Whitney Leo Tripp v. Geisha Nathaliee Guiterrez Gener

Judgment rendered April 26, 2023.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 55,132-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

WHITNEY LEO TRIPP Plaintiff-Appellant

versus

GEISHA NATHALIEE Defendant-Appellee
GUITERREZ GENER

*****

Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Webster, Louisiana
Trial Court No. 79,732

Honorable Robert Lane Pittard, Judge

*****

KITCHENS LAW FIRM Counsel for Appellant
By: Paul Edward Kitchens
Graydon K. Kitchens, III
P. Nelson Smith, Jr.

MARK J. MICIOTTO Counsel for Appellee

*****

Before PITMAN, COX, and MARCOTTE, JJ.

COX, J.

This custody dispute arises out of the Twenty-Sixth Judicial District

Court, Webster Parish, Louisiana. Whitney Leo Tripp and Geisha Gener

were ordered to alternate custody of their minor child, B.T., every six months.

Mr. Tripp now appeals. For the following reasons, we affirm the ruling of

joint custody, respectfully vacate the trial court’s judgment regarding the

visitation schedule, and remand for further proceedings.

FACTS

Mr. Tripp and Ms. Gener were married on March 29, 2018, in

Claiborne Parish and moved to Miami, Florida, in September of that year. On

January 14, 2019, their only child, B.T., was born. On May 12, 2021, Mr.

Tripp moved from Miami to Sarepta, Louisiana, with B.T. The couple

separated on November 29, 2021.

On December 20, 2021, Mr. Tripp filed a “Petition For Ex Parte Order

of Temporary Custody, Petition for Divorce 102 and for Determination of

Incidental Matters.” He alleged that since moving back to Louisiana, Ms.

Gener had only visited the child on four occasions and the last visit was on

November 22, 2021. He alleged that Ms. Gener was planning to take B.T.

with her to Colombia and feared irreparable injury, loss, or damage if a

temporary restraining order was not granted to prevent B.T. from being

removed from the trial court’s jurisdiction.1 Mr. Tripp requested emergency,

temporary sole custody of B.T., a temporary injunction preventing Ms. Gener

from removing the child from the jurisdiction, and a mental health

1
Ms. Gener is from Venezuela, but Mr. Tripp and Ms. Gener had previously met
her family in Colombia to visit.

professional be appointed to render a report as to what custodial arrangement

would be in the best interest of the child.

On January 14, 2022, Ms. Gener filed her answer. She stated that it

was in the best interest of the child for her to be awarded sole custody. She

alleged Mr. Tripp was verbally abusive as he used foul or improper language

in the presence of or directed to the minor child, which is harmful to her

emotions, health, and welfare. She stated that due to Mr. Tripp’s business, he

was frequently out of the country and she provided the sole care of the child.

She asserted that Mr. Tripp took the child for a temporary stay in Webster

Parish, Louisiana, to care for an ailing parent, against her wishes. Ms. Gener

alleged that Mr. Tripp was engaging in numerous affairs with several women

outside of the U.S. and that type of environment was not in the child’s best

interest. Ms. Gener requested the trial court establish a custody arrangement

in which the child primarily resided with her, a holiday schedule, child

support, and permission to move the child back to Miami.

The first interim custody order was signed on January 28, 2022, and

stated the following: Louisiana is deemed the home state for these

proceedings; the child shall remain in Louisiana in the physical custody of

Mr. Tripp; Ms. Gener’s visitation/physical custody is to be exercised within

Caddo, Bossier, and Webster Parishes; Ms. Gener was granted five days of

physical custody each month; Mr. Tripp is to pay for Ms. Gener’s airfare each

month; and Mr. Tripp’s request for a mental health professional was denied.

On May 11, 2022, the child custody proceedings commenced and the

following witnesses testified. First to testify was Kimberly Hutchinson, the

assistant director of B.T.’s preschool, North Webster Children’s Learning

Center (“North Webster”). She testified that B.T.’s first day at North Webster
2

was on June 9, 2021. Ms. Hutchinson stated that when B.T. arrived, she was

not potty trained; there was a communication barrier because she did not

speak English; and their primary form of communication was pointing to

objects or physically showing B.T. what to do. She testified that by January

6, 2022, B.T. was potty trained, speaking fluent English, and could count to

20 in English.

Ms. Hutchinson testified that whenever B.T. is out for a visit with her

mom, she comes back with disciplinary issues, throwing fits, and yelling at

other children. She stated that when B.T. gets upset, she hits toys, tables, and

shelves and throws herself down, even if it is on concrete. She stated that

these issues resolve after a few days.

Jeremy Box, Mr. Tripp’s brother-in-law, testified that he has observed

Mr. Tripp’s relationship with B.T. Mr. Box stated that he has been married to

Mr. Tripp’s stepsister for four years and has known Mr. Tripp since that time.

He stated that he has seen B.T. and Mr. Tripp playing together, Mr. Tripp

takes good care of B.T., and he has no reason to be concerned about B.T.’s

safety while in the care of Mr. Tripp. On cross-examination, Mr. Box stated

he did not know Mr. Tripp’s occupation, did not consider Mr. Tripp a close

friend, and did not know much about him or his personal life. He stated that

he did witness B.T. having “out of control” and “wild” tantrums after visits

with her mom.

Paula Wright, Mr. Tripp’s mother, testified that she has had an

extensive career in elementary education. She stated that when B.T. arrived

in Louisiana, she was drinking bottles of milk but not eating. She stated that

Mr. Tripp took B.T. off the bottle and had her eating food not long after

arriving. Mrs. Wright testified that she was concerned about B.T. when she
3

arrived because she could not speak English. She stated, “And she couldn’t –

she would just jabber. She wouldn’t talk. She wasn’t speaking Spanish… but

she immediately started picking [English] up after she began schooling and

talking with [them] every day.”

Mrs. Wright testified that B.T. was not potty trained when she arrived

but Mr. Tripp potty trained her. She stated that Mr. Tripp gives B.T. her

baths, cooks her meals, packs her school lunch, puts her to bed each night,

does all of her shopping, buys her Christmas presents, and attends B.T.’s

school and church activities and programs. When asked if she had observed

B.T.’s behavior after visits with her mom, Mrs. Wright responded:

B.T., when she comes back, is sometimes defiant. Just based on
when I am seeing them together at my home over this past year, I
know that she had no control over B.T. B.T. will yell at her and
hit at her, and she doesn’t stop her or correct her. But at our
house, she knows the rules, but when she comes back, it’s as if
she’s got to learn the rules again.

Mrs. Wright testified that she has not seen anything that would cause

her to be concerned about B.T.’s health and safety while in Mr. Tripp’s care.

She stated, “I work with parents every day, speak with parents on a daily

basis, and I’ve never seen anyone more dedicated than my son has been to

B.T. Ever.”

Mr. Tripp testified that shortly after arriving in Louisiana in May 2021,

he and Ms. Gener exchanged text messages discussing divorce. He stated that

he has taken B.T. to the doctor regularly since coming to Louisiana and she

was up-to-date on her shots when they arrived. He testified that he has had

conversations with Ms. Gener about her moving and she told him she was not

leaving Miami and her professional licenses will not transfer to Louisiana.

Mr. Tripp stated that he takes B.T. to North Webster, packs her lunches,

4

cooks her dinner, gives her baths, does her laundry, takes her to church, and

takes her out for fun activities. During his testimony, the parties stipulated

that Mr. Tripp takes good care of B.T.’s hygiene.

Mr. Tripp testified that when they were living in Miami, the only

English-speaker B.T. was exposed to was him, she attended a Spanish-

speaking daycare, and all of the people she was around outside of the home

spoke Spanish. He stated that B.T. was not fluent in Spanish and “she wasn’t

using any type of words. It was garble I guess you could say.” He testified

that since coming to Louisiana, he has worked with her and she has had a

dramatic improvement in her language skills. He stated, “[M]y personal

opinion is she is extremely intelligent, and her verbiage is exceptional now.”

Mr. Tripp testified that when they were living in Miami and he was out

of town on business, Ms. Gener would take B.T. to daycare around 8 or 8:30

a.m. and not pick her up until 6:30 p.m. when the center closed. He stated

that the evening commute from the daycare to their condo at that time was

over an hour. He stated that Ms. Gener would take B.T. to a babysitter on

Saturdays and Sundays when he was out of town, even though she was off on

Sundays. Mr. Tripp recalled the following two instances in which Ms. Gener

was not properly supervising B.T.: Ms. Gener left B.T. alone inside a hotel

lobby and B.T. walked almost to the road at the house in Sarepta when she

was left alone with Ms. Gener.

During Mr. Tripp’s testimony, the parties stipulated that they would use

the Family Wizard app for communication between the parents. Mr. Tripp

requested that the court consider Webster Parish’s year-round school schedule

when determining the custody arrangement and order drug screens of both of

5

them.2 He testified that he is aware of Ms. Gener taking Tramadol without a

prescription. He stated that he was recently prescribed Adderall.

Mr. Tripp testified that he is very involved in his older children’s lives;

his daughter is 22 years old and his son is 20 years old. Regarding his

marriage with Ms. Gener, he stated that they had not been intimate since

before B.T. was born because he lost trust in her. He testified that Ms. Gener

took money designated to help her family in Venezuela and used it for lap

band surgery in Venezuela. He stated that they were in the process of getting

her American citizenship but were under a three-year probationary period of

the marriage. He stated that he filed for divorce and was uncomfortable lying

to federal officers about their marriage. He testified that he does not know the

current citizenship status of Ms. Gener.

Mr. Tripp testified that he has had one brief relationship with another

woman after B.T.’s birth, but he is not currently dating anyone. Mr. Tripp

testified that he stepped away from his career goals in order to bring his

daughter around a loving, secure, structured, family environment. He stated

that everything he does is centered around B.T. and he puts her before

himself.

During cross-examination, transcripts from Mr. Tripp’s second divorce

were entered into evidence in which the trial judge stated that Mr. Tripp

stretched “the limits of credulity.” Mr. Tripp admitted to having an affair

with a woman in Costa Rica while he was married to Ms. Gener. He stated

2
The court ordered the drug screens to occur during the lunch break, but before the
lunch break, the parties mutually agreed to withdraw the drug screen request and order.
6

that the last time he filed taxes was in 2018 and he has a CPA working on his

2019, 2020, and 2021 taxes.3

Mr. Tripp testified that the longest he has lived in the same city since

leaving home at 18 years of age is four years, although he did spend about ten

years living in different parts of North Louisiana. Mr. Tripp stated that Ms.

Gener likely would not have allowed him to take B.T. to Louisiana had she

known that they would not be returning. He stated that since Ms. Gener

began her week-long visits with B.T., as allowed by the court, he has gone on

cruises for business purposes during two out of the four visits. He testified

that he will likely need to be out of the country more if he expands his

business to Cozumel.

Mr. Tripp testified that he intends to enroll B.T. in Webster Parish

Schools when she begins kindergarten. He stated that he did not attend

church while in Miami, but since coming to Louisiana, he and B.T. attend

church with his family. When questioned, Mr. Tripp stated that he was not

concerned with B.T. being hungry or not having adequate clothing while in

Ms. Gener’s care. When further questioned by the court, he stated that he is

worried about Ms. Gener using medications without a prescription. During

that colloquy between the court and Mr. Tripp, the court stated that it seemed

as though Mr. Tripp alienated B.T. from Ms. Gener by bringing her to

Louisiana. Mr. Tripp replied that Ms. Gener could visit B.T. as often as she

wanted, and he purchased the plane tickets for the trips she did make to

Louisiana.

3
Mr. Tripp’s business, Island Wifi, is incorporated in the Bahamas and provides
wifi boxes to tourists in the Bahamas and on cruise ships. He is the sole owner of Island
Wifi.
7

When directly asked by the court what kind of custody he wanted, Mr.

Tripp stated that he wanted custody of B.T., but she could visit her mom in

the summer and alternate holidays. He admitted that it would be “extremely

difficult… to spend equal amounts of time with her for her development right

now.” He stated that he felt Louisiana was the safest place for B.T.

Osvell Pitterr, a long-time friend of Ms. Gener, testified that he has

known Ms. Gener since they went to school together in Venezuela. He stated

that he has been living in Miami for 20 years. He stated that he met Mr. Tripp

in Miami when Mr. Tripp was planning to visit Ms. Gener in Venezuela. Mr.

Pitterr testified that Mr. Tripp invited him to the Bahamas to stay in his (Mr.

Tripp’s) apartment there, but Mr. Tripp later admitted to him that the

apartment belonged to his father. He stated that after Ms. Gener became

pregnant, Ms. Gener and Mr. Tripp moved in with him until B.T. was born

and they moved into their apartment. Mr. Pitterr testified that Mr. Tripp told

him multiple times that he wanted to live in another country like Costa Rica

or Peru because it was cheaper than the United States.

Mr. Pitterr testified that neither parent was a bad parent and both loved

B.T. He stated that B.T. was with them equally when he would visit their

apartment in Miami. He testified that he was not surprised that Mr. Tripp left

Miami with B.T. because he always talked about moving from Miami.

Rafael Rodriguez, Ms. Gener’s cousin, testified that he is originally

from Venezuela but has lived in Miami for just over four years. He stated

that he met Mr. Tripp when Ms. Gener was pregnant with B.T. Mr.

Rodriguez testified that when he asked Ms. Gener about B.T., she would tell

him that B.T. was with her dad and would be coming back to Miami. He

stated that Ms. Gener is a good cook and cooks for B.T. and everyone else.
8

Ms. Gener was the last to testify and had the assistance of an

interpreter. She stated that she is living in a good, safe area of Miami. She

testified that she is currently an aesthetician and tattoo artist, and has a long

list of certifications, which were introduced into evidence. Ms. Gener stated

that while in Venezuela, she attended what is called a medical school, was a

bioanalyst in a lab, and her primary job was to perform blood tests for

cholesterol, triglycerides, etc. She testified that she now has her own spa

business in Miami and is able to make her own schedule when she has B.T.

Ms. Gener testified that she met Mr. Tripp on “Latin America Cupid”

in July 2017, and they were married on March 29, 2018. She admitted to

taking Tramadol without a prescription for back and stomach pain but does

not currently take it because she no longer needs it. When asked about Mr.

Tripp, she stated that he is a good father and she agreed that he could take

B.T. to Louisiana for a two-week visit in May 2021. She testified that she

asked Mr. Tripp on multiple occasions when he would be bringing B.T. back

to Miami, and he would tell her it would be a little more time or he needed to

take care of a few more things in Louisiana first. It was not until October or

November 2021 that she realized he was not bringing B.T. back to Miami.

She stated that based on video calls with B.T., she is concerned that Mr. Tripp

is giving B.T. too much fast food and chocolate.

When asked by the court what custody arrangement she requests, Ms.

Gener stated that she wanted custody of B.T., Mr. Tripp can visit whenever he

wants, and Mr. Tripp can have B.T. for holidays and vacations. She testified

that she did not have any objections to B.T. visiting Mr. Tripp in Louisiana

but does not want B.T. confused by changing homes every six months.

9

Ms. Gener testified that she did not attend church while married to Mr.

Tripp. However, she stated that before their marriage, she attended a Catholic

church in Venezuela and after he left Miami, she began going to mass at a

Catholic church close to her home. She testified that she has had

conversations with Mr. Tripp about her desire to have B.T. baptized in the

Catholic church. Ms. Gener testified that she received pictures from Mr.

Tripp of B.T. in her school and church activities, and although she knew

when some would occur, he did not invite her to attend.

When asked about her status in the U.S., Ms. Gener testified that she

has an immigration lawyer and is waiting for her permanent residence. Ms.

Gener stated that although she is allowed to be here with her temporary

residence, she is still technically a citizen of Venezuela.

After the custody proceedings, the trial court rendered its judgment in

open court on May 13, 2022. The interim order memorializing the ruling was

signed on June 20, 2022, and stated the following: the child’s passport would

be held under seal with the court and could only be removed upon consent of

both parties; the three-parish boundary for Ms. Gener’s visitation was

removed; Mr. Tripp was given physical custody of the child until June 30,

2022; Ms. Gener was given physical custody from July 1, 2022, until the next

hearing on August 2, 2022; and each party was given the right to visit on

weekends during the other party’s custody, provided a one-week notice was

given.

The trial court’s written opinion was filed June 13, 2022. The trial

court stated the following regarding La. C.C. art. 134 best interest of the child

factors (hereinafter referred to as “Article 134 factors”):

10

1. Potential for abuse: It was agreed that there was no evidence of
abuse.
2. Love, affection, and emotional ties between parent and child: Both
parties equally showed love, affection, and other emotional ties to the child.

3. Capacity and disposition of each party to give love, affection, and
spiritual guidance and to continue the education and rearing of the child: Mr.
Tripp testified that although he did not attend church in Miami, he attends
each Sunday with B.T. in Webster Parish. Mr. Tripp prepares B.T.’s lunches,
buys her clothes, cooks for her, provides her medicine, takes her to doctor
visits, and dresses and bathes her each day. B.T. moved from a predominantly
Spanish-speaking daycare in Miami to an English-speaking daycare in
Webster Parish. “[B.T.] needs to be educated in both English and Spanish to
communicate with her family.”

4. Capacity and disposition to provide the child with food, clothing,
medical care, and other needs: Ms. Gener has a “budding, but successful
small business” in the health and beauty industry and produced her federal tax
returns for the previous year. Mr. Tripp’s business is incorporated in the
Bahamas and he has not filed his income taxes for the past five years. Mr.
Tripp works from home, but his work frequently takes him out of the country,
which is often on cruise ships. He is currently in litigation with AT&T,
which is one of his principal associates in the business. Mr. Tripp has been
married three times. He has two children from his first marriage. No records
from the proceedings with his first wife were filed in the instant case. Mr.
Tripp testified that he went approximately two years without seeing his first
two children and his first wife sued him for child support. In proceedings
from his second divorce, the judge over that matter indicated that Mr. Tripp
was not credible in his testimony regarding an adulterous relationship. Mr.
Tripp is still in litigation in Lincoln Parish with his second wife over
community property.

5. Length of time the child has lived in a stable, adequate environment,
and the desirability of maintaining that environment: Mr. Tripp lives in a
home with his mother, stepfather, and B.T. Mr. Tripp never disclosed his
intentions to Ms. Gener that he would not be bringing B.T. back to Miami and
was going to seek a divorce and legal custody of B.T. “The court also finds it
suspect that no legal action was taken until after the six (6) month period
necessary to obtain jurisdiction in Louisiana had lapsed.” The time B.T. spent
living in Louisiana under the ex parte custody order is not held against Ms.
Gener because “the circumstances of it being granted is questioned by this
court.” Ms. Gener lives in the couple’s apartment, but she has agreed to
relocate in Miami.

6. The permanence, as a family unit, of the existing or proposed
custodial home, or homes: “See the answer to factor number five.”

7. Moral fitness of each party: Although the parties were told the court
only wanted to hear about moral fitness insofar as it affects the welfare of the
child, each party presented additional evidence outside the scope. Ms. Gener
presented evidence of Mr. Tripp’s affairs during his first two marriages as

11

well as their marriage. Mr. Tripp offered photos of Ms. Gener’s attire, but he
then admitted to buying the dress she was wearing in the photo.
8. History of substance abuse, violence, and criminal activity: No
evidence.

9. Mental and physical health of each party: No evidence.
10. Home, school, and community history of child: Because of the
child’s age and circumstances in moving from Miami to Louisiana, “there is
no significant history to consider.”

11. Preference of the child: Not of age to express.

12. Willingness and ability to facilitate relationship with the other
parent: Mr. Tripp does not appear willing to help facilitate and encourage a
relationship between B.T. and her mother. Ms. Gener appeared to encourage
B.T. to have a relationship with her father and has not impeded the
relationship.

13. Distance between the residences: They live over 1,000 miles apart,
which was caused by Mr. Tripp’s decision to move to Louisiana (even though
he works remotely and most of his business activity is in Florida or the
Bahamas). B.T. should not be burdened by traveling such a far distance many
times a year that would not be necessary if the parties lived in close
proximity.
14. Responsibility of care and rearing of child: As Mr. Tripp speaks
limited Spanish and B.T. was primarily speaking Spanish when she got to
Louisiana, she would have learned her language from her mother. However,
Mr. Tripp has been a “stellar parent” while having B.T. in his sole care, but
“the court believes that he knew that these would be issues in the child
custody proceeding.”

The trial court elaborated on the custody arrangement as follows: B.T.

will live with Mr. Trip from the beginning of the year until June 30 and with

Ms. Gener from July 1 through the end of the year; B.T. will have a week of

Thanksgiving with Mr. Tripp and Christmas with Ms. Gener; the holiday

schedule will reverse the next year. The trial court heard limited testimony

regarding where the child will attend school. Therefore, the trial court stated

that the parents could petition the court for a further determination of custody

when B.T. reaches “the age of mandatory public-school education.”

The trial court’s August 30, 2022 Judgment adopted its written opinion,

stated the parties would be granted joint custody of B.T., and detailed the
12

alternating six-month visitation schedule, with Thanksgiving and Christmas

alternating each year. These custody provisions are deemed to be a final

judgment on the issue of custody and visitation.

On September 1, 2022, Mr. Tripp filed his motion for new trial

asserting the trial court improperly granted shared custody of B.T. He also

asserted that he has the following new evidence that he would not have been

able to obtain prior to trial: Mississippi child support records; Louisiana child

support records; proof of relocation to a new residence by Ms. Gener; and

proof of Ms. Gener’s use of a prohibited drug. He states that Ms. Gener

works on Saturdays and Sundays and takes B.T. with her to work. He argues

that his relationship with B.T. has “suffered tremendously” since being with

her mother in Miami. He claims that since B.T. went back to Miami, his

communication with B.T. is limited, Ms. Gener oversees their conversations,

Ms. Gener does not remove distractions during phone calls, and there is no

structure to allow for meaningful conversations. He also complained that he

is financially unable to visit B.T. while she is in Miami because hotels are

$500 per night in addition to the other travel expenses. Mr. Tripp requested a

new trial regarding custody.

Ms. Gener opposed the motion for new trial arguing that it does not

conform to the language mandated by La C.C.P. art. 1975. She asserted that

Mr. Tripp’s allegations do not merit a change in the trial court’s ruling. She

argued that Mr. Tripp only wants a second bite at the apple and should be

denied based on form alone. If he is not denied for form, she asserts he

should be denied because his “new” evidence does not meet the standard to

support a motion for new trial.

13

On November 28, 2022, the trial court signed its judgment denying Mr.

Tripp’s motion for new trial. Mr. Tripp now appeals.

DISCUSSION

Shared Custody & Domiciliary Parent

Mr. Tripp argues the trial court erred in awarding shared custody

without consideration of the distance between the parties. Mr. Tripp cites

cases where Louisiana courts have found an abuse of discretion when parties

live a substantial distance from each other and are awarded shared custody.

He asserts that based on the facts and jurisprudence, it is in the best interest of

B.T. to be placed in his primary care in Louisiana, with reasonable visitation

for Ms. Gener.

Mr. Tripp argues the trial court erred in failing to name him as primary

domiciliary parent. He contends that if the evidence presented had been

appropriately weighed according to the Article 134 factors, the only

reasonable outcome would have been for the trial court to grant joint custody

of the minor child and designate him as the domiciliary parent. He requests

this court reverse the trial court’s judgment.

Ms. Gener asserts that the following Article 134 factors are clearly

weighed in her favor: 3- continuing the education and rearing of the child; 5-

stability, adequacy, desirability, and continuity of environment; 6-

permanence of custodial home; 7- moral fitness; 9- mental health; 10- home,

school, and community history of the child; and 11- willingness and ability to

foster and encourage a close relationship between the child and the other

party. She argues that the other factors are neutral, with none falling in Mr.

Tripp’s favor. She asserts that if a domiciliary parent is named, she should be

designated the domiciliary parent.
14

Underlying the trial court’s great discretion in child custody cases is its

opportunity to better evaluate the credibility of witnesses. Accordingly, the

trial court’s determination of custody issues is afforded great weight and will

not be disturbed on appeal absent an abuse of discretion. Colvin v. Colvin,

40,518 (La. App. 2 Cir. 10/26/05), 914 So. 2d 662.

In a proceeding for divorce or thereafter, the court shall award custody

of a child in accordance with the best interest of the child. La. C.C. art. 131.

Louisiana Civil Code Article 134 lists 14 factors to be considered in

determining the best interest of the child.

Subject to the provisions of R.S. 9:364, in the absence of agreement, or

if the agreement is not in the best interest of the child, the court shall award

custody to the parents jointly; however, if custody in one parent is shown by

clear and convincing evidence to serve the best interest of the child, the court

shall award custody to that parent. La. C.C. art. 132. In a proceeding in

which joint custody is decreed, the court shall render a joint custody

implementation order except for good cause shown. La. R.S. 9:335(A).

Substantial time rather than strict equality of time is mandated by the

legislative scheme providing for joint custody of children. Colvin, supra.

The trial court took great care in analyzing the Article 134 factors in its

written reasons for judgment, as detailed above. A review of the Article 134

factors indicates that both parents are equal in most respects and both are

capable and loving parents. However, an equal sharing of custody is

prevented by the distance between the parents’ homes. In many situations,

courts have found alternating custody arrangements were not in the best

interest of the children involved. Among the reasons given were the

disruptive effect upon the child, the lack of stability, and the potential
15

educational problems with changing schools. Colvin, supra; see also Evans

v. Lungrin, 97-0541 (La. 2/6/98), 708 So. 2d 731; Alexander v. Alexander, 02-

683 (La. App. 3 Cir. 11/13/02), 831 So. 2d 1060; Stanley v. Stanley, 592 So.

2d 862 (La. App. 3 Cir. 1991), writ denied, 592 So. 2d 1339 (La. 1992);

Swope v. Swope, 521 So. 2d 656 (La. App. 1 Cir. 1988); Hull v. Hull, 499 So.

2d 1037 (La. App. 3 Cir. 1986).

We agree with the trial court’s finding that joint custody is in the best

interest of B.T. Although we understand that the trial court was trying to give

each parent ample and equal amounts of time with the child before she begins

kindergarten, Louisiana courts have held that this type of arrangement has the

potential of causing a substantial disruption in her future educational and

social development. Although B.T. has not yet started kindergarten, that day

is fast approaching. Additionally, the cultures between the two homes are

substantially different given that one is in Miami and primarily Spanish-

speaking while the other is in Sarepta and English-speaking.4 We respectfully

vacate the trial court’s judgment awarding each parent six-month visitation

periods and remand for the rendering of a joint custody implementation order

consistent with the views expressed herein.

The trial court judgment states that the parents will share joint custody

of B.T. but does not name a domiciliary parent. Louisiana Revised Statute

9:335(B) provides for only two circumstances in which a court may decline to

name a domiciliary parent in a joint custody context, that is, when “there is an

implementation order to the contrary or for other good cause shown.” Bailey

v. Bailey, 16-0212 (La. App. 1 Cir. 6/3/16), 196 So. 3d 96, writ denied, 16-

4
There was much discussion at trial about the language to which B.T. was
primarily exposed in both Miami and Sarepta. We applaud the trial court for ensuring the
child be raised bilingual in order to communicate with all of her family.
16

1426 (La. 8/2/16), 196 So. 3d 605. The trial court did an excellent job in

weighing the Article 134 factors as required by law. However, because the

trial court did not provide an implementation order, name a domiciliary

parent, or find good cause for not naming a domiciliary parent, we

respectfully find that the trial court abused its discretion as to this portion of

the ruling. Therefore, we are required to remand for the trial court to

designate a domiciliary parent.

Mr. Tripp also asserts that the trial court erred in denying his motion

for new trial. Because we are vacating the trial court’s judgment and

remanding for further proceedings, this argument is now moot.

CONCLUSION

For the above reasons, we affirm the trial court’s determination of joint

custody between the parents. We vacate the portion of the judgment setting

forth the rotating six-month visitation schedule. This matter is remanded to

the trial court to confect a joint custody implementation order and name a

domiciliary parent in accordance with the provisions of La. R.S. 9:335 and

any necessary further proceedings consistent with the views expressed herein.

The costs of this appeal are assessed equally between the parties.

AFFIRMED IN PART; VACATED IN PART; AND REMANDED

WITH INSTRUCTIONS.

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