396 So. 2d 342

Leonard Joseph LIPARI v. Leta L. LIPARI.

No. 14001.

Court of Appeal of Louisiana, First Circuit.

March 2, 1981.

*343Ron S. Macaluso, Hammond, for plaintiff.

Curtis M. Baham, Jr., Hammond, for defendant.

Before LOTTINGER, EDWARDS and PONDER, JJ.

PONDER, Judge.

Plaintiff appealed the judgment changing custody of a minor child.

The issues are: burden of proof, the best interest of the child, and abuse of discretion.

We affirm.

Defendant was awarded temporary custody of her minor child following a legal separation from plaintiff. Later, plaintiff obtained a divorce and a transfer of custody, the latter based at least partially on uncertainty of defendant’s employment prospects and place of residence. Both parties remarried; defendant reestablished her residence in Louisiana. Plaintiff’s second wife became agitated over defendant’s visitation privileges. On one occasion, the second wife struck the defendant in the sight of and screamed in the earshot of the child.

The court granted a change of custody, basing the transfer on defendant’s ability to provide a comfortable home, a preference for the natural mother, the second wife’s violent behavior and the minimal effect of a change on the child’s stability due to the short length of the father's custody.

Plaintiff claims defendant has not satisfied the “double burden” required of a party seeking a change of custody.1 Appellee argues that the 1979 amendment to Article 157 abrogates the “double burden” rule.2

Even before the amendment, a mechanical application of the “double burden” test was not required, McCarstle v. McCars-tle, 356 So.2d 491 (1st Cir. 1977). Under the 1979 amendment the focal point is definitely the welfare of the child.

The record shows that on more than one occasion plaintiff’s second wife has behaved in a violent manner. We find the *344potential for violence deleterious to the child’s welfare and contrary to her best interest. Furthermore, defendant can provide the child with a loving and comfortable home.

Plaintiff next contends the trial court abused the wide discretion, which is given it because of the difficult decision involved in custody challenges. Stevens v. Stevens, 340 So.2d 584 (1st Cir. 1976). We find no abuse.

For the above reasons, the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.

Lipari v. Lipari
396 So. 2d 342

Case Details

Name
Lipari v. Lipari
Decision Date
Mar 2, 1981
Citations

396 So. 2d 342

Jurisdiction
Louisiana

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