Joseph Prescia v. Gary O'Brien

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-1560

JOSEPH PRESCIA, ET AL.

VERSUS

GARY O’BRIEN

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 110,253
HONORABLE JOHN E. CONERY, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Sylvia R. Cooks, Marc T. Amy, and Phyllis M. Keaty, Judges.

AFFIRMED.

Natalie B. Broussard
Attorney at Law
203 West Main Street, Suite 200
New Iberia, Louisiana 70560
(337) 365-9000
Counsel for Plaintiffs/Appellees:
Joseph Prescia
Laura Prescia

R. Michael Moity, Jr.
The Moity Law Firm
340 Weeks Street
New Iberia, Louisiana 70560
(337) 365-5529
Counsel for Defendant/Appellant:
Gary O’Brien

KEATY, Judge.

In this child custody case, the father, Gary O’Brien, appeals a trial court

judgment that granted joint custody to the father and the children’s maternal

grandparents, Joseph and Laura Prescia, with the Prescias designated as

“temporary domiciliary parent(s).” The judgment ordered O’Brien to undergo a

complete psychological evaluation, the results of which were to be supplied to the

trial court and all counsel of record and granted him “restricted visitation” at Avec

Les Enfants visitation center or at the home of the children’s maternal aunt. For

the following reasons, we affirm.

Facts and Procedural History

Gary O’Brien and his deceased wife, Sherry, are the biological parents of

two minor children, Brendan and Casey O’Brien. After Sherry died in 2004, the

children lived with their father and spent most weekends and some evenings after

school with their maternal grandparents, Joseph and Laura Prescia. For several

years, these adults formed a cohesive family unit for Brendan and Casey. In 2007,

O’Brien began to refuse visitations between the Prescias and the children. The

Prescias filed suit against O’Brien, seeking visitation. The trial court found that

visitation was warranted and established a visitation plan. The visitation plan

worked well until January 2009, when O’Brien began denying visitation and phone

contact to the grandparents, claiming that the children did not want to see or speak

with them.

The parties filed cross motions for contempt. The parties attended several

hearing officer conferences and objected to those recommendations. A rule for

contempt was set and was reset. During that time, in late March 2009, O’Brien

moved the minor children from New Iberia, Louisiana, to Anacoco, Louisiana,

without notifying the Prescias or obtaining judicial permission for the relocation.

After a hearing on the rule for contempt, the Prescias again enjoyed visitation and

telephone conversations with their grandchildren.

In 2010, O’Brien began denying visitation and telephone communication to

the Prescias for a third time. They filed to have the trial court’s order clarified.

The matter was set for a hearing officer conference on May 17 and a rule on June 4.

In late April 2010, O’Brien moved the children to Florida and enrolled them in

school, again without permission from the trial court. After the fact, he told Lisa

DiMarco, the children’s maternal aunt, that he moved to get the children away

from his wife’s family and because he believed the state he had moved to did not

recognize grandparents’ rights to custody. He refused to tell her which state he

was in. At that time, the Prescias sought custody of the children. Temporary

custody was granted to the Prescias on June 4, 2010. A hearing on permanent

custody was scheduled for July 23, 2010. O’Brien was denied any visitation

pending the July 23, 2010 hearing unless it was supervised by DiMarco.

Shortly after the children were removed from his custody in Florida,

O’Brien, who had tried to commit suicide fifteen years before and who had lost a

son of a previous marriage to suicide, left a message on the children’s therapist’s

voicemail stating that he was going to join their mother and to tell the children that

he loved them. Alarmed by the implicitly suicidal nature of the message, the

therapist called authorities in Florida, and O’Brien was brought to a mental health

hospital. While at the hospital, O’Brien told doctors that he moved to Florida to

get the kids away from their grandparents and that he suffered from depression.

Although it was recommended that he undergo a psychological evaluation, he did

not and was released after two days.

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On July 23, 2010, after a hearing on permanent custody, 1 the trial court

found O’Brien in contempt of court and sentenced him to a suspended thirty-day

jail sentence. It also ordered that O’Brien have two meetings with Steven

Hargrave, the children’s therapist, first independently and then with the children.

At that time, O’Brien stated to the trial court, “[s]o I am going to go ahead and say

that they can have custody of my children because this has devastated me

financially and emotionally, and I don’t really see how I can take care of the kids

right now.” The matter was reset for August 3, 2010. After the August 3 hearing,

the trial court ordered that custody of the children remain with the Prescias, that

O’Brien complete a mental health evaluation, that all of O’Brien’s mental health

records be released to Hargrave, and that O’Brien only be allowed supervised

visitation with his children.

O’Brien met with his children four times at Hargrave’s office between

August 2010 and December 2011. He saw the children on Christmas day for an

hour or two and again in February 2011 for an hour or two on his daughter’s

birthday. Though he was in New Iberia the day before his son’s birthday in May

2011, he did not ask to see his children. He made only one phone call to DiMarco

to arrange visitation with his children between August 2010 and July 2011. He did

not telephone the Prescias at all, not even to get information on the children’s well-

being.

On May 18, 2011, O’Brien filed a “Motion to Return Children to Father.”

The matter went to trial on July 21, 2011. At trial, O’Brien admitted that he had

only set up four visits with his children through Hargrave, that he had not

submitted to a complete psychological evaluation, and that he had seen his children
1
The judgment states that the matter came before the trial court pursuant to “the Hearing
on contempt” but the Judgment on Rules from June 4, 2010 indicates that “a hearing on
permanent custody” was set for July 23, 2010, and there is no evidence of the custody hearing
having been reset.
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for a short period of time on Christmas and on his daughter’s birthday in February,

but had not seen them or asked to see them since that time even though he was in

New Iberia the day before his son’s birthday in May.

Hargrave testified that he still sees the children for therapy and they are torn;

they love their father, but they also love their grandparents, and what they really

want is for both sides to get along. Hargrave further testified that O’Brien has a lot

of animosity toward the Prescias and that he seems to thwart the grandparents’

efforts to include him in family events. When he was invited to Thanksgiving

dinner, he immediately declined, asserting that he would have the children back by

then. Hargrave stated that it is important for the children to have contact with the

grandparents and their maternal aunt because it makes them feel connected to their

mom. He stated that they are thriving with the Prescias, but with O’Brien, they

only survived. He further stated that he felt that their living with O’Brien would

emotionally and mentally harm the children because of the continued animosity

O’Brien harbors against the Prescias. Further, Hargrave did not think that O’Brien

was capable of fostering and promoting a meaningful relationship with the Prescias

or DiMarco.

The Prescias and DiMarco also testified. Their testimony revealed that the

Prescias have tried to get O’Brien to see the children or to visit them, but he has

chosen not to. They explained that their primary and ultimate goal is for O’Brien

and the children to reach a healthy reunification in the future. Further, testimony

revealed that the Prescias are happy to take care of their grandchildren and are able

to provide for them financially and emotionally.

Ultimately, the trial court denied O’Brien’s request. It found that he was

discharged from the mental health facility prematurely, as a neuro-psychiatric

evaluation was ordered but never performed. It further found:
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[H]e has demonstrated over the past three (3) years he in no way
places the best interest of the children first, that he places his own
selfish desire to have his children and exclude them from the lives of
their grandparents first, and he has done everything within his power
to accomplish that. He moved suddenly and with out [sic] notice to
Anococo [sic] in the middle of the school year against the children’s
best interest and lied about his reasons why he moved at prior
hearings. He moved again to Florida, against the children’s best
interest, with no real reason to move in the middle of a school year –
well, toward the end of the school year with one (1) month left, which
was completely against the best interest of the children. He said to
Lisa (his sister-in-law) that he was moving to a state that did not
recognize grandparents’ rights and he had no intention of having these
children see there [sic] grandparents again.

He has no credibility. He consistently attempts to mislead the
Court. Numerous examples of his lack of credibility have previously
been pointed out and are in the transcript of the prior hearings. Today,
again, he demonstrated his lack of credibility on several occasions.
He told the [sic] directly that he was moving to go see his brother who
was going to Iraq; and yet, he tells the sister-in-law that he moved to
Florida because it is a no-contact state with grandparents. The Court
accepts her testimony as a credible. The medical records reflect that
the reason he told the doctors why he was in Florida completely
contradicts his testimony and says with crystal-clear clarity that he
was moving to get them away from their grandparents and had
nothing whatsoever to do with his brother.

. . . And in spite of all the efforts the Court has made to try to get him
to see the light, go to counseling, work with the grandparents in the
children’s best-interest, he still adamantly refuses to do so and then
blames everybody else for his problems. I don’t know that anything
can be done at this stage. Certainly it is going to be up to him how
much contact he has with the children.

The trial court then granted the parties joint custody of the children, with the

Prescias as temporary domiciliary parents. It ordered that O’Brien was to have

restricted visitation to be scheduled at Avec Les Enfants or at the home of

DiMarco on every other Sunday from 9:00 a.m. until 4:00 p.m. It further ordered

O’Brien to submit to a psychological evaluation and allowed him to seek visitation

once that evaluation was completed.

Issues

O’Brien is now before us on appeal, assigning three errors:

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1. The District Court abused its discretion by perverting La. R.S. Art.
[sic] 9:344 and reversing legislative intent by forcing the biological
parent to have restricted visitation while giving the grandparents
joint and physical custody of the children for almost two (2) years.

2. Through the use of consecutive “Temporary Order”(s), the District
Court has abused its discretion by application of La. R.S. Art. [sic]
9:344 and/or La. C.C. Art [sic] 136 to violate Appellant’s
fundamental right to parent and raise his children.

3. Abuse of discretion and unconstitutionally Applied Louisiana Law
[sic] that was meant to build family relations and respect a parent’s
constitutional rights.

Standard of Review

Appellate courts employ the “abuse of discretion” standard when reviewing

custody determinations. Dalme v. Dalme, 09-524 (La.App. 3 Cir. 10/14/09), 21

So.3d 477, writ denied, 09-2560 (La. 1/8/10), 21 So.3d 477.

Discussion

The first two arguments asserted by O’Brien refer to La.R.S. 9:344, which

allows the parents of a decedent to enjoy reasonable visitation rights with their

grandchildren. Although the pleadings initially filed in this case were based on

La.R.S. 9:344, the judgment that is before us on appeal specifically involves

custody of the children. 2 Accordingly, these assignments are without merit.

Insofar as O’Brien’s second assignment of error refers to La.Civ.Code art. 136, this

assignment is also without merit as this article references visitation rights of

parents or grandparents not granted custody or joint custody. The judgment on

appeal specifically grants joint custody to the Prescias and to O’Brien.

Accordingly, any error raised based on La.Civ.Code art. 136 is without merit.

2
We note that O’Brien did not appeal any of the trial court’s earlier judgments
concerning visitation, nor did he appeal the July 23, 2010 or August 3, 2010 judgments granting
custody of the children to the Prescias. Rather, at the July 23, 2010 hearing, he acquiesced to the
Prescias having custody of his children, as the proceedings had “devastated [him] financially and
emotionally, and [he didn’t] really see how [he could] take care of the kids right now.”
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We now turn to O’Brien’s third assignment of error: that the trial court

abused its discretion and “unconstitutionally applied Louisiana Law that was

meant to build family relations and respect a parent’s constitutional right.” In

Louisiana, biological parents have paramount rights to custody of their children.

Whitman v. Williams, 08-1133 (La.App. 3 Cir. 2/4/09), 6 So.3d 852. They can

only be deprived of those rights for compelling reasons. Id.

Louisiana Civil Code Article 131, however, grants trial courts the power to

make custody determinations. Although La.Civ.Code art. 132 states that the trial

court “shall award custody to the parents jointly” or to one parent if clear and

convincing evidence proves that custody in one parent would be in the best interest

of the child, La.Civ.Code art. 133 allows a trial court to award custody to a non-

parent “[i]f an award of joint custody or of sole custody to either parent would

result in substantial harm to the child.”

In the instant case, O’Brien made two erratic mid-school-year moves, one to

a new city and one to a new state, in the two years leading up to the grandparents

obtaining custody of the children. In both instances, he failed to notify any of the

children’s maternal family members beforehand, and in the second instance, he

refused to tell them where he had relocated. The moves occurred without

permission from the trial court.

O’Brien admittedly suffers from depression and has attempted suicide before.

When the children were removed from his custody, he left a voicemail message

that alluded to his having suicidal thoughts. He was admitted to a hospital for

psychological reasons, where he admitted to suffering from depression and to

moving out of state to keep the Prescias away from the children. Although a

neuro-psychological evaluation was ordered, there is no evidence of it having been

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performed. He has not submitted to psychological testing since his release from

the hospital despite court orders mandating that he do so.

At the July 2010 hearing on custody, O’Brien voluntarily gave custody of

the children to the Prescias, admitting that he was unable to care for them. The

trial court ordered that he undergo a psychological evaluation and ordered

supervised visitation. He did not submit for psychological evaluation. He has not

made sufficient efforts to see his children.

Conversely, the Prescias have emotionally and financially supported their

grandchildren, especially since they were awarded custody. They provide a stable

and loving home. They take the children to regular counseling sessions. They

check with the children’s therapist to make sure that certain actions (such as

showing the children home movies of their mom) would not upset them. They

invite O’Brien to family holiday events. They give the children birthday parties

and more.

In Carroll v. Carroll, 476 So.2d 976 (La.App. 1 Cir. 1985), the court found

that proof of stability and a wholesome environment in the grandmother’s home

coupled with evidence that removing the children from her home would not be in

the children’s best interest was sufficient to support the trial court’s award of

custody to the grandparents. In its discussion of that case, the first circuit stated “a

parent now enjoys a paramount right of custody which can be outweighed by a

sufficiently grave detriment to the child’s best interest, present in awarding custody

to that parent, which requires that custody be awarded to a nonparent.” Id. at 981.

It is clear to this court that O’Brien has a propensity to disregard the orders

of the trial court and to act rashly without considering the best interest of his

children. He continually denied visitation to the Prescias, in absolute disregard of

the trial court’s order. He moved twice in the middle of the school year, uprooting
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his children and enrolling them in new schools each time. This was done with

obvious disregard for how the move would affect the children. He has a history of

depression and suicide attempts and threats, yet has not undergone a psychological

evaluation that would assist the trial court in determining if he is able to care for

his children.

In addition to his failure to submit for psychological testing and denying the

Prescias visitation, O’Brien has also failed to maintain regular and reliable

visitation with his children. At the initial hearing on custody in July 2010, O’Brien

voluntarily “gave” custody of his children to the Prescias, admitting to the trial

court that he was unable to care for them. Once the children began living with the

Prescias, O’Brien visited them six times, and each of those visits occurred before

March 2011. After March 2011, O’Brien did not visit, or ask to visit, his children,

even when he was in the same town. O’Brien did not communicate with the

Prescias about the children and only spoke with the approved visitation supervisor

once in nearly a year.

Conclusion

After carefully reviewing the record, we find no error with the trial court’s

decision to award joint custody to O’Brien and the Prescias, to designate the

Prescias as the domiciliary parents, to allow O’Brien restricted visitation, and to

require that O’Brien submit to a psychological evaluation. We note that in the

judgment before us on appeal, the trial court has also allocated that O’Brien may

petition the trial court for visitation rights once the psychological evaluation has

been completed. Costs of this appeal are assessed against appellant, Gary O’Brien.

AFFIRMED.

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