Hicks v. Hicks
733 So. 2d 1261, 1999 WL 314730 (1999)
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Rule of Law:
When there is a proven history of family violence, Louisiana's Post-Separation Family Violence Relief Act mandates the application of a rebuttable presumption that the perpetrating parent shall not be awarded sole or joint custody. This statutory presumption must be applied before a court considers the general 'best interest of the child' factors under the Civil Code.
Facts:
- David O. Hicks, Sr. and Teresa L. Hicks married in 1982 and had three minor children.
- During the marriage, David Hicks committed multiple acts of physical violence against Teresa Hicks.
- Teresa Hicks testified that David Hicks hit her in the stomach while she was pregnant, causing miscarriages; broke brooms over her; threw her off a porch with a two-by-four under her neck; and repeatedly forced her to have sex against her will.
- At trial, David Hicks did not deny or offer testimony to rebut the allegations concerning the miscarriages, the use of brooms, being thrown off the porch, or the forced sexual encounters.
- The couple separated in December 1997.
- Following the separation, Teresa Hicks moved with the two younger children to Indiana and then Canada to be near family, while the eldest child initially remained with David Hicks to continue her school activities in Vernon Parish.
Procedural Posture:
- David Hicks filed for divorce from Teresa Hicks in a Louisiana trial court in December 1997, initially petitioning for joint custody.
- In January 1998, David Hicks filed a supplemental petition seeking custody of all three children.
- Teresa Hicks reconvened, requesting a restraining order and custody of all three children.
- The trial court found that David Hicks had been abusive towards Teresa Hicks but did not apply the Post-Separation Family Violence Relief Act.
- The trial court awarded joint custody to both parents, designating David Hicks as the primary custodian during the school year based on a 'best interest of the child' analysis.
- Teresa Hicks (appellant) appealed the trial court's custody judgment to the Court of Appeal of Louisiana, Third Circuit.
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Issue:
Does a trial court commit reversible error by failing to apply the mandatory presumption against awarding custody to a parent with a documented history of family violence, as required by the Post-Separation Family Violence Relief Act?
Opinions:
Majority - Woodard, J.
Yes. The trial court's failure to apply the Post-Separation Family Violence Relief Act (La.R.S. 9:364) constituted a legal error requiring reversal. The Act creates a mandatory presumption that a parent with a history of perpetrating family violence shall not be awarded sole or joint custody. Ms. Hicks' uncontradicted testimony regarding multiple severe acts of violence committed by Mr. Hicks was sufficient to trigger the Act's application. Once triggered, the court cannot proceed to the general 'best interest of the child' analysis until the perpetrating parent has overcome the presumption by proving they have completed a treatment program and met other statutory requirements. Because Mr. Hicks did not rebut this presumption, the court awarded sole custody to Ms. Hicks and ordered that Mr. Hicks' visitation be supervised.
Dissenting - Doucet, C.J.
No. The trial court's judgment should be affirmed because its decision was based on determinations of witness credibility. An appellate court must give great deference to the trial court's factual findings, especially in custody matters where the trial judge has a superior opportunity to observe the witnesses. The trial judge's conclusion was a reasonable one based on the conflicting testimony, and it should not be disturbed on review unless there is a showing of clear abuse of discretion, which was not present here.
Analysis:
This case firmly establishes the mandatory and preemptive nature of the Post-Separation Family Violence Relief Act in Louisiana custody disputes. It clarifies that the statutory presumption against awarding custody to an abuser is not merely one factor among many in the 'best interest' analysis, but a threshold legal requirement that must be addressed first. By explicitly rejecting precedent that considered factors like provocation or whether children witnessed the abuse, the court created a bright-line rule that strengthens protections for abuse victims. This holding significantly constrains trial court discretion, forcing them to prioritize victim safety as defined by the legislature over traditional, more subjective custody evaluations when a history of violence is proven.
