State of Louisiana in the Interest of P.M.G., P.L.C.G. and P.C.G.

STATE OF LOUISIANA NO. 22-C-447

IN THE INTEREST OF FIFTH CIRCUIT

P.M.G., P.L.C.G. AND P.C.G. COURT OF APPEAL

STATE OF LOUISIANA

September 29, 2022

Linda Wiseman
First Deputy Clerk

IN RE WENDY AND CHRISTOPHER CLOUATRE

APPLYING FOR SUPERVISORY WRIT FROM THE JEFFERSON PARISH JUVENILE COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE
BARRON C. BURMASTER, DIVISION "C", NUMBER 17,1

Panel composed of Judges Susan M. Chehardy,
Jude G. Gravois, and Hans J. Liljeberg

WRIT GRANTED; JUDGMENT VACATED;
CASE REMANDED FOR JURISDICTIONAL HEARING

On February 6, 2017, the Jefferson Parish Juvenile Court granted a petition

to voluntarily transfer custody of two minor children of Alexis and John Gibson to

Wendy Clouatre. Wendy is Alexis Gibson’s mother. At the time, Wendy Clouatre

lived in Marrero. On December 15, 2017, the Gibsons filed another Petition for

Voluntary Transfer of Custody of a third child, their newborn daughter, to Wendy

Clouatre, alleging they were unable to care for her. The Jefferson Parish Juvenile

Court awarded legal custody to Wendy and Christopher Clouatre for a period of

two years. On January 30, 2020, with the Gibsons’ approval, the juvenile court

extended legal custody of the three children to the Clouatres for another five years.

Letters to the court requesting that custody be transferred were dated January 23,

2020, signed by Wendy and Christopher Clouatre and Alexis and John Gibson,

notarized, and attached to the instant writ application, providing an address for all

four adults in Leslie, Arkansas.

On November 4, 2020, the Gibsons wrote to the Jefferson Parish Juvenile

Court again, asking that custody be returned to them. That letter stated: “My minor

children are currently residing in the state of Arkansas while we the parents are

residing in the state of Louisiana.” On November 23, 2020, however, a Minute

Entry indicates that “The mother contacted the court and wishes to rescind request

to have the VT custody order revoked.”

The writ application does not include information confirming when the

Clouatres or the Gibsons moved to Arkansas, but pleadings attached to the

application show that Alexis Gibson concedes that she and her parents moved to

Arkansas.

On April 19, 2022, Wendy Clouatre filed a Petition for Ex Parte Temporary

Order of Protection in the 5th Division Court in Searcy County, Arkansas, seeking

protection from domestic abuse by John Gibson, the children’s father. A certified

copy of the Arkansas court’s “Final Order of Protection” is attached to the writ

application, indicating that the Order is effective for 10 years, until May 11, 2032.

It protects the Gibsons’ four minor children from their father, noting that the court

found jurisdiction exists; the respondent, Mr. Gibson, was provided with proper

notice and an opportunity to be heard, but he failed to appear; that the victims were

in immediate and present danger of domestic abuse; and that Mr. Gibson presented

a credible threat to the physical safety of the children, thereby prohibiting him

from initiating contact with them and prohibiting him from going to their school.

An amended Ex Parte Order of Protection was filed on June 24, 2022, which

awarded temporary custody of the four minor children to Wendy Clouatre.

However, on June 14, 2022, a few days before the Arkansas court’s

amended Order of Protection was entered, Alexis Gibson contacted the Jefferson

Parish Juvenile Court, again seeking to rescind the Voluntary Transfer of Custody.

A custody hearing was scheduled for August 22, 2022 in the Jefferson Parish

Juvenile Court.

The Clouatres filed an exception of lack of jurisdiction, arguing that the

Jefferson Parish Juvenile Court no longer had jurisdiction to consider a request

related to a change in custody in light of the Arkansas court’s Order of Protection.

The Jefferson Parish Juvenile Court denied the exception to jurisdiction at the

August 22 hearing. In ruling from the bench, the court stated that it had jurisdiction

because it was the court that initially ordered the custody transfer to the Clouatres.

The Clouatres now seek review of that ruling in this Court.

Discussion

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA),

La. R.S. 13:1801, et seq., governs jurisdictional issues between courts of different

states when adjudicating custody matters. La. R.S. 13:1802 provides the following

definitions relevant to the instant inquiry:

(3) “Child custody determination” means a judgment,
decree, or other order of a court providing for the legal
custody, physical custody, or visitation with respect to a
child. The term includes a permanent, temporary, initial,
and modification order. The term does not include an order
relating to child support or other monetary obligation of
an individual.

(4) “Child custody proceeding” means a proceeding in
which legal custody, physical custody, or visitation with
respect to a child is an issue. The term includes a
proceeding for divorce, separation, neglect, abuse,
dependency, guardianship, paternity, termination of
parental rights, and protection from domestic violence, in
which the issue may appear. …

***
(7)(a) “Home state” means the state in which a child lived
with a parent or person acting as a parent for at least six
consecutive months immediately before the
commencement of a child custody proceeding. In the case
of a child less than six months of age, the term means the
state in which the child lived from birth with any of the
persons mentioned. A period of temporary absence of any
of the mentioned persons is part of the period.
***

(10) “Issuing state” means the state in which a child
custody determination is made.

(11) “Modification” means a child custody
determination that changes, replaces, supersedes, or is
otherwise made after a previous determination concerning
the same child, whether or not it is made by the court that
made the previous determination.

***
(13) “Person acting as a parent” means a person, other
than a parent, who: (a) Has physical custody of the child
or has had physical custody for a period of six consecutive
months, including any temporary absence, within one year
immediately before the commencement of a child custody
proceeding; and (b) has been awarded legal custody by a
court or claims a right to legal custody under the laws of
this state.

(14) “Physical custody” means the physical care and
supervision of a child.

While there is no question that the Jefferson Parish court had “initial child

custody jurisdiction” pursuant to La. R.S. 13:1813, it is not at all clear, given the

Arkansas court’s May 11, 2022 Order of Protection and its June 24, 2022 amended

Order of Protection, which awarded temporary custody to Wendy Clouatre, that the

Jefferson Parish court retains jurisdiction to enter further custody orders in light of

additional relevant portions of the UCCJEA. First, La. R.S. 13:1814 A provides, in

pertinent part:

Except as otherwise provided in R.S. 13:1816, a court of
this state which has made a child custody determination
consistent with R.S. 13:1813 or 1815 has exclusive,
continuing jurisdiction over the determination until:

(1) A court of this state determines that neither the
child, nor the child and one parent, nor the child and
a person acting as a parent have a significant
connection with this state and that substantial
evidence is no longer available in this state
concerning the child’s care, protection, training, and
personal relationships; or

(2) A court of this state or a court of another state
determines that the child, the child’s parents, and
any person acting as a parent do not presently reside
in this state.

(Emphasis added.)

Next, La. R.S. 13:1815 provides:

[A] court of this state may not modify a child custody
determination made by a court of another state unless a
court of this state has jurisdiction to make an initial
determination under R.S. 13:1813(A)(1) or (2) and:

(1) The court of the other state determines it no longer
has exclusive, continuing jurisdiction under R.S.
13:1814 or that a court of this state would be a more
convenient forum under R.S. 13:1819; or

(2) A court of this state or a court of the other state
determines that the child, the child’s parents, and
any person acting as a parent do not presently reside
in the other state.

We find the provisions of the UCCJEA clearly control in these circumstances,

and the juvenile court erred in failing to consider these provisions to determine

whether it retains jurisdiction to rule on custody of the minor children. Indeed, the

juvenile court acknowledged at the August 22, 2022 hearing that the minor children

had been living in Arkansas “for some time.” We further note that the juvenile court

may communicate with the Searcy County, Arkansas court to make this

determination, pursuant to La. R.S. 13:1810 A, which provides: “A court of this state

may communicate with a court in another state concerning a proceeding arising

under this Act.”

For these reasons, we grant the writ, vacate the Jefferson Parish Juvenile

Court’s judgment denying the exception of lack of jurisdiction and remand to that

court to conduct a full evidentiary hearing on the jurisdiction issue in accordance

with the provisions of the UCCJEA.

Gretna, Louisiana, this 29th day of September, 2022.

HJL
SMC
JGG

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 09/29/2022 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

22-C-447
E-NOTIFIED
Juvenile Court (Clerk)
Hon. Barron C. Burmaster (DISTRICT JUDGE)
Roland A. Ditta (Respondent) Cindy H. Williams (Relator)

MAILED