Kentley R. Fairchild VS Cynthia Huggins Fairchild
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1110T DESIGN FOR PUBLICATION TED j Tr E i Ir Z 1 I OUR U AP EAL FIRST CIRCUI T NO 2013 CU OS 15 KENTLE R FAIRCHILD VERSUS CYNTHIA HUGGINS FAIRCHILD nentRendered Jud 1 3 On Appeal from the 32nd Judicial I Court istrict In and far the Parish of Terrebonne SYate of Louisiana j C Trial Court No 144 104 Honorable Jolin R Walker Judge Presiding Danna E ab n Sch Attorneys for laintiff Appeilee Estelle E Mahoney y Kent R Fairchild Houma LA ld Cynthia Huggins Fairch Houma LA BEFORE Appellant tant Defenc In Proper Persan KUHN HIGGINBOTHAM AND THERIOT JJ HIGGINBOTHAM J In this child cu case tlae mother appeals a judgment in which the trial tody court granted sole custody of the parties rriinor children to the fa subject to very kier limited visitation for the mother For the fblluwang reasons we aff in part reverse n in part ar rarld dr FACTS AND PROCE f L I2r DC ISTORY Cynthia Huggins Fairchild and Kentley R Fairchild were married on June 20 1988 Three children were born of the marriage namely Candace Fairchild who is now a airchild major Katie Fairchild and Catherine F The parties physically separated in November 2004 and were divorced by a judgment signed on June 16 2005 In June 2005 the parties stipulated on the record to joint custody of Katie and Catherine on a seven day basis with Mr Fairchild designated as the and primary custodian This stipulation was never reduced to writing nor made a judgment of the court but is found in the transcript of the proceeding In 1987 prior to her marriage to Mr Fairchild Ms Fairchild was in an automobile aecident that resulted in serious injuries including a severe head injtuy She was diagnosed with traumatic post psychosis Ms Fairchild has struggled intermittently with seizures and visual and auditory hallucination since Yhe accident According to Ms Fairchild her issues w due to the stress of going through a rsened divorce and the custody litigation Ms Fairebild has attempted suicide three times and is on several medreations for seizures anxiety hailucinations and panic attacks On November 12 2010 Ms Fairchild sari took her to Terrebonne Cieneral s Medical Center because she was complaining about hearing voices The emergency room physician at Terrebonne General described Ms Fairchild as gravely disabled and dangerous to sel She was transferred from Terrebonne General to St James Behavioral Health Hospital w she was jud committed She was discharged here acially Her son was noi of the martiage between she and Mr Fairchild but was adopted by Mr Fairehild 2 on December 3 2010 Ms Fairchild did not tell VIr Fairchild she was admitted to the hospitaL After Mr Fairchild discovered 1VIs Pairchild w hospitalized he filed an ex as parte request for sole custody of the chyldren un Novennber 30 2010 In his petition he alleged that Ms Fairchild has sev medical issues both mental and physical xe has experienced psyc episodes with auditory and visual hallucinations and the hotic minor children would be in imminent danger if they were allowed to remain with Ms Fairchild On that day an order was signed giving Mr Fairchild temporary sole custody of the minor children with no visitation awarded to Ms Fairchild On December 22 2010 Ms Fairchild filed a petition requesting that she be granted sole custody of the minor children In an interim judgment signed on January 10 2011 Mr Fairchild retained sole custody of the minor children and Ms Fairchild was given visitation every Saturday from 230 p6 p m00 m The matter came for a full custody trial on Ma 9 2011 May 10 2011 and June 9 2011 After trial judgment was signed on June 23 2011 granting sole custody to Mr Fairchild Ms Fairchild was ganted five hours of visitation per week and alternating visitation on the major holidays It is from this judgment that Ms Fairchild appeals contending that the trial court erred in awardiug sole custody to Mr Fairchild and erred in awarding her limited visitation SSION DISCL I CUSTODY Louisiana Civil Code article 132 provides as follows If the parents agree who is to have custody the court shall award custody in accordance wzth their agreement unless the best interest of the child requires a different award In the absence of 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 3 evidence to serve the best interest of the child the court shall award custody to that parent Only in exceptional controversies is the clear and convincing standard applied in civil cases where there is thought to be special danger of deception or where the court considers that the particular type of claim should be disfavored on policy Talbot v Talbot 003 La 12l j 864 So2d 590 598 To prave a matter 0814 03 12 by clear and convincing evidence means to dennonstrate that the existence of a disputed fact is highly probable that is much more probable than its nonexistence Harper v Harper 33 La App 2d Cir 6764 So 1186 1190 452 00 21 2d In determining the best interest of the child the court shall consider all relevant factors and such factors may include those enumerated in La Civ Code art 134 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 continuiry of that environment 5 The permanence as a farnily unit of the existing or proposed custodial home or 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 oiher party 11 The distance between the respective residences of the parties 12 The responsibility far the care arid rearing of the child previously exercised by each party The l interest of the child test is a fact inquiry requiring the est intensive weighing and balancing of factors favoring or opposing custody in the competing parties on the basis of the evidence presented in each case Every child custody case is to be viewed on its own particular set of facts and the relationships involved with the paramount goal of reaching a decision which is in the best interest of the child 4 The trial court is vested with broad discretion in deciding child custody cases Because of the trial court better opporttXmity ta eualuale witnesses and taldng into s account the proper allocation of trial and appellate court functions great deference is accorded to the decision of the trial court A trial court deterrnination regarding s child custody will not be disturbed ab a clear abuse of disc lartello v ent rexio Martello 006 La App lst Cir 3 96G So 186 191 OSy4 j d 0 23 92 In awarding sole custody to Mr Fairchild the trial court reviewed each of the factors of Article 134 and concluded that the clear and canvincing evidence before the court proved that awarding sole custody to 1 Fairchild was in the children 1r s best interest In so concluding the trial court discussed its concern with Ms s Fairchild physical and mental health The trial court was especially concemed about Ms Fairchild having a seizure while the children were in her care According to the record Ms Fairchild frequently speaks negatively about Mr Fairchild to the children and others makes accusations about him and is unwilling to cooperate with Mr Fairchild The trial court found this nel by Ms Fairchild has made co avior parenting with her very difficult The trial eourt was also concerned about Ms s Fairchild fmancial we11 being Since the parties divarced Ms Fairchild has accused I Fairchild of 1r poisoning the children kidnapping the children physically abusing Catherine and molesting Katiee None of tl accusatiozis have been verified ese Recently Ms Fairchild missed Katie award ceremony speech despite being reminded of the event s by Katie Ms Fcurrently has no relationship with her oidest child Candace airchiId and has not since Ms Fairchild pushed Candace out of her van at Mr Fairchild s parents house in 2005 The trial court heard from several witnesses regarding custody of Katie and Catherine 1 witnesses discussed the amount of time that Ms Fai sleeps 1any child including her having to pull off the road to rest when driving and sleeping during the I 5 s children athletic events Ms Fairchild sson in pri1 2010 took her to the doctor and said she was v araund like a zcrmbie lking Ms Fairchild condition has s made her unable to obtain work Judge Bethancourt whose dau is a friend of Katie testified that Ms hter Fairchild was not very reliable or resp nsibie He further stated she once sent a threatening email t his wife stating that her sc wouid talce care of business Mr n Richard Barber who coaches the girls in softball also described Ms Fairchild s unusual behaviar at the children softball games where on one occasion Ms s Fairchild called Mr Fairchil and accused him of ki the children i dnapping Ms Kimberly Chauvin Mr Fairchild ssister testified that after the parties divorced she went to Ms Fairchild home and found xt in complete disarray with Ms Fairchild s balled up on the couch saying I can ttake care of the kids She also witnessed Ms Fairchild attempt suicide by rubbing a knife across her wrist while repeating I can t take it anymore Mr Fairchild testified that Ms Fairchild erratic behavior has s made it very difficult for the to make any decisions regarding the children together Mr Fairchild also stated that Ms Fairchild tried to bribe the children with clothes and pets to come live with her Dr Kenneth Gaddis Mse Fairchild neurologist admitted during cross s examination that it would be dangerous if 1 Fairchild stopped taking her 1s medication Dr Susan Glade Fairchild psychologist stated that in the past she VIs s has had trouble getting Ms Fairchild to take her medication Ms Fairchild admitted in brief she was off the voices medication Hoivever Dr Glade also testified that Ms Fairchild has never done anything to harrrz her children and loves hem very much As stated by the trial court this is a very difficult case Ms Fairchild clearly loves her children very much and wants to be in with them olved However the standard by which this court is bound is the best interest of the children 6 Ms Fairchild struggles vith mental azid physic n problems that are not her fa i alth it and as a result of her health issues she has xlxibited impulsive and unpredictable behavior that has negatively a the childrexi and made co difficult fected parenting Further Ms Fair behavior is not cunduci to proanoting a close and s hild e continuing relatianship betvveen the c and their f irldren tiher Based on the eviden ewe cann tinci that rh trial court a of sole custody t s to Mr Fairchild was a clear abuse of discretion II VISITATION Ms Fairchild also contends that the trial court was in error in awarding her limited visitation In the judgment Ms Fairchild was awarded at least five hours a week and was ordered not to drive with the minor children or lea Terrebonn2 e Parish The judgment further stated that the minor children shall be able to visit with their mother at other times mutuall5r agreed upon by the parties No specific times were set far the weekly visitation to occur 1 holiday visitation schedule was also implemented which gave Ms Fairchild daytime visitation an several enumerated holidavs on an alternating schedule Louisiana Civil Code rticle 136 Srovides a parent not granted custody or A joint custody of a child is eniitle to reasonable visitation rights unless the court finds after a hearing that visitatio w not be n the best inter of the child t uld o sY Our jurisprudence emphasizes that the best ineerest of the child is the sole criierion for determining a noncustodial parent right to visi4ation s Anderson vo Brown 14 4 34 La App d Cir 2 781 So 74 747 The trial court has disaretion Dlj 28 2d to impose conditions n visitation including c supervised visitation in order rdering to minimize the risk of harm t a child See Harper v Harper 33 La App 2d 452 Cir 6 764 So 1186 ll91 See also Fountain v Fountain 93 La 00 21 2d 2176 App lst Cir 10 644 So 733 737 7i94 2d 38 7 The trial court did not give reasons for granting Ms Fairchild a minimal amount of time with tl children and it appeared fiom the record that it continued e with the pre visitation sched without considering whether giving Ms trial s Fairchild additional visitation wou be in the ckiildren best interest d s The trial court did not order Ms Fairchild visitation io be supervised and thas must not have s considered Ms Fairchild as a danger to the hildren As noted by the trial court the children are of sufficient age that if Ms Fairchild has health issues in their presence they are able to take care of themselves Although we do not find that the trial court abused its discretion in awarding five hours a week and any additional time the parties mutually agree to such an award left the time the visitation was to occur solely to Mr Fairchild discretion s Because of the acrimonious relationship between Mr and Mrs Fairchild and this bitterly contested custody battle thzre is no reason to believe that the parties are capable of agreeing on specific times for the visitation Under these circumstances we conclude that the trial court abused its discretion in failing to implement a specific visitation schedule for the parties For these reasons we remand this matter to the trial court to implement a specific visitation schedule for Ms Fairchild that is in the best interest of the children See Humphrey v Humphrey 614 Sa2d 837 84G La App 2nd Cir 1993 CONCLUSION For the foregoing reasons the case is remanded for a determination of a specific visitation schedule In all other respects the judgment of the trial court is affirmed All costs ofthe appeal are assessed equally to the parties AFFIRMED IN PART REVERSED IN PART AND REMANDED 2 We understand that tfie izial court was try to allow the parties flexibility because of the busy schedule of the minor ng children however because of the nature of this case we do not find that justifies not providing a specific visitation schedule 8
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