Boesch v. Boesch

Citations: 210 So. 3d 937; 16 La.App. 5 Cir. 526; 2017 WL 510992; 2017 La. App. LEXIS 178Docket: NO. 16-CA-526

Court: Louisiana Court of Appeal; February 7, 2017; Louisiana; State Appellate Court

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In the child custody case involving Kelly Boesch and Deborah Boesch Corb, the trial court granted Deborah's Rule to Modify Child Custody, resulting in joint custody with Deborah as the domiciliary parent, a decision that Kelly is appealing. The couple, married in 2000, had two children before Kelly filed for divorce in 2008, leading to a consent judgment in 2008 that initially established joint custody with Kelly as the primary caregiver due to Deborah's military service. 

In 2009, a second consent judgment maintained joint custody but allowed for a 50/50 shared custody arrangement upon Deborah's military release. In 2013, Deborah filed to modify the custody agreement, citing a material change in circumstances due to her transition to civilian life, remarriage, and increased availability to care for the children. She claimed that Kelly's parenting led to chaotic living conditions and behavioral issues for the children, including allegations of neglect regarding hygiene and homework. 

Kelly opposed the modification, arguing no material change had occurred and asserting his strong bond with the children and a stable home environment. He also raised concerns about Deborah's parenting practices, including a claim of inappropriate discipline by her husband. An updated custody evaluation by Gail Pesses recommended joint custody with Deborah as the domiciliary parent, supporting the trial court's ruling. The court ultimately affirmed the decision to grant Deborah primary custody based on the presented evidence and evaluations.

Deborah was recommended to have primary custody of the children, with Kelly granted visitation every other weekend and on Tuesdays after school. Additional recommendations from the custody evaluator, Ms. Pesses, included medical treatment and a holiday schedule. On January 31, 2014, a domestic hearing officer adopted these recommendations as an interim court order pending a ruling on Deborah’s motion to modify custody. Following this, on June 24, 2014, Deborah's request for an updated custody evaluation was approved by the court. On March 26, 2015, Deborah filed to set a custody trial, seeking sole custody based on several allegations against Kelly, including his refusal to medicate their child Christian, inappropriate discussions about parenting conflicts in front of the children, resistance to selecting a new pediatrician, and Christian’s behavioral issues at school.

The custody trial was held in July and October 2015, with Ms. Pesses accepted as an expert witness. She noted poor non-confrontational communication between Deborah and Kelly, highlighting conflicts over parenting issues and the impact of these conflicts on the children, particularly Christian. Ms. Pesses indicated that both parents contributed to the ongoing conflict and that Kelly’s behavior could model negative responses for the children. She asserted that joint custody with Deborah as the primary caregiver would be in the children's best interest. Lynette Duhe, an expert in psychology, provided testimony that while shared custody did not seem to negatively affect Christian, the tension between Deborah and Kelly was concerning and could impact Christian’s behavior. Duhe emphasized the need for Deborah to address her fears regarding Christian’s well-being to avoid creating a self-fulfilling prophecy.

Alicia Pellegrin, a psychologist specializing in child custody evaluations, assessed the psychological well-being of the children. She noted a stark polarization in perspectives between the parents, Deborah and Kelly, regarding the children and each other's parenting abilities. Jaden was described as well-adjusted, while Christian was characterized as socially and emotionally immature with significant anger issues and poor coping skills. Dr. Pellegrin emphasized the challenge in assessing Christian's issues due to conflicting narratives from the parents; Deborah perceives serious problems, whereas Kelly views him as energetic but within normal limits. She recommended therapy for Christian and urged the parents to improve their relationship, suggesting that their animosity contributes to Christian's behavioral issues.

Dr. Alan Klein, another psychological expert, evaluated Kelly and identified anger management issues and difficulties with authority figures. However, he found no significant concerns regarding Kelly's parenting ability when the children are with him, but noted challenges in co-parenting with Deborah due to their contentious relationship.

Daniel Perez, a teacher and coach, testified about Christian's behavioral issues, suggesting they stem from a desire for attention and social acceptance rather than aggression. He acknowledged both parents' support for the children's education.

Deborah described ongoing co-parenting conflicts with Kelly, including derogatory remarks made in front of the children, disputes over minor issues, and communication problems, specifically regarding telephone access and visitation schedules. She expressed concerns about Kelly’s involvement of the children in their disputes and his noncompliance with a phone schedule. Additionally, Deborah discussed issues surrounding Christian's medication, detailing a diagnosis of allergic rhinitis by Dr. Reed and conflicts over medication adherence, with Kelly often neglecting to administer it when Christian is symptom-free.

Deborah testified that Dr. Reed ceased being the children's pediatrician on August 15, 2014, after Deborah informed her that Kelly recorded a conversation between them. As of July 29, 2015, Deborah and Kelly had not agreed on a new pediatrician, necessitating Deborah to take Christian to Children’s Hospital for his medication and other health issues. During Kelly's custody, Deborah administered Christian's medication at school to ensure compliance, citing risks of asthma development if allergic rhinitis symptoms remain uncontrolled. Communication regarding Christian's medication was problematic, leading to an instance of double-dosing. Deborah also mentioned Jaden's pinworm issues, attributing them to Kelly's lack of enforcement of hygiene during his custody. Despite the children maintaining good grades, Deborah felt compelled to provide extra support during her custody to compensate for their lack of preparation while with Kelly. She reported ongoing behavioral issues with Christian since 2010 and described her structured discipline efforts, contrasting them with Kelly’s inadequate responses.

Kelly recounted a previously positive co-parenting relationship that deteriorated after Deborah's remarriage, claiming the children relayed negative comments from Deborah and John about him. He accused Deborah and John of attempting to alienate the children from him and described an incident where John allegedly threatened Christian. Communication issues persisted, with Kelly noting Deborah's unresponsiveness to his calls and his own inappropriate messages. He also raised concerns about Deborah not returning shoes he bought for Jaden and restricting his contact with the children. Kelly expressed frustration over Christian's medication management, stating he began daily dosing after consulting Dr. Reed, but Deborah limited the medication he could administer. He disagreed with sending medication in Christian's backpack due to safety concerns and reported an incident where Christian had already received medication from Deborah that day. Kelly expressed dissatisfaction with the medication's effectiveness and lamented Deborah's refusal to collaborate on selecting a new doctor.

Kelly testified that Christian has been in counseling since childhood due to concerns from Deborah, who has consistently disagreed with therapist recommendations made by Dr. Pellegrin. He also discussed issues related to the children's academic performance and communication regarding report cards. Kelly believes that the children benefit from the shared custody arrangement. On October 28, 2015, the trial judge granted a Rule to Modify Custody, establishing joint custody with Deborah as the domiciliary parent. The children would primarily live with Deborah, while Kelly would have physical custody on alternating weekends and Wednesdays. The existing holiday schedule remained, and both parents would have two weeks of uninterrupted vacation during the summer. Deborah was designated to select medical and dental providers for the children, with Kelly being informed accordingly. The judgment also allowed Kelly two weekly phone contacts with the children on non-custody days. Following the judgment, Kelly's motion for a new trial was denied on March 15, 2016, leading to his appeal.

In his appeal, Kelly argued that the trial court incorrectly modified the custody order from 2009, asserting that no material change in circumstances justified the change. He claimed that the existing shared custody arrangement did not adversely affect the children despite some minor conflicts between the parents. In contrast, Deborah contended that the trial court rightly identified a material change in circumstances affecting the children's welfare, emphasizing Kelly's prioritization of his rights over the children's interests, particularly regarding decisions about Christian's medication. Deborah maintained that the evidence supported the trial court's decision to modify custody in the children's best interests.

The legal standard for custody decisions is the best interest of the child, applicable to both changes in custody and initial determinations. The burden of proof varies based on whether the previous custody decree was a considered or stipulated decree. The prior custody order from 2009 was a stipulated decree, meaning it was based on mutual consent without evidence of parental fitness.

The burden to modify a stipulated custody decree lies with the party seeking the change, who must demonstrate two key points: 1) a material change in circumstances has occurred since the original decree, and 2) the modification serves the best interests of the children. Each custody case is assessed based on its unique facts, with the trial judge best positioned to evaluate these interests. However, determining a material change in circumstances takes precedence over the best interests of the child. A change in custody is unwarranted unless the changes directly affect the child's welfare.

In the current case, the trial court did not establish whether a material change in circumstances had occurred and, therefore, bypassed the initial requirement of the two-pronged analysis. This necessitated a de novo review of the record regarding material changes. Previous case law indicates that various circumstances, such as communication issues, relocation, changes in a child's preferences, and a parent's remarriage, can constitute a material change. 

In this review, it was determined that a material change had indeed occurred since the 2009 custody decree, specifically Deborah's remarriage and the decline in communication between the parents, which hindered effective co-parenting. Deborah's remarriage in May 2012 marked a significant shift, leading to increased conflict, particularly over their child's medication management, which resulted in serious miscommunication about dosage.

Conflicts have arisen since Deborah's remarriage regarding various aspects of co-parenting, including telephone contact and visitation, with the children caught in the middle. A prolonged disagreement over selecting a pediatrician resulted in medical issues being addressed at Children's Hospital. Dr. Klein noted that Kelly struggles with anger management, which negatively impacts his co-parenting abilities. Testimony from Gail Pesses indicated poor communication between the parents, with Kelly prioritizing his needs over the children's. Kelly's anger and jealousy hinder rational co-parenting, posing a negative example for the children, particularly Christian, who has exhibited problematic behavior at school, including multiple incidents of aggression. The parents' inconsistent disciplinary methods and counseling efforts have been noted, alongside issues with the children's academic performance. Given these circumstances, the trial court found a material change since the 2009 consent judgment and concluded that modifying custody was in the children's best interest. Kelly did not contest this finding but claimed no change in circumstances had occurred. The court affirmed its decision to award joint custody, designating Deborah as the primary domiciliary parent, citing the parties' inability to collaborate effectively in parenting.