author: | tBROWN, C.j'.

text:
    STATE of Louisiana, Plaintiff-Appellant, v. Jerold William MATTESON, Chris Martin Bail Bonds, Seneca Insurance Company (Surety for Jerold William Matteson) Defendants-Appellees.
    No. 36,628-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.
    Rehearing Denied Jan. 23, 2003.

      James M. Bullers, District Attorney, Counsel for Appellant.
    Robert Randall Smith, Assistant District Attorney, Whitley R. Graves, Benton, Counsel for Appellees.
    Before BROWN, PEATROSS and DREW, JJ.
   | tBROWN, C.j'.

The state appeals a judgment setting aside a bond forfeiture and releasing the bondsman from any further obligation. For the following reasons, we reverse.

Facts

Jerod William Matteson was arrested on June 12, 2001, for DWI third offense, a felony and three misdemeanors, ■ driving under suspension, speeding and illegal flashing of lights. Court minutes reflect that Matteson was present in court on June 18, 2001, when, after having his rights explained concerning assistance of counsel, he advised the court that he would hire his own attorney. Matteson was bonded out of jail on June 19, 2001, by Chris Martin Bail Bonds (“Martin”), agent for Seneca Insurance Company (“Seneca”). Four bonds were issued for a total of $15,750, all returnable on August 8, 2001. Matteson’s home address on the bonds was given as 1310 Star Shadow, Richardson, Texas.

A bill of information was filed charging Matteson with DWI first offense, a misdemeanor. Another bill of information was filed charging him with the following misdemeanors, driving under suspension, speeding and improper lane usage. On August 8, 2001, attorney Joey Hendrix enrolled as counsel for Matteson, waived Matteson’s presence and the arraignment was passed until September 12, 2001. On that date, Hendrix appeared, waived Matteson’s presence and entered a plea of not guilty. At that time, trial was set for October 31, 2001. Although the trial date had been set in | ¡¡court, both the agent and insurance company were notified of the trial date by certified mail. On October 31, 2001, attorney Hendrix appeared but Matteson did not. The court ordered the bonds forfeited and issued a bench warrant. On December 17, 2001, the court signed the bond forfeiture judgments.

On February 19, 2002, Martin filed a motion to set aside the bond forfeitures which, following a hearing, the trial court granted. Notice and surrender are the two issues presented in this appeal by the state.

Discussion

La.R.S. 15:85 provides in part:

(1) Failure to appear and answer. If at the time fixed for appearance the defendant fails to appear and answer when called, the judge, on motion of the prosecuting attorney, upon hearing of proper evidence including: the bail contract; the power of attorney if any; and the notice to the defendant and the surety as required by Article 344 of the Code of Criminal Procedure, shall immediately and forthwith issue a warrant for the arrest of the person failing to appear and order a judgment decreeing the forfeiture of the bond and against the defendant and his sureties in solido for the full amount of the bond.
(5) Summary proceeding ... The defendant and his sureties shall be entitled to bring defenses pursuant to Code of Criminal Procedure Art. 345 and R.S. 15:87 by use of summary proceedings in the criminal matter before the trial court which issued the judgment of bond forfeiture within six months from mailing the notice of the signing of the judgment of bond forfeiture.

Notice

Martin and Seneca both received notification by certified mail of the October 31st trial date. In brief they claim that “no evidence was presented to the district court to show the defendant (Matteson) was notified of the 1 «court date. ” (Their emphasis). A certified notice had been sent to Matteson but there was no return filed in the record showing whether it was delivered.

La.C.Cr.P. art 553(A) provides that, “[I]n misdemeanor cases, the defendant may plead not guilty through counsel ...” When Matteson bonded out of jail, he was given an August 8, 2001 court date. Although arrested for a felony, Matteson was only charged by the district attorney with misdemeanors. On August 8th, attorney Hendrix enrolled and arraignment was reset for September 12, 2001. On September 12th, Hendrix appeared, waived Matteson’s presence, entered a not guilty plea, and trial was set for October 31, 2001. The bonds were forfeited when Matteson failed to appear on October 31st. Pursuant to art. 553(A), Matteson appeared through his attorney and was notified of the court dates. The certified letter to Matteson was not necessary.

Martin also argues that it was not given notice of the September 12th arraignment date. La.C.Cr.P. art. 344(B)(3) states, “[I]f the defendant appears as ordered (on August 8th) and the proceeding is continued to a specific date (September 12th), the defendant and the personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety need not be given notice of the new appearance date.” Defendant appeared through his attorney as ordered on August 8th, and the proceeding was continued to a specific date (September 12th). No further Unotice was needed; even so, both Martin and Seneca were notified of the October 31st setting, making this argument irrelevant and moot.

Surrender of defendant.

We note that the surrender of a defendant within six months of notice of the signing of the judgment satisfies the judgment of bond forfeiture. La.R.S. 15:85(10) provides:

Satisfaction of judgment of bond forfeiture. Any judgment forfeiting the appearance bond rendered according to this Section shall at any time, within six months, after mailing of the notice of the signing of the judgment of bond forfeiture, be fully satisfied and set aside upon the surrender or the appearance of the defendant. The appearance of the defendant shall operate as a satisfaction of the judgment and the surrender shall operate as a satisfaction of the judgment and shall fully and finally relieve the surety of any and all obligations under the bond.

La.C.Cr. P. article 345 provides in part:

A.... For the purpose of surrendering the defendant, the surety may arrest him. Upon surrender of the defendant, the officer shall detain the defendant in his custody as upon the original commitment and shall acknowledge the surrender by a certificate signed by him and delivered to the surety. Thereafter, the surety shall be fully and finally discharged and relieved of any and all obligation under the bond.
D. If during the six-month period allowed for the surrender of the defendant, the defendant is found to be incarcerated in another parish of the state of Louisiana or a foreign jurisdiction, the judgment of bond forfeiture is deemed satisfied if all of the following conditions are met: (Emphasis added).
(1) The defendant or his sureties file a motion in summary proceeding within the six-month period.
(2) The defendant’s sureties produce to the court adequate proof of defendant’s incarceration, or the officer originally charged with defendant’s detention verifies the defendant’s incarceration. A letter of incarceration issued pursuant to this ^Article verifying that the defendant was incarcerated within the six-month period at the time the defendant or the surety files the motion, shall be deemed adequate proof of the defendant’s incarceration.
(3) The defendant’s sureties pay the officer originally charged with the defendant’s detention, the reasonable cost of returning the defendant to the officer originally charged with the defendant’s detention prior to the defendant’s return.

After learning of the forfeiture and bench warrant, Martin sent Jason Bounds to Texas to arrest Matteson. The agent found Matteson at his Richardson address; however, because Matteson was charged only with misdemeanors, Texas authorities prohibited the arrest.

There were no grounds asserted in this instance to “set aside” the judgment of bond forfeiture. La.R.S. 15:87 provides for “nonforfeiture situations” in which a defendant was prevented from appearing due to factors such as illness, disability, death or injury, incarceration, or service in the armed forces. No evidence of such circumstances was presented in this ease.

In this instance, Martin demanded that the district attorney file a felony, DWI third offense, so that the arrest could be made. The district attorney refused. A bondsman cannot compel a district attorney to file a specific charge. Charging is solely within the discretion of the district attorney. La.C.Cr.P. art. 61; State v. Craig, 32,209 (La.App.2d Cir.08/18/99), 747 So.2d 604. The argument is without merit.

Thereafter, Martin learned that Matteson was being held in the Dallas County jail on unrelated Texas charges. Martin alleges that it presented a | fi“faxed” letter verifying custody to the Bossier Parish Sheriffs Office and that the district attorney “purposely and intentionally” stopped Martin from complying with C.Cr.P. art. 345(D) by ordering the sheriff to release the hold on Matteson. In the meantime, Matteson was released or bonded out of jail. Martin alleges that it was prepared to pay the cost of extradition.

The testimony shows that the Bossier Parish Sheriffs Office never attempted to put a “hold” on Matteson in the Dallas jail. The district attorney denied ordering that a “hold” be dropped or deciding not to extradite; however, this is immaterial.

A plain reading of section “D” of the article 345 shows that when a defendant is found in jail in another state, a surety must meet all three conditions before the surety’s obligation is satisfied. State v. International Fidelity Insurance Company, 32,837, 32,838 (La.App.2d Cir.03/01/00), 756 So.2d 565, 566. First, the filing of summary proceedings; second, the submission of proof of the defendant’s incarceration; and third, that “defendant’s sureties” pay (the Bossier Parish Sheriff) the reasonable cost of returning the defendant to (Bossier Parish). State v. International Fidelity Insurance Co., supra; State v. Davila, 01-0418 (La.App. 1st Cir.03/28/02), 814 So.2d 56.

Martin did not meet the third requirement under Article 345(D). No money was paid to the Bossier Parish Sheriffs Office for the cost of transporting Matte-son from Texas to Louisiana. Hence the trial court could not have found that the bond obligation was satisfied under the statute.

|7Nowhere in the criminal code is there a provision that allows a surety to relieve itself of a bond obligation because of an inability to surrender the defendant. State v. Davila, supra. The basic concept of the bail obligation is to make certain that a defendant appears in court with the surety paying a financial penalty when he fails to do so. Martin knew that Matteson lived in Texas when it undertook his bail obligation.

For these reasons, the judgment of the trial court setting aside the bond forfeitures is reversed. We remand this case to the trial court to carry out the forfeitures in accordance with the law.

REVERSED and REMANDED.

APPLICATION FOR REHEARING

Before BROWN, C.J., STEWART, CARAWAY, PEATROSS, and DREW, JJ.

Rehearing denied.

      . Defendant’s given name is apparently "Jer-od,” and not "Jerold,” as the caption indicates.

      . After the case was appealed, the state offered the return showing the certified letter sent to Matteson at his Texas address was unclaimed. We sustain Martin's objection to this late offering.


source: Caselaw Access Project

author: I,GASKINS, J.

license: Public Domain

text:
    Bobby L. TAYLOR and Billy R. Gray, Plaintiffs-Appellees, v. Russell VOIGTLANDER and Shelter Mutual Insurance Company, Defendants-Appellants.
    No. 36,670-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.

      Cook, Yancey, King & Galloway, by Lisa Dunn Folsom, Gregg A. Wilkes, Shreveport, for Appellants.
    Piper & Associates, Shreveport, by Brenda Ford Jones, for Appellees.
    Before GASKINS, DREW and HARRISON (Pro Tempore), JJ.
   I,GASKINS, J.

This appeal arises from an accident where a city-owned truck pulling a trailer apparently rolled back into a vehicle stopped behind it. The driver of the stopped ear, Russell Voigtlander, and his insurer appeal from a trial court judgment which found him at fault and awarded damages to two passengers in the city-owned truck. For the following reasons, we reverse the trial court judgment.

FACTS

On September 26, 2000, Bobby L. Taylor and Billy R. Gray were passengers in a city-owned truck driven by Donald Spear-man. All three men worked for Code Enforcement for the City of Shreveport, cutting grass. The vehicle in which they were traveling was a Chevrolet four-door extended cab pick-up truck; it was pulling a flatbed goose neck trailer carrying a tractor with bush hog and front end loader. They were going south on Linwood in Shreveport. They stopped in the lefthand turn lane at a signal light at the intersection of Linwood and Bert Kouns. At this time, there was contact between their vehicle and that of Russell Voigtlander, who was behind them. There was only minor damage to the Voigtlander vehicle and no damage to the city-owned truck or trailer. None of the city employees in the truck reported being injured to the police who investigated the accident. They then went on to their job site and completed their shifts for the day.

On March 8, 2001, Taylor and Gray filed suit against Voigtlander and his auto insurer, Shelter Mutual Insurance Company. Both plaintiffs claimed to have sustained back injuries; Taylor also asserted a shoulder Rinjury. In their answer, the defendants contended that the sole cause of the accident was the negligence of Spearman in allowing his vehicle to roll back into the Voigtlander vehicle.

Trial was held on February 21, 2002. Both plaintiffs and their driver testified that they had come to a complete stop and were rear-ended by Voigtlander. The impact was described as a “bump” by all of these witnesses; Gray and Spearman even qualified it as a “little bump.” Another passenger in the city-owned truck, Curtis Ellis, testified that the weight on the trailer shifted; he thought they rolled back since they were on a slight incline. However, he stated that he was not paying attention and could not be certain what happened.

Voigtlander testified that he pulled out of a Texaco station at the intersection of Linwood and Bert Kouns and then came to a complete stop in the turn lane behind the city-owned vehicle. He glanced down at a newspaper he purchased at the Texaco station, trying to recall if he had bought one for his father. When he looked back up, he saw the trailer rolling back at him. He started to place his vehicle in reverse to try to avoid being hit. He turned around to see if anything was behind him; however, at this time, there was contact between the trailer and his vehicle. His 1997 Ford Explorer sustained a small dent or dimple on the hood and a crack on the plastic grill from a small wheel of the bush hog extending off the back of the trailer. Voigtlander testified that after the accident, the driver and one |3of the passengers in the city truck told him that they had rolled—not backed—into him.

The trial court ruled in favor of the plaintiffs. The court found that two factors contributed to the accident: (1) an inappropriate distance between the vehicles, and (2) the distraction of the newspaper. The judge said it was reasonable to anticipate that a greater distance is required when a vehicle is towing something because of the danger of the trailer jackknifing or rolling back. Taylor was awarded $3,750 in general damages for an injury of five weeks duration, $2,487 in medical expenses and $2,200.31 in lost wages. Gray was awarded $3,500 in general damages for an injury of four weeks duration, $2,281 in medical expenses and $1,391.04 in lost wages.

The defendants appeal.

LAW

To prevail on a negligence claim, the plaintiff must satisfy the five elements of the duty/risk analysis by proving that (1) the defendant had a duty to conform his conduct to a specific standard, (2) the defendant breached the duty by failing to conform his conduct to the appropriate standard, (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries, (4) the defendant’s conduct was the legal cause of the plaintiffs injuries, and (5) the existence of actual damages. Davis v. Smith, 35, 117 (La.App.2d Cir.10/2/01), 796 So.2d 765, writ denied, 2001-2887 (La.1/25/02), 807 So.2d 250; Renard v. McCloud, 35,633 (La.App.2d Cir.5/8/02), 818 So.2d 279.

|4The existence or a lack of a duty is a question of law. Laborde v. Scottsdale Insurance Company, 96-1659 (La.App. 3d Cir.10/22/97), 704 So.2d 247, writ denied, 1998-0471 (La.4/3/98), 717 So.2d 1131, reconsideration denied, 1998-0471 (La.5/15/98), 719 So.2d 66; Yocum v. City of Minden, 26,424 (La.App.2d Cir.1/25/95), 649 So.2d 129. Simply put, the inquiry is whether the plaintiff has any law—statutory, jurisprudential, or arising from general principles of fault—to support his claim. Paul v. Louisiana State Employees’ Group Benefit Program, 1999-0897 (La. App. 1st Cir.5/12/00), 762 So.2d 136.

La. R.S. 32:81 states, in relevant part:

A. The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.

A following vehicle in a rear-end collision is presumed to be negligent, absent any proof to the contrary. Oppenheim v. Murray Henderson Undertaking Company, Inc., 414 So.2d 868 (La.App. 4th Cir.1982).

In order to avoid liability, a following motorist who rear-ends another vehicle must prove a lack of fault; he may do so by establishing that he had his vehicle under control, closely observed the lead vehicle and followed at a safe distance under the circumstances. Chambers v. Graybiel, 25,840 (La.App.2d Cir.6/22/94), 639 So.2d 361, writ denied, 94-1948 (La.10/28/94), 644 So.2d 377. The following motorist may also avoid liability by proving that the driver of the lead vehicle negligently created a hazard which he could not reasonably avoid. Boggs v. Voss, 31,965 (La.App.2d Cir. 6/16/99), 741 So.2d 139; McCullin v. U.S. Agencies Casualty Insurance Company, 34,661 (La.App.2d Cir.5/9/01), 786 So.2d 269.

DISCUSSION

From a review of the trial court’s reasons for judgment, it is apparent that the court accepted Voigtlander’s account that the city truck and its trailer rolled back into him when he was stopped behind them. On this record, such a factual determination would not be manifestly erroneous.

Consequently, the question becomes whether — under these facts — Voig-tlander owed a duty to the plaintiffs to anticipate that their vehicle would suddenly roll back into his stopped auto. We find that he did not.

The presumption of negligence on the part of a driver whose vehicle rear-ends another does not apply here. La. R.S. 32:81, the statute giving rise to that presumption, involves driving in traffic — as demonstrated by the reference to gauging one’s speed as one follows another car — as opposed to merely stopping behind a stationary vehicle at a stop light.

Here the contact between the vehicles was caused by the lead vehicle rolling backwards. This was due to (1) the driver of that vehicle taking some unknown action which somehow caused the truck and trailer to roll back, (2) weight shifting on the trailer, or (3) simple gravity, given the fact that the vehicle was stopped on a slight incline. The force of the contact was extremely slight as amply demonstrated by the negligible damage to Voigtlander’s Explorer and the lack of damage to the city’s trailer.

Voigtlander had no duty to stop his vehicle a further distance from this trailer than he would any other vehicle. Nor did he have a duty to ^anticipate that a vehicle pulling a trailer might roll back. As Voig-tlander had no duty that was breached in this situation, he cannot be found liable. Accordingly, the trial court’s finding of fault against the defendants is reversed.

CONCLUSION

The judgment of the city court in favor of the plaintiffs, Bobby L. Taylor and Billy R. Gray, and against the defendants, Russell Voigtlander and Shelter Mutual Insurance Company, is reversed. Costs of this appeal are assessed against the plaintiffs.

REVERSED.

      . It is noteworthy that both plaintiffs were impeached with their prior criminal records; each had denied having any criminal record in deposition testimony.


text:
    STATE of Louisiana, Appellee v. Antonio R. ROBINSON, Appellant.
    No. 36,147-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.

      Carey J. Ellis, III, Louisiana Appellate Project, Rayville, for Appellant.
    Richard Ieyoub, Attorney General, James M. Bullers, District Attorney, Jason Brown, Assistant District Attorney, for Appellee.
    Before GASKINS, HARRISON and DREW, JJ,
   I,GASKINS, J.

The defendant, Antonio Rodriguez Robinson, was originally charged with forcible rape. A jury convicted him of attempted forcible rape. He was sentenced to serve 20 years at hard labor, with credit for time served, to run consecutive with any other sentence, without benefit of parole. We affirm the defendant’s conviction and sentence.

FACTS

After school on May 13, 1999, the 17-year-old victim went to the Carver Street home of her friend, Latricia. Since Latri-cia’s family did not have a telephone in their house at that time, the victim and Latricia later walked to a nearby pay phone to call the victim’s mother to come pick her up. After the victim called her' mother, the victim and Latricia were approached by the defendant, who was Latri-cia’s neighbor, and Edgar Brown. The defendant — who was known by the street name “Chachi”- — grabbed the victim around the waist from behind and began dragging her to his house, which was nearby. The victim broke loose but was quickly grabbed again by the defendant. She repeatedly called out to Latricia for help. Edgar blocked Latricia.

When he reached the back porch of his house, the defendant found that the back door was locked. He instructed Edgar to enter the house through the front door and unlock the back door for him. The defendant remained on the porch, restraining the victim from escaping. After Edgar unlocked the back door, the defendant dragged the victim inside and locked the door behind him. Edgar continued to frustrate Latricia’s efforts to aid her friend by blocking her path.

12Once inside the house, the defendant dragged the victim into a bedroom and threw her on a bed. He attempted to remove the victim’s clothes but she resisted. The defendant was finally able to pull the victim’s pants down to her knees. He pinned her hands above her head and pushed her legs toward her head. He then penetrated the victim. When she attempted to call for help, he placed his hand over her mouth.

When the victim emerged from the defendant’s house 15 to 20 minutes after the defendant dragged her inside, she was upset and crying. She told Latricia to come on and they returned to the pay phone. She refused to tell Latricia what had happened. The victim’s mother soon arrived to pick her up. Noticing her daughter’s tearful demeanor, the victim’s mother asked what was wrong. The victim refused to tell her. When they arrived home, the victim went immediately to the bathroom, took a bath, and then went to bed.

The next morning, the victim took another bath before going to school. After she arrived at school, she did not talk to her friends as she usually did. Latricia sought the victim out and asked what was wrong. The victim gave her note in which she stated that she had been raped. La-tricia and several other friends insisted that the victim go to the school office. The victim’s parents were called, and the school resource officer was notified of the situation. He, in turn, contacted the Bossier Police Department.

The victim was taken to the hospital for a rape examination. She then went to the police department and gave a taped statement. The police also |3spoke to Latricia and Edgar, who corroborated the victim’s account. The police identified “Chachi” as the defendant.

When two officers went to the defendant’s residence, they detected movement inside but no one answered the door. When one officer called the house on his cell phone, the defendant answered; he said he would come outside and talk to the officers. Instead, the defendant jumped from a side window and ran. However, he was swiftly apprehended and taken to the police station for questioning.

The defendant admitted that he had sexual intercourse with the victim but claimed that she consented. However, as the officers were leaving the interrogation room, the defendant repeatedly said he was sorry and he shouldn’t have done it. The defendant was arrested for forcible rape.

Following a jury trial, the defendant was convicted of attempted forcible rape. His motions for new trial and for post verdict judgment of acquittal were denied. He was sentenced to 20 years at hard labor, without benefit of parole, to be served consecutively with any other sentence. After the defendant made an obscene gesture in the courtroom, he was held in contempt of court and given a consecutive sentence of six months. The defendant’s timely motion to reconsider sentence was denied.

The defendant appeals.

SUFFICIENCY OF EVIDENCE

The defendant argues that the evidence was insufficient to support his conviction. In particular, he asserts that the victim’s testimony was not supported by physical evidence, and was contradicted and impeached by |4two defense witnesses. The state argues that the evidence was sufficient to support the conviction, and the jury’s determinations regarding witness credibility should not be disturbed.

Law

The question of sufficiency of the evidence is properly raised by a motion for post verdict judgment of acquittal. La. C. Cr. P. art. 821; State v. Gay, 29,434 (La.App.2d Cir.6/18/97), 697 So.2d 642. The defendant properly raised the issue of sufficiency of the evidence in the trial court in a motion for post verdict judgment of acquittal, which was denied by the trial court.

Under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the proper standard for appellate review of a sufficiency of evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Ponsell, 33,543 (La.App.2d Cir.8/23/00), 766 So.2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490; State v. Owens, 30,903 (La.App.2d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747.

However, this court’s authority to review questions of fact in a criminal case does not extend to credibility determinations made by the trier of fact. La. Const. art. 5, § 10(B); State v. Williams, 448 So.2d 753 (La.App. 2d Cir.1984). A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Rogers, 494 So.2d 1251 (La.App. 2d Cir.1986), writ denied, 499 So.2d 83 (La.1987). In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Ponsell, supra.

La. R.S. 14:42.1, in relevant part, states:

A. Forcible rape is rape committed when the ... vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.

To support a conviction for attempted forcible rape, the state must prove , that defendant had the specific intent to commit forcible rape and that he did an act for the purpose of, and tending directly toward, the accomplishing of his objective. La. R.S. 14:27 and 14:42.1; State v. Dorsey, 30,683 (La.App.2d Cir.6/24/98), 718 So.2d 466, writ denied, 98-2227 (La.12/18/98), 732 So.2d 54; State v. Bryant, 607 So.2d 11 (La.App. 2d Cir.1992), writ denied, 92-3082 (La.2/25/94), 632 So.2d 760; State v. Bailey, 585 So.2d 1245 (La.App. 2d Cir.1991). Specific intent, being a state of mind, need not be proved as a fact but may be inferred from the circumstances involved and the actions of the accused. State v. Graham, 420 So.2d 1126 (La.1982); State v. Dorsey, supra; State v. Bailey, supra.

The testimony of a sexual assault victim alone is sufficient to convict a defendant. State v. Ponsell, supra; State v. Bailey, supra; State v. Doby, 540 So.2d 1008 (La.App. 2d Cir.1989), writ denied, 544 So.2d 398 (La.1989). Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Ponsell, supra. See also State v. Johnson, 96-0950 (La.App. 4th Cir.8/20/97), 706 So.2d 468, writ denied, 1998-0617 (La.7/2/98), 724 So.2d 203, cert. denied, 525 U.S. 1152, 119 S.Ct. 1054, 143 L.Ed.2d 60 (1999). An absence of forensic evidence of rape is not fatal to an attempted forcible rape case. State v. Bryant, supra.

Discussion

The testimony of the victim alone, viewed in the light most favorable to the prosecution, was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime of the responsive verdict of attempted forcible rape, as well as the charged offense of forcible rape. Her testimony supports the defendant’s conviction of attempted forcible rape because it proves that the defendant had the specific intent to commit forcible rape and |7that he did an act for the purpose of, and tending directly toward, the accomplishing of his objective.

Also, the victim’s account was corroborated with regard to the circumstances immediately surrounding the rape by the testimony of Latricia and Edgar. In particular, Latricia corroborated the fact that the defendant used physical force to get the victim into his house, that the victim did not want to go, and that the victim called to her for help. Latricia and Edgar both corroborated that Edgar prevented Latricia from helping the victim by physically blocking her and by telling her to leave the defendant and the victim alone. Even Edgar admitted that the victim looked afraid before she entered the defendant’s home and then seemed mad and crying when she left. Despite his initial attempt to characterize the victim as willingly sitting on the defendant’s lap, Edgar finally admitted — after being impeached with his statement to the police — that the defendant had the victim restrained on the porch so she couldn’t escape. He also conceded that he was “concerned” for the victim while she was in the house with the defendant. Further corroboration of the victim’s account was made by testimony of the victim’s mother and the investigating officers.

The defendant points to the lack of forensic evidence of rape. The victim testified that she bathed twice between the time of the attack and the rape examination at the hospital the following day. The nurse who conducted the examination testified that such action affected the ability to recover forensic evidence of sexual assault. As noted above, forensic evidence is not necessary for a conviction in a sexual assault case.

|sThe defendant presented the testimony of two witnesses who said that they had seen the victim and the defendant acting like “boy friend and girl friend” prior to the offense to contradict the testimony of the victim that she did not know the defendant before the incident. However, these witnesses were friends and neighbors of the defendant’s mother; one of them frankly admitted that she did not want to see the defendant go to jail. Both Latrieia and Edgar verified the victim’s testimony that she never dated the defendant.

In convicting the defendant of attempted forcible rape, it is apparent that the jury chose to believe the victim’s testimony instead of the defendant’s claim of consensual sex. This court’s authority to review questions of fact in a criminal case’ does not extend to credibility determinations made by the trier of fact. Furthermore, we attach no “sinister connotation” to the jury’s return of a responsive verdict of attempted forcible rape instead of forcible rape. See State v. Dewhirst, 527 So.2d 475 (La.App. 5th Cir.1988), writ denied, 535 So.2d 740 (La.1989). A jury has the prerogative to compromise and render a lesser verdict whenever it could have convicted as charged. State v. Mitchell, 35,970 (La.App.2d Cir.5/8/02), 818 So.2d 807; State v. Bryant, 33,078 (La.App.2d Cir.3/1/00), 754 So.2d 387.

This assignment is without merit.

| flCHALLENGED JUROR

The defendant argues that the trial court committed error by denying his challenge for cause against prospective juror B. F., who was a childhood rape victim and who had an aunt who was a victim of rape/murder.

During group voir dire examination, a prospective juror requested to speak to the court without the presence of unnecessary personnel. The courtroom was cleared with the exception of the court reporter, one representative from the state, the defendant and his attorney. B.F. stated that, as a child, she had been a victim of ongoing sexual abuse (which she classified as rape) by a relative. The sexual abuse ceased when she was about 12 years old. She never reported the abuse, and she had only told her spouse and a few close friends. B.F. stated that she had received counseling for her experience several years ago.

Under questioning by the prosecutor, B.F. stated her belief that, as a Christian, she could be a fair and impartial juror. She felt that she had come to grips with what had happened to her as much as possible, and stated that she would not hold what had happened to her against this defendant.

Additionally, B.F. had an elderly aunt who was the victim of a rape/murder in Alexandria about 10 to 15 years ago. B.F. was not a witness to the crime, and she did not follow the proceedings. However, she recalled that the criminal was apprehended, convicted and was serving time in prison. When asked if that experience would at all affect her ability to be a fair and impartial juror, B.F. said it would not.

ImWhen questioned by defense counsel, B.F. stated that she could make a fair decision after hearing all the evidence and that she believed she could separate the emotions from the facts. She did not necessarily think she would be “more fair” if she had not had these experiences. She specifically stated that she was not trying to get on — or off — the jury.

The trial court asked B.F. if she were on trial, would she be comfortable with having a juror with her mind-set determining her fate; she said that she would. A challenge for cause was made by the defendant and denied by the trial court. The defendant entered an objection for the record and exercised a peremptory challenge against B. F.

Law

In order for a defendant to prove reversible error warranting reversal of both his conviction and sentence, he need only show the following: (1) erroneous denial of a challenge for cause; and (2) use of all his peremptory challenges. State v. Hart, 96-0697 (La.3/7/97), 691 So.2d 651; State v. Richardson, 33,272 (La.App.2d Cir.11/1/00), 779 So.2d 771, writ denied, 2000-3295 (La.10/26/01), 799 So.2d 1151; State v. Loyd 35,637 (La.App.2d Cir.2/27/02), 810 So.2d 1214.

Challenges for cause are governed by La. C. Cr. P. art. ,797, which provides in pertinent part:

The state or the defendant may challenge a juror for cause on the ground that:
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he |n declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence....

A trial court is vested with broad discretion in ruling on challenges for cause, and its ruling will be reversed only when a review of the entire voir dire reveals that the court abused its discretion. State v. Richardson, supra; State v. Loyd, supra.

A refusal by a trial judge to excuse a prospective juror on the ground he is not impartial is not an abuse of discretion where, after further inquiry or instruction (frequently called “rehabilitation”), the potential juror has demonstrated a willingness and ability to decide the case impartially according to the law and the evidence. State v. Richardson, supra;

The fact that a juror personally has been the victim of a crime will not necessarily preclude that juror from serving on a jury as long as the juror’s partiality has been unaffected. State v. Walker, 577 So.2d 770 (La.App. 2d Cir.1991), writ denied, 581 So.2d 704 (La.1991); State v. Thom, 615 So.2d 355 (La.App. 5th Cir. 1993). Nor is a prospective juror automatically rendered incompetent to serve because a relative was a crime victim. State v. Thom, supra; State v. Walker, supra; State v. Green, 94-986 (La.App.3d Cir.3/1/95), 651 So.2d 435; State v. Thibodeaux, 96-471 (La.App. 3d Cir.12/11/96), 687 So.2d 477, writ denied, 97-0060 (La.5/30/97), 694 So.2d 243. This is true even when the crime is similar to the one of which the defendant stands charged. State v. Thom, supra; State v. Richardson, supra.

112.Discussion

The record reflects that the defense exhausted all 12 of its peremptory challenges. B. F.’s responses to questioning by the state, defense and the trial court, taken as a whole, clearly support the trial court’s conclusion that her past experiences would not interfere with her ability to act impartially, and do not reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably implied. The declaration of this otherwise fair and impartial juror that she was previously the victim of a crime similar to that with which the defendant stood charged did not render her incompetent to serve. The record does not show an abuse of the trial court’s discretion in denying the defendant’s challenge for cause as to B. F.

This argument is without merit.

EXCESSIVE SENTENCE

The defendant argues that the trial court erred in imposing the maximum possible sentence and that is it constitutionally excessive for a first felony offender. He also asserts that the trial court did not adequately set forth the factual basis for the sentence imposed, nor did it particularize the sentence.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. State v. Lanclos, 419 So.2d 475 (La.1982).

The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864; State v. Hudgins, 519 So.2d 400 (La.App. 2d Cir.1988), writ denied, 521 So.2d 1143 (La.1988). There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385; State v. Callahan, 29,351 (La.App.2d Cir.2/26/97), 690 So.2d 864, writ denied, 97-0705 (La.9/26/97), 701 So.2d 979.

The second prong of the test to determine whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it |ushocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, supra.

As a general rule, maximum or near maximum sentences are to be reserved for the worst offenders and the worst offenses. State v. Adger, 35,111 (La.App.2d Cir.9/26/01), 797 So.2d 146.

Before imposing sentence, the trial court considered the information found in a pre-sentence investigation (PSI) report. The defendant’s parents were divorced; his father lived in Shreveport and his mother in Bossier City. (The instant rape occurred at the mother’s residence in Bossier.) Although 20 years old at the time of the offense, the defendant was still attending high school. He had never been employed, married or enlisted in the armed forces. There was no indication of a juvenile record. Although he had been arrested in 1996 on a narcotics charge, the PSI report showed no disposition on this matter. At the time of sentencing, the defendant had pending charges of carnal knowledge of a juvenile and unauthorized use of a motor vehicle.

Our review of the record shows that the trial court adequately articulated its reasons for imposing the maximum sentence for attempted forcible rape. Like the trial court, we note as a compelling aggravating factor the defendant’s complete and total lack of remorse. Additionally, the trial court considered the great, lifelong harm done to the victim. She was a | is17-year-old high school junior at the time of the rape. A week after the attack, she began to receive counseling through the YWCA Sexual Assault Center. She attended regularly for about a year and a half until about the time she went away to college. She experienced flashbacks and nightmares about the rape. The trial court received letters from the victim’s father and her sexual assault counselor which disclosed that, as a result of being raped, the victim suffered from post-traumatic stress disorder, depression and suicidal ideations.

Furthermore, the trial court also considered that the defendant had, in fact, committed a forcible rape. The court was of the opinion that the jury had returned the verdict of only attempted forcible rape as a result of the defendant’s youthful age.

After careful review, we find that this record supports the imposition of the maximum sentence for this defendant for his conviction of the responsive verdict of attempted forcible rape, considering the circumstances of the case and the background of the defendant. The defendant’s 20-year hard labor sentence is neither grossly out of proportion to the seriousness of the offense nor nothing more than a purposeless and needless infliction of pain and suffering. That is, when the instant crime and the defendant’s punishment are viewed in light of the harm done to society, the defendant’s sentence does not shock the sense of justice.

hfiThis assignment of error lacks merit.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . According to information in the PSI report, while being led away by deputies after the trial, the defendant looked at the victim and said, "Kill that bitch.” Following the imposition of sentence, the defendant was held in contempt and sentenced to a consecutive sentence of six months for malting an obscene gesture in the courtroom. The transcript also shows that the defendant said, "F-you” as the court imposed sentence. The record does not specify at whom the defendant’s obscenities were directed.

      . See State v. James, 573 So.2d 1277 (La.App. 4th Cir.1991), writ denied, 600 So.2d 675 (La.1992), in which a defendant charged with forcible rape was convicted of attempted forcible rape and sentenced to 20 years at hard labor after the victim testified that the act of rape was completed. See also State v. Capps, 461 So.2d 562 (La.App. 3d Cir.1984), in which a defendant originally charged with aggravated rape of a 10-year-old girl was convicted of attempted forcible rape and sentenced to 20 years at hard labor although there was some evidence of penetration.


author: h CARAWAY, J.

text:
    Stacey Laverne MARTIN, Plaintiff-Appellee, v. Tara Wyatt MARTIN, Defendant-Appellant.
    No. 36,860-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.

      Albert E. Loomis, III, Monroe, for Appellant.
    Richard L. Fewell, Jr., West Monroe, for Appellee.
    Before BROWN, CARAWAY and HARRISON (Pro Tempore), JJ.
   h CARAWAY, J.

The trial court decided this child custody dispute in favor of the father, who resides in Louisiana, and awarded extended summertime visitation to the mother, who resides with her new spouse in Maine. The mother appeals the ruling, seeking primary custody of the five-year-old child during the school year in Maine. Amending the judgment to provide for joint custody and for the designation of the domici-lary parent, we otherwise affirm the trial court’s ruling.

Facts

Tara Darville (formerly known as Tara Wyatt Martin) (hereafter “Tara”) and Stacey LaVerne Martin (hereafter “Stacey”) married in 1993 and established their matrimonial domicile in Morehouse Parish. During the marriage, Stacey worked as a manager for Wal-Mart and Tara obtained an associate degree in nursing. She began working as a registered nurse in 1998. Their only child, Luke, was born on April 24, 1997. A second child, Tyler, was born on March 30, 1999. Although Stacey thought he was also the father of this child, he subsequently learned that Tara’s present husband, Scott Darville (“Scott”), was Tyler’s biological father. Tara “met” Scott on the internet. Scott has always resided in Maine.

Tara alleged that Stacey abused her while they were married. During the custody trial, she testified to Stacey’s verbal and physical abuse. She stated that the last incident, in which Stacey pushed her down on the ground two weeks before she left, precipitated her departure from the matrimonial domicile. On October 14, 1999, she drove to Maine with the two children |2and Scott, who had flown to Louisiana to accompany her on the trip. She stayed in Maine, living with and marrying Scott shortly after she and Stacey were divorced in October 2000. Although she evidently instituted proceedings in Maine under the Uniform .Chdcl Custody Jurisdiction Act, she eventually agreed that Louisiana would have jurisdiction over the issue of Luke’s custody.

Tara briefly returned from Maine with the children for the first time during Christmas of 1999. When Stacey went to Tara’s parents’ house to see the children, a fight erupted between Stacey and Scott. The police arrested Stacey for assault. Later that evening, Scott, Tara and the children headed back to Maine. Luke did not return to Louisiana until fourteen months later, in February 2001.

Stacey traveled to Maine in mid-February, 2001. As a result of legal proceedings over custody in Louisiana and Maine, the parties and their respective counsel negotiated an agreement acknowledging that DNA testing had proven that Scott fathered the younger child, Tyler. They further agreed to interim joint legal custody of Luke, and that “the physical and primary residential custody of Luke shall be with the plaintiff, Stacey L. Martin,” in Louisiana. Finally, the agreement set up a visitation schedule which provided that Tara would have overnight visitation on Tuesday and Thursday nights, and alternating weekends. All such visitation was to occur in Louisiana.

laTwo weeks after Stacey and Luke returned to Louisiana, Tara began living in Bastrop with her family to exercise visitation with Luke. This custodial arrangement continued for two months, until Stacey learned that Tara was asserting her right to permanent custody and “disallowed” her visitation. She testified that she did not exercise any further visitation with Luke until August 2001, four months later.

After Luke returned to Louisiana in February, Stacey remarried. Stacey began working at the Springhill Wal-Mart in December 2001 and commuted between Bastrop and Springhill until his family moved to Springhill in March. Testimony indicated that because of Stacey’s working hours, his new wife, Amanda, primarily cared for Luke and the couple’s new son.

After the trial began in October 2001, but before its conclusion in May 2002, Amanda allegedly disciplined Luke by whipping him with a belt. One incident occurred in February, when Amanda punished Luke with a belt after he urinated in his bedroom. Tara saw the bruises on his legs and reported the incident to the police. The police report stated that according to Amanda, Luke’s father worked long hours and Luke was constantly in her care. Luke told Tara that he was afraid to leave his room because of Amanda. A psychologist conducted a single interview with Luke. His report concluded that Luke was concerned about being hurt, and recommended that Luke’s biological parents, not his step-parent, discipline him. He also recommended that “the use of corporal punishment be reassessed as Luke is feeling Labused,” and concluded that Luke needed a greater degree of security and the use of more appropriate disciplinary techniques.

In October 2001, on the second day of trial, the court lengthened Tara’s visitation with Luke in Bastrop to every other week. This arrangement continued for five months, until Stacey moved his family to Springhill. That month, the trial court heard more testimony and again modified the interim custody order, “dividing visitation in half.”

After a delay until May 2002, the trial continued. The evidence indicated that Tara would return to live with her husband and Tyler in Maine following the resolution of Luke’s custody. She testified that Luke had enjoyed living in Maine with his brother and step-father. Scott owned a home in Maine and was employed in a family business. Therefore, Tara had no plans to return to work as a nurse in Maine.

At the close of trial, the trial court had a lengthy discussion with counsel reflecting on the evidence and issues. The court vacillated in its assessment of the parties, at one point expressing its “inclination” as “to grant Mr. Martin primary domiciliary custody.” Later, the court stated that “if Mrs. Darville was living across town rather than at the other end of the country, probably I would be leaning in favor of her.” Because of Stacey’s work schedule, “she would be more of a primary caregiver to the child than he would be.” The trial court took the matter under advisement, but did not render written reasons for judgment.

IsOn July 2, 2002, the court issued the following order (“Order”):

ORDER
The Court awards the custody of the minor child of the marriage at issue herein to Mr. Stacey LaVerne Martin. Mrs. Martin (now Darville) shall enjoy reasonable visitation rights including the right to physical custody of the child on alternating major holidays and major summertime visitation.
Within TWENTY-FIVE (25) days of the date of this Order, the parties shall jointly submit a Custody Plan/Visitation Order which will comply with the broad parameters of this Order but which will specify in more detail the particulars of the Custody Scheme.
If the parties are unable to agree on a Custody Plan/Visitation Order in conformity with this Order, the Parties each shall submit his own proposed Custody Plan/Visitation Order no later than THIRTY (30) days after the date of this Order and the Court shall choose either one of the submitted plans for (sic) devise one of its own.

It is from this Order that Tara appeals.

Discussion

There are two preliminary issues which we will address before consideration of the trial court’s custody ruling. First, Stacey argues that the trial court’s Order was not a final appealable judgment because the court did not specify the sharing arrangement for the “Custody Plan/Visitation Order” contemplated in the trial court’s Order. Additionally, Stacey argues that other issues pertaining to Tara’s delinquent child support obligation and contempt of court proceedings remain. While we agree that the trial court’s resolution of this custody dispute should have specified the details of the sharing arrangement and concluded the dispute, obviating potential disagreement between the parties, we consider the Order final concerning the award of custody as discussed further below. Additionally, La. C.C.P. art. |fi3943 indicates that an appeal lies immediately from a judgment awarding custody within the special thirty-day appeal period, and any other pending matter in the family proceeding does not affect the finality of the custody ruling.

Second, Tara made allegations of abuse and prayed for relief under the Post-Separation Family Violence Relief Act, La. R.S. 9:361, et seq. (the “Act”). She continues to argue that Stacey’s actions toward her are factors for consideration under Civil Code Article 134 for the award of custody. However, she makes no argument that the Act applies.

In her testimony, Tara described a volatile relationship; yet most of the incidences she described occurred before the parties were married in 1993 or before the birth of Luke in 1997. After one incident before Luke’s birth, she showed bruises on her legs to her parents. Her parents corroborated this in their testimony at trial. Tara reported that after Luke’s birth, on three occasions, Stacey pushed her or verbally abused her. The final act which she reported occurred two weeks before she left the marital domicile and moved to Maine in October 1999.

The most significant incident of violence occurred in December 1999 when Tara returned to her parents’ home with the two children and Scott. Stacey came to the home to see Luke and shortly after his arrival, he got into a fight with Scott. The two witnesses to the fight, Tara and her mother, were not immediately present in the room when the fight broke out. Therefore, the details of the provocation of the fight were never given. Scott did not testify at trial, and Stacey was never asked about the incident. The circumstantial 17evidence indicates, however, that Stacey was the aggressor in the fight since Scott was seated holding the baby, Tyler, when the fight erupted. In discussing the incident at the close of the trial, the trial court concluded that Stacey “suddenly and without immediate provocation attacked Mr. Darville.”

Regardless of the appellant’s failure to specifically argue the provisions of the Act, its significant social concern and high standard of review should not be ignored by a court after receiving evidence of violence. La. R.S. 9:364(A) provides a legal standard which must be applied in a custody case involving violence. It provides, in pertinent part, as follows:

There is created a presumption that no parent who has a history of perpetrating family violence shall be awarded sole or joint custody of children. The court may find a history of perpetrating family violence if the court finds that one incident of family violence has resulted in serious bodily injury or the court finds more than one incident of family violence.

It is clear from the discussion of the custody dispute at the close of trial that the trial court did not apply the presumption of the Act against Stacey. The court apparently concluded that Stacey’s fight with Scott was a one-time incident that did not result in serious bodily injury. The trial court also could conclude that Tara’s testimony regarding Stacey’s prior acts before Luke’s birth did not demonstrate a significant history of family violence. The corroborating testimony of Tara’s parents concerning the bruises Tara suffered did not reflect that they considered that serious violent acts indeed occurred. Finally, credibility issues pertaining to Tara, as discussed below, allowed the trial court to discount her claim for a history of family violence. Based upon our review of the record, we find the | ^presumption of the Act inapplicable for the ruling regarding custody in this proceeding.

Sole or Joint Custody

Tara’s first assignment of error is that the trial court improperly granted sole custody of Luke to Stacey. La. C.C. art. 132 provides in pertinent part as follows:

In the absence of an agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent.

Pursuant to Art. 132, Stacey’s burden was to prove by clear and convincing evidence that sole custody, as opposed to joint custody, is in the best interest of the child. In order to prove a matter by “clear and convincing evidence,” a party must demonstrate that the existence of a disputed fact — in this instance, that sole custody is preferable — is highly probable or much more than its nonexistence. Washkow v. Washkow, 33,965 (La.App. 2 Cir. 8/23/00), 765 So.2d 1210; Harper v. Harper, 33,452 (La.App. 2 Cir. 6/21/00), 764 So.2d 1186.

Under our prior law, La. C.C. art. 131, before amendment in 1993, the presumption in favor of joint custody would cease to exist if a parent moved out of state. See, Deshotels v. Deshotels, 638 So.2d 1199 (La.App. 1st Cir.1994). Now, when considering the best interest of the child, “the distance between the respective residences of the parties” is one of many factors with regard to joint or sole custody and the implementation order for joint custody. La. C.C. art. 134(11).

|3In Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708 So.2d 731, the court considered whether a stipulated joint custody arrangement should be modified to sole custody when one parent moved to Washington. The court determined that joint custody should continue, noting the “[r]emoval of a parent from Louisiana should not, of itself, constitute a sufficient reason to terminate the joint legal custody arrangement.” Id. at 739.

As reflected in the lengthy discussion at the close of trial, the trial court was wrestling with the issue of which parent should be the domiciliary parent in a joint custody arrangement and have physical custody of the child for the school year. Nevertheless, the Order implies that sole custody was rendered in favor of Stacey. We do not find from the record that Stacey proved by clear and convincing evidence that he should be awarded sole custody of the child. Accordingly, we amend the judgment’s lack of clarity on this issue and award joint custody.

Physical Custody and Domiciliary Parent

When joint custody is determined as applicable, La. R.S. 9:335 provides that an implementation order should set forth the sharing arrangement for physical custody and designate the domiciliary parent. “To the extent feasible and in the best interest of the child, physical custody of the children should be shared equally.” La. R.S. 9:335(A)(2)(b). Distance between the parties inherently precludes an equal sharing of physical custody when the child is of school age. Templeton v. Templeton, 98-2503 (La.App. 1st Cir.4/1/99), 730 So.2d 1070.

In Evans v. Lungrin, supra, our supreme court maintained joint custody and determined that “transporting [the four-year-old] back and forth between the State of Washington and Louisiana for four-month intervals is not in her best interest.” 708 So.2d at 740. Likewise, since Luke is now entering kindergarten, any feasible arrangement would require that one parent have physical custody during the school year due to the significant distance between the parties’ homes. The Order basically provides the framework for a feasible arrangement by granting one parent physical custody during the school year and the other parent the “major summertime” physical custody. Pursuant to the cited statute, we must now determine if the trial court’s choice of Stacey as the parent with physical custody during the school year was in the best interest of the child.

To determine the best interest of the child for a feasible sharing arrangement under La. R.S. 9:335(A)(2)(b), the court must weigh and balance those factors enumerated in La. C.C. art. 134, which provides:

The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
In(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

The trial court’s determination of custody is entitled to great weight and will not be reversed on appeal unless an abuse of discretion is clearly shown. Thompson v. Thompson, 532 So.2d 101 (La.1988); Washkow, supra; Ramphrey v. Ramphrey, 32,560 (La.App.2d Cir.12/8/99), 749 So.2d 835; McKinley v. McKinley, 25,365 (La.App.2d Cir.1/19/94), 631 So.2d 45.

Tara emphasizes her primary role and responsibility for the prior care and rearing of Luke. She cites Stacey’s lack of development of a strong emotional bond with Luke due to Stacey’s long hours on the job at Wal-Mart and another part-time job he previously maintained. Luke was almost four years old when Stacey brought Luke back to Louisiana from Maine and, according to Tara, assumed parenting responsibility for Luke for the first time. Additionally, Tara emphasizes that prior to the parties’ separation, the family unit included Tyler. Luke’s relationship with Tyler continued unabated for almost the first two years of Tyler’s life. During that time, Luke also developed a relationship with Scott, and the proposed custodial home in Maine established stability.

To Tara’s assertions, Stacey responds that Luke was only two and one-half years old when Tara left for Maine. Tara had been either in school or | ^employed throughout Luke’s life prior to separation, and Stacey claims that he also contributed to caring for the child’s needs. Stacey also insists that his promoted job status as store manager of the Springhill Wal-Mart allows him much more flexibility in his employment so that he will be able to devote more time to his son.

While the trial court did acknowledge the superiority of Tara’s caregiver role in the past and for the future, the court nevertheless expressed concerns throughout the trial over Tara’s abrupt and secretive flight to Maine with Scott and the children in October 1999. Stacey, Tara’s parents, and Tara’s employer were not immediately told that she moved to Maine. Some days passed before Stacey and her parents knew of her whereabouts. At that time, Stacey and her parents did not know of Tara’s relationship with Scott. Tara admitted that during the prior six and one-half months since Tyler’s birth in March 1999, she tried to prevent Stacey from becoming attached to Tyler, knowing that Tyler was Scott’s child. Any close and continuing relationship that needed to be maintained between Luke and Stacey was thwarted for the sixteen months that Tara lived in Maine and pursued legal action in that state.

Tara’s actions clearly allowed the trial court to suspect Tara’s willingness and distrust her ability to facilitate and encourage a close and continuing relationship between Luke and Stacey. Only the trial court could weigh this credibility issue arising from Tara’s past actions. The credibility issue also affects Tara’s domestic abuse claim as causing the breakup of the family and the stable environment that she claimed in Maine.

11sMany of the other factors listed under Article 134 can be met by both parents, and the choice concerning which parent should serve as the primary custodian during the school year is very close. Accordingly, we cannot say that the trial court abused its discretion in awarding Stacey the physical custody of Luke during the school year. Additionally, the record also supports designating Stacey as the domiciliary parent, as the trial court gave no reason for omitting such designation.

Conclusion

We amend the judgment of the trial court as reflected in the Order of July 7, 2002, to provide for the parents’ joint custody of Luke. We affirm the trial court’s designation of Stacey as the primary custodian of Luke during the school year. We further amend the Order and designate Stacey as the domiciliary parent. Finally, we remand the case for the trial court’s entry of an implementation order for the physical custody of the child consistent with our rulings herein and with the provisions contained in our unpublished attachment hereto, detailing the holiday and summertime scheduling, the travel expenses for the child, and the telephone access to the child. Costs of appeal are assessed equally to both parties.

AMENDED, AND AS AMENDED, AFFIRMED; CASE REMANDED.

      . La. R.S. 13:1700, et seq.

      . After Scott adopted this child, his name was changed to Solon.


author: |, GASKINS, J.

text:
    Scott LAMP, Plaintiff-Appellee v. Kimberly LAMP, Richard Lamp and Marion R. Pearson, Defendants-Appellants.
    No. 36,919-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 2002.

      Michael A. Duplantier, New Orleans, for Appellants, Richard and Marian Pearson.
    Hamilton & Hamilton, by Orlando N. Hamilton, Jr., Oak Grove, for Appellee.
    Before STEWART, GASKINS and PEATROSS, JJ.
   |, GASKINS, J.

In this custody case involving an eight-year-old boy, the maternal grandparents, Richard and Marian Pearson, appeal from a trial court judgment awarding custody to the child’s father, Scott Lamp. We affirm.

FACTS

Scott Lamp, age 17, and Kimberly Pearson, age 19, were married on July 31, 1993. The couple met in 1992 when Kim and her family moved to the Rogers/Bentonville area of Arkansas and became members of the same church attended by Scott and his family.

At the time of the marriage, Scott was still a high school student. However, he obtained part-time employment which became full-time upon his graduation in May 1994. Kim was also employed. On November 27, 1994, Scott and Kim’s son, Dakota Scott Lamp, was born.

The young couple’s marriage was tumultuous. There was disharmony between their families; in particular, the Lamps were concerned about the age difference between the couple, Kim’s influence over Scott, and Scott’s youthful age. Kim accused Scott of abuse; she obtained several protective orders against him but always reconciled with him. Scott admitted slapping her on one occasion but denied all other accusations. Kim also obtained a restraining order against her in-laws at one point because she thought her father-in-law was plotting to “stir up” her marriage. Scott changed employment periodically, and they experienced financial difficulties.

Eventually, Kim took a job as an exotic dancer. While engaged in this employment, she met a man named Alan Bish. He is described in the | ¿trial record as “a con man [who] sold stolen stereos out of the back of a van.” In January 1996, Kim ran off with Bish, leaving Scott, but taking Dakota, age 14 months, with her.

After leaving Arkansas with Bish, Kim periodically contacted her parents from various cities to ask for money. After receiving a call from a New Orleans motel in February 1996, the Pearsons drove there and persuaded Kim to allow them to take Dakota back with them. The baby was bruised and hungry. Upon their return to Arkansas with the baby, they did not contact Scott to inform him of his son’s whereabouts. Thereafter, Kim called from Florida to tell them that Bish was in jail and she had no money. At her request, Mr. Pearson went to Florida and escorted his daughter back to Arkansas.

At some point after her return, Kim contacted Scott and allowed him to visit with Dakota at her parents’ home when her parents were not there. In the summer of 1996, the Pearsons moved to Hara-han, Louisiana, so that Mr. Pearson could begin the process of becoming a private investigator; Kim and Dakota went with them. Scott learned that his wife and son were gone when he went to the Pearson home and discovered one of the utilities being cut off. However, while Kim lived in Harahan with her parents, there was some telephone contact between her and Scott.

Bish came back into Kim’s life. She and Dakota moved into an apartment with him. Her parents were unable to persuade her to allow Dakota to remain with them. However, due to Kim’s excessive drinking and partying, the Pearsons frequently cared for Dakota on the weekends. In ^September 1996, Bish called the Pearsons to tell them that Kim was not breathing and was being taken to the hospital. Paramedics who responded to the call found her naked and handcuffed to the bed; she had inhaled VCR head cleaner, resulting in respiratory distress. Kim was in a coma and on a respirator for eight days. Scott was not informed of Kim’s hospitalization.

While Kim was hospitalized, the Pear-sons took care of Dakota. In late September 1996, they initiated custody proceedings against Kim in Jefferson Parish. They obtained first temporary custody and then in November 1997 permanent custody of Dakota. However, Scott was not made a party to these proceeding in Jefferson Parish.

In July 1997, Scott filed a petition in Benton County, Arkansas, in which he requested a divorce from Kim and custody of Dakota. In January 1998, the divorce was granted. No determination of child custody was made in the final decree; however, the court specifically retained jurisdiction over the issue.

In March 1998, the Pearsons and Dakota moved to Lake Providence, Louisiana. Kim lived with them briefly, then moved to Oak Grove, Louisiana.

On November 24, 1999, the Pearsons filed a petition in East Carroll Parish to change Dakota’s name from “Dakota Scott Lamp” to “Dakota Richard Pearson.” In their petition, they asserted that Scott’s whereabouts |4were unknown and failed to mention that Scott was not a party to their prior custody suit against Kim. The petition was apparently granted.

In January 2000, after finally locating Kim in Oak Grove, Scott filed a petition to reopen the Arkansas divorce proceedings to seek sole permanent custody of Dakota. The Arkansas court dismissed the petition without prejudice.

On May 30, 2000, Scott filed the instant petition for custody in West Carroll Parish, Louisiana. In his petition, he sought sole custody of his son, citing Kim’s deliberate actions in concealing the child from him. Kim was enjoined from removing the child from East and West Carroll Parishes.

Kim filed an exception of improper venue, claiming that she lived in East Carroll Parish. She also filed an exception of indispensable parties, seeking the addition of her parents to the action, asserting that they had been awarded custody of the child under a Jefferson Parish judgment in November 1997. The Pearsons filed an answer on October 19, 2000, and Scott subsequently amended his petition to include them as defendants.

On February 16, 2001, a preliminary default was entered against Kim. This judgment was confirmed on February 23, 2001; it awarded Scott full custody against any claim that might have been asserted by Kim. Scott’s right to seek child support from Kim at a future time was recognized and maintained.

IfiOn February 20, 2001, the Pearsons filed a rule for child custody and child support against Scott. They sought sole custody or joint custody with themselves having primary custody.

Evidence was taken on February 20 and April 9, 2001, and February 25, 2002. At the conclusion of court on February 20, 2001, the trial judge ordered that Scott and his parents be granted visitation with Dakota at two-week intervals until the trial resumed in April. To make the visitations less traumatic for Dakota, the court directed that they be supervised by church friends of the Pearsons who were familiar to the boy.

The visitations were conducted on March 3, 17, and 31, 2001, from 10 a.m. to noon and 2 p.m. to 5 p.m. During the first visitation, Dakota interacted with the Lamps easily and comfortably. However, it became obvious to the psychologist observing the visit, Dr. Valerie Thigpen, that the boy did not understand who the Lamps were; he had to be told how he was related to them. The second visitation ended 90 minutes early because the person supervising the visitation, Mrs. Pearson’s cousin, allowed the boy to call Mrs. Pearson and say he wanted to come home. On the third visitation, Dakota was openly hostile to the Lamps, especially Scott. Although the trial judge had given permission for the Lamps to take Dakota for an unsupervised lunch, the boy refused to go. (Prior to the visitation, Mrs. Pearson told Dakota if he didn’t want to go lunch with the Lamps, he should tell them so.) After hearing testimony on April 9, 2001, about the child’s behavior during the visitations, the trial court became concerned |fiabout the boy’s mental health and ordered visitation suspended pending psychological evaluation of the child.

On April 30, 2001, the trial court ordered evaluations of the child, the maternal grandparents, the father and his parents by Dr, Susan Vigen. She interviewed Scott and the Pearsons in May 2001. Dr. Vigen advised the court that she did not evaluate adults but rendered a report giving her preliminary observations and recommendations in September 2001. Dr. Vi-gen described the Pearsons as having “a very intense relationship with Dakota in which contact with his natural parents is either excluded or minimized.” She observed that the Pearsons blamed Scott for the choices Kim had made in her life. She also noted Dakota’s overdependence on the Pearsons and concluded that it would likely continue without changes in his environment and possible counseling. Furthermore, she opined that the Pearsons’ objection to Dr. Thigpen’s presence during visitation indicated a desire to maintain control and eliminate observation of Dakota by a mental health professional. Dr. Vigen suggested that a court-appointed mental health expert be used to facilitate a “normalization” of Dakota’s relationship with Scott and that visitation be structured and gradually increased.

On November 26, 2001, the court ordered evaluations by Dr. Angela Herzog, a clinical psychologist. These were conducted in December 2001. Dr. Herzog’s report was submitted to the court in January 2002. She assessed the strengths and weaknesses of the various adults. While noting that Scott’s great weakness was the lack of familiarity between him and Dakota, she opined that there was no basis to conclude that Scott’s parental 17relationship should be terminated; to the contrary, it needed to be cultivated. As to the Pearsons’ claims that Dakota had been traumatized, she stated that he should not be encouraged to be fearful with others but rather should be allowed to benefit from the love and affection of as many caring adults as possible, including Scott and his parents. Dr. Herzog found reason to believe that, instead, “the Pearsons have modeled avoidance and fearfulness with others, beyond what is rationally justified.” In discussing Dakota’s emotional ties to the Pearsons, Dr. Herzog noted that there were “factors which appear unhealthy, reflect maladjustment, and may thwart developmental growth toward autonomy.” She also concluded that it did not appear probable that the Pearsons possessed the psychological traits necessary to facilitate Dakota’s healthy relationships with the Lamps. According to Dr. Herzog’s later testimony, the Pearsons, who she described as “rigid and compulsive,” were close-minded to the possibility of Scott having a role in the child’s life and they had not moved in the direction of helping Dakota assimilate his father into his life. She concluded her report by suggesting that professional intervention by a health care provider would be necessary if the court made any changes to the existing custody/visitation situation.

For the Christmas season, the trial court reinstated Scott’s visitation with Dakota on the same schedule as before. On December 20, 2001, Scott filed a motion to hold Mrs. Pearson in contempt for allegedly interfering with his first visit with Dakota after the resumption of visitation on December 15, 2001.

|sOn February 21, 2002, the Pearsons sought appointment of an independent counsel to represent the child under La. R.S. 9:345(A). Attached to this motion was a copy of Scott’s petition to annul the judgment changing Dakota’s name, alleging fraud and ill practices by the Pearsons. The Pearsons cited Scott’s petition as evidence that the litigation pertaining to Dakota was likely to increase in intensity. The trial court denied the motion.

On June 25, 2002, the trial court issued written reasons for judgment. Finding that the Pearsons failed to prove that awarding Dakota to Scott would cause the child “substantial harm,” the court awarded Scott custody of Dakota under a graduated transfer of custody. The court directed that the custody change would become effective January 1, 2003. The Pearsons were awarded visitation with the child one weekend per month, one week during spring break, one month during the summer, and holiday visitation from December 26 until 6 p.m. the night before school resumed.

The Pearsons appeal. They argue that the trial court erred in the following respects: (1) in not considering the Jefferson Parish custody judgment as a “considered decree”; (2) in requiring the Pearsons to bear the “substantial harm” burden of proof and in not applying the Bergeron rule to the father’s petition for custody; and (3) in not properly applying the “best interest” rule of La. C.C. art. 131 as to the father’s fitness and the impact of the judgment on the child.

_LgLAW

The best interest of the child is the guiding principle in all child custody litigation. La. C.C. arts. 131, 134; Street v. May, 35,589 (La.App.2d Cir.12/5/01), 803 So.2d 312.

In a conflict between a parent and a nonparent, the parent enjoys the paramount right to custody of a child and may be deprived of such right only for compelling reasons. Tennessee v. Campbell, 28,823 (La.App.2d Cir.10/30/96), 682 So.2d 1274; Myles v. Moore, 36,452 (La.App.2d Cir.8/30/02), 827 So.2d 516.

At an initial custody contest between a parent and a nonparent, the burden of proof is on the nonparent to show that granting custody to the parent would result in substantial harm to the child, thus necessitating an award of custody to the nonparent. La. C.C. art. 133; Mills v. Wilkerson, 34,694 (La.App.2d Cir.3/26/01), 785 So.2d 69.

In an action to modify a previous nonconsidered decree between a parent and a nonparent, the nonparent must prove that awarding custody to the parent would result in substantial harm to the child. Myles v. Moore, supra.

However, after an initial considered decree, the parent’s paramount right to custody must be weighed in conjunction with the principles expressed in Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). Tennessee v. Campbell, supra. A considered decree is one in which evidence as to parental fitness to exercise custody is received by the court. Myles v. Moore, supra. A parent seeking custody of a child awarded to a nonparent |inby a previous considered decree bears the burden of proving that the continuation of present custody is so deleterious to the child as to justify a modification of the custody, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by the advantages a change affords the child. Myles v. Moore, supra; Tennessee v. Campbell, supra.

However, the Bergeron standards do not apply when a party to the current custody litigation was not a party to the original proceedings that produced the considered decree. Kroics v. Kroics, 1997-911 (La.App. 3d Cir.2/4/98), 705 So.2d 1302. See also In re Tutorship of M.A.H., 33,717 (La.App.2d Cir.8/23/00), 765 So.2d 1181; and Myles v. Moore, supra.

In a child custody case, the determination of the trial judge will not be disturbed absent a clear showing of abuse of discretion. Martin v. Dupont, 32,490 (La.App.2d Cir.12/8/99), 748 So.2d 574. The trial judge had the opportunity to see and hear the witnesses and to evaluate their sincerity and credibility. Martin v. Dupont, supra. An appellate court is required to extend great weight to the factual conclusions of trial courts which are based on reasonable evaluations of credibility and reasonable inferences of fact. Rosell v. ESCO, 549 So.2d 840 (La.1989).

DISCUSSION

Burden of Proof

Scott was not a party to the Jefferson Parish custody litigation that produced the judgment granting custody of Dakota to the Pearsons. While the Jefferson Parish judgment may be a considered decree as to Kim, since [nher parental fitness was litigated, it is not a considered decree against Scott. Thus, the Bergeron rule does not apply to the instant proceedings. The present suit is an initial custody contest between a parent (Scott) and nonpar-ents (the Pearsons) in which the nonpar-ents bear the burden of proving that granting custody to the parent would result in substantial harm to the child. Like the trial court, we find that they have not carried their burden of proof.

Parental fitness

The Pearsons’ attack on the trial court’s award of custody to Scott is essentially two-pronged. They assail Scott’s fitness as a parent and emphasize the effect of the custody transfer on Dakota. We first consider the evidence presented about Scott Lamp.

At the time of his marriage, Scott was a 17 year-old high school student. He turned 19 about two weeks before Dakota’s birth. He was 20 when Kim left him and took Dakota. He is now 27 years old.

Although Scott changed jobs frequently in the past, he has now settled into a job he enjoys as a mechanic. Furthermore, he does not appear to have had any extensive periods of unemployment. He has changed jobs on occasion because he was headstrong and would not take orders. He currently lives with his parents in a pleasant three-bedroom house in a middle income neighborhood in Rogers, Arkansas. The local elementary school is located about two blocks from their home. Scott’s father owns a successful computer software company. His mother has a part-time job as a church secretary which she is willing to quit in order to help care for | I2Dakota. The entire Lamp family attends Bentonville Church of Christ. Scott’s two older, married sisters also live in Bentonville with their families; in addition to Dakota, there are two other Lamp grandsons.

Scott has an affinity for automobiles and has participated in organized drag racing at the local drag strip. Not surprisingly, he also has had numerous traffic citations and he even lost his driver’s license for a year due to his accumulation of points. In April 1996, he was charged with flight from an officer for trying to outrun a police officer who tried to stop him for a traffic violation. However, in February 2001, he testified that he had not had a moving violation in the previous 18 months.

Kim alleged that Scott was physically abusive to her. Scott admitted to one incident in which he slapped her and was arrested. Kim claimed that Scott tried to drown her on their honeymoon, made her trip over a vacuum cleaner while she was pregnant and pushed her over the back of a couch. Scott testified that he dunked her underwater in a swimming pool on their honeymoon and that she was not hurt. He described the couch incident as the result of horseplay, and he had no recollection of her falling over a vacuum cleaner.

The trial court apparently made a credibility determination in Scott’s favor concerning these incidents. However, we note that there is nothing in the record suggesting that he mistreated Dakota while he had access to the child during the first 18 months of the child’s life. The Pearsons characterize Scott as disinterested in his parental obligations, and they fault him for not conducting a more extensive search for his son. However, Scott | ^testified that he hired investigators and searched for Kim and Dakota as his finances allowed over almost a four-year period. When he filed for divorce in Arkansas, he requested custody of his son. After he located Kim in Oak Grove, he again sought custody of the child, first in the Arkansas court and then in Louisiana.

Now at age 27, Scott is gainfully employed and has had time to mature since he and Kim separated. He and Dakota will live in a home where the child will have the opportunity to enjoy a close relationship with his paternal grandparents. There will be extended family members, including two younger first cousins, living nearby. All of the Lamps, including Scott, regularly attend church together.

The trial court, who had the superior opportunity to observe the witnesses and their demeanor, found nothing that mandated a finding of unfitness against Scott, who, as a parent, enjoys the paramount right of custody to his child over nonpar-ents. On this record, we agree with that conclusion.

Substantial Harm

The Pearsons also allege that the trial court paid inadequate consideration to the potentially traumatic effect of the custody transfer upon Dakota.

Of particular note, the Pearsons argue that the trial court should have given greater credence to their expert, Janet Lushbaugh, who diagnosed Dakota as suffering from post-traumatic stress disorder and separation anxiety and opined that a change of custody would adversely affect the rest | uof his life. However, there are several factors concerning Ms. Lush-baugh’s testimony which raises questions as to its validity. Ms. Lushbaugh relied exclusively upon information provided by the Pearsons, whereas the court-appointed experts, Dr. Vigen and Dr. Herzog, had the benefit of information from both sides of Dakota’s family. Additionally, Ms. Lushbaugh initially testified that she had been treating Dakota for three years. On cross-examination, it was ascertained that she had seen the child on four occasions for a total of four hours. Yet the Pearsons represented to Dr. Herzog that Dakota had had no previous mental health treatment and that Ms. Lushbaugh felt he was well-adjusted. We note that Ms. Lush-baugh is only a licensed professional counselor; as such, she is not even allowed to administer certain psychological testing. When Dr. Herzog, a clinical psychologist, was asked by the trial court for her views on these diagnoses, she testified that she did not believe that she had sufficient clinical information to make such diagnoses. When pressed on the point by the Pear-sons’ counsel, she clarified that she had seen nothing to warrant those conclusions.

Lamentably, disruption of the everyday lives of young children and the resulting trauma are frequent and unavoidable consequences of child custody cases. In Tennessee v. Campbell, supra, this court found that absence of a strong relationship between father and son was not such “substantial harm” as to warrant denial of the father’s petition to obtain custody of his son from the maternal grandmother. The same is equally true in the instant case. The potential trauma posed to Dakota here is rooted in l1Bhis lack of a relationship with his father. The record shows that the Pearsons bear a significant amount of responsibility for this situation. They have gone to considerable lengths to eradicate all vestiges of Scott and his family from Dakota’s life. Consequently, some distress to the child is now inevitable as he is re-introduced to his paternal family.

The Pearsons unquestionably love Dakota and are well-intentioned. They feel— rightly so — that they rescued him from Kim’s depraved and dangerous lifestyle. However, in their overwhelming desire to protect him from what they perceive as harm, they have isolated the child to the point of making him dependent upon them to a unhealthy degree.

Dakota refers to his maternal grandparents as “Mom” and “Dad.” He is home schooled by Mrs. Pearson, a measure which appears to have restricted his ability to become independent and to mature. He also has a tremendous fear of strangers, especially men. When first enrolled in Sunday school, he was unable to remain in class by himself for a substantial period of time. His violin teacher described a similar inability to separate from the grandparents that was not age appropriate. Among other things, she recounted one episode when their absence from his presence for a few moments resulted in a screaming tantrum. In another instance, a male h steadier entered the classroom where Dakota was taking lessons, prompting the boy to begin crying hysterically.

Dakota sleeps with his grandparents; he becomes upset if his grandmother gets out of bed before he wakes and demands to know why she left him. As previously noted, he has severe and extreme reactions to being separated from his grandparents, especially Mrs. Pearson. During trial, there was testimony that the visitations with the Lamps were difficult for the child because he was not accustomed to being dropped off and left anywhere by the Pearsons. Additionally, the Pearsons have felt a need to isolate Dakota from his paternal relatives, all of whom they apparently perceive as being bad.

We note that the Pearsons’ compliance with the trial court’s orders on Dakota’s visitation with the Lamp family thus far has been, at best, begrudging. Even worse, Dakota’s reactions to the visitations with the Lamps are strongly suggestive of outside forces. Dr. Herzog’s analysis of the videotapes of the visits is instructive. The first two visits reveal no rejection of the Lamps; however, on the third one there was a blatant difference in Dakota’s willingness to be around them. During the fourth visit, the child was unresponsive and extremely clingy to the visitation host and could not be favorably drawn to the Lamps. Dr. Herzog described his behavior as atypical for his age. In her opinion, the tapes showed a child being alienated from people from whom he was not previously alienated. Yet she could not discern any problematic conduct by the Lamps that would have caused the alienation. These incidents would appear to corroborate Dr. |i7Herzog’s conclusion that the Pearsons are unlikely to encourage a healthy relationship between Dakota and his father.

On the one hand, the Pearsons criticize their former son-in-law for not searching for his son more aggressively. On the other hand, they now vilify him because he actually succeeded in finally locating Dakota and filed the instant suit to obtain custody. The Pearsons refuse to fully acknowledge that their own daughter was responsible for exposing Dakota to the greatest trauma of his life — i.e., her relationship with Bish. Instead, they try to blame Scott for Kim’s substance abuse and promiscuity — even though their own suit against Kim demonstrated that these problems already existed before she met Scott. They also conveniently ignore their own culpability in failing to contact Scott on numerous occasions when it would have been appropriate to inform him of important information concerning his son, i.e. Kim’s hospitalization, their lawsuits to acquire custody of Dakota and change his name, and their move to Lake Providence.

Throughout the proceedings, the trial court exhibited great sensitivity toward Dakota’s situation and attempted to minimize his trauma whenever possible. The court directed that the child’s visitation with the Lamps be conducted in the presence of people with whom he was familiar and comfortable. These Saturday visitations were even split into morning and afternoon sessions. After learning of Dakota’s extreme reactions to the visitations, the court suspended them pending psychological evaluation. After determining that an award of Dakota’s custody to his father was appropriate, the court prudently ordered a graduated adjustment procedure, 11smonitored by a mental health expert, to facilitate the custody transfer and to minimize trauma to the child to the extent possible. (Both Dr. Vigen and Dr. Herzog recommended professional intervention.) The actual transfer was even delayed until January 1, 2003, to allow a period of approximately six months for the child to become more familiar with his father. This action was in keeping with Dr. Her-zog’s suggestion; she said that she did not advocate an immediate change of custody. We find that these measures employed by the trial court were appropriate and, by now, they should have alleviated much of the potential harm to Dakota.

The trial court found that the Pearsons failed to carry their burden of proving that substantial harm to Dakota would result from awarding custody to his father. We find no manifest error in this conclusion. Furthermore, the record demonstrates that a graduated return to his father’s custody is in the best interest of this child,

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed against the appellants, Richard and Marian Pearson.

AFFIRMED.

      . Rogers and Bentonville are adjoining towns in northwest Arkansas.

      . Following her near-fatal experience, Kim was involuntary committed under an emergency certificate. Upon her discharge from the hospital, she resumed her relationship with Bish. In August 1997, they were arrested for criminal damage to property for severely damaging a motel room and disturbing the peace.

      . After she was served with process in the Arkansas suit, Kim left Oak Grove and moved to Lake Providence, where she was served with papers in Scott’s Louisiana custody suit. She later moved to Monroe, where she was unemployed and living on public assistance in February 2001. She also had twin daughters and she was engaged to a man who was not the father of the twins.

      . One noteworthy act to this end was their petition to change the child's name from Dakota Scott Lamp to Dakota Richard Pearson. In this petition, they alleged that Scott's whereabouts were unknown — a particularly dubious assertion given Mr. Pearsons' occupation as a private investigator and the Lamps' continuing residence in the same area of Arkansas.

      . In conjunction with this, we note with interest Mr. Pearson’s explanation to Dakota of who would be at the visitations. He told the 6-year-old boy that he was going to meet his other grandparents and "there would be another person there by the name of Scott Lamp who's probably going to tell you that he is your daddy.”