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EMILIE WILTZ MCLAIN                                                               *                    NO. 2007-CA-0752
VERSUS                                                                            *                    COURT OF APPEAL
MICHAEL CHRISTIAN                                                                 *                    FOURTH CIRCUIT
MCLAIN, SR.
*                                                                                 STATE OF LOUISIANA
*
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2004-11844, DIVISION “DRS-3-K”
Honorable Herbert Cade, Judge
Judge Patricia Rivet Murray
(Court composed of Judge Patricia Rivet Murray, Judge Max N. Tobias, Jr., Judge
David S. Gorbaty)
Theon A. Wilson
LAW OFFICES OF THEON A. WILSON
1100 Poydras Street
2900 Energy Centre
New Orleans, LA   70163
COUNSEL FOR PLAINTIFF/APPELLANT
Lisa C. Matthews
Maria I. O’Byrne Stephenson
Catherine I. Chavarri
Kathleen D. Lambert
Laurie E. Heinrich
STEPHENSON, MATTHEWS, CHAVARRI & LAMBERT, L.L.C.
#2 Canal Street
2305 World Trade Center
New Orleans, LA   70130
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED




This is a child relocation dispute under La. R.S. 9:355.1-9.355.17.  Emilie
Wiltz McLain appeals the trial court’s judgment ordering her to return her two
minor children to New Orleans, Louisiana, from Tuscaloosa, Alabama, where she
ultimately relocated with the children in the aftermath of Hurricane Katrina. Mrs.
McLain additionally appeals the trial court’s designation of her former husband,
Michael McLain, Sr., as the interim primary domiciliary parent.  Finding no abuse
of discretion in the trial court’s judgment, we affirm.
FACTUAL AND LEGAL BACKGROUND
On February 18, 1995, Mr. and Mrs. McLain were married in New Orleans.
Two children were born of the marriage:  Michael Christian McLain, Jr.
(“Christian”), born on September 21, 1995, and Madeleine McLain (“Maddie”),
born on January 28, 1997.  From the time they were married until August 29, 2005,
when Hurricane Katrina struck, the parties resided in the uptown area of New
Orleans.1  Since 1997, Mr. McLain has been employed as a salesman for a food
supply company located in the New Orleans area.  Mrs. McLain, who has a
1 According to Mrs. McLain’s testimony, they resided for about a year in Austin, Texas before they were married.
She grew up in Mississippi; Mr. McLain grew up in Texas.
1




master’s degree, is a music educator with twenty-three years of teaching
experience.  She has worked in several schools in the New Orleans area; and she
has taught at the elementary, secondary, and college level. She also has operated a
private piano and voice lesson business.
On August 27, 2004, Mrs. McLain filed a petition for divorce.  On
November 15, 2004, Mr. and Mrs. McLain separated.2  When they separated, Mrs.
McLain moved into an apartment across the street from the family home.  Mr.
McLain continued to reside in the family home.  In June 2005, Mr. McLain moved
into an apartment located in the Lusher School District and a few blocks away
from Lusher School.  Shortly thereafter (and before Hurricane Katrina struck the
area), the parties sold the family home.
During the period of their separation, Mr. and Mrs. McLain mutually agreed
on the custody of the children; however, they never obtained judicial approval of
their agreement. Under that agreement, Mrs. McLain was the de facto primary
domiciliary parent, and Mr. McLain had visitation on Wednesday evenings and
every other weekend.  Beginning in mid-June 2005, Mr. McLain’s Wednesday
visitation was extended to include the children staying overnight.  Since November
2004 when they separated, Mr. McLain has voluntarily paid child support to Mrs.
McLain at an amount consistent with the Louisiana child support guidelines.3
During the 2004-2005 school year, the children attended St. Andrew’s
Episcopal School in New Orleans.  Even before the separation, Mr. and Mrs.
McLain had difficulty affording the tuition; they borrowed money from Mr.
2 Although Mr. and Mrs. McLain separated in 2001, they reunited shortly thereafter.
3 Following Hurricane Katrina, Mr. McLain apparently missed or paid a reduced support payment for a couple of
months.  However, there was never a support judgment.
2




McLain’s mother to pay the tuition.   Following the separation, Mr. McLain
expressed his concern that given their current circumstances—having to maintain
two separate households—they could not afford to send the children to St.
Andrew’s for the 2005-2006 school year.  He proposed to send the children to
Lusher.  Mrs. McLain, however, insisted that the children remain at St. Andrew’s
for another year.  She expressed her belief that the children had undergone
significant changes—their parents separating and both parents moving to new
homes—and that they should not have to also change schools.  Ultimately, Mr. and
Mrs. McLain agreed that the children would attend St. Andrew’s for the 2005-2006
school year and that the tuition for that year would be paid out of the proceeds of
the sale of their family home.  They also agreed to revisit the issue of which school
the children would attend when it was time to register for the 2006-2007 school
year.  At the time Hurricane Katrina struck the New Orleans area, the children had
attended the first few days of school at St. Andrew’s.
Because Mr. McLain had the children for the weekend that the hurricane
struck, he and the children, with Mrs. McLain’s consent, evacuated to his mother’s
home in San Antonio, Texas.  At that time, Mr. McLain investigated the potential
schools in San Antonio that the children could attend.
Mrs. McLain, on the other hand, could not evacuate to her parents’ home in
Biloxi, Mississippi, because Biloxi was also within the projected path of the
hurricane.  Since she did not have reliable transportation, Mrs. McLain evacuated
with friends—Aaron Neville’s wife, daughter, and nephew—to Tuscaloosa,
3




Alabama. Tuscaloosa was chosen because a friend of the Neville family, Fred
Deloach, had secured hotel rooms there.4
During the first week in September 2005, Mrs. McLain and the children,
with Mr. McLain’s consent,5 relocated to O’Fallon, Illinois to stay with her sister.
Mrs. McLain’s reason for relocating to O’Fallon was that the support of the
children’s aunt, uncle, and cousins was important to the children’s emotional well-
being following Hurricane Katrina.  By e-mail dated September 3, 2005, Mrs.
McLain characterized this relocation as “temporary” and stated that she hoped to
return to New Orleans within a few months.  A few days later, the children flew
directly from San Antonio to St. Louis, where Mrs. McLain met them.  On the next
day, the children were enrolled at the same elementary school that their cousins
attended in O’Fallon.
On September 11, 2005, Mrs. McLain sent Mr. McLain an e-mail that the
children were adjusting well to their new home and school environment in
O’Fallon.  She further informed him that she had applied for a substitute teaching
job.  She still further informed him that her parents had returned to their home in
Biloxi over the weekend and that there was “no major damage to their home.”  On
September 15, 2005, Mrs. McLain again e-mailed Mr. McLain and informed him
that everything was going well in O’Fallon.  She indicated that the kids were
settling into a routine and that they were doing well academically and socially.
She further indicated that she had unsuccessfully attempted to log onto the St.
4
The McLains and the Nevilles are close friends. Mr. Deloach, a longtime fan of Mr. Neville, often had backstage
passes for Mr. Neville’s performances.  Mrs. Neville attested that “[t]o the best of my knowledge, based upon
statements made to me by Emilie McLain prior to Hurricane Katrina, Emilie McLain and Fred Deloach did not have
a serious relationship prior to Hurricane Katrina.”
5
Although he agreed to the move to O’Fallon, Mr. McLain voiced reservations about the move because of the
“rocky relationship” between Mrs. McLain and her sister.  He was also concerned regarding his inability to visit the
4




Andrew’s school website.  On September 15, 2005, Mr. McLain sent Mrs. McLain
an e-mail updating her on his status in New Orleans.  He stated that he was still
employed and that St. Andrew’s might re-open by November.  During the last
week of September, Mr. McLain visited with the children in O’Fallon to celebrate
Christian’s birthday.
During the first week in October, Mrs. McLain returned to New Orleans to
check on her apartment.  She found out that the roof had blown off of her home,
and she was informed that she had one week to relocate.  Mrs. McLain testified
that she considered Biloxi, which was where the children were staying with their
grandparents while she was in New Orleans, but she ruled out Biloxi as a
possibility for two reasons.  First, several of her family members who had
extensive damage to their homes were staying at her parents’ home and thus there
was no room.  Second, the schools in Biloxi were not open.
During the weekend that the children were staying with Mrs. McLain’s
parents in Biloxi, Mr. McLain had supper with them.  At that time, the children
mentioned that they were possibly moving to Tuscaloosa, Alabama.  Mrs. Neville
attested that when she returned to New Orleans after Hurricane Katrina she
observed a moving truck in front of Mrs. McLain’s home, and she saw Mr.
Deloach and others helping Mrs. McLain move her belongs.  Mrs. Nevile attested
that she spoke with Mrs. McLain, and Mrs. McLain told her that she was moving
to Tuscaloosa.
At some point between the end of September and the beginning of October
2005, Mrs. McLain, without Mr. McLain’s consent, decided to relocate with the
children on a regular basis.
5




children to Tuscaloosa, Alabama. At that time, Mrs. McLain did not have any
employment in Tuscaloosa and the only person she knew there was Mr. Deloach.6
During this time, Mrs. McLain failed to communicate with Mr. McLain despite his
numerous efforts to reach her, which included leaving messages with her parents in
Biloxi, on her moving truck that was parked in front of her apartment in New
Orleans, and as a last resort with the children.  During this move, there was a brief
break in time when the children were not in school.  There was also a period of
time when Mr. McLain was unaware of where the children were living or attending
school.
On October 10, 2005, Mr. McLain e-mailed Mrs. McLain regarding her lack
of communication with him for the prior five days.  On October 30, 2005, Mrs.
McLain provided contact information to Mr. McLain regarding their new address
in Tuscaloosa and the children’s school there.    Mrs. McLain signed a nine month
lease.
On March 16, 2006, Mrs. McLain e-mailed Mr. McLain proposing that the
children be allowed to remain in Tuscaloosa for the upcoming 2006-2007 school
year.  On that same date, Mr. McLain filed a Rule to Show Cause Why Divorce
Should Not Be Granted Under La. C.C. Art. 102;  Rule for Custody and Motion for
Custody Evaluation; Ex Parte Motion to Set Deadline for Filing Detailed
Descriptive Lists. This was the first pleading filed in the divorce case since Mrs.
McLain initiated the proceeding by filing a divorce petition in 2004.  In his post-
trial memorandum, Mr. McLain explained that the reason he delayed seeking
6 Although Mrs. McLain testified that she had other friends in Tuscaloosa, she was only able to identify two other
people who she testified she knew through Mr. Deloach.  Moreover, Dr. Pellegrin, the court-appointed custody
evaluator, testified that she was unaware of anyone other than Mr. Deloach who Mrs. McLain knew in Tuscaloosa
when she relocated there.  Likewise, Mrs. Neville stated in her affidavit that the only person Mrs. McLain knew in
Tuscaloosa when they evacuated there was Mr. Deloach.
6




judicial relief regarding Mrs. McLain’s failure to comply with the relocation
statutory provisions was that he did not want to disrupt the children’s school
placement in November 2005 after they had attended three different schools in a
matter of weeks.
In his pleadings, Mr. McLain summarized the post-Hurricane Katrina events
that precipitated his seeking judicial relief as follows:
•                                                                                   After moving to Alabama with the children [in early October 2005], Mother
enrolled them in school and did not return to New Orleans, even though the
children’s school in New Orleans [St. Andrew’s] reopened on November 2,
2005, and the school where Mother was employed reopened on
November 11, 2005.  Mother stated she would not make any decisions about
when she would return to New Orleans until after the 2005-2006 school
year.  Most recently, Mother has stated that she would not make any
decisions about returning to New Orleans or which school the children might
attend until August of 2006.
•                                                                                   Mother has not sent Father notice of any intention to relocate permanently to
Tuscaloosa, Alabama with the minor children of the marriage in accordance
with La. R.S. 9:355.1, et seq., nor has she stated whether she intends to
remain there indefinitely.  However, she has failed and refused to return the
minor children to live in New Orleans, which has interfered with the
parenting schedule the parties had been following prior to Hurricane Katrina,
and which has unduly delayed the children’s return to their home and
community following Hurricane Katrina.  Moreover, Mother has remained
uncommunicative and unresponsive on multiple attempts from the Father to
arrange visitation or follow previous arrangements regarding the children.
•                                                                                   Mother does not and did not have employment in any of the two locations
[(i.e., O’Fallon, Illinois or Tuscaloosa, Alabama)] she brought the children
to live after Hurricane Katrina.  The only reason Mother brought the minor
children to Tuscaloosa, Alabama to live was so that she could thwart the
minor children’s relationship with Father and so that she could be close to
her boyfriend who lives in Tuscaloosa, Alabama, Mr. Deloach.
•                                                                                   Father returned to live in New Orleans on September 15, 2005, where he has
remained since them.
In April 2006, the parties were divorced, and a consent judgment was
prepared by the parties.  In the consent judgment, the parties agreed that Alicia
Pellegrin, Ph.D., would be the court-appointed independent custody evaluator and
7




that all appointments needed to complete the evaluation would be scheduled on or
before June 1, 2006.  Mrs. McLain, however, did not have her final interview with
Dr. Pellegrin until August 3, 2006.
On July 20, 2006, Mr. McLain filed a Rule to Show Cause Why Children
Should Not Be Returned to New Orleans.  On September 18, 2006, a hearing was
held on Mr. McLain’s rule. At the hearing, four witnesses testified: (i) Mrs.
McLain; (ii) Mr. McLain; (iii) Nancy Marshall, a member of St. Andrew’s Church;
and (iv) Kristen Bryant, the youth director at St. Andrew’s Church.  Dr. Pellegrin’s
report was introduced by the trial court, on its own motion, and her deposition was
introduced by Mr. McLain.  Mr. McLain also introduced affidavits of Mrs. Neville
and Reverend Susan Gaumer, the rector at St. Andrew’s Church. Various e-mails
exchanged between Mr. and Mrs. McLain during the pertinent period of time also
were introduced.  Mr. McLain also introduced correspondence from the principal
of Lusher Charter School.  The letter indicated that the reserved places for the
children at Lusher would no longer be available if the children were not physically
present at school by October 20, 2006.   Both parties also introduced evidence
regarding the schools, in general, and the children’s performance in school, in
particular, as well as their participation in other activities.  Mrs. McLain also
introduced evidence regarding her employment in Tuscaloosa, which included a
part-time teaching job, various free-lance jobs, and teaching private music lessons.
On October 9, 2006, the trial court rendered judgment.  The judgment
ordered the return of the children to New Orleans in sufficient time to timely enroll
at Lusher Charter School.7  The judgment further provided for interim custody to
7
The judgment also provided that the children may continue their present enrollment in Tuscaloosa, Alabama
through the end of the first quarter provided that date allows for sufficient travel and preparation time to enroll
timely in Lusher.
8




be joint with Mr. McLain as primary domiciliary parent and with Mrs. McLain to
have liberal, reasonable and possible visitation.  The judgment still further
provided that upon Mrs. McLain’s return to the greater New Orleans metropolitan
area, either party could seek a review of the interim custody if not sooner modified
by their mutual agreement in writing.  Mrs. McLain filed a motion for a stay of the
enforcement of the judgment and a motion for new trial.  The trial court summarily
denied the request for a stay; it denied the motion for new trial after a hearing.
This appeal followed.8
DISCUSSION
The standard of review in a relocation case is that the trial court’s
determination “will not be overturned absent a clear showing of abuse of
discretion.”  Curole v. Curole, 02-1891, p. 4 (La. 10/15/02), 828 So.2d 1094, 1096.
In reviewing the record to determine whether the trial court’s ultimate conclusion
constitutes an abuse of discretion, the appellate court must accept each factual
finding the trial court made in arriving at that conclusion, unless the particular
factual finding is manifestly erroneous. H.S.C. v. C.E.C., 05-1490, p. 1 (La. App. 4
Cir. 11/8/06), 944 So.2d 738, 750 (Murray, J., concurring)(citing Curole, supra);
see also Leaf v. Leaf, 05-0592 (La. App. 4 Cir. 3/2/06), 929 So.2d 131.
As the trial court noted in its written reasons for judgment, La. R.S. 9:355.1
through 9:355.17 govern the issue of the relocation of a child’s residence out of
state.  Relocation is defined to include an “[i]ntent to establish legal residence with
the child at any location outside of the state.” La. R.S. 9:355.1(4)(a).  The
Louisiana Legislature has placed a two-fold burden of proof on the relocating
8 Although on November 2, 2006, the trial court granted Mrs. McLain’s Motion for Expedited Appeal of Issues of
Custody and Relocation, which the trial court granted, no request was made by the parties to expedite this appeal in
this court.  Indeed, the appeal was not lodged with this court until June 20, 2007.
9




parent, who must prove that (i) the proposed relocation is made in good faith, and
(ii) is in the best interest of the child. La. R.S. 9:355.13.  Guidance to the trial court
in making its determination as to whether the relocating party has met this burden
of proof is provided by La. R.S. 9:355.12, which lists a dozen factors the trial court
is required to consider in reaching its decision regarding a proposed relocation.9
The Legislature has also instructed that in making this determination “[t]he court
may not consider whether or not the person seeking relocation of the child will
relocate without the child if relocation is denied or whether or not the person
opposing relocation will also relocate if relocation is allowed.”  La.
R.S. 9:355.12(B).   “If the issue of relocation is presented at the initial hearing to
9 The Louisiana Legislature has enunciated the following dozen factors that courts are required to consider in
deciding whether to allow a relocation:
(1) The nature, quality, extent of involvement, and duration of the child's relationship with the parent proposing to
relocate and with the nonrelocating parent, siblings, and other significant persons in the child's life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's
physical, educational, and emotional development, taking into consideration any special needs of the child.
(3) The feasibility of preserving a good relationship between the nonrelocating parent and the child through suitable
visitation arrangements, considering the logistics and financial circumstances of the parties.
(4) The child's preference, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or
thwart the relationship of the child and the nonrelocating party.
(6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking
the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.
(7) The reasons of each parent for seeking or opposing the relocation.
(8) The current employment and economic circumstances of each parent and whether or not the proposed relocation
is necessary to improve the circumstances of the parent seeking relocation of the child.
(9) The extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking
relocation, including child support, spousal support, and community property obligations.
(10) The feasibility of a relocation by the objecting parent.
(11) Any history of substance abuse or violence by either parent, including a consideration of the severity of such
conduct and the failure or success of any attempts at rehabilitation.
(12) Any other factors affecting the best interest of the child.
La. R.S. 9:355.12(A).
10




determine custody of and visitation with a child, the court shall apply the factors
set forth in R.S. 9:355.12 in making its initial determination.”  La. R.S. 9:355.15.
On appeal, Mrs. McLain first assignment of error is that the trial court erred
in making a custody determination considering that only the Rule to Show Cause
Why Children Should Not Be Returned to New Orleans was set for hearing before
the court.  Mr. McLain counters that this is a non-issue.
In its reasons for judgment, the trial court addressed this issue and noted that
“the true issue before the court was whether or not the children would be ordered
to return to New Orleans or continue de facto relocation to Tuscaloosa, Alabama
without prior notice to Mr. McLain or a court hearing.”  The court further noted
that it “considered the hearing to be one of allowing or denying relocation of the
minor children.”  Explaining the inclusion in the judgment of the provision
designating Mr. McLain as the interim primary domiciliary parent, the trial court
stated that this provision was simply the practical result of its ruling on the
relocation issue.  At the hearing on the motion for new trial, the trial court
reiterated the practical reason for including this provision in the judgment, stating:
“I just don’t think it makes sense for the children to be here, for
Daddy [Mr. McLain] to be here, for Mrs. McLain to be in Tuscaloosa,
Alabama and then we’re going to argue about who’s the primary
domiciliary parent?   I can answer that question for you as a practical
matter:   The parent that’s here.   If she returns, I am willing to change
that immediately.”
The practical impact of a trial court’s decision denying relocation on the de
facto custody of the children has been noted by the commentators.   “[I]f a custodial
parent is judicially prohibited from relocating the child, a de facto change of
custody will occur if the custodial parent has no choice but to move and therefore
has to leave the child in Louisiana with the non-relocating parent to serve as
11




custodian of the child.”   Laura C. Cocus, Comment, Louisiana’s Restrictive
Relocation Laws: Jeopardizing Stability in Custodial Arrangements for the Sake of
Geographical Proximity Between Divorced Parents, 53 Loy. L.Rev. 79, 86 (Spring
2007)(“Cocus”).  The trial court’s judgment in this case simply acknowledges that
de facto change in custody results from its ruling on the relocation issue.  We find
no error in the trial court’s express recognition of the practical impact of its denial
of relocation.
Mrs. McLain’s alternative argument is that the trial court’s award of
domiciliary custody is not based on the law and is contrary to the evidence.  She
points out that La. C.C. art. 131 requires the court to award custody in the best
interest of the children, and La. C.C. art. 134 enumerates the factors the court
should consider in making the best interest determination.  Mrs. McLain argues
that the only best interest analysis the trial court engaged in involved the dozen
relocation factors enumerated in La. R.S. 9:355.12.
Because this case involves an interim initial custody order, the requirements
of Article 131 and 134 arguably are not applicable.  Regardless, because this case
involves not only a custody issue but also a relocation issue, the particular
provision that governs this case is La. R.S. 9:355.15, which provides that when the
relocation issue is presented at the initial hearing to determine custody and
visitation, the court shall apply the relocation factors set forth in La. R.S. 9:355.12
in making its initial determination. See Walkowiak v. Walkowiak, 32,615, p. 5 (La.
App. 2 Cir. 12/8/99), 749 So.2d 855, 858.  Moreover, as the Louisiana Supreme
Court noted in Curole, the fundamental principle governing decisions under the
Louisiana relocation statute is the “best interest of the child” standard.   Curole, 02-
1891 at p. 4 , 828 So.2d at 1096;   see also Rao v. Rao, 05-1523 (La. App. 1 Cir.
12




11/4/05), 927 So.2d 391 (finding jurisprudential change of custody standards
inherent in the relocation factors and requirements of good faith and best interests
of the children under La. R.S. 9:355.12 and 9:355.13).
Mrs. McLain’s argument that the trial court factually erred in awarding
primary domiciliary custody to Mr. McLain is based on Dr. Pellegrin’s opinion
that regardless of where the children reside she should be designated as the primary
domiciliary parent.  Dr. Pellegrin based this recommendation on the fact that Mrs.
McLain has been the parent “who was accustomed to taking care of the children’s
daily needs.”  Dr. Pellegrin, however, expressly states in her report that she is not
rendering an opinion on the relocation issue, which was the only matter before the
trial court.  As Mr. McLain points out, Dr. Pellegrin’s opinion did not contemplate
that Mrs. McLain would not return to New Orleans if the court denied the
relocation.  Moreover, Dr. Pellegrin testified in her deposition that if the court
orders the children returned to New Orleans and Mrs. McLain chooses not to
relocate, she believes that Mr. McLain would be able to be the designated
domiciliary parent and provide for the children’s needs.  We thus find no error in
the trial court’s interim custody award.
Mrs. McLain’s next two assignments of error relate to the trial court’s
finding that she failed to satisfy her burden of proving the relocation was in good
faith.  She correctly notes that the statute does not define good faith and offers
several definitions of that term, including an absence of intent to defraud or seek an
unconscionable advantage.  However, the jurisprudence has defined the meaning
of the term good faith in this context as a legitimate or valid reason for the move.
See Johnson v. Johnson, 99-1933, p. 5 (La. App. 3 Cir. 4/19/00), 759 So.2d 257,
259.   “Relocations that are based on a frivolous reason, no reason, or just to
13




interfere with the noncustodial parent’s visitation with the children” do not satisfy
the good faith requirement.  Cocus, 53 Loy. L.Rev. at 98 (citing Janet L. Richards,
Children’s Rights v. Parents’ Rights:  A Proposed Solution to the Custodial
Relocation Conundrum, 29 N.M. L. Rev. 245, 263 (Spring 1999)). Legitimate
reasons include:
(i)                                                                                                                  to be close to significant family or other support networks;
(ii)                                                                                                                 for significant health reasons;
(iii)                                                                                                                to protect the safety of the child or another member of the child's
household from a significant risk of harm;
(iv)   to pursue a significant employment or educational opportunity; or
(v)                                                                                                                  to be with one's spouse (or equivalent) who is established, or who is
pursuing a significant employment or educational opportunity, in
another location.
Richards, 29 N.M. L. Rev. at 263 n. 102 (citing American Law Institute’s
Tentative Draft on Relocation); see also Dupre v. Dupre, 857 A.2d 242, 258-59
(R.I. 2004)(citing these factors and noting that “[a] parent’s desire to relocate with
his or her children ought not be predicated upon a whim.”)
At the hearing in this case, the trial court questioned Mrs. McLain regarding
her reason for relocating to Tuscaloosa. The court asked her if Mr. Deloach had not
been in Tuscaloosa would she have gone there, and she answered that she
definitely would have considered it.  She stated:   “I was there for 10 days during
the storm, I saw what it had to offer and I knew it was closer to home than
Illinois.”10 Ultimately, the trial court found that that Mrs. McLain’s relocation and
10 Mrs. McLain testified that the only time she had ever been to Tuscaloosa before she evacuated there in August
2005 was about three years earlier when she passed through with Mr. McLain on a trip.  On that occasion, she spent
a few hours in Tuscaloosa.
14




desire to continue indefinitely the relocation to Tuscaloosa, Alabama, was not
made in good faith for the following reasons:
•                                                                                        Mother did not notify Father of her move from O’Fallon, Illinois to
Tuscaloosa, Alabama nor of her intention to remain in Tuscaloosa.
•                                                                                        The move did not increase Mother’s income because she had not had nor did
she have full time permanent employment at the time of trial.
•                                                                                        The court accepts Mother’s testimony as to the quality of the children’s
schools in Tuscaloosa but also notes that St. Andrew’s where the children
attended school reopened on November 2, 2005, and Ecole Bilingue de la
Novelle, where mother worked prior to Katrina reopened on October 11,
2005.
•                                                                                        Further, the only person that Mother knew in Tuscaloosa, Alabama, prior to
relocating there was Fred Deloach.  The nature and extent of Mother’s
relationship with Mr. Deloach is not clear on this record.
•                                                                                        To the extent that Mother’s quality of life is enhanced by being near to Mr.
Deloach, it does not compensate the children’s loss of frequent and
continued contact with their father.
•                                                                                        Also, Tuscaloosa places the children a greater distance from their maternal
and paternal grandparents.  It should also be noted that the maternal
grandparents had returned to their Biloxi home contrary to the representation
made by Mother to Dr. Alicia Pellegrin.
The trial court also noted its belief that there is a temporal requirement in any good
faith request to relocate, i.e., the reasons for the requested relocation must exist
prior to the proposed or actual relocation.  In finding the requirement was not met
in this case, the court reasoned that “it appears that the only fact known about
Tuscaloosa prior to the relocation was that Fred Deloach lived there.”
Mrs. McLain contends that the trial court’s finding on this issue was both
legally and factually erroneous.  Legally, she contends the trial court erred in
focusing only on where as opposed to why she relocated.  She contends that the
relocation statute is not location-specific and that it is the move itself and not the
place that should be the focus of the good faith analysis.  She emphasizes that her
15




initial move from New Orleans was involuntary due to Hurricane Katrina and that
in the aftermath of the hurricane her options in terms of employment, housing, and
schooling for the children were limited.  She further emphasizes the lack of
evidence that her relocation to Tuscaloosa was malicious, fraudulent, or otherwise
intended to gain an unjust advantage over Mr. McLain.
The jurisprudential requirement of good faith simply refers to a legitimate or
valid reason for the move.  In this case, Mrs. McLain’s primary reason for moving
to Tuscaloosa was that her friend, Mr. Deloach, lived there.  We cannot say that the
trial court’s finding that this was not a good faith reason to relocate was manifestly
erroneous.  Ordinarily, this would require we affirm the trial court’s decision.
However, we find it appropriate in deciding this case to review the factors
enumerated in La. R.S. 9:355.12 because this case differs from the ordinary
relocation dispute in two significant respects.
Ordinarily, the relocation issue arises after the initial custody determination
has been made. Cocus, 53 Loy. L.Rev. 79, 86.  This case, however, is different in
that an initial custody determination was never made.  Rather, before Hurricane
Katrina, the parties had a de facto custody agreement.  As discussed above, given
the lack of any court order regulating custody between the parties at the time of the
relocation at issue, this case falls under La. R.S. 9:355.15, which requires the court
to apply the relocation factors in La. R.S. 9:355.12 in making its initial custody
determination.
The second aspect in which this case is different is that it involves an initial
involuntary relocation from the New Orleans area as a result of the emergency
presented by Hurricane Katrina.  As a commentator has noted, “[a]n emergency
evacuation does not itself constitute a relocation, but if the parent who evacuated
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with the child does not plan on returning, relocation will become an issue.” Steven
J. Lane, Jurisdictional and Practical Problems in Family Law Following
Hurricane Katrina, 69 Tex. B.J. 438, 441 (May 2006).  As this commentator points
out, the issue is at what point does the emergency evacuation transform into a
relocation.  Id.
Before addressing the factors enumerated in La. R.S. 9:355.12, we first
address Mrs. McLain’s argument that the trial court erred in adopting Mr.
McLain’s argument from his post-trial memorandum and failing to undertake its
own independent analysis of the twelve relocation factors.  We find, as Mr.
McLain contends, that there was no error in the trial court’s adopting the analysis
presented by Mr. McLain.  In so finding, we note that the statute provides that the
trial court “shall consider” the factors, not that the trial court must expressly
analyze each factor. See H.S.C., 05-1490 at p. 2, 944 So.2d at 751-52 (Murray, J.,
concurring).  We now turn to an analysis of the twelve relocation factors.
(1) The nature, quality, extent of involvement, and duration of the child's
relationship   with   the   parent   proposing   to   relocate   and   with   the
nonrelocating parent, siblings, and other significant persons in the child's
life.
This factor requires an assessment of the relationship between the children
and each of the parents.  This is a case involving two equally suited parents.  Dr.
Pellerin testified that the nature, quality, and duration of the children’s relationship
with Mr. McLain were similar to that as exhibited with Mrs. McLain.  She
characterized all of these as positive factors as to Mr. McLain and described his
relationship with the children as excellent.   She also stated that he has been a very
involved father who has been there since the children were born.  She concluded
that there was nothing negative relative to either parent as to this factor.
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Mr. McLain testified regarding the activities he previously engaged in with
his children.  He stated that he was an assistant coach for Christian’s basketball
team and for Maddie’s soccer team, regularly attended the children’s sporting
events, regularly took them to church and choir practice at St. Andrew’s, took them
to the park to ride bikes, and cooked dinner for them.  He further testified that his
work schedule is from 8:00 a.m. to 5:00 or 6:00 p.m. on Monday to Friday, but he
does not have set work hours.  He explained that he has a great deal of flexibility in
his work schedule and that he can bring the children to the office if he needs to do
so.
Mrs. Neville attested in her affidavit that both Mr. and Mrs. McLain are
equally excellent, loving, capable, and involved parents.  She further attested that
the children are equally bonded to both parents and that they enjoy a very close and
loving relationship with both parents.  She characterized Mr. McLain as a “hands-
on” father who frequently takes his children to church and to sing in the choir.  She
likewise described Mrs. McLain as a loving and involved parent.  Mrs. Neville also
attested that she would trust either Mr. or Mrs. McLain with the care of her
daughter, who is Maddie’s friend.  Mrs. Neville described the activities that Mr.
McLain planned for the children and in which he included her daughter.  These
activities included a well-planned birthday party that Mr. McLain hosted for
Maddie in Audubon Park after Hurricane Katrina.
Reverend Gaumer attested that she has been the rector at St. Andrew’s
Church for over seven years.  In that capacity, she has become acquainted with the
McLains, who have been parishioners there.  She indicated that the children
“seemed to be equally happy with both parents.”  She further indicated that she has
not had any contact with Mrs. McLain since the hurricane, but she has had contact
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with Mr. McLain and the children.  She characterized Mr. McLain, both before and
after Hurricane Katrina, as an excellent parent who has a very strong bond with his
children.
Ms. Marshall, a friend of the McLains, testified about her personal
observations of the close and loving relationship the children have with their
father.  She testified that she sees the children with Mr. McLain at church and other
activities and that the children have a lovely relationship with their father.  She
stated that “he does all kinds of things with them.”
The other significant influences in the children’s lives include their church
and school communities.  Mrs. McLain acknowledged that the children have a
strong sentiment towards their church here in New Orleans and still love their
church family.  Several members of St. Andrew’s Church also testified regarding
the children’s strong bond with their church.  The youth group director, Mrs.
Bryant, testified that the children joined the group after they relocated to
Tuscaloosa and that the children have participated in the group activities as much
as they could given the distance between New Orleans and Tuscaloosa.  She
testified that she communicates with Christian regarding group activities by e-mail.
(Copies of the e-mails were introduced into evidence.)
Dr. Pellegrin’s response regarding the other significant persons in the
children’s lives when they initially moved to Tuscaloosa was that “certainly their
home was New Orleans.  Their community was New Orleans.  They didn’t know
anyone in Tuscaloosa at the time they relocated so New Orleans by default would
have to be - come out ahead there.”
(2) The age, developmental stage, needs of the child, and the likely impact the
relocation will have on the child's physical, educational, and emotional
development, taking into consideration any special needs of the child.
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At the time of the trial court proceedings, Maddie was nine years old and
Christian was almost eleven years old.11  Dr. Pellegrin testified that the children
could do well in New Orleans as it is their home.  However, she testified that some
weight had to be given to the fact the children were “ensconced”—securely or
comfortably settled—in the Tuscaloosa community and in school there.  They had
developed a social network there.  She also stated her belief that the children had
been moved around a lot and that developmentally and emotionally another move
would be difficult, especially for Maddie.  However, she acknowledged the need to
balance the difficulty of another move with the distance from their father.  She also
acknowledged that the children have been moved a lot because of decisions made
by Mrs. McLain. Dr. Pellegrin indicated that it is a difficult call to make.
The record reflects that Mr. McLain was active on a regular basis in the
children’s extracurricular and church activities and that he could not participate
regularly in those activities if the children remained in Tuscaloosa.  Dr. Pellegrin
stated that this inability of Mr. McLain to participate in a meaningful fashion in the
children’s lives if they remain in Tuscaloosa would have an impact on their
physical, educational, and emotional development to some extent.
The evidence indicates that the children have equally excellent educational,
social, and spiritual opportunities in Tuscaloosa and in New Orleans.  The record
reflects that Lusher Charter School and the public school the children were
attending in Tuscaloosa are on par.  New Orleans is where they have lived their
entire lives pre-Hurricane Katrina and many of their church and school friends are
here.  Moreover, Mr. McLain is here.
11 Christian’s birthday was three days after the hearing; thus, he was almost eleven at the time of the hearing.
20




(3) The feasibility of preserving a good relationship between the nonrelocating
parent and the child through suitable visitation arrangements, considering the
logistics and financial circumstances of the parties.
Dr. Pellegrin testified that the quality of the father-child relationship if the
children remain in Tuscaloosa cannot even approach what it would be if the
children lived in the same city as their father.  She testified that “it’s impossible.”
Mr. McLain testified that he has only visited the children two or three times
since they relocated to Tuscaloosa for two reasons:   (i) the time factor of traveling
there, and (ii) the cost factor.  He testified that it is approximately a five hour drive
from New Orleans each way and that it is impossible to spend quality time with the
children on a weekend without staying in Tuscaloosa.  He further testified that he
lacks the financial resources to spend time with the children in Tuscaloosa very
often.  Although he acknowledged that Mrs. McLain invited him to stay in her
home when he visited, Mr. McLain testified that he was uncomfortable accepting
the invitation.
(4) The child's preference, taking into consideration the age and maturity of
the child.
Although the children expressed a preference to remain in Tuscaloosa, Dr.
Pellegrin testified that “[i]t’s very difficult to know at this age and given the
circumstances how much of it is what they really want and how much of it is
because of the reasons discussed that they should want.”  She further testified that
the children obviously are very aware of what each parent wants and that the desire
to please each parent often triggers what they say to each parent.  She was not
surprised that the children made statements to their father that they wanted to
return to New Orleans.
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In her report, Dr. Pellegrin noted that “both children reported that they feel
‘pressured’ by their father to return to New Orleans, which is making them
uncomfortable.”  Dr. Pellegrin also stated in her report that “both children are well
aware of what each parent wants and this examiner believes that the children are
citing their reasons for wanting to remain in Tuscaloosa by repeating what they
have heard from their mother.”  She had some concern about the children parroting
what their mother said regarding their preference.  Dr. Pellegrin stated that when
she interviewed Christian regarding his reason for wanting to remain in
Tuscaloosa, his answer was that “everything in New Orleans is so depressing; I
don’t think I could take it.  It’s less depressed in Tuscaloosa.”  However, Christian
could not explain to her what he meant by the term “depressed,” which he used
several times.
Dr. Pellegrin acknowledged that it would be important to consider
statements the children made to third parties outside the presence of their parents in
determining their preference.  She indicated that this would include statements
made to a church youth director regarding the children’s desire to return to New
Orleans and to remain a part of their church community here.
(5) Whether there is an established pattern of conduct of the parent seeking
the relocation, either to promote or thwart the relationship of the child and
the nonrelocating party.
Dr. Pellegrin testified that she was not aware of any problem regarding this
factor. Before Hurricane Katrina, the parties had agreed on a regular visitation
schedule.  Because the parties lived nearby each other, the children were able to
see both parents on a regular basis.  During that time, Mr. McLain was gradually
increasing the visitation time he had with the children.
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Dr. Pellegrin further testified that the evidence of Mrs. McLain’s consistent
efforts to ensure the children have frequent contact with their father belies Mr.
McLain’s belief that Mrs. McLain has attempted to thwart his relationship with the
children. Although Mr. McLain testified that the children have only called him
about four times during the time they have been in Tuscaloosa, there is no evidence
to establish that Mrs. McLain has interfered with the communication, by telephone
or otherwise, between the children and Mr. McLain.  To the contrary, Mrs. McLain
offered, at the suggestion of Dr. Pellegrin, to install a separate phone line in her
house for the children.  Mr. McLain, however, disapproved of the suggestion
because he did not believe the children were old enough to have their own phone
line. Mrs. McLain thus did not have the separate line installed.
Although Mrs. McLain has made efforts to facilitate Mr. McLain’s visitation
and communication with the children and even offered to allow him to stay at her
house in Tuscaloosa, she made the unilateral decision to relocate the children from
O’Fallon to Tuscaloosa.  She then failed to notify Mr. McLain of the new address
and new school she selected for the children until after the fact.
(6) Whether the relocation of the child will enhance the general quality of
life  for  both  the  custodial  parent  seeking  the  relocation  and  the  child,
including but not limited to financial or emotional benefit or educational
opportunity.
Dr. Pellegrin testified that the children are able to have generally the same
positive quality of life in Tuscaloosa and in New Orleans.  Although Mrs. McLain
testified that the children were afraid when they visited New Orleans after
Hurricane Katrina, several witnesses corroborated Mr. McLain’s testimony to the
contrary.  Mrs. Neville attested that she observed the children in New Orleans after
Hurricane Katrina and that she did not observe any anxiety or concern on their part
23




over being back in New Orleans.  Reverend Gaumer attested that on the occasions
she has observed the children in New Orleans since Hurricane Katrina they seemed
to really enjoy being back in New Orleans and being back in their church home.
She stated that the children did not express or exhibit any fear or concern about
being in New Orleans.  Ms. Marshall testified that she did not observe anything in
the children’s demeanor to indicate they felt uncomfortable in New Orleans post-
Hurricane Katrina.  Rather, she testified that they appeared to be happy to be back.
Mrs. Bryan, the youth group director, also testified that the children were
“absolutely not” in any fear about being back in New Orleans after Hurricane
Katrina.  She testified that they had a great time when they were in New Orleans.
(7) The reasons of each parent for seeking or opposing the relocation.
The reasons for Mrs. McLain’s relocation to Tuscaloosa are detailed in the
discussion on good faith. Mr. McLain’s reason for opposing the relocation is that
he wants to have regular contact with his children.  He testified that he does not
want to be a visiting father. To the contrary, he testified that he wants to be the
domiciliary parent.  In support of his ability to do so, he cited the stability in his
home, work, and financial life.
(8) The current employment and economic circumstances of each parent and
whether  or  not  the  proposed  relocation  is  necessary  to  improve  the
circumstances of the parent seeking relocation of the child.
As noted, Mr. McLain has been employed with the same company for
nine years in the New Orleans area.  Mrs. McLain, at the time of the hearing,
had obtained a part time teaching job in Tuscaloosa, was operating a private
music lessons business, and had done some other free-lance work in
Tuscaloosa.
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(9) The extent to which the objecting parent has fulfilled his or her financial
obligations  to  the  parent  seeking  relocation,  including  child  support,
spousal support, and community property obligations.
Although there is no existing child or spousal support order, Mr. McLain has
been paying child support to Mrs. McLain on a regular basis since their separation
in an amount supported by the Louisiana child support guidelines.  Dr. Pellegrin
testified that she had no concerns regarding Mr. McLain’s fulfilling his financial
obligations.  In this regard, she testified that he has paid regular child support, was
not in arrears, and has participated financially in the major decisions.12
(10) The feasibility of a relocation by the objecting parent.
The objecting parent is Mr. McLain.  Dr. Pellegrin testified that Mr. McLain
has longstanding work in New Orleans and that he certainly could not be expected
to pick up and move unless he had alternative employment available.  Mr. McLain
testified that he attempted to locate comparable employment in the Tuscaloosa
area, but was unsuccessful.  He explained that he researched the food service
providers that operate in the Tuscaloosa area. The home office of the company that
services that area is in Atlanta, Georgia.   He stated that he would have to live in
Atlanta if he was going to be a salesman in Tuscaloosa.
(11) Any history of substance abuse or violence by either parent, including a
consideration of the severity of such conduct and the failure or success of
any attempts at rehabilitation.
Dr. Pellegrin stated in her report that “[n]either party has any significant
psychological or personality problems that would adversely affect their ability to
parent adequately.”  She testified that the parties had a volatile relationship when
they were together, but she did not believe this was a domestic violence case.  She
12 The major community asset is the funds from the sale of the family home, which are currently being held in
escrow.
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further testified that Mr. McLain was diagnosed several years earlier with Bipolar
Disorder,13 but his condition is well managed and controlled.  She stated she had
no concerns about his condition at this point.  She likewise testified that she had no
serious concerns about Mrs. McLain’s alleged alcohol abuse.
(12) Any other factors affecting the best interest of the child.
The only other factor Dr. Pellegrin identified was Maddie’s relatively fragile
emotional and psychological condition.  As noted earlier, Dr. Pellegrin cited this
factor as a concern regarding moving the children.  She noted that Christian would
have no problems adjusting, but another move could be difficult for Maddie.
However, Dr. Pellegrin acknowledged that the potential adverse effects of moving
Maddie again would have to be balanced against the potential adverse effects of
having the distance between her and Mr. McLain.  Counseling for Maddie was
recommended.  It was also noted that it would be important for Mr. McLain to be
involved in the counseling program.  Such involvement would be difficult if the
counseling was in Tuscaloosa, and Mr. McLain was living in New Orleans.
In looking at the relocation factors, we find that the trial court’s
determination that the relocation to Tuscaloosa was not in the best interest of the
children was not manifestly erroneous.  Mrs. McLain failed to meet her burden at
trial to justify the relocation.  Accordingly, we conclude that the trial court did not
abuse its discretion in denying the relocation.
DECREE
For the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED
13 According to Mr. McLain, he was diagnosed with Bipolar Disorder twelve years ago.
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