Bergeron v. Bergeron - 492 So. 2d 1193 (La. 1986)

Rule:

In interpreting and applying La. Civ. Code Ann. art. 157, in cases involving both the initial granting of custody and the modification of custody decrees, the courts have developed several jurisprudential precepts: 1) The best interest of the children principle (the paramount consideration in determining to whom custody should be granted is always the welfare of the children); 2) The maternal preference rule (generally, it is in the best interests of the children to grant custody to the mother, unless she is morally unfit or otherwise unsuitable); 3) The change of circumstances rule; 4) The heavy burden of proof for modification of custody rule (when the trial court has made a considered decree of permanent custody, the party seeking the change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the children as to justify removing them from the environment to which they are accustomed); 5) The appellate review standard (upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight, and his discretion will not be disturbed on review in the absence of a clear showing of abuse.)

Facts:

Petitioner husband and the respondent wife were divorced. In the divorce judgment, respondent wife was awarded sole custody of their child, who was then, two years old. Petitioner husband filed a petition to change the custody of the child to himself. The trial court set aside the original sole custody decree, entered a joint custody decree, awarded petitioner, as primary custodian, physical custody nine months each year, and relegated respondent to three months physical custody per year. The court of appeals affirmed. A writ of certiorari was granted. 

Issue:

Under the circumstances, was it proper to change the custody decree and grant primary custody to the father? 

Answer:

No.

Conclusion:

The court reversed the rulings of the trial court and appellate court and reinstated the original custody decree. The court held that none of the evidence presented by the father constituted a change in circumstances that warranted the consideration of a change in the custody decree. In so holding, the court found that although the trial court retained the continuing power to modify a child custody order, there must have been a showing of a change in circumstances that materially affect the welfare of the child before the court could consider making a significant change in the custody order. Furthermore, La. Civ. Code Ann. art. 157 and art. 146 required that a child's custody should be decided according to his best interest. in allowing the child to remain with his father after the end of a scheduled visit, the mother did not intend to relinquish permanent custody, and the father, as the party seeking the custody change, failed to meet the heavy burden of showing that a custody change was in the best interests of the child.