MOLLY MULLALY v. JAKE BAUDOIN (2025)

In this custody dispute, the mother challenges the trial court's ruling rendered in open court on May 7, 2024, and subsequent written judgment of June 27, 2024, which modified a prior custody consent judgment and designated the father as domiciliary parent. For the reasons that follow, we affirm.

BACKGROUND

Molly Mullaly and Jake Baudoin are the unmarried parents of a son, C.M.¹ born September 20, 2017. On January 19, 2018, Molly filed a Petition to Establish Custody, in which she sought, inter alia, a finding of paternity, joint custody, with Molly as domiciliary parent subject to reasonable visitation in favor of Jake, and child support. A Judgment of Paternity and Consent Judgment (2018 Consent Judgment), in accordance with the requests made in the petition, was signed on August 17, 2018. Specifically, pursuant to the parties’ stipulations, Molly was designated domiciliary parent with primary physical custody subject to alternate weekend and other visitation with Jake as set forth in the 2018 Consent Judgment.

On March 31, 2022, Molly filed a Motion for Modification of Custody. C.M. was four years old at that time. Molly alleged a material change of circumstances requiring a change in legal custody to her sole custody. Molly alleged that Jake had subjected C.M. to an “environment of physical abuse,” including force and violence on a regular basis. She alleged in particular that C.M. had told Molly and his therapist that his father ‘ “hurts him’ and hits him, and that he is afraid to see his Father.” Molly set forth that it was in the best interest of C.M. to remain in her “loving, stable home environment.”

On September 20, 2022, Jake filed a Motion and Rule to Modify Custody and For Contempt.² Jake sought a finding of contempt of Molly and modification of the 2018 Consent Judgment based on the alleged material change in circumstances that Molly had denied him any physical custody without good cause since Thanksgiving Day of 2021. Jake further alleged that it was in the best interest of C.M. that Jake be awarded more physical custody time with his son.

The motions of Molly and Jake came for hearing on October 31, 2022.³ C.M. was five years old at that time.

Testimony – October 31, 2022 hearing

The trial court heard testimony from Molly, Jake, family members of each parent, and Diane Kramarz, a licensed professional counselor who was treating C.M. Our review of the testimony as a whole illustrates the dysfunctional, uncooperative, and contentious behavior of both parents in this unfortunate matter.

Molly testified about an early incident in 2018 when Jake and his sister, Nikki, came to pick up C.M. and tried to provoke Molly by saying “in my face” that they had “got [C.M.]” after the 2018 Consent Judgment. Molly stated this behavior created tension and drama. She further testified that Jake was never on time to pick up C.M. for visitation, with her and C.M. waiting longer than an hour and a half on one occasion. Molly testified that Jake “made” her travel an hour and a half to Covington to pick up C.M. on a school night and Molly's father, Michael Mullaly, drove her there. Mr. Mullaly got out of his vehicle to retrieve C.M. and Jake got “in his face” and the two men exchanged harsh words. Mr. Mullaly also testified and corroborated this “heated discussion,” blaming the incident on his “Irish temper” and that Jake “had his up, also.” Mr. Mullaly explained that he took C.M. from Jake and walked to his vehicle, but Jake steadily followed telling Mr. Mullaly not to walk away while he was talking to him. The incident culminated with the two men face to face with Jake goading Mr. Mullaly to hit him, but the argument never became physical. Mr. Mullaly testified that he texted Jake the following day and apologized. Mr. Mullaly related a second time, in 2020, the two men had a verbal altercation when Jake arrived to pick up C.M. for a weekend visitation and Molly had taken C.M. and left the house before Jake arrived.

Molly conceded in her testimony that she began disallowing visitation in November 2021. She testified that the events leading to this decision began when C.M. was three and wanted his mother to go on visitations with him. Later, according to Molly, C.M. told her that his dad “hurts him” and that C.M. was scared of his father. Molly testified that these statements prompted her to seek a referral for counseling and C.M. began seeing Diane Kramarz in August of 2021. Molly further stated that C.M. would “cry and scream cry” when he had to go with his father. On at least one occasion in November of 2020, Molly did not send C.M. with Jake and offered to make up the days of lost visitation. In response to questioning by the trial judge about C.M.’s showing any physical signs of abuse, Molly testified that C.M. “would kind of, flinch, if you moved a certain way ․like if I raised my hand, he would - I could see his little body twitch[.]” She added that C.M. would tell her that his father “hit” him and when she asked C.M. to show her “he hit my arm pretty hard.” When pressed by the trial judge, Molly testified that she saw bruising on C.M., but thought it was from being a boy; she admitted that C.M. did not identify any bruises as having been caused by his father. Molly further testified that C.M. continued to express his fear of Jake at the time of the hearing and did not want to go with him. She stated C.M. was afraid at school and wanted to stay by her side.⁴

Molly testified to an incident that happened the day before the hearing when she and C.M. encountered Jake and his family members at the fair. According to Molly, Jake's sister grabbed C.M. and picked him up after which Molly took the child and walked to her vehicle. Molly stated that the sister told C.M. that his mother was “f’ in crazy.” Jake told Molly that she would lose her rights to C.M. at the hearing the following day. Molly stated that Jake then told C.M. “Daddy's going to fix it[.]” Molly testified that C.M. heard all of this and was scared. Jake later testified that his sister called him and told him that Molly and C.M. were at the fair so Jake took his newborn daughter ⁵ (C.M.’s half-sister) to see them. Jake explained that one of his sisters picked up C.M. to hug him and Molly snatched the child and fled to her car. Jake denied saying anything to Molly, but stated that he tried to introduce C.M. to his new sister, but Molly “threw” C.M. in the front seat.

In her testimony, Molly also described an incident in June of 2021 at one of C.M.’s t-ball games where she was disciplining C.M. for “acting up a little bit” and Jake “flew off the handle” yelling at Molly and C.M. Finally, Molly was questioned by the trial judge about problems with Jake and his then girlfriend, Heather Hampton. Molly stated that Heather had told her in October 2019 that the couple fought in front of Heather's children, which led Molly to believe the couple likely behaves similarly in front of C.M.

On cross examination, Molly agreed that it had been “almost a year” since she had “shared” physical custody of C.M. with Jake. She acknowledged that on at least one or two occasions, sheriff's deputies had attempted to facilitate the exchange of C.M. Molly did not allow visitation with Jake on Thanksgiving, Christmas, or Easter of 2021, despite Jake's attempts to see C.M. Molly expressed dissatisfaction over the locations she was required to pick up C.M. after visitations. Molly acknowledged that C.M. had twelve aunts and uncles and many cousins on his father's side and she had no specific complaints about any of them.

Diane Kramarz was accepted without objection as an expert witness in the field of family counseling. Ms. Kramarz confirmed that she began seeing C.M. in August of 2021 and stated that Molly had notified Jake of the counseling, but Ms. Kramarz had not contacted him. Ms. Kramarz explained that she had seen Jake in court in March ⁶ and provided her information to him, but she had not heard from him. Ms. Kramarz diagnosed C.M. with “adjustment disorder - not - not otherwise specified,” which she described as exhibiting emotional problems, but not as severe as post-traumatic stress disorder.⁷ Ms. Kramarz agreed that the only apparent stressor in C.M.’s life was the allegation of his father hurting him and he showed no signs of stressors at school, home, or in extracurricular activities that would justify his stress level.

Ms. Kramarz expressed that her professional concern was the impact on C.M. should he have extended time with his father. Ms. Kramarz testified that C.M. said that his father hurts him and gestured hitting his chest, saying that “Daddy hit me in my – in my – right here.” According to Ms. Kramarz, C.M. expressed this in almost every session when asked about seeing his father. She testified that C.M. related to her that he did not wish to see his father. Ms. Kramarz testified if C.M. were to spend time with Jake “I'm afraid that he would just totally shut down.” Ms. Kramarz denied a belief that Molly had been coaching C.M.

Additional witnesses for Molly, including her parents and cousin, briefly testified that C.M. had said to each of them that his father had hit him.

In his testimony, Jake agreed there were problems which ultimately led to the need for the hearing. He stated that C.M. needs his father and his family in his life and Molly had not allowed C.M. to see him since the weekend before Thanksgiving of 2021. Molly advised Jake that he could not get C.M. for Thanksgiving and Molly stopped responding to his messages on Thanksgiving morning. Despite Jake's efforts, which included filing a police report and having an officer go to Molly's home, he was not allowed to get C.M. for his next scheduled weekend visitation. Subsequently, Jake and Molly's parents had a “good, long talk” in which Molly's parents indicated they were unaware that Jake had attempted to exercise his Thanksgiving visitation. Jake testified that was the last communication he had with the parents or Molly to facilitate visitation. When the trial judge questioned Jake as to why he thought Molly stopped visitation, Jake explained that he and Heather had just had a baby (a daughter) and Molly had informed him that C.M. would not be the baby's brother and would not be involved with his new sister in any fashion. At the time of the 2022 hearing, C.M.’s half-sister was six months old and the two siblings had never met. Jake testified that since the birth of Jake's daughter, none of Jake's family had been allowed to see C.M. and any visits to Jake's grandmother's house to see C.M. by Molly ceased.⁸ Jake testified that he could not get in touch with Molly after that point. Jake confirmed that neither he nor his family saw C.M. for Thanksgiving, Christmas, or Easter and added that the family kept C.M.’s gifts in his room at his father's house.

Jake testified he attempted to speak to Molly's mother, Susan Mullaly, at Jake's school about coming to an agreement to avoid “the whole custody thing,” but she refused to speak about it. Jake insisted that he did everything he could, including attempting to see C.M. at school, to prevent having to go to court over the matter. Jake testified that he rarely got information about C.M. or his activities from Molly and would get information from the school whenever possible. He further mentioned that C.M. has missed doctor's appointments while in Molly's care.

Jake was also questioned about a protective order, filed under a separate docket number, but before the same trial judge. The allegations of the protective order were the same as advanced in support of Molly's request for sole custody. The trial judge denied the protective order. See fn. 3, supra.

Jake further testified about an incident at C.M.’s school. It was C.M.’s preschool graduation and the principal advised Molly that she would be contacting Jake and giving him tickets due to the custody judgment in place. According to Jake, Molly told the principal that if Jake was going, she would not be sending C.M. to school. Jake testified that he told the principal he did not want to jeopardize C.M. being able to walk across the stage, for her to keep the tickets on file and let him know if anything changed. Molly sent C.M. to school on the day of graduation and Jake decided to attend and sit in the back. A police officer escorted Jake to prevent any conflict. Jake elected not to go to C.M.’s classroom after the ceremony to avoid causing any issues for C.M.

In his testimony, Jake adamantly denied ever hitting C.M. and agreed that he would never harm him in any way. Jake assured the trial judge that he has extensive family and people to help him with C.M. and they encouraged Jake to enforce his right to spend time with C.M. Jake stated that his family loves and misses C.M.

On cross examination Jake testified he had been arrested for driving with a suspended license. He further admitted that Heather had called the police to his home for a domestic dispute alleging he had pushed her down. Jake testified Heather later admitted she had overreacted and made false allegations.

When questioned about C.M.’s counseling with Ms. Kramarz, Jake testified that he was unaware of the counseling prior to the March 2021 hearing on the protective order. At the conclusion of that hearing, Jake believed the counseling would stop because the order was denied, the allegations that he harmed C.M. were false, and Jake did not believe C.M. would need counseling. Jake testified that he asked Ms. Kramarz to let him know if C.M. was still going, but he never heard from her. Jake testified that if it ever was in C.M.’s best interest to have counseling, he would be in favor of it and would attend as long as he was made aware of it. Jake stated “I'm 100 percent for whatever he needs, therapy, anything in life.”

Jake also responded to Molly's allegation that he was never on time to pick up C.M. for visitation. Jake acknowledged that he was late sometimes due to work, but always notified her when he was running late. He stated he was rarely more than 30 minutes late, but he had been later on occasion. Jake testified that he attempted to arrange mutually convenient locations to exchange C.M.

Heather and several members of Jake's family, including Jake's godmother, testified on Jake's behalf that Jake had never caused harm to C.M. and C.M. had never told them otherwise. Of particular note, Jake's sister, Nikki Terrebonne, testified that she had helped Jake with C.M. during his visitations in the past and will always be available to help care for C.M. She and her daughter were very close to C.M., and they miss him. Nikki testified to one specific incident when she and her daughter ran into Molly and C.M. at a restaurant. When Molly saw the two, she grabbed C.M. and ran back through the parking lot to her vehicle and left. Nikki admitted making an angry and derogatory post on social media about the encounter. Nikki further testified that Molly would block her family on social media and, when she wanted information on Jake, she would unblock them. Nikki stated “[w]e went through so many things with Molly that she's hurt our family.”

Jean Baudoin, Jake's grandmother, testified and described her routine with C.M. when Jake was exercising weekend visitation. Ms. Baudoin related she would cook C.M.’s favorite meal, at times have C.M. sleep over, and would prepare his favorite breakfast. Ms. Baudoin described what she called “a special bond” between herself and the whole family and C.M. She confirmed that the last time she was able to see C.M. was before Thanksgiving of 2021. Ms. Baudoin explained “I can't tell you what it's done to me. I am – I am going on 80 years old – 80 years old.” I treasure every moment I have with my family, especially my grandkids.”

Interim Judgment and further proceedings

At the conclusion of the hearing, the trial court rendered an oral interim ruling and appointed Dr. Betsy Dupre, a licensed professional counselor, to conduct an independent custody evaluation. In his oral ruling, the trial judge expressed “grave concerns about this situation” that Molly had deprived Jake of any physical custody for more than a year without permission from the court; thus, he found Molly in contempt and sentenced her to 30 days in the parish jail, and suspended the sentence. The trial judge emphasized that not only did Molly deprive C.M. access to his father, but also deprived him of a relationship with his father's close extended family. In addition, the trial judge referenced his previous denial of the protective order, noting that he found it baseless at that time and felt no different after the current hearing. He characterized Molly as “overbearing” and opined that had the abuse occurred Molly would have had C.M. in a doctor's office, before a judge, or called the police and seized on any piece of evidence to assist her in depriving Jake of any contact with his son. Nonetheless, expressing concern for C.M. regarding the allegations of abuse, the trial judge ordered supervised weekend and holiday visitation for Jake to begin immediately to be supervised by a family member.

The trial judge chastised Jake for the encounters with Mr. Mullaly and advised him that “if I had a third choice, I'd be looking for it right now, because you don't hit me as Dad of the Year.”

A written Interim Judgment with Consent Provision (Interim Judgment) was signed on November 17, 2022, memorializing the oral ruling and providing that the independent custody evaluation would serve as a basis for a final ruling in the matter.

Nearly one year later, on October 23, 2023, Jake filed a Motion for Rule and Contempt. Jake alleged that the custody evaluation had been completed by Dr. Dupre, but due to Molly's failure to pay her share of the cost and her refusal to communicate with Dr. Dupre, the report had not been provided to the trial court. Molly filed an Answer to Motion and Rule for Contempt and Reconventional Demand on November 27, 2023. In her answer to the rule, Molly stated that the Interim Judgment was silent as to who was to pay the cost of the independent custody evaluation and asserted that she had paid her “requested portion” of the cost prior to being served with Jake's November 27, 2023 motion and rule. In reconvention, Molly alleged Jake was in contempt as he had willfully disobeyed the Interim Judgment by exercising physical custody unsupervised on multiple occasions. Following a hearing on November 28, 2023, an oral ruling was made followed by a Judgment of Contempt and Stipulation signed on January 2, 2024, finding Molly in contempt, providing two additional days of visitation in favor of Jake to compensate for denied visits, and requiring the parties to communicate through the Our Family Wizard app.

On March 23, 2024, Dr. Dupre's independent custody evaluation was filed with the trial court and the matter came on for hearing on May 7, 2024. C.M. was now six years old. Dr. Dupre's report was entered into evidence as a joint exhibit.

Dr. Dupre's report

Dr. Dupre conducted a comprehensive custody evaluation of the parties and review of relevant documentary information including medical records and audio recordings. Dr. Dupre interviewed the parents multiple times. She also interviewed Molly's mother and Heather, and conducted phone interviews with Ms. Kramarz, the principal and assistant principal of C.M.’s school, his pre-school teacher, and Jake's sister Nikki. Dr. Dupre also reported on in-person observations of C.M. interacting with each parent. Her findings are summarized below.

Dr. Dupre reported that at the time of her evaluation Jake desired to share custody alternating every seven days, while Molly wanted Jake to have alternate weekend visitation. She noted that Molly had been diagnosed with Attention Deficit Hyperactivity Disorder in 2014. Molly expressed a belief that Jake was using drugs, however, she had no evidence of such use. Molly reported that Jake has been exercising weekend visitation since the October 2022 court date and Molly had no concerns about letting C.M. go with Jake since the 2022 hearing. Molly did, however, maintain that C.M. did not want to go with Jake.

Dr. Dupre's interview with Jake revealed that he has several mood disorder diagnoses and is currently taking prescribed medication and is in counseling. Dr. Dupre noted that in March of 2023, Jake was treated at an inpatient psychiatric facility following a disruptive outburst in a retail store in Baton Rouge. Dr. Dupre's report indicated that Jake was overusing Adderall at that time and has a history of psychiatric problems. Jake stated since his hospitalization in March, he had been “working on himself,” quit smoking, is attending church, and has been getting C.M. for regular weekend visitations. Dr. Dupre noted that Jake's medications have been changed; he is no longer on Adderall. Dr. Dupre further highlighted problems in Jake's relationship with Heather; however, Jake advised that as of June 2023 the two were no longer together, but continue to co-parent their daughter.

Dr. Dupre conferred with Ms. Karmarz. Ms. Karmarz indicated that she did not believe that Jake was “abusing or neglecting” C.M., but maintained that C.M. had made the statement “Daddy hurt me.” Ms. Kramarz explained to Dr. Dupre that on further questioning, C.M. “would change his story or ‘crawfish.’ ” For this reason, Ms. Kramarz did not believe a report with DCFS was warranted. Ms. Kramarz confirmed that she never interviewed Jake. She advised Dr. Dupre that her concern at the time of Dr. Dupre's evaluation was that C.M. was hesitant to talk about his visits with his father and she questioned if someone might be telling him not to discuss it.

Susan Mullaly, Molly's mother, related to Dr. Dupre that C.M. is a happy child who loves both of his parents and loves going to Jake's house. Ms. Mullaly expressed no concerns about Jake having time with C.M., does not believe there is any abuse or neglect, and “has no idea” why Molly stopped allowing Jake to have visitation. She has never seen C.M. “fight or cry” to avoid going with Jake. Ms. Mullaly opined that her daughter may be on the autism spectrum which causes her to have difficulty communicating.

Dr. Dupre's interview of C.M. is significant. C.M. was five years old at the time of his evaluation. He was calm, cooperative, and showed no signs of stress. He stated that he loves his mother and father and likes going to see his father on the weekends and wants to continue seeing his father. C.M. denied that any adults yell or fight in front of him or physically hurt him. Dr. Dupre observed C.M. with both parents and found C.M. to have loving and appropriate behavior with each parent.

The school administrators and C.M.’s teacher each told Dr. Dupre that their interactions with Jake were positive, never “hostile or suspicious,” and he would drop off money for classroom events. Regarding the incident at pre-school graduation, they related that Molly became “irate” upon learning Jake might attend. When Jake entered the building, “the Mother dramatically stood up and ran to the school resource officer (SRO) on duty, causing a scene.” The principal and assistant principal observed Molly pick up C.M. and “[run] around the building with him on her hip crying and yelling that “ ‘[C.M.] was in danger.’ ” They told Dr. Dupre that this was unprovoked by Jake and they believed Molly's behavior to be inappropriate and unfounded.

Dr. Dupre noted that C.M.’s teacher stated that C.M. told her once that his father hit him. On questioning by the teacher, C.M. explained that “he and the [f]ather were playing and it was fun but his Mom didn't think it was okay and she wanted him to tell his teacher that his Father hit him.” The teacher saw no bruising and felt that “the child was pushed by the Mother to make this claim.” She told Dr. Dupre that C.M. told her “my mom doesn't let me see my dad and I miss him.”

After applying her findings to the factors in La. C.C. art. 134(A), infra, Dr. Dupre recommended the following: the parents have joint legal custody of the minor child on a “7 and 7 schedule” sharing “domicile status;” continued use of Our Family Wizard for communication; extended family assistance in exchanging C.M.; Jake to remain in counseling; and Molly to undergo psychiatric testing to assist in her ability to communicate and more effectively co-parent.

May 7, 2024 hearing and Judgment

Other than Dr. Dupre's report, there was no additional evidence adduced at the May 7, 2024 hearing. Dr. Dupre did not testify and the parties declined to offer additional testimony. When asked by the trial judge if the parties had anything further to say, Jake stated that he was still experiencing problems communicating with Molly about C.M.

Before rendering judgment, the trial judge verified with the parents that they were living in two different towns, the mother in Cutoff, Louisiana, and the father in Larose, Louisiana. The trial judge then opined that the situation was “so strained, so antagonistic” that seven and seven shared custody was not an acceptable solution. Noting that there may be a time in the future when such would a reasonable arrangement, he believed that the best interest of C.M. would not be served by “jumping” between parents. The trial judge noted his review of Dr. Dupre's thorough evaluation and report, but questioned her recommendation of a seven and seven schedule, specifically mentioning Dr. Dupre's recommendation that Molly undergo “diagnostic testing for mental disorder.”

The trial judge rendered judgment in open court as follows: joint custody with Jake designated as the domiciliary parent; primary physical custody awarded to Jake subject to Molly's alternate weekend visitation; shared (alternating every other week) in the summer; and shared holiday visitation. A written Judgment was signed on June 27, 2024. This appeal followed.

STANDARD OF REVIEW

Each child custody case must be viewed in light of its own particular set of facts and circumstances, with the paramount consideration being the best interest of the child. See La. C.C. art. 131; Zeger v. Leger, 2022-1113 (La. App. 1 Cir. 3/13/23), 363 So. 3d 519, 528, writ denied, 2023-00512 (La. 6/26/23), 363 So. 3d 1231. The best interest of the child standard governs all child custody determinations, including the determination of whether to modify the domiciliary parent designation. Id. The trial court is in the best position to ascertain the best interest of the child given the unique circumstances of the particular case; thus, the trial court's custody determination is entitled to great weight and will not be disturbed on appeal unless an abuse of discretion is clearly shown. Moore v. Prater, 2021-1430 (La. App. 1 Cir. 6/3/22), 342 So. 3d 994, 998.

Louisiana Civil Code article 134(A) provides the following non-exclusive list of factors that the trial court shall consider, along with any other relevant factors, in determining the best interest of the child:

(1) The potential for the child to be abused, as defined by Children's Code Article 603, which shall be the primary consideration.

(2) The love, affection, and other emotional ties between each party and the child.

(3) 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.

(4) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.

(5) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.

(6) The permanence, as a family unit, of the existing or proposed custodial home or homes.

(7) The moral fitness of each party, insofar as it affects the welfare of the child.

(8) The history of substance abuse, violence, or criminal activity of any party.

(9) The mental and physical health of each party. Evidence that an abused parent suffers from the effects of past abuse by the other parent shall not be grounds for denying that parent custody.

(10) The home, school, and community history of the child.

(11) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.

(12) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party, except when objectively substantial evidence of specific abusive, reckless, or illegal conduct has caused one party to have reasonable concerns for the child's safety or well-being while in the care of the other party.

(13) The distance between the respective residences of the parties.

(14) The responsibility for the care and rearing of the child previously exercised by each party.

The weight to be given each factor is left to the discretion of the trial court. Moore, 342 So. 3d at 1000. In making its determination, the trial court is not bound to make a mechanical evaluation of all statutory factors listed in Article 134, nor is the trial court required to specifically explain its weighing and balancing of the Article 134 factors. Rather, the trial court should decide each case on its own facts and circumstances in light of Article 134 and all other relevant factors. Leger, 363 So. 3d at 529.

Additionally, in most child custody cases, the trial court's determination is based heavily on factual findings. Yepez v. Yepez, 2021-0477 (La. App. 1 Cir. 12/22/21), 340 So. 3d 36, 41. It is well-settled that an appellate court cannot set aside the trial court's findings of fact in the absence of manifest error or unless those findings are clearly wrong. See Rosell v. ESCO, 549 So. 2d 840, 844 (La. 1989). When presented with two permissible views of the evidence, the trial court's choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State through Department of Transportation and Development, 617 So. 2d 880, 883 (La. 1993). Furthermore, it is well-settled that where there is a conflict in testimony, the trial court's reasonable evaluations of credibility and reasonable inferences of fact are not to be disturbed by a reviewing court. Moore, 342 So. 3d at 1001. If documents or objective evidence so contradict a witness's story, or the story itself is so internally inconsistent or implausible that a reasonable fact finder would not credit it, the reviewing court may find manifest error or clear wrongness, even in a finding purportedly based upon a credibility determination. But in the absence of such factors, where the finding is based on the trial court's decision to credit the testimony of one party over the other, the finding can virtually never be manifestly erroneous or clearly wrong. Rosell, 549 So. 2d at 844-845. This Court has observed:

In child custody cases where two parents are fervently competing for custody and domiciliary status of the children, frequently the trial court must determine the best interest of the children solely from the testimony of the parents and their respective relatives or friends. This naturally passionate and self-interested testimony is rarely objective, leaving it to the trial court, who is in the best position to view firsthand the demeanor and tone of the witnesses, to assess the credibility of the witnesses, and decide how much weight to give the testimony in light of the factors in La. C.C. art. 134.

Stewart v. Desoto, 2024-0289 (La. App. 1 Cir. 9/26/24), 2024 WL 4297822, *3 (unpublished), citing Fuller v. Fuller, 54,098 (La. App. 2 Cir. 7/21/21), 324 So. 3d 1103, 1114, writ denied, 2021-01223 (La. 9/27/21), 324 So. 3d 621.

Physical custody is a separate matter from legal authority and responsibility over a child. Hodges v. Hodges, 2015-0585 (La. 11/23/15), 181 So. 3d 700, 705. The term “custody” is usually broken down into two components: physical or actual custody and legal custody. Id. Once a trial court awards legal joint custody, La. R.S. 9:335 governs the details of that custodial arrangement, including physical custody, as well as the legal authority and responsibility of the parents. See Hodges, 181 So. 3d at 703.

Louisiana Revised Statutes 9:335 provides, in pertinent part, that “[t]o the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally.” La. R.S. 9:355 A(2)(b). The statute further provides “[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.” La. R.S. 9:355 B(l). 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. La. R.S. 9:355 B(2). 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. La. R.S. 9:335 B(3).

In addition, La. R.S. 9:336 provides that “[j]oint 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.”

DISCUSSION

On appeal, Molly challenges the trial judge's modification of physical custody reducing her time to alternate weekend visitation. Specifically, Molly argues that the trial judge abused his discretion in failing to consider the expert testimony of Ms. Kramarz and the report of Dr. Dupre. Next, Molly challenges the award of domiciliary parent status to Jake, arguing such was an abuse of discretion given that she has been the primary caretaker of C.M.⁹

First, we find no abuse of discretion in the trial judge's modification of physical custody. With respect to the expert evidence, we disagree that the trial judge erred in failing to consider the expert testimony of Ms. Kramarz and Dr. Dupre's custody evaluation. Expert witnesses are intended to “help the trier of fact” in understanding the evidence or in the determination of a fact in issue. La. C.E. art. 702 (A)(1). Without question, the opinion of an expert may be given great weight by a trial judge in his or her determination of the psychological well-being of a child or parent. However, “[t]he trier of fact is not bound by expert testimony, but evidence of an expert witness is received in the same manner as evidence of non-experts and is to be weighed by the trier of fact the same as any other evidence.” Carter v. Fin. Advisor & Consultant, Inc., 444 So. 2d 646, 650 (La. App. 1 Cir. 1983), writ denied, 446 So. 2d 313 (La. 1984). See also Green v. K-Mart Corp., 03-2495, (La. 5/25/04), 874 So. 2d 838, 843. A trial judge may accept or reject in whole or in part the opinion expressed by an expert. Id. “Further, a trial judge may substitute his/her own common sense and judgment for that of an expert witness when such a substitution appears warranted on the record as a whole.” Bents v. Bents, 2015-1305 (La. App. 1 Cir. 9/9/16), 2016 WL 4718136, *7 (unpublished), citing C.M.J. v. L.M.C., 2014-1119 (La. 10/15/14), 156 So. 3d 16, 31.

Recall from the October 2022 hearing, Ms. Kramarz expressed concern over C.M. spending any time with his father due to the allegations of physical abuse and testified that she did not see any signs of coaching on the part of the mother. Ms. Kramarz was not in favor of C.M. spending any time with his father. In later discussion with Dr. Dupre, however, Ms. Kramarz denied the belief that Jake was “abusing or neglecting” C.M. and admitted she had not consulted with Jake about C.M. Curiously, however, Ms. Kramarz maintained her concern for C.M. to spend time with Jake. Dr. Dupre, on the other hand, found both parents to be acceptable physical custodians and that there was no merit to the allegations of physical abuse by the father. She concluded that C.M. loved both parents, was not fearful of his father, and desired to spend time with him. Dr. Dupre stated that the mother should undergo psychological evaluation and recommended treatment to assist in improving her ability to co-parent. Dr. Dupre ultimately recommended shared custody. This expert opinion evidence was but some of the evidence available for the trial judge's consideration, and the trial court was clearly entitled to disregard that testimony, either in whole or in part.

Our review of the trial judge's oral rulings, interim and final, reveals that he considered the experts’ opinions and weighed them appropriately with and against the other testimony regarding the behavior of the parents. Based on our review of the record, we find Ms. Kramarz's concern for the serious allegations that Jake hurt or hit C.M. was discounted by, among other evidence, a lack of any physical evidence of abuse and C.M.’s own statements to Dr. Dupre that he loves his father, is not afraid of him, and wants to spend time with him. We find it telling that Molly's own mother told Dr. Dupre that she “had no idea” why Molly denied Jake visitation with C.M. for almost a year. Ms. Mullaly told Dr. Dupre that C.M. loves his father and she had never seen C.M. be fearful of or not want to see Jake. C.M.’s teacher and the administrators of C.M.’s school corroborated that C.M. is not fearful of his father and their interactions with Jake have been positive. Indeed, Dr. Dupre reported the child expressed excitement and love during his interactions with both parents and, particularly noted that when C.M. first saw his father, he ran into his arms. Moreover, the trial judge heard and dismissed the allegations of physical abuse on at least three occasions: the denial of the protective order and both subsequent custody hearings.

Aside from the physical abuse allegations, the record illustrates two imperfect parents. The mother has historically shown an intense desire to prevent the father from having any time with his son. Both parents have various mental diagnoses making co-parenting very challenging. Finally, both parents are quick to anger and become aggressive in dealing with each other, especially when exchanging C.M. Specifically, the trial judge expressed extreme concern over Molly's year-long denial of any contact between Jake and C.M. He highlighted the parents’ difficulty communicating and facilitating calm exchanges of C.M. and noted Jake's volatile behavior. The trial judge further lamented Molly's continued animosity toward Jake and his family. Considering all of the elements of this unfortunate situation, the trial judge fashioned a physical custodial arrangement he deemed to be in C.M.’s best interest: primary physical custody with his father as domiciliary parent, subject to alternate weekends with his mother. Notably, summer vacations and holidays are to be shared equally. This arrangement allows for more stability and less exchanges during the more routine-oriented school year, especially with the parents living in different towns, and more evenly shared time during summer and holidays. As noted, the trial judge is in the best position to ascertain the best interest of the child given the unique circumstances of the particular case. On this record as a whole, affording the trial judge's custody determination great weight, we find no abuse of discretion in the final judgment of the trial court regarding custody.

Molly also argues that it was an abuse of discretion for the trial judge to award Jake domiciliary status when she has been C.M.’s primary caretaker. We disagree. The trial judge was faced with the evidence that Molly denied Jake contact with C.M. for almost a year, failed to provide information about C.M. to Jake, and continued to have issues communicating with Jake at the time of the most recent hearing. When contrasted with the evidence that Jake attempted communication, sought information from C.M.’s school, and exhibited an interest in C.M.’s school, health, and activities, we find no abuse of discretion in the trial judge's decision to provide C.M. with one parent to bear the responsibility of decision making and communicating information to the other parent. Molly's troubling history as primary caretaker was taken into consideration and her consistent attempts to thwart C.M.’s relationship with his father reasonably weighs in favor of Jake's domiciliary status. We find that Molly has not shown manifest error in the trial judge's judgment in this regard, and, as such, will not be disturbed on appeal.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of appeal are assessed to appellant, Molly Mullaly.

AFFIRMED.

I find that the trial court abused its discretion in designating Mr. Baudoin domiciliary parent and limiting Ms. Mullaly's physical custody to every other weekend. In seeking to modify the custody judgment, Mr. Baudoin's sole request was that he “have more physical custody time” with C.M. He did not specifically seek to be named domiciliary parent. In addressing the trial court following the hearing, Mr. Baudoin's counsel indicated that Mr. Baudoin was only seeking “a new judgment that the parties share custody equally[.]” Further, the court's own appointed expert, Dr. Betsy Dupre, who specifically addressed all best interest of the child factors listed in LSA-C.C. art. 134 in her expert report, recommended “that the parents have joint legal custody of the minor child on a 7 and 7 schedule with them having shared domicil[iary] status.”

Despite the foregoing, the trial court, in naming Mr. Baudoin domiciliary parent and awarding significantly more physical custody to Mr. Baudoin than he requested and more than that recommended by the court's own expert, did not address any of the article 134 factors. Rather, the trial court's sole rationale was that “the relationship between the parties in this matter is so strained, so antagonistic that a seven and seven is not an acceptable solution.”¹ However, despite the trial court's finding that seven and seven was not acceptable given the acrimony between the parties, the trial court nevertheless ordered that “summertime will be seven and seven,” which seems contradictory to the court's reasoning.

Admittedly, the trial court was not bound by the opinion of its court-appointed expert. However, I find that given the specific facts of this case, the trial court erred. Accordingly, I respectfully dissent.

FOOTNOTES

1.   Although we are not required to use initials to protect and maintain the privacy of the minor children involved in child custody cases pursuant to Uniform Rules, Courts of Appeal, Rule 5-1 and Rule 5-2, we choose to use the initials of the minor child in this opinion. See Streetman v. Streetman, 2018-1603 (La. App. 1 Cir. 3/20/19), 2019 WL 1292362, *1 n.1 (unpublished); Jupiter v. Jupiter, 2014-0395 (La. App. 1 Cir. 9/24/2014), 154 So. 3d 1241, 1241 n. 1, writ denied, 2014-2301 (La. 1/23/15), 159 So. 3d 1058; Rodock v. Pommier, 2016-809 (La. App. 3 Cir. 2/1/17), 225 So. 3d 512, 515 n.1, writ denied, 2017-0631 (La. 5/1/17), 221 So. 3d 70.

2.   During this protracted custody litigation, we note that both parties filed numerous motions for contempt, which resulted in bench warrants and stipulations to recall. Ultimately, Molly was found in contempt on two occasions as described herein.

3.   We note that the issue of child support was raised in the trial court and testimony regarding same was taken at the hearing, however, the issue is not before this Court so it will not be discussed in this opinion. The record reveals that there exists a judgment against Jake for arrearages and a judgment terminating his child support obligation as a result of the June 27, 2024 judgment at issue in this appeal.

4.   Molly is a teacher and at the time of the October 31, 2022 hearing, she and C.M. were at the same school. The record indicates that Molly changed C.M.’s school so that he would be where she was teaching, but did not make Jake aware of the change.

5.   Jake and Heather Hampton had a baby girl born in 2022.

6.   The March court appearance referenced by Ms. Kramarz appears to be the hearing on a protective order filed by Molly alleging physical abuse of C.M. by Jake. This record indicates that the protective order was filed in a separate docket number and was denied by the same trial judge hearing these custody matters. The record in that docket number was not made a part of the record, but the proceeding is referenced throughout and by the trial judge in his oral reasons.

7.   Ms. Kramarz testified that the criteria for adjustment disorder as stated in the diagnostic manual (DSM) are:Marked as stress that is out of proportion to the severity or intensity of the stressor, taking into account the external context and cultural factors that might influence symptoms severity and presentation, significant impairment in social, occupation or other areas of functioning.

8.   Jake testified that at random times (not on scheduled visit days) Molly would take C.M. to Jake's grandmother's house to visit her.

9.   Jake did not file a brief with this Court.

1.   To remedy this concern, the trial court could have issued an implementation order allocating specific legal authority and responsibility to each of the parents. See Hodges v. Hodges, 2015-0585 (La. 11/23/15), 181 So.3d 700, 708-09.

BALFOUR, J.

Wil Z concur without reasons McClendon, C.J. dissents for assigned persons