FULLER III v. FULLER (2021)

Writ application denied.

I would grant applicant's writ application and reinstate the district court's modification of the visitation schedule. The district court's custody determinations should be given great weight and be subject to review on appeal by the abuse of discretion standard. See Marksbury v. Marksbury, 2016-0526 (La. 3/24/16), 204 So. 3d 180 (applying abuse of discretion to R.S. 9:355(B)(3)). Before allocating every other weekend during the school year and equal share of summer vacation and holidays, the district court heard testimony from numerous witnesses regarding the mother's attempts to alienate the children from their father. Apparently giving credit to those witnesses, including the children's psychologist, the district court was within its discretion in determining that it was not “feasible and in the best interest of the child[ren]” to share custody equally among their parents. See 9:335(A)(2)(b).

The court of appeal decision effectively finds that the visitation schedule established by the district court in this case was insufficient to ensure “frequent and continuing contact” with the children's mother as a matter of law and regardless of the factors weighed by the district court in determining the best interest of her children. “Substantial time, rather than strict equality of time, is mandated by the legislative scheme providing for joint custody of children.” Yerger v. Yerger, 49,790 (La. App. 2 Cir. 2/27/15), 162 So. 3d 603, 608 (finding frequent and continuing contact goal met where father has custody of children every other weekend, with the weekend defined as Thursday evening at 6:00 p.m. until Monday morning when he drops the children off at school, with parents share holidays, summer break and school intercessions equally.). I would grant, finding the principle established by the court of appeal to be untenable, and would reinstate the ruling of the district court – which, again, is in the best position to weigh the credibility of witness testimony – establishing less than equal custody by the mother.

Crichton, J., would grant and assigns reasons. Crain, J., would grant. McCallum, J., would grant.