Kaptein v. Kaptein - 2016-1249 ( La. App. 4 Cir 06/14/17), 221 So. 3d 231

Rule:

La. Civ. Code Ann. art 136 provides that 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. As with custody, the paramount criterion for determining a noncustodial parent's right to visitation is the best interest of the child. Louisiana courts have consistently held that denial of visitation rights to a parent is an extreme measure warranted only by conclusive evidence that visitation would seriously endanger the child's physical, mental, moral, or emotional health. Further, the question of visitation is always open to change when the conditions warrant it. When there have been restrictions placed on a noncustodial parent's visitation rights, those restrictions should be lifted when it is shown to be in the child's best interest.

Facts:

The parties' daughter, C.E.K., was born on February 25, 2013. On April 30, 2014, Ms. Kaptein filed a petition for divorce and requested sole custody of C.E.K. After a hearing, on May 19, 2015, the trial court awarded Ms. Kaptein interim sole custody, while Mr. Kaptein was awarded interim supervised visitation with C.E.K. each month from the first Saturday until the second Sunday for a minimum time period of two (2) hours to a maximum of eight (8) hours each day, and FaceTime [Pg 2] visits. Mr. Kaptein was also ordered to pay Ms. Kaptein interim spousal support of $15,000 per month and child support of $5,000 per month. Kaptein appealed a trial court's decision that awarded sole custody of C.E.K. to Heather Kaptein, continued the suspension of FaceTime visitation, and determined that reasonable visitation with him was not in the best interest of the child. 

Issue:

Was the suspension of FaceTime visitation proper?

Answer:

No

Conclusion:

The court reversed the judgment suspending visitation via live video pursuant to La. Civ. Code Ann. art. 136 because it was in the best interests of the child as the father and child enjoyed their video visitation, there was no evidence that it posed any risk or was detrimental to the child, and in fact, a doctor recommended that the child be given the opportunity to communicate with her father through live video on a regular basis. There was no abuse of discretion in the trial court's ruling which allowed the introduction of a doctor's deposition because it was properly admitted for an unavailable witness under La. Code Civ. Proc. Ann. art. 1450, the father and his counsel received notice of the expert's deposition, they could have attended the deposition to cross-examine the doctor, and/or they could have timely objected to the use of her deposition.