KARIE EARNEST v. DERRICK HOBBS (2026)

This child custody case involves a motion to designate domiciliary parent and for custody evaluation filed by the mother. The parents were operating under an agreed-to interim judgment wherein they shared joint legal care, custody, and control of the minor child with the parents alternating the physical custody on a one week/one week basis. After taking the matter under advisement, the trial court designated the mother as the domiciliary parent with the father granted unsupervised overnight periods of physical custody for various specific times. The father appeals, alleging that the trial court erred in granting a change of custody without a demonstration of a material change in circumstances, in failing to apply La.R.S. 9:335, and in referring to research/facts that were not introduced into evidence.

FACTS AND PROCEDURAL HISTORY

Derrick Hobbs, the child's alleged father, (“Hobbs”) filed a petition to establish paternity and petition for custody as to the minor child with Karie Earnest, the child's mother, (“Earnest”). Pursuant to an interim judgment agreed upon by Hobbs and Earnest, the parents were to share the joint legal care, custody, and control of the minor child, shared custody arrangement, with the parties alternating the physical custody of the minor child. The interim judgment also provided for a shared custody arrangement, with the parties on a one week/one week basis.

Thereafter, Hobbs filed a motion to establish school for the minor child and a motion to amend the minor child's birth certificate. In response, Earnest filed a motion to designate domiciliary parent and for custody evaluation. Pursuant to these filings, the parties agreed that the previous temporary order shall remain in effect, and the parties would submit to custody evaluations.

Next, Earnest filed a motion requesting the minor child attend an intensive treatment program for autism. The parties then agreed that the child would attend this treatment program.

A trial on the merits was held on all of the unresolved issues and matters, with the trial court taking the matter under advisement. The trial court then issued a judgment designating Earnest as the domiciliary parent with Hobbs being granted unsupervised overnight periods of physical custody for various specific times. Hobbs filed this appeal alleging three assignments of error.

ASSIGNMENTS OF ERROR

Hobbs asserts that the trial court erred:

1. in granting a change of custody without demonstrating a material change in circumstances.

2. in not applying Louisiana Revised Statute 9:335, and by not granting physical custody of the minor child to be shared equally.

3. in referring to research/facts that were not introduced into evidence.

ASSIGNMENT OF ERROR NUMBER ONE

As stated earlier, Hobbs initially asserts that the trial court erred in granting a change of custody without demonstrating a material change in circumstances. This assignment posits a question of law challenging the trial court's application of proper adjudication standards. Questions of law are reviewed de novo by an appellate court. Guillory v. Allied Waste Indus., Inc., 10-159 (La.App. 3 Cir. 10/6/10), 47 So.3d 23.

After review, we find that this assignment is flawed for three reasons. First, in the judgment on appeal, the trial court did not modify custody; the trial court established custody. In essence, the judgment of August 1, 2025, established joint legal custody with Earnest as the domiciliary parent. The judgment also established a schedule of physical custody and allocated the legal authority and responsibility of the parents.

Second, the action to establish custody was originally filed in August 2023. Thus, the underlying action was not an action to modify custody; it was an action to establish custody. Thereafter, several custody pleadings were filed by the parties and several interim custody orders (interlocutory judgments) were agreed to by the parties. Then, in July 2025, all pending custody matters were litigated in the trial court. The resulting judgment established custody, and that judgment of August 1, 2025, is the only final judgment in this entire case.

Third and finally, Hobbs misstates Evans v. Lungrin, 97-541, 97-577 (La. 2/6/98), 708 So.2d 731. In that case, the supreme court clarified that “where the original custody decree is a stipulated judgment, the party seeking modification must prove (1) that there has been a material change of circumstances since the original custody decree was entered, and (2) that the proposed modification is in the best interest of the child.” Id. at 738 (emphasis added).

Here, Hobbs suggests that the original custody decree is the interim custody order of August 4, 2023. He then argues that because Earnest sought to change that interim custody order, she was required to meet the burden of proof announced in Evans. We disagree, and that is not the law. Evans applies to stipulated final judgments of custody, not to interim custody orders. The interim custody order of August 2023 is an interlocutory judgment. See La.Code Civ.P. art. 1841.

Hobbs next argues that there was no evidence that a change in physical custody was in the minor child's best interest, the second part of the Evans test. He points to the testimony of Robin Miley (“Miley”), the court appointed expert custody evaluator in this matter, wherein Miley testified to Earnest's insufficiencies as a parent. However, in review of Miley's testimony regarding custody, she testified and recommended that the minor child remain with Earnest for all school days and that Earnest be designated as domiciliary parent. She further testified that this opinion was based upon her finding that Earnest cared more than Hobbs about the minor child's education.

Moreover, it is clear from the record that the trial court did in fact consider La.Civ.Code art. 134(A) when determining that it was in the minor child's best interest to designate Earnest as the domiciliary parent.

Louisiana Civil Code Article 134(A) states:

A. Except as provided in Paragraph B of this Article, the court shall consider all relevant factors in determining the best interest of the child, including:

(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.

Here, the trial court specifically found, inter alia, that the determinative factors under La.Civ.Code art. 134(A)(3), (6), (12), and (14) applied to its finding that Earnest would be designated the domiciliary parent, and not shared custody of their minor child.

In summary, we find the trial court was correct in its application of the law. Therefore, Hobbs's first assignment is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

Hobbs’ second assignment of error is that the trial court erred in failing to apply La.R.S. 9:335 when it did not grant physical custody of the minor child to be shared equally.

As was the case in Assignment of Error Number One, we will review this assignment de novo because it challenges the trial court's application of law or lack thereof. Guillory, 47 So.3d 23.

We first point out that La.R.S. 9:335 was amended and reenacted by 2026 La. Acts No. 605, § 1; however, those amendments do not apply to this case. Instead, the law that was in effect when this case was decided was La.R.S. 9:335 (2018). And former La.R.S. 9:335(A)(2)(b) (2018) stated: “To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally.” Importantly, this provision does not mandate equal sharing of physical custody. Dupre v. Dupre, 02-902 (La.App. 3 Cir. 12/30/02), 834 So.2d 1272.

Here, the trial court expressly recognized the statutory presumption of joint custody but found that the current arrangement, where the child moved weekly “between [two] radically different environments with no coordination between his caregivers, serves no one's interests and actively harms his development.” The court further found that the parents’ inability to communicate or coordinate their efforts resulted in chaos for the child rather than stability. While the trial court found that Ms. Earnest was overprotective, her approach and more structured environment “aligns more closely” with the child's needs.

It is established by the record that Earnest and Hobbs have a very different view of proper schooling for the minor child. The court-appointed custody expert opined that Earnest should be designated the custodial parent based on Earnest's better focus on the minor child's education and autism. Having consistency in prioritizing one style of education is undoubtedly in the best interest of a child when the alternative is two diametrically opposed views, such as in this matter. The trial court's decision to give one parent custody primarily during the school year, and that parent being the one that the court-appointed expert recommended, based on that parent's view of education for the minor child, is certainly reasonable and not an abuse of discretion.

A review of the record shows that the trial court clearly considered La.R.S. 9:335 in its ruling, stating, “[w]hile Louisiana law presumes that shared custody serves children's best interests, that presumption must yield when the evidence demonstrates that such arrangements cause more harm than good.” Further, we found hereinabove no error in the trial court's finding that designating Earnest as the domiciliary parent was in the best interest of the minor child.

We find the record indicates that the trial court correctly applied La.R.S. 9:335 as it existed in 2018. As such, we find this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

In his third assignment of error, Hobbs claims that the trial court committed reversible error by considering facts not in evidence in reaching its conclusion to change custody.

An assertion that a trial court considered facts not in evidence is an assertion that a fact finder made an error as to findings of fact, and, as such, the manifest error standard of review is applicable. Henry v. PNK (Lake Charles), LLC, 11-1381 (La.App. 3 Cir. 3/7/12). (unpublished opinion)

According to Hobbs, the trial court improperly considered treatment and the potential for injury caused by the bacterial environment of a natural body of water with its inevitable complement of microorganisms that represent the type of contamination medical professionals warn against when treating open wounds. According to Hobbs, the trial court reached this conclusion by improperly considering the results of its own internet search done through the Food and Drug Administration (FDA) website.

Hobbs is correct that a fact finder shall not consider evidence outside of the record to make it findings. See Nail v. Clavier, 99-588 (La.App 3 Cir. 11/10/99), 745 So.2d 1221, writ denied, 99-3494 (La. 1/5/00), 752 So.2d 169. However, such an error is harmless when, after considering the record in its entirety, the trial court's conclusion is supported by other evidence in the record. Smith-Johnson v. Bushnell, 24-428 (La.App. 3 Cir. 2/12/25), 405 So.3d 1156, writ denied, 25-319 (La. 5/29/25), 410 So.3d 149.

Moreover, La.Code Evid. art. 201, in pertinent part, states:

․

B. Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either:

(1) Generally known within the territorial jurisdiction of the trial court; or

(2) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

C. When discretionary. A court may take judicial notice, whether requested or not.

Here, Hobbs contends that the trial court's consideration of the fact that potentially infectious organisms exist in natural waters was improper consideration of facts not in evidence when no experts or evidence regarding the potential contamination of a particular body of water were presented to the court. Additionally, Hobbs argues that the trial court improperly researched the FDA's website to find that oxycodone was not a proper medication to give the minor child.

First, judicial notice is discretionary and may be taken when it is not subject to reasonable dispute and generally known in the jurisdiction. It is certainly known and not subject to reasonable dispute that natural waters can contain potentially harmful organisms and swimming with an open wound in natural waters is not always safe. Further, the trial court's finding that administering oxycodone to a minor child without a prescription is ill-advised would also not be subject to reasonable dispute.

Regardless, even if consideration of those facts not in evidence would be improper, which we do not find, such consideration is harmless. The trial court iterated a multitude of facts sufficient to reasonably exercise its discretion afforded in these matters.

Accordingly, we find that this assignment of error has no merit.

DISPOSITION

Derrick Hobbs raises three assignments of error related to the judgment of the trial court. We find no merit in any of the assignments raised. Therefore, the judgment of the trial court is affirmed in its entirety. Costs of these proceedings are assessed to Derrick Hobbs.

AFFIRMED.

GARY J. ORTEGO JUDGE