Case Update (19 April 2024): Morgan v. Morgan; Father’s “contempt” of existing custody order was grounds to modify custody to place child in Mother’s custody in Philippines

The parties are parents to two children, both of who hold dual citizenship in the United States and the Philippines. The oldest child is emancipated by age. The parties raised the children in the Philippines until early 2020, when their Father traveled with them to Louisiana to renew their U.S. passports. The Mother remained in the Philippines. COVID-19 then restricted the Father’s and children’s ability to travel, and so the Mother agreed to enroll the children in school in Louisiana.

In October 2020, the instant litigation started, where Father sought to be named the “domiciliary parent” and to prohibit the Mother from taking the younger child outside of the USA while exercising custody, “alleging it would be impossible to force [Mother] to return them.” At the July 2021 custody trial, the parties established that the Mother “had not physically seen the children since they left the Philippines, and that [she] could not travel to the United States because her visa was expired and she lacked other required immigration documentation.” The Father argued, among other things, “the high risk of kidnapping, high crime, and rampant corruption” in the Philippines. The trial judge permitted the parties time to file post-trial memos addressing “the issue of child abduction and the [Philippines] as a signatory to the [Hague] Convention … and … [the ability to enforce] Louisiana judgments regarding custody and custodial schedules.”

On October 28, 2021, the court awarded the parties joint legal custody and named the Father as the domiciliary parent. It awarded the Mother periods of physical custody during the summer, and indicated they “may take place in the country of the Philippines, or any other location which may be agreed to by the parties”. The court reasoned that the children had been raised in the Philippines until the parties’ separation, that their travel to the USA in March 2020 was with the intention of then traveling back to the Philippines in June 2020 (but for COVID), and that the result was that the Mother has not physically seen the children since March 2020. There was a subsequent contempt filing.

In September 2022, the trial court found Father in contempt and ordered him to present the children’s passports to the court, and ordered that the younger child would spend the entire Christmas holiday in the Philippines, at the Father’s expense. Father reported in mid-October that the child’s passport renewal would take another “seven to ten weeks.” Later that month, Father filed a motion to modify child custody, and for relief under the Uniform Child Abduction Prevention Act, as it is enacted in Louisiana. In so requesting the modification, he asked for an injunction against mandated international travel. In addition to his prior arguments, he also argued that the Mother “had made ‘concerning statements’ that he interpreted as threats to keep [the children] in the Philippines and ‘demonstrated an increasingly brazen disregard of any legal consequences imposable by a U.S. or Louisiana court.’” The court denied the requested injunction. The children did not travel to the Philippines for the Christmas holiday, and the court held a further hearing in March 2023, where the court modified custody to name the Mother as the domiciliary parent. The court concluded that the Father’s “actions since the July 2021 custody trial constituted a material change in circumstances and that continuation of the existing custody arrangement would be deleterious to [the younger child]”. The Father appealed.

The court used the Father’s “contempt” to modify the custodial arrangement, and the appellate court noted that “Louisiana law specifically recognizes that a pattern of willful and intentional violation of a custody or visitation order without good cause may be grounds for or constitute a material change in circumstances warranting modification of an existing custody or visitation order.”

The Father additionally argued, on appeal, that the Mother had not properly plead relocation, but the court disagreed, indicating that the “practical effect of a custody judgment is the relocation of the child…” (presumably when the parents are distant enough where the child has to be in one parent’s primary residence). While Louisiana’s law includes 12 additional best interest factors related to a child’s relocation, the court noted that the Louisiana statute does not require that the trial court expressly analyze each factor in its oral or written reasons for judgment, and failure to do so is not an error of law. The court further noted that this is not a usual/typical request for a relocation. This is a “request to return [the child] to what was her home for the majority of her life.”