Title: Louisiana: Father is entitled to more visitations but still cannot claim the income tax deduction for his child every other year. BY: Marisol S.

Link for opinion: 2012 La. App. LEXIS 82, *

The Louisiana court of appeals held in Skipper v. Skipper , 2012 La. App. (La.App. 2 Cir. Feb. 1, 2012) Mark(Father) shall have visitation with Jake every other weekend, from Friday evening, through Tuesday morning, when he returns the child to school. Michele (Mother) shall pick the child up from school every other Tuesday afternoon. If Mark is required to work during any of his periods of visitation, or for any reason cannot transport the child to or from school during his periods of visitation, Mark shall return the child to Michele, with advance notice, at the normal exchange location. The judgment of the trial court is amended with regard to child visitation and is affirmed as amended. The portion of the judgment which would allow the father to claim the income tax deduction every other year is hereby reversed. Costs are assessed to both parties.

Marcus Joe Skipper and Michele Baker Skipper were married on April 28, 2001, and divorced on June 26, 2008. Of the marriage, one child, Jake, was born on February 19, 2003. Jake has been diagnosed with Usher Syndrome, a genetic condition which affects his hearing, vision and mobility.

On June 26, 2008, the parties entered into a joint stipulation whereby they agreed to share the joint custody of Jake, with Michele being designated the domiciliary parent. Their visitation schedule provided that Mark would have visitation with Jake every other weekend and two weeks during the summer months. The trial court entered a consent judgment, ratifying the joint stipulation. The right to claim Jake as a dependent for state and federal income tax purposes was not mentioned in the joint stipulation/consent judgment.

On March 7, 2011, Mark filed a motion to modify custody, alleging, inter alia: Michele had refused to be flexible with the visitation schedule, refused to agree to reasonable requests for additional visitation, scheduled events and appointments that conflicted with Mark's visitation, refused to allow Mark the opportunity to provide childcare for Jake when she was unable to care for him, failed to notify Mark about appointments, activities and events concerning Jake. Mark also requested a reduction in child support and to be allowed to claim Jake each year as a dependent on state and federal income tax returns.

In response, Michele filed a rule to increase child support, alleging: (1) the income of both parties had changed; (2) Jake's monthly expenses had increased due, in part, to his disabilities; (3) daycare costs had increased. Michele also objected to Mark's request that he be allowed to claim Jake as a dependent for income tax purposes each year.

A trial court granted the father's motion to modify custody under La. Civ. Code Ann. arts. 131 and 134, finding that the four and a half days of visitation out of every 30 days that the mother proposed were insufficient. On appeal, the court noted that both parents were fit and loving. However, the visitation schedule set out by the trial court was not in the best interest of the child where it followed the father's work schedule. Also the statute clearly provides that the non-domiciliary parent, is entitled to claim the dependency deduction if the court finds that the right to claim the deduction would substantially benefit the non-domiciliary parent without significantly harming the domiciliary parent. Here, Mark failed to present any evidence to prove that the income tax deduction would substantially benefit him, without substantially harming Michele.

Labels for the post: child visitation, child support, best interest of child.