STATE OF LOUISIANA IN THE INTEREST OF AND v. << (2026)

In this appeal, we are asked to review a trial court judgment that modified the biological parents’ visitation in a guardianship proceeding.

FACTS AND PROCEDURAL HISTORY

T.N. and L.N. are married. They are also the biological parents of five minor children. But only three of their children are involved in this matter: G.N., a boy, born on December 9, 2016; A.N., a girl, born on January 4, 2018; and J.N., a boy, born on May 6, 2019.¹

In June 2019, the three children were taken into the custody of the State of Louisiana, through the Department of Children and Family Services (DCFS). The basis for removal was neglect and drug activity. DCFS placed the children with their paternal grandparents, L.L. and D.L., which is where they remained for many months. However, in December 2019, DCFS returned the children to their parents.

Six months later, the children were again removed by DCFS. The basis this time was neglect and possible child abuse. Within short order, the children were adjudicated in need of care. The trial court maintained custody with DCFS and approved placement with the paternal grandparents. The court also approved an initial case plan for the parents with the goal of reunification.

The next case plan also included the goal of reunification. But by March 2021, the permanency goal changed from reunification to guardianship. A permanency hearing was held several months later. And on July 30, 2021, the trial court signed a judgment granting legal guardianship of the three children to the paternal grandparents. The judgment also fixed the hearing to establish visitation for late September 2021. And following that hearing, the trial court entered an Order of Visitation Pursuant to La.Ch.Code art. 723. In essence, the parents were awarded two hours of supervised visitation on the second and fourth Saturdays of each month; they were also given limited telephone access with the children on Tuesday and Thursday evenings. The children were two, three, and four years old at that time.

Nearly four years later, in June 2025, the parents filed a motion to expand their visitation periods and to remove supervision. In response, the paternal grandparents—as guardians—requested that the visitation schedule be modified to excuse “a child from Saturday visitation and weeknight telephone/Facetime calls in the event they conflict with the child's sports or extra-curricular activity.” The parents, in turn, filed a second motion to modify visitation.

The hearing on these motions was held on September 30, 2025, and October 5, 2025. At the close of evidence, the trial court ruled from the bench and provided oral reasons for its ruling. Oversimplifying slightly, the trial court removed supervision, increased gradually the duration of the visits to two overnights each month, and addressed scheduling conflicts with the children's extracurricular activities. This ruling was reduced to a written final judgment signed by the trial court on November 4, 2025. The guardians now appeal this judgment.

On appeal, the guardians assert four assignments of error:

1. The trial court erred in applying the legal standard for modification of civil custody and visitation orders set forth in Louisiana Civil Code Articles 131 through 137 and related judicial decisions to a juvenile court guardianship case governed by the Louisiana Children's Code, particularly La. Ch.C. arts. 723 and 724.

2. The trial court erred in significantly modifying a juvenile guardianship order without finding, by clear and convincing evidence, a substantial and material change in the circumstances of the guardians or the minor children as required by La.Ch.C. art. 724(D).

3. The trial court's Judgment, substantially modifying visitation in a juvenile guardianship case by expanding the visitation schedule and allowing unsupervised overnight visits with the children's biological parents, undermines the purpose of guardianship to provide permanence and stability for the children.

4. The trial court erred in modifying a guardianship order to expand visitation and allow unsupervised, overnight visits with the biological parents in the absence of any evidence that such substantial modifications are in the best interest of the minor children.

LAW AND ANALYSIS

Our analysis below begins by reviewing assignments of error one and two together. Next, we turn our attention to the guardians’ fourth assignment of error. And finally, we address their third assignment.

First and Second Assignments of Error

De novo review is used when one or more legal errors interdict the trial court's fact-finding process. Evans v. Lungrin, 97-541, 97-577 (La. 2/6/98), 708 So.2d 731. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Id. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. Id. “Applying the wrong burden of proof is not only an incorrect application of the law, it is inherently prejudicial because it casts a more onerous standard than the law requires on one of the parties.” Leger v. Leger, 03-419, p. 2 (La.App. 3 Cir. 7/2/03), 854 So.2d 955, 957.

In their first two assignments, the guardians contend that the trial court applied the wrong burden of proof. They contend that the threshold burden of proof for modifying a guardianship order, including visitation, is governed by La.Ch.Code art. 724. We agree.

To begin with, La.Ch.Code art. 723(A) provides that a trial court can appoint a guardian for a child adjudicated to be in need of care when certain formalities are met and when “the proposed guardianship is in the best interest of the child.” Visitation is then addressed in La.Ch.Code art. 723(B): “The guardianship order shall address the frequency and nature of visitation or contact between the child and his parent, as necessary to ensure the health, safety, and best interest of the child.” And finally, La.Ch.Code art. 723(D) provides: “The guardianship order continues until the child attains eighteen years of age, unless earlier modified or terminated by the court in accordance with Article 724.”

Turning now to La.Ch.Code art. 724, which states in relevant part:

D. A guardianship order may be modified or terminated if the court finds by clear and convincing evidence that there has been a substantial and material change in the circumstances of the guardian or child because of any of the following:

(1) The guardian no longer wishes to serve or can no longer serve as guardian of the child.

(2) Continuation of the guardianship is so deleterious to the child as to justify a modification or termination of the relationship or the harm likely to be caused from a change in the guardianship is substantially outweighed by the advantages to the child of the modification.

Based on the plain language of the above legislation, we hold that the burden of proof for modifying a guardianship order, including the frequency and nature of visitation, is statutorily prescribed by La.Ch.Code art. 724(D).

Yet in this case, the reasons for judgment show that the trial court did not apply the correct burden of proof in reaching its decision to modify visitation. The trial court explained that because the parents’ motion to remove supervision and to expand time periods with the children is an action to modify visitation—rather than an action to modify the guardianship itself—the requirements of La.Ch.Code art. 724(D) do not apply. As the trial court put it: “Visitation is governed by the best interest of the children in every single case, civil code, or children's code.” Later in its reasons, the trial court added: “[I]t's clear that visitation is a different standard than terminating a guardianship. I think the Children's Code is clear on that.”²

Because the trial court committed prejudicial legal error, we now review the record de novo to determine whether the biological parents met their threshold burden of proof under La.Ch.Code art. 724(D). The supreme court addressed this burden of proof in In re: L.M.M., Jr., 17-1988 (La. 6/27/18), 319 So.3d 231. There, the court explained:

While improvement of a parent's capabilities will not satisfy the requirement of proving a change in circumstances of the guardian, under La. Ch.C. art. 724(D)(2), a “substantial and material change in the circumstances of the ․ child” can be proved in either of two ways. Specifically, a parent can show either that “ ‘[c]ontinuation of the guardianship is so deleterious to the child as to justify a modification or termination of the relationship or the harm likely to be caused from a change in the guardianship is substantially outweighed by the advantages to the child of the modification.” La. Ch.C. art. 724(D)(2)[.]

Id. at 242–43.

But here, the record does not show that the guardians’ care for the children has deteriorated. The parents therefore must prove by clear and convincing evidence that there has been a material and substantial change in the circumstances of the children because the harm likely to be caused from the change in visitation is substantially outweighed by the advantages to the children.

As stated earlier, the parents want to modify the trial court's October 2021 visitation order. That order establishes the following visitation schedule:

1. Supervised visitation two (2) Saturdays per month with each visit lasting two (2) hours. These visits shall be at the Natchitoches Parish Library the first and third Saturdays of each month beginning Saturday, October 3, 2021. From the library, the visits may extend to nearby parks or restaurants pending weather and the discretion of the supervisor;

․

3. Two (2) telephone/Facetime calls per week on Tuesdays and Thursdays at 6:30 p.m. beginning immediately. All parties understand that these days and times may need to be modified if the children are participating in any sports or extra-curricular activities[.]

Now back to the record. The evidence adduced at trial shows that both parents have maintained their sobriety. In the five years that the guardianship order has been in place, there has been no allegation of drug use. The paternal grandfather was asked about this during his cross-examination:

Q: I noticed in your pleadings, you've had the opportunity to ask for a drug test for [the mother] and I don't believe you've done it ․ you didn't ask to have this Court modify anything so you could regularly drug test [the mother] have you?

A: I have not asked that, yes.

Q: So that, because you had that, apparently that's not a big concern, is that correct?

A: Well, the concern I would have would be one of relapse ․ if there was a concern to ask for one, I would․ [B]ut I have not had reason to at this point.

Q: Okay. So, status quo at the moment, there's nothing that's peeked [sic] [your] interest[ ] asking for that then, correct?

A: Not as of this time, no.

The record evidence also shows that the father is a truck driver by trade. Yet he became a stay-at-home dad when their youngest child, a girl, was born in 2025. The mother, on the other hand, has spent the last two years working at an accounting firm doing various administrative duties. The parents also purchased a four-bedroom home to “accommodate all the children.”

As to the potential for abuse, here is the paternal grandfather's testimony:

Q: Okay. In the four and a half years we've had this supervision, at least to my knowledge and testimony today, there has been no evidence ever presented or even alleged that there's been drug abuse, domestic abuse or physical abuse, correct?

A: No supervisor has revealed that to us, no.

By comparison, the paternal grandmother's testimony runs this way:

Q: You're not afraid of [the parents] sexually abusing the children, are you?

․

A: Of course not.

Q: You've made no allegations they, domestic abuse between them, correct? In front of the children or domestic abuse at all correct?

A: Not, no ․

Q: No physical abuse on the children, correct?

A: No. They're always supervised.

․

Q: What danger is at that house that warrants this level of supervision?

A: Emotional.

․

Q: What evidence has been presented today ․ where these children are emotionally abused by [the parents] under any stretch?

․

A: [W]hat my fear is just like that came out of her mouth, I'm gonna make sure they hate you.

Q: Okay.

A: Now tell me how that's not emotional abuse.

Q: Okay. That was to an adult, correct?

A: That was to me.

․

Q: You presented no evidence that the children have said any kind of emotional abuse, correct? No evidence today at all.

A: Again, no, because there's a supervisor.

Q: Well, if it were true, wouldn't the supervisor have reported it to you?

A: Right, but what I'm saying is they are restrained because there's a supervisor.

Q: Okay. So, your fear[?]

A: And my fear, 100% is emotional. It is not sexual, it is not physical, it is not any of those things. And I do, I do believe that they love their children․ I do believe that they enjoy spending time with their children. I do believe that they don't wish their children or would harm their children in any other way, but emotional.

Turning now to the visitation supervisor, she was asked by the trial court whether she had “ever observed any of these children suffering adversely ․ from the visits with these parents[.]” Her answer was no. The court followed up: “But you've not observed anything adverse to the children from the fact that they're visiting with their parents[?]” The supervisor again answered no.

The trial court asked similar questions to the paternal grandfather. For example, the court asked: “Have you ever been told by the children, particularly the older children, when you pick them up that anything untoward or concerning happened?” The grandfather responded, “I would say no.” According to the grandfather, the exchanges are smooth and easy. The children have not expressed any concerns about visiting with their parents, and they have not expressed any desire to reduce or stop the visitations. And according to the mother, the children appear excited on visitation days.

When the guardianship order was entered in 2021, the children were two, three, and four years old. Yet at the time of the 2025 hearing, the children were six, seven, and eight years old. The nature and frequency of visitation for toddlers and children of middle childhood is markedly different. For instance, the evidence shows that the children are beginning to participate in extracurricular activities, like baseball, that take place on weekends. And this is a problem because the extracurricular activities are beginning to conflict with the Saturday visitations. So here is the paternal grandfather's solution: one of the two monthly visits should be canceled when there is a scheduling conflict. By contrast, the paternal grandmother's solution is to simply keep the children from participating in any extracurricular activity that conflicts with the Saturday visitations.

Nonetheless, the mother described a particular Saturday when her son G.N. participated in a baseball game in Baton Rouge. Although she and her husband were there at the ballpark and suggested ways in which the scheduled visitation could happen, the grandparents refused to discuss the issue. Thus, the parents were deprived of that visitation time with G.N. due to his sports schedule, and the evidence shows that this will be an ongoing issue unless the visitation schedule is modified.

Switching gears, the evidence shows that the mother has ongoing anger issues. The mother concedes this point. But as she puts it: “The only reason I have a temper is because I am fighting to see my children[.]” And that anger, according to the mother, stems from the grandparents’ refusal to communicate with her about minor changes to the visitation schedule so as to ensure that the visits take place. Although it is abundantly clear that the mother has directed her anger toward the paternal grandmother, there is no evidence that the mother's anger or frustration with the visitation schedule has ever been directed toward her children or has ever occurred in their presence.

Nonetheless, the grandparents testified they were concerned about a threat that the mother made five years ago. According to the grandparents, the mother threatened to make the children hate them. The grandparents are afraid that if supervision is removed, the mother will act on this threat.

Notwithstanding the communication difficulties, the evidence shows that the grandparents have agreed to some of the requested changes to the visitation schedule. For example, the Saturday visitations are now three hours. Also, the grandparents have permitted visitation at several locations other than the library, though they are steadfast in their refusal to allow any visitations at the parents’ home. The mother explained that she would like to have the visitation at different locations so that she can participate in different activities with the children.

Importantly, the evidence shows that the children have a fourteen-year-old brother and a baby sister. These siblings are not involved in this guardianship proceeding, and they remain in the care and custody of their parents. The evidence shows, on the one hand, that the need is critical for all five children to begin having meaningful relationships with each other, and on the other, it shows that this is highly unlikely under the original visitation schedule.

The mother sums things up this way: she wants to be able to watch her son G.N. play football and baseball, to take her daughter A.N. to festivals, and to spend unsupervised time with her children.

Based on our de novo review of the entire record, we find that the biological parents met their threshold burden of proof under La.Ch.Code art. 724(D)(2): they presented proof by clear and convincing evidence that the harm likely to be caused by removing supervision and by increasing the visitation periods is substantially outweighed by the advantages to the children. But our analysis does not end here. In other words, any modification of visitation must also be in the best interest of the children. And this brings us to the guardians’ next assignment of error.

Fourth Assignment of Error

In essence, the guardians assert that the trial court erred by modifying visitation in the absence of evidence that the changes are in the best interest of the children. Stated differently, they contend that the trial court erred in its best-interest finding.

As to the standard of review, the legal error discussed earlier did not affect the trial court's findings of fact about the best interest of the children. See, e.g., Lam ex rel. Lam v. State Farm Mut. Auto. Ins. Co., 05-1139 (La. 11/29/06), 946 So.2d 133. On the contrary, the trial court's ultimate finding as to modification was based solely on the children's best interest, meaning we are prohibited from conducting a de novo review of the evidence regarding that finding. With this in mind, the appropriate standard for our review of the fourth assignment is abuse of discretion. Leeper v. Leeper, 44,777 (La.App. 2 Cir. 9/23/09), 21 So.3d 1006.

Turning now to the evidence relied on by the trial court. At the close of evidence, the trial court and the attorney representing the children engaged in the following exchange about evidence of abuse:

The Court: Well, I still don't have that evidence [to appoint a psychologist] is my point.

[Attorney]: Well, Your Honor, the physical abuse can be seen but emotional abuse, verbal abuse, that cannot be seen at all.

The Court: Well, I disagree with you. Some of those things I just mentioned that I was looking for in the testimony are visible signs, are not as blatant as a scar but they are determinable. Crying, clinging behavior, hesitancy, tearfulness. None of that.

[Attorney]: And children respond differently.

․

The Court: Absolutely. And I was listening carefully, allowing searching questions by counsel on that issue.

․

The Court: [T]here was just no evidence of it.

․

The Court: What was the evidence of emotional abuse?

[Attorney]: It could be hidden, Your Honor.

The Court: What evidence did you see or have you been told by your clients is emotional abuse?

[Attorney]: [The visitation supervisor] testified that she observed the mother yelling at one of the children ․

The Court: Hold up your hand if your parent ever yelled at you. I mean that's emotional abuse? If it's constant for no reason, of course it is. It didn't convince me that that's emotional abuse.

[Attorney]: And if unsupervis[ed] is granted, then no one will know, no one will ever know.

The Court: I have made provision for that.

The trial court then addressed the guardians’ concerns that the mother would disparage them if supervision was removed: “I think I've built into this, protections against the negative.” The children are much older now than in 2021. They are better able to communicate with the guardians. As the court explained, “[T]here's nothing wrong with the guardians asking how'd the visitation go? What'd y'all do? How did things go? Four years ago, that was not a feasible protection. It was not feasible considering the risks that might have occurred at that time․ It makes sense at that age. It just doesn't make as much sense now.”

Additionally, the trial court judgment prohibits communication between the parties about changes to the visitation schedule. This prohibition significantly reduces contact between the parents and guardians, and this too is in the best interest of the children. The court was very clear on this point in its reasons for judgment:

[The] Court admonishes the guardians and the parents to plan according to this visitation schedule ․ Listen carefully․ [T]here will be no deviations to be requested or granted to this visitation schedule. If you miss it because you're sick, you miss it. If you miss it because you got to work on a Sunday, you miss it. If you have to miss something else that you schedule, you miss it.

In addition, the trial court recognized that it was in the children's best interest to have a meaningful relationship with their two siblings who are not involved in this proceeding:

Guardians, I know this is not what you want, it's what I think the law demands․ As I said at the outset, these children are going to be under the scrutiny of the court for ten years․ So, I have to think in those terms, and they're going to have siblings older and younger that they're going to have for sixty years, hopefully. The Court has to think in those terms also, regarding the best interest of the children.

Finally, the trial court judgment addresses the importance of extracurricular activities by providing:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that [the guardians] shall provide [the parents] with the minor children's extracurricular and/or athletic schedules. If a child's extracurricular and/or athletic event or practice occurs during their period of visitation, [the parents] shall transport the child to the extracurricular activity and/or athletic event or practice and ensure the child's participation in the activity, event or practice.

In the end, the trial court tailored visitation in a manner that minimizes any risk (perceived or otherwise) to the children. The court was careful in its construction of the modifications to the visitation schedule, and it thoroughly laid out the reasonings for its best interest findings. The trial court therefore did not abuse its discretion in modifying visitation.

Third Assignment of Error

In this assignment, the guardians assert that the trial court judgment “undermines the purpose of guardianship to provide permanence and stability for the children.” However, this assignment is not supported by any legal argument. Instead, in their appeal brief, the guardians simply point to, without explanation, La.Ch.Code art. 718 (which states the purpose of guardianship) and In re: L.M.M., Jr., 319 So.3d 231.

Rule 2–12.4(B)(4) of the Uniform Rules of Louisiana Courts of Appeal provides that “[a]ll assignments of error and issues for review shall be briefed. The court may deem abandoned any assignment of error or issue for review which has not been briefed.”

Yet even if this assignment is not abandoned, if the argument being advanced is that removing supervision and increasing the visitation periods to two overnights per month is contrary to law, that argument is of no moment. The biological parents met their burden of proof under La.Ch.Code art. 724(D), and the trial court judgment modifying visitation is in the best interest of the children.

DISPOSITION

For the above reasons, the trial court judgment of November 4, 2025, is affirmed.

AFFIRMED.

FOOTNOTES

1.   Initials are used throughout this opinion to protect and maintain the privacy of the minor children. Uniform Rules—Courts of Appeal, Rule 5–2.

2.   In relevant part, La.Ch.Code art. 724 cmt. (c) states that “[t]he Louisiana custody modification standard announced in Bergeron v. Bergeron, 492 So.2d 1193 (La. 1986) is used here in Subparagraph D(2).” Admittedly, in civil custody cases, Bergeron does not apply in actions to modify visitation under La.Civ.Code art. 136, even when the original judgment establishing custody and visitation is a considered decree. The reason for this is explained in White v. Fetzer, 97-1266, p. 5 (La.App. 3 Cir. 3/6/98), 707 So.2d 1377, 1380, writ denied, 98-931 (La. 5/15/98), 719 So.2d 466: “[V]isitation is not strictly a ‘species of custody’ and, instead, has an independent basis in the Civil Code․ In such cases, a showing that the change in visitation is in the best interest of the child is sufficient.” By contrast, in the Children's Code, visitation does not have an independent basis apart from guardianship. Instead, visitation is subsumed into the guardianship order under La.Ch.Code art. 723(B). The requirements for modifying the guardianship order are then set forth in La.Ch.Code art. 724(D). And those requirements apply here.

CHARLES G. FITZGERALD JUDGE