Opinion
2022 CU 0675.
12-22-2022
Jimmy WILEY, Jr. v. Eleanor Lovely SMALL.
La'Derical D. Wagner , New Iberia, Louisiana, Counsel for Plaintiff-Appellant, Jimmy Wiley, Jr. Jeffrey S. Segura , New Iberia, Louisiana, Counsel for Defendant-Appellee, Eleanor Lovely Small. BEFORE: THERIOT, CHUTZ, AND HESTER, JJ.
La'Derical D. Wagner , New Iberia, Louisiana, Counsel for Plaintiff-Appellant, Jimmy Wiley, Jr.
Jeffrey S. Segura , New Iberia, Louisiana, Counsel for Defendant-Appellee, Eleanor Lovely Small.
BEFORE: THERIOT, CHUTZ, AND HESTER, JJ.
CHUTZ, J.
Plaintiff-appellant, Jimmy Wiley, Jr., appeals the trial court's judgment, denying his request for sole custody of the minor children of defendant-appellee, Eleanor Lovely Small, and her deceased husband, Alvin Small. We affirm by summary disposition.
Mr. Wiley is the biological father of D.W. and J.W., whom we identify by their initials to protect and maintain their privacy. See Uniform Rules, Courts of Appeal, Rule 5-2; Jupiter v. Jupiter, 2014-0395 (La. App. 1st Cir. 9/24/2014), 154 So.3d 1241, 1241 n. 1, writ denied , 2014-2301 (La. 1/23/15), 159 So.3d 1058. It is undisputed that Mr. Wiley consented to the adoption of the children by Mr. and Mrs. Small in 2012, thereby terminating his parental rights. Despite the adoption, the children continued to live in the home with Mr. Wiley and the biological mother, Minerva Latrice Wiley. In April 2021, Mrs. Wiley passed away. Mr. Wiley subsequently initiated this proceeding, seeking sole custody of the children.
Every child custody case must be viewed in light of its own particular set of facts, and the trial court is in the best position to ascertain the best interest of the child given each unique set of circumstances. In performing its function of deciding custody cases, the trial court is vested with vast discretion in matters of child custody and visitation because of its superior opportunity to observe the parties and the witnesses who testified at trial. On appellate review, the determination of the trial court regarding custody is entitled to great weight and should be overturned only when there is a clear abuse of discretion. Tinsley v. Tinsley, 2016-0891 (La. App. 1st Cir. 1/18/17), 211 So.3d 405, 411. Because this is an initial custody contest between a parent (Mrs. Small) and nonparent (Mr. Wiley), it was Mr. Wiley's burden to prove by clear and convincing evidence that granting custody of the children to Mrs. Small would result in substantial harm to the child. See La. C.C. art. 133; Smith v. Tierney, 2004-2482 (La. App. 1st Cir. 2/16/05), 906 So.2d 586, 590. Finding the trial court's disposition is supported by the law and the evidence, we affirm in accordance with La. Uniform Court of Appeal Rule 2-16.2(A)(2)(4)(5)(6)(7) & (8). Appeal costs are assessed against plaintiff-appellant, Jimmy Wiley, Jr.
See also Matter of Custody of L.W.B., 2019-1280 (La. App. 1st Cir. 7/6/20), 2020 WL 3638826, at *7, writ denied , 2020-00970 (La. 9/23/20), 301 So.3d 1185 (noting that Article 133 has been applied in custody actions instituted by non-parents, thereby implicitly recognizing a non-parent's right of action to seek custody and citing as examples Smith v. Tierney, 2004-2482 (La. App. 1st Cir. 2/16/05), 906 So.2d 586 (grandparents instituted custody action where parents were never married); In re C.A.C., 2017-0108 (La. App. 4th Cir. 11/2/17), 231 So.3d 58 (finding the biological mother's former same-sex partner stated a cause of action for custody under Article 133); and Neathery v. Neathery, 51,388 (La. App. 2d Cir. 2/17/17), 216 So.3d 251 (biological parent's cousin, who raised the child by agreement with the parent, sought sole custody)).