Friday, March 24, 2006

Case Law Development: Differential Burdens of Proof for Modification of Child Custody Orders

Louisiana provides two different standards for modfication of child custody orders. If the order is based on stipulation of the parties, a court may modify the order if there has been "a material change in circumstances since the original decree and ... the proposed modification is in the best interest of the child."  If the custody award is a "considered decree" however, then what is known as the Bergeron rule applies and the party seeking modification must prove that "continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or [that there is] clear and convincing evidence that the harm likely to be caused by the change of environment is substantially outweighed by its advantages to the child."   The Louisiana courts have held that even order based on the parties' agreement can be "considered decrees" if there is evidence that the court weighed the evidence in the case in approving the settlement or if the parties stipulate to the higher burden of proof in the agreement itself. 

In this case, the Louisiana Court of Appeals determined that the Bergeron standard should not apply to a custody order based on the parties' settlement however, because the order had been entered into after trial had begun but before substantial evidence had been submitted and there was no evidence that the parties agreed to the higher burden of proof.  The court concluded that imposing the higher burden in these cases would discourage settlement once trial had begun.

A dissent objected to the court granting the appellate writ.

Poole v. Poole, 41,220 (La. App. 2 Cir. 03/22/06), 2006 La. App. LEXIS 562 (March 22, 2006)
Opinion on the web (last visited March 24, 2006 bgf)

Excerpt from majority opinion:

"Certainly there is a need to limit protracted relitigation in custody matters. Some believe that the best way to do this is to impose the higher Bergeron standard after some evidence has been presented, and the parties then terminate the hearing and agree on custody. However, we find that imposing this higher standard will dissuade the parties from confecting settlement once the hearing has begun. Such settlement agreement contrasts to a judicially imposed, considered decree with which neither parent may completely agree and must be encouraged even after the litigation has begun for the best interests of the children instead of being deterred by the more difficult burden of Bergeron. Applying the Bergeron standard to a custody consent judgment in which some of the evidence has been presented, but not evaluated by the judge, would erode the definition of considered decree and the policy reasons for the rule as examined by the Bergeron court."

http://lawprofessors.typepad.com/family_law/2006/03/case_law_develo_34.html

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