each parent has physical
custody of the child for an approximately equal amount of time.” (Emphasis
added.)
Further, it is jurisprudentially and statutorily recognized that, in shared
custody, two primary residences are established for the child, one with each parent
(see State in Interest of Travers v. Travers, 28,022 (La. App. 2 Cir. 12/6/95),
665 So. 2d 625, 628 (“Co-domiciliary parents, by definition, maintain two homes
for their children.”)), and, obviously, the maintenance of two residences for a child
results in additional expenses to the parents. The additional expenses necessitated
by the equal sharing of physical custody are incorporated into the calculation of the
child support obligations by LSA-R.S. 9:315.9, which authorizes an increase in the
applicable basic child support obligation set forth in LSA-R.S. 9:315.19, by
directing that the applicable basic child support obligation “shall first be multiplied
by one and one-half” and then allocated to the parents in proportion to their
respective adjusted gross income. See LSA-R.S. 9:315.9(A)(2)-(A)(7); LSA-R.S.
9:20, Worksheet B. See also Martello v. Martello, 06-0594 (La. App. 1 Cir.
3/23/07), 960 So. 2d 186, 195 (“The [LSA-R.S. 9:315.9(A)] formula differs from
the typical child support formula, in that it has a built-in adjustment for the
duplication of costs that inevitably occurs in a shared custody arrangement . . . .”).
When a child lives with married parents, he has one domicile2 - that of his
parents. When a child of parents, who do not live together, lives “primarily” (or
“mostly”) with only one parent, then the domicile of that parent is the domicile of
2
See Domicile, Black’s Law Dictionary (10th ed. 2014), defining “domicile” as “[t]he place at
which a person has been physically present and that the person regards as home; a person’s true,
fixed, principal, and permanent home, to which that person intends to return and remain even
though currently residing elsewhere”; and Domiciliary Parent, Black’s Law Dictionary (10th
ed. 2014), defining “domiciliary parent” as “[a] parent with whom a child lives.”
6
the child, and that parent is the child’s “domiciliary parent” as set forth in LSA-
R.S. 9:335(B)(2). However, when, as in the instant case, the child is subject to a
shared custody arrangement between his parents and resides for an equal amount
of time with each parent, as set out in LSA-R.S. 9:315.9, he or she, in fact, has two
domiciles - one with each parent. Thus, in a shared custody situation, when the
parents agree, or a court finds, that the parents should also have equal legal
authority over the child, the parents would, in fact, both be “domiciliary parents.”
To prohibit both parents from being designated as “domiciliary parents” or “co-
domiciliary parents,” when it is in the best interest of the child, merely because the
authority to do so is not expressly set forth in LSA-R.S. 9:335 is to deny the reality
of such a situation.3
As this court stated in Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So. 2d
731, 737, child custody is comprised of both physical custody, which is actual
custody, and legal custody, which is the right or authority to make decisions
concerning the child’s upbringing. Thus, joint legal custody involves a sharing of
the responsibilities concerning the child including decisions about education,
medical care, discipline and other matters relating to the upbringing of the child.
Id. There has certainly been no suggestion that, when in the best interest of the
child, a court is not authorized to order equal legal authority along with equal
physical custody. Indeed, LSA-R.S. 9:335 directs that the court “allocate the legal
3
We note that the majority opinion adopts the view expressed by Katherine Shaw Spaht, in The
Two “ics” of the 2001 Louisiana Child Support Guidelines: Economics and Politics, 62 La.
L. Rev. 709, 771 n.73 (2002), that “[t]he designation of co-domiciliary parents creates an
oxymoron.” Notwithstanding, in order to be an “oxymoron,” a term must be “a combination of
contradictory or incongruous words,” as defined in the Merriam-Webster Dictionary (see
http://www.merriam-webster.com/dictionary/oxymoron). Certainly, in a situation in which a
minor child does not spend an equal amount of time with each parent, there is no “shared”
custody, and the naming of “co-domiciliary parents” would be inappropriate since the child
would live “primarily” with only one parent. However, the pre-fix “co-” means “together.” See
http://www.merriam-webster.com/dictionary/co?show=1. Therefore, when the term “co-
domiciliary parents” is applied in a shared custody and shared legal authority situation, it is not
oxymoronic since the child has two domiciles and each parent exercises legal authority over the
child as a domiciliary parent; therefore, such parents are co-domiciliary parents.
7
authority and responsibility of the parents” in the custody order.
However, naming one parent as the sole domiciliary parent places a greater
share of the legal authority over the child with that domiciliary parent. See LSA-
R.S. 9:335(B)(3) (“The domiciliary parent shall have authority to make all
decisions affecting the child unless an implementation order provides otherwise.
All major decisions made by the domiciliary parent concerning the child shall be
subject to review by the court upon motion of the other parent. It shall be
presumed that all major decisions made by the domiciliary parent are in the best
interest of the child.”). Further, the other alternative allowed by the majority
opinion - of naming no domiciliary parent - also results in one parent, the father,
having a greater share of the legal authority over the child than the other parent, the
mother, pursuant to LSA-R.S. 9:335(C) (“If a domiciliary parent is not designated
in the joint custody decree and an implementation order does not provide
otherwise, joint custody confers upon the parents the same rights and
responsibilities as are conferred on them by the provisions of Title VII of Book I of
the Civil Code.”). Contained within Title VII of Book I of the Civil Code is Civil
Code Article 216, which, on the issue of parental authority, provides in pertinent
part that “[i]n case of difference between the parents, the authority of the father
prevails.” Therefore, if any matter subject to the decision-making authority of the
parents is inadvertently omitted from the custody order and a dispute on such an
issue thereafter arises between the parents, Article 216 directs that “the authority of
the father prevails.” Clearly, if Article 216 is triggered by such an eventuality, the
mother would be deprived of the desired equal legal authority over the minor child.
The majority further holds that the interpretation advanced by the appellate
court in this case (that, in a co-domiciliary arrangement, the parent with whom the
child is residing at the time would have decision-making authority during the time
the child resides with the parent) would “invite second-guessing, discord, and
8
uncertainty for the child because major decisions could vacillate with each parent.”
(See Op. at pp. 8-9.) Nevertheless, a co-domiciliary designation would counteract,
to an extent, the tendency that a parent might have to exercise parental authority in
an irresponsible manner or without consulting with the other parent as required by
LSA-R.S. 9:336 (“Joint custody obligates the parents to exchange information
concerning the health, education, and welfare of the child and to confer with one
another in exercising decision-making authority.”), since a decision not concurred
in by the other parent might simply be undone when physical custody of the child
returned to the disagreeing, co-domiciliary parent. Thus, co-domiciliary parents
have a greater incentive to work together to make decisions that are mutually
agreeable, and the risk of “second-guessing, discord, and uncertainty for the child”
is reduced. In contrast, a sole domiciliary parent has the larger temptation, in being
vested with greater legal authority than the other parent pursuant to LSA-R.S.
9:335(B)(3) (“The domiciliary parent shall have authority to make all decisions
affecting the child unless an implementation order provides otherwise. All major
decisions made by the domiciliary parent concerning the child shall be subject to
review by the court upon motion of the other parent. It shall be presumed that all
major decisions made by the domiciliary parent are in the best interest of the
child.”), to subvert the obligation imposed by LSA-R.S. 9:336 to consult the non-
domiciliary parent in exercising decision-making authority, given that a sole
domiciliary parent’s major decisions may only be challenged in court, and then
such decisions are presumed to be in the best interest of the child.
As indicated hereinabove, the only method by which it can be assured that
both parents have equal legal custody over their child is to designate both parents
as domiciliary parents in a shared physical custody scenario. The district courts, as
well as the First, Third, and Fifth Circuits, in numerous decisions, evidently have
reached this conclusion, in generally finding that a “co-domiciliary” designation
9
conforms with LSA-R.S. 9:335. See Hodges v. Hodges, 14-1575 (La. App. 1 Cir.
3/6/15), 166 So. 3d 348 (the instant case); Distefano v. Distefano, 14-1318 (La.
App. 1 Cir. 1/22/15), 169 So. 3d 437; Centanni v. Spradley, 13-1851,
2014WL1166192 (La. App. 1 Cir. 3/21/14) (unpublished); McCaffery v.
McCaffery, 13-0692 (La. App. 5 Cir. 4/9/14), 140 So. 3d 105, writ denied, 14-
0981 (La. 6/13/14), 141 So. 3d 273; Galland v. Galland, 12-1075 (La. App. 3 Cir.
3/20/13), 117 So. 3d 105, writ denied, 15-0319 (La. 4/17/15), 168 So. 3d 404; St.
Philip v. Montalbano, 12-1090 (La. App. 4 Cir. 1/9/13), 108 So. 3d 277, 279 n.3;
Stewart v. Stewart, 11-1334 (La. App. 3 Cir. 3/7/12), 86 So. 3d 148; Silbernagel
v. Silbernagel, 10-0267 (La. App. 5 Cir. 5/10/11), 65 So. 3d 724; Schmidt v.
Schmidt, 08-0263 (La. App. 4 Cir. 2/11/09), 6 So. 3d 197, writ denied, 09-0566
(La. 4/3/09), 6 So. 3d 779; Henry v. Henry, 08-0689 (La. App. 1 Cir. 9/23/08), 995
So. 2d 643; Smith v. Smith, 07-1163, 2008WL588906 (La. App. 3 Cir. 3/5/08)
(unpublished), 977 So. 2d 312 (table); Craig v. Craig, 42,363 (La. App. 2 Cir.
5/9/07), 956 So. 2d 819, writ denied, 07-1349 (La. 7/27/07), 960 So. 2d 64; Elliott
v. Elliott, 05-0181 (La. App. 1 Cir. 5/11/05), 916 So. 2d 221, writ denied, 05-1547
(La. 7/12/05), 905 So. 2d 293; Alexander v. Alexander, 02-0683 (La. App. 3 Cir.
11/13/02), 831 So. 2d 1060; Lincecum v. Lincecum, 01-1522 (La. App. 3 Cir.
3/6/02), 812 So. 2d 795, 798; Perkins v. Perkins, 99-1130 (La. App. 1 Cir.
12/28/99), 747 So. 2d 785, writ granted, 00-0269 (La. 2/16/00), 754 So. 2d 950,
order recalled, 00-0269 (La. 3/24/00), 758 So. 2d 141 (per curiam); Remson v.
Remson, 95-1951 (La. App. 1 Cir. 4/4/96), 672 So. 2d 409.4
4
See also Szwak v. Szwak, 49,938 (La. App. 2 Cir. 4/15/15), 163 So. 3d 911; Cole v. Cole, 13-
1442 (La. App. 3 Cir. 6/4/14), 139 So. 3d 1225; Koussanta v. Dozier, 14-0059 (La. App. 5 Cir.
5/21/14), 142 So. 3d 202; Blanc v. Hill, 13-1961, 2014WL1778354 (La. App. 1 Cir. 5/2/14)
(unpublished); Bond v. Bond, 13-1733 (La. App. 1 Cir. 3/24/14) (unpublished), writ denied, 14-
1054 (La. 9/12/14), 148 So. 3d 932; Pepiton v. Turner, 13-1199 (La. App. 3 Cir. 3/5/14), 134
So. 3d 160; Bagwell v. Bagwell, 48,913 (La. App. 2 Cir. 1/15/14), 132 So. 3d 426, writ denied,
14-0356 (La. 3/14/14), 135 So. 3d 608; Bush v. Bush, 13-0922 (La. App. 1 Cir. 12/27/13), 137
So. 3d 49; Harvey v. Harvey, 13-0081 (La. App. 3 Cir. 6/5/13), 133 So. 3d 1, writ denied, 13-
1600 (La. 7/22/13), 119 So. 3d 596; Manuel v. Bieber, 12-1303, 2013WL832362 (La. App. 3
Cir. 3/6/13) (unpublished), 110 So. 3d 293 (table); Thibodeaux v. Thibodeaux, 12-752 (La.
10
In contrast, the Second and Fourth Circuit Courts of Appeal have ruled in
only three cases, summarily, that there is no authority in the law for the designation
of “co-domiciliary parents”: Hanks v. Hanks, 13-1442 (La. App. 4 Cir. 4/16/14),
140 So. 3d 208; Molony v. Harris, 10-1316 (La. App. 4 Cir. 2/23/11), 60 So. 3d 70;
Ketchum v. Ketchum, 39,082 (La. App. 2 Cir. 9/1/04), 882 So. 2d 631.
App. 3 Cir. 12/5/12), 104 So. 3d 768; Coleman v. Coleman, 47,080 (La. App. 2 Cir. 2/29/12), 87
So. 3d 246; Hernandez v. Hernandez, 11-0526 (La. App. 5 Cir. 12/28/11), 83 So. 3d 168, writ
denied, 12-0271 (La. 3/30/12), 85 So. 3d 124; Kingston v. Kingston, 11-1629 (La. App. 1 Cir.
12/21/11), 80 So. 3d 774; Westbrook v. Weibel, 11-0910 (La. App. 3 Cir. 12/7/11), 80 So. 3d
683, writ denied, 12-0403 (La. 3/7/12), 83 So. 3d 1048; Bergeron v. Bergeron, 10-0964,
2011WL1938668 (La. App. 1 Cir. 5/6/11) (unpublished), 66 So. 3d 77 (table); Vaughn v.
Vaughn, 10-2201, 2011WL1260050 (La. App. 1 Cir. 3/25/11) (unpublished), 58 So. 3d 1156
(table), writ denied, 11-0806 (La. 5/27/11), 63 So. 3d 1001; Garcia v. Garcia, 10-0446 (La. App.
3 Cir. 11/3/10), 49 So. 3d 601; Flint v. Lawton, 10-0872, 2010WL4273096 (La. App. 1 Cir.
10/29/10) (unpublished), 56 So. 3d 462 (table); Harang v. Ponder, 09-2182 (La. App. 1 Cir.
3/26/10), 36 So. 3d 954, writ denied, 10-0926 (La. 5/19/10), 36 So. 3d 219; Rogers v.
Grandberry, 09-1507, 2010WL8972071 (La. App. 4 Cir. 3/17/10) (unpublished), 30 So. 3d 1188
(table); Hains v. Hains, 09-1337 (La. App. 1 Cir. 3/10/10), 36 So. 3d 289; Semmes v. Semmes,
45,006 (La. App. 2 Cir. 12/16/09), 27 So. 3d 1024; Rome v. Bruce, 09-0155 (La. App. 5 Cir.
10/13/09), 27 So. 3d 885; Cradeur v. Cradeur, 08-1463 (La. App. 3 Cir. 5/6/09), 10 So. 3d 1252;
Schmidt v. Schmidt, 08-0263 (La. App. 4 Cir. 2/11/09), 6 So. 3d 197, writ denied, 09-0566 (La.
4/3/09), 6 So. 3d 779; Falcon v. Falcon, 08-0925, 2008WL4191021 (La. App. 1 Cir. 9/12/08)
(unpublished), 992 So. 2d 592 (table); Chuter v. Hollensworth, 08-0224, 2008WL2065063 (La.
App. 1 Cir. 5/2/08) (unpublished); Hymel v. Guarisco, 06-1857, 2007WL4644813 (La. App. 1
Cir. 12/28/07) (unpublished), 972 So. 2d 493 (table), writ denied, 08-0979 (La. 8/29/08), 989
So. 2d 101; S.J.G. v. A.A.G., 07-0625 (La. App. 1 Cir. 9/19/07), 970 So. 2d 1022; Laurence v.
Laurence, 07-0011 (La. App. 3 Cir. 5/30/07), 957 So. 2d 931, writ denied, 07-1322 (La. 7/5/07),
959 So. 2d 891; State in the Interest of S.L. v. Lewis, 41,835, 2007WL987283 (La. App. 2 Cir.
4/4/07) (unpublished); Cerwonka v. Baker, 06-0856 (La. App. 3 Cir. 11/2/06), 942 So. 2d 747;
Bihm v. Bihm, 05-1550 (La. App. 3 Cir. 5/31/06), 932 So. 2d 732, writ denied, 06-1695 (La.
10/6/06), 938 So. 2d 81; Luplow v. Luplow, 41,021 (La. App. 2 Cir. 2/28/06), 924 So. 2d 1135;
Watson v. Watson, 39,458 (La. App. 2 Cir. 3/2/05), 894 So. 2d 1263; In re Morris, 39,523 (La.
App. 2 Cir. 1/26/05), 892 So. 2d 739; Borne v. Sutton, 04-0826 (La. App. 5 Cir. 12/28/04), 892
So. 2d 128; Liles v. Liles, 37,251 (La. App. 2 Cir. 6/25/03), 850 So. 2d 879; Arbuckle v.
Arbuckle, 36,616 (La. App. 2 Cir. 12/11/02), 833 So. 2d 1119; Collins v. Collins, 36,629 (La.
App. 2 Cir. 10/23/02), 830 So. 2d 448; McMahon v. McMahon, 02-0211 (La. App. 5 Cir.
9/30/02), 829 So. 2d 584; Age v. Age, 01-0231 (La. App. 4 Cir. 5/29/02), 820 So. 2d 1167; Swan
v. Swan, 35,393 (La. App. 2 Cir. 12/7/01), 803 So. 2d 372; Smith v. Smith, 00-1686 (La. App. 4
Cir. 4/11/01), 785 So. 2d 223; Curtis v. Curtis, 34,317 (La. App. 2 Cir. 11/1/00), 773 So. 2d 185;
Tatum v. Tatum, 33,118 (La. App. 2 Cir. 5/15/00), 794 So. 2d 854; Kulbeth v. Kulbeth, 99-
1785 (La. App. 3 Cir. 4/5/00), 758 So. 2d 969; Edwards v. Edwards, 99-994 (La. App. 3 Cir.
12/22/99), 755 So. 2d 331; Jones v. Jones, 99-0035 (La. App. 3 Cir. 7/14/99), 747 So. 2d 94;
Constance v. Traill, 98-2758 (La. App. 4 Cir. 4/28/99), 736 So. 2d 971; Falterman v.
Falterman, 97-0192 (La. App. 3 Cir. 10/8/97), 702 So. 2d 781, writ not considered, 98-0076 (La.
3/13/98), 712 So. 2d 863; Havener v. Havener, 29,785 (La. App. 2 Cir. 8/20/97), 700 So. 2d 533;
State in Interest of Travers v. Travers, 28,022 (La. App. 2 Cir. 12/6/95), 665 So. 2d 625;
Robert Lowe, 1 La. Prac. Series, “Divorce” § 4:33 (in setting forth a sample form for a
matrimonial agreement to establish a separate property regime, the following provision was
suggested: “[Party 1] and [Party 2] agree that in the event that children are born of their
marriage, that, in the event of a breakup of the marriage, the custody of any child(ren) shall be
‘Joint Custody’ with the child(ren) spending equal time with each parent on an alternating basis,
and, moreover, each parent shall be designated a ‘co-domiciliary parent’ with equal rights,
responsibilities, and authorities concerning the child(ren). The parties acknowledge that they
have carefully and thoughtfully considered this provision and do now objectively declare that
this agreement will be in the children’s best interest.” (Emphasis added.)).
11
Given the fact that the designation of “co-domiciliary parents” has been
deemed necessary to accomplish an equality of legal custody between parents by
the great weight of jurisprudence, it hardly seems appropriate, as the majority
opinion does out-of-hand, to declare that
[T]he plain language of La. R.S. 9:335 manifests the legislature’s
clear intent to establish a custodial system in which a child has a
domiciliary parent and no more than one such parent. The text is
clear. Although each parent can share physical custody, the court can
only designate a single domiciliary parent.
(See Op. at p.9.) It would seem that the effect of LSA-R.S. 9:335(B) is not clear to
a great many of those charged with interpreting it. While the meaning of
“domiciliary parent” is set forth in LSA-R.S. 9:335(B) as “the parent with whom
the child shall primarily reside,” what is not clear is whether or how to designate a
“domiciliary parent” when a child does not reside “primarily” or “mostly” with
either parent, but rather lives an equal amount of time with each.
When the language of a law is susceptible of different meanings, it must be
interpreted as having the meaning that best conforms to the purpose of the law.
See LSA-C.C. art. 10. When the words of a law are ambiguous, their meaning
must be sought by examining the context in which they occur and the text of the
law as a whole. LSA-C.C. art. 12. Laws on the same subject matter must be
interpreted in reference to each other. LSA-C.C. art. 13. Under the rules of
statutory construction, courts have a duty in the interpretation of a statute to adopt
a construction which harmonizes and reconciles it with other provisions dealing
with the same subject matter. See City of New Orleans v. Louisiana Assessors’
Retirement & Relief Fund, 05-2548 (La. 10/1/07), 986 So. 2d 1, 15.
The purpose of laws pertaining to child custody is to ensure that an award of
child custody is in the best interest of the child. See LSA-C.C. art. 131 (“In a
proceeding for divorce or thereafter, the court shall award custody of a child in
accordance with the best interest of the child.”). See also C.M.J. v. L.M.C., 14-
12
1119 (La. 10/15/14), 156 So. 3d 16, 28-29 (stating that the best interest of the child
is the sole criterion to be met in making a custody award; it is the child’s
emotional, physical, material and social well-being, and health that are the judge’s
very purpose in child custody cases, and the judge must protect the child from the
harsh realities of the parents’ often bitter, vengeful, and typically highly emotional
conflict).
An important factor in determining the best interest of the child, as listed in
LSA-C.C. art. 134(12), is “[t]he responsibility for the care and rearing of the child
previously exercised by each party.” See also Johnston v. McCullough, 410
So. 2d 1105, 1107-08 (La. 1982) (“Stability and continuity must be considered in
determining what is in the best interest of the child.”); Bordelon v. Bordelon, 390
So. 2d 1325, 1329 (La. 1980) (“[S]tability of environment . . . is still relevant to a
determination of the best interest of the child.”); Colvin v. Colvin, 40,518 (La.
App. 2 Cir. 10/26/05), 914 So. 2d 662, 666 (“Continuity and stability of
environment are important factors to consider in determining what is in the child’s
best interest. A change from a stable environment should not be made absent a
compelling reason.”).
In the instant case, the trial court attempted to maintain continuity for M.H.
by continuing in effect the “responsibility for the care and rearing of the child
previously exercised by each part[ies]” (pursuant to LSA-C.C. art. 134(12)), which
was an equal sharing of physical custody and legal authority as to M.H. The court
advised the parties, in open court: “If you aren’t able to . . . work out a plan that
works for [M.H.] when he becomes school age, the court will be happy to hear
from you again and see how things are going.” In so stating, the trial court
referenced duties legally imposed by LSA-R.S. 9:336 on parents who share joint
custody of a child “to exchange information concerning the health, education, and
welfare of the child and to confer with one another in exercising decision-making
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authority.”
The trial court ordered that the parties in this case actually share equal
physical custody of their child, by exchanging the physical custody of the child,
M.H., every week on Wednesday,5 and the trial court implicitly concluded that it
was in the best interest of M.H. that both parents be designated as domiciliary
parents.
In child custody cases, the decision of the trial court is to be given great
weight and overturned only where there is a clear abuse of discretion. See C.M.J.
v. L.M.C., 156 So. 3d at 28-29; Gathen v. Gathen, 10-2312 (La. 5/10/11), 66
So. 3d 1, 8 n.4; Thompson v. Thompson, 532 So. 2d 101, 101 (La. 1988) (per
curiam); Stephenson v. Stephenson, 404 So. 2d 963, 966 (La. 1981); Fulco v.
Fulco, 259 La. 1122, 1129, 254 So. 2d 603, 605 (1971). See also LSA-C.C. art.
134, 1993 Revision Comment (b) (“The appellate courts have reiterated the
traditional rule that a trial court’s custody award will not be disturbed absent a
manifest abuse of discretion . . . . This revision does not change that rule.”). The
record does not support a conclusion that the trial judge abused his discretion in the
custody judgment issued in this case.
This court has previously recognized in SWAT 24 Shreveport Bossier, Inc.
v. Bond, 00-1695 (La. 6/29/01), 808 So. 2d 294, 302, that the object of the court in
construing a statute is to ascertain the legislative intent and, where a literal
interpretation would produce absurd consequences, the letter must give way to the
spirit of the law and the statute construed so as to produce a reasonable result.
The failure of the majority opinion to apply LSA-R.S. 1:7 to LSA-R.S.
5
See Janney v. Janney, 05-0507 (La. App. 1 Cir. 7/26/06), 943 So. 2d 396, 399-400, writ
denied, 06-2144 (La. 11/17/06), 942 So. 2d 536 (recognizing that in determining whether a
particular arrangement constitutes “shared custody,” pursuant to LSA-R.S. 9:315.9, the court
may find such an arrangement when the physical custody is split as equally as possible, but
through inevitable fluctuations, such as may occur when holidays are divided or alternated, the
actual number of days of physical custody in a given year is not exactly equal).
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9:335’s phrase “domiciliary parent,” so that it might be read where appropriate in
the plural as “domiciliary parents,” produces the absurd result of depriving parents,
who may wish to be designated “co-domiciliary parents” via consent agreements,
and trial judges, who might otherwise find it in the best interest of a child to have
his parents designated “co-domiciliary parents” in a shared physical custody
situations, of the ability to fully implement shared legal custody.
In this case the trial judge very specifically addressed the fact that the matter
might have to be revisited when the child reached school age. The parties are not
fighting over any issue of substance, such as the amount of child support or the
amount of time the child spends with each parent. The only point of contention
that brings the matter to this court is the label of co-domiciliary parent. It seems
the mother, despite all particulars of the child’s care having been resolved, wants
control of the situation now, rather than when the child reaches school age, which
indicates she might not be able to foster the relationship between child and father.
The trial court will now be forced to make a premature, unnecessary decision or
name neither parent as domiciliary.
Those who have made decisions in family court know that every tool in the
box is often needed to make both parents invested in the result and working
together for the best interest of the child. It simply makes no sense to deprive trial
judges of this tool when it has been used so successfully as shown by the number
of cases cited above.
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