## Facts

- Margie Odet Wilson (mother) and Kenneth Craig Landry (father) were an unmarried couple with three minor children.
- In April 1994, Landry filed a petition for temporary custody, alleging Wilson abandoned the family home; the trial court awarded Landry temporary custody.
- By stipulation in June 1994, the parties agreed the children would remain temporarily with Landry, with Wilson having visitation every other weekend, pending further proceedings.
- Wilson later sought sole custody and additional relief, including child support and a psychological evaluation of Landry.
- In November 1994, the trial court held an evidentiary hearing and orally announced a joint-custody plan under which the children would live with Wilson and have regular visitation with Landry.
- Landry argued with the judge about the ruling; the judge found him in contempt and ordered him jailed for the weekend.
- Immediately after the contempt ruling, Desdemona Landry (the paternal grandmother), who was not a party at that time, addressed the court and said she and her husband wanted custody and could provide a good home.
- The judge and the grandmother engaged in an extended courtroom discussion about custody and concerns regarding both parents; the grandmother was not sworn and was not subject to cross-examination during that exchange.
- After the discussion, the court vacated its oral joint-custody ruling, left the children with Landry under the prior interim arrangement, and set a later hearing.
- At the December 5, 1994 hearing, the grandmother presented her case for custody; Wilson moved for involuntary dismissal at the close of the grandmother’s evidence, and the trial court denied the motion.
- The trial court awarded provisional custody of the children to the grandmother, with visitation to both parents, and set a later review date.
- Wilson appealed the provisional custody judgment, challenging the nonparent award and the procedures used to reach it, including the consideration of the grandmother’s unsworn statements.

## Issues

1. Whether the trial court committed legal error by awarding custody to a nonparent without first determining that custody with either parent would result in “substantial harm” to the children under Louisiana Civil Code article 133.
2. Whether the trial court erred by receiving and relying on the grandmother’s unsworn factual statements in the custody proceedings, contrary to Louisiana Code of Evidence article 603.
3. Whether the trial court erred in denying Wilson’s motion for involuntary dismissal of the grandmother’s custody request, given the nonparent’s burden in a parent-versus-nonparent custody contest.
4. Whether ancillary rulings tied to the custody determination (including the handling of the children’s in-chambers statements and child support) could stand after reversal of the nonparent custody award.

## Decision

- The Louisiana First Circuit reversed the judgment awarding provisional custody to the paternal grandmother and remanded for further proceedings.
- The court held the trial court committed legal error by awarding custody to a nonparent without first making the required legal determination that parental custody would result in substantial harm to the children, as required by Civil Code article 133.
- The court also recognized error in the trial court’s consideration of unsworn statements from the grandmother in connection with changing course from the court’s earlier oral custody ruling.
- Because the custody award was reversed, the matter was returned to the trial court for proceedings consistent with the correct parent-versus-nonparent custody standard.

## Legal Principles

- In a custody contest between a parent and a nonparent, parents have a paramount right to custody and may be deprived of that right only for compelling reasons supported by convincing evidence.
- Louisiana Civil Code article 133 requires a specific determination that awarding custody to a parent (whether sole custody to either parent or joint custody) would result in substantial harm to the child before custody may be awarded to a nonparent.
- A “best interest of the child” analysis does not, by itself, justify placing a child with a nonparent over a parent; the statutory substantial-harm determination is a prerequisite.
- Witness testimony must be given under oath or affirmation; receiving material factual assertions from an unsworn speaker violates Louisiana Code of Evidence article 603 and can taint a custody ruling when relied upon.
- In a parent-versus-nonparent custody proceeding, the nonparent bears the burden of proof; if that burden is not met, the parent is entitled to prevail.

## Conclusion

The appellate court reversed the award of provisional custody to the paternal grandmother because the trial court did not make the required Civil Code article 133 finding that custody with either parent would cause substantial harm, and the proceedings were further compromised by reliance on unsworn statements from the grandmother; the case was remanded for custody proceedings applying the correct parent-versus-nonparent standard on a proper evidentiary record.


In re Custody of Landry, 662 So. 2d 169 (1995)