#### Winston C. BABER v. Peggy Jean Sharp Chappuis BABER.

No. 8687.

Court of Appeal of Louisiana, Fourth Circuit.

Jan. 11, 1978.

Rehearing Denied Feb. 14, 1978.

Writ Refused March 27, 1978.

Burton G. Klein, New Orleans, for plaintiff-appellant.

Edward C. Alker, Metairie, for defendant-appellee.

Before REDMANN, LEMMON and STOULIG, JJ.

*700REDMANN, Judge.

A father appeals from the dismissal of his rule for change of custody of his 11-year-old daughter from the mother based on the mother’s sexual immorality.

The mother also had custody of a now 18-year-old daughter (whose custody is not involved in this appeal, the father’s brief advises, because she has reached majority and has now elected to live with the father). The father’s complaint is that, between Monday and Thursday, the mother leaves the child two to four nights each week at about 10 p. m., to go to her fiance’s house; “on occasions I will fall asleep, but I am back [home] at 6 or 6:30 in the morning before they get off to school.” “Usually, sometimes when I do this, I call my mother and she goes over and stays [with the children]. My mother is always available.” And, the father complains, each Friday through Sunday night, the mother spends all her time at her fiance’s ranch at Folsom, giving further bad example to the child. Ordinarily the child is with the father on weekends, but occasionally the child spends the weekend with the mother and her fiance. Ordinarily other guests are at the ranch, and the testimony of two of these is that all visible behavior at the ranch is beyond reproach. (The mother also spends 8 a. m. to 3 p. m. every day except Wednesday at the ranch, while the child is in school. She trains horses at the ranch.)

The mother’s behavior flouts society’s preference that sexual union be limited to spouses (or at least be concealed) and, as in *Spencer v. Spencer,*La.App. 4 Cir. 1972, 261 So.2d 702, would justify taking child custody from her. However, the father, too, evidences human fallibility although in a different manner unwholesome for the child. Rightly disappointed in his then 17-year-old daughter’s deceit, he wrongly disciplined her by a spanking that prompted her to tell her doctor that she contemplated suicide. Evidently one of the trial judge’s concerns was the possibility of too-harsh discipline at the father’s hands.

Considering the record as a whole, we are unable to say that the judgment appealed from is not within the reasonable exercise of the trial judge’s obligation to do what is best for the child. See *Monsour v. Monsour,*La.1977, 347 So.2d 203; *Fulco v. Fulco,*1971, 259 La. 1122, 254 So.2d 603.

Affirmed.

LEMMON, J., dissents and assigns reasons.

LEMMON, Judge,

dissents and assigns reasons.

The courts, in determining a parent’s fitness for custody when challenged on the basis of immoral behavior, have disregarded occasional sexual indiscretions attributable to human frailty. But this case involves a mother who, through constant course of deliberate and daily conduct over a period of five years, has demonstrated to the young daughters in her custody her opinion that sexual gratification should prevail over civil laws of marriage and family structure.1 Perhaps she is entitled to this opinion, but definitely she is not entitled to keep custody of her children and influence them as to the role of the family in civilized society.

The level of civilization in a society is no higher than the respect society holds for the family. In this case the standards that the mother set for herself and demonstrated to her children undermine respect for family status and constitute a flagrant and obvious disregard for rules of moral behavior. The ultimate consideration in every custody case is the best interest of the children, and that consideration in this case dictates removal of custody from the mother.

As to the father’s entitlement to custody, the evidence of one occasion in which the father spanked the child (whose custody is not at issue in this appeal) indicates no abusive or unreasonable treatment, and the daughter’s overreaction prompted the *701mother to telephone the doctor referred to in the majority opinion and have him speak to the child.2 Furthermore, the spanking was not such a traumatic experience as to prevent the child from deciding shortly thereafter to move in with her father.

The evidence in this record simply does not justify disqualifying the father for custody.

I would vote to take custody away from the mother and award custody to the father.

1

. If this were a divorce case brought by the husband grounded on adultery, the fact of adultery was undoubtedly proved, and the trial judge stated as much in his' reasons for judgment.

2

. This doctor owned the farm next to that owned by the mother’s fiance.