
    Deliysee Daggs JUPITER v. Kendrick D. JUPITER.
    No. 2015-OC-1742.
    Supreme Court of Louisiana.
    Nov. 16, 2015.
   On Writ of Certiorari to the Court of Appeal First Circuit, Parish of Lafourche.

| tWrit Denied. We find no error in the rulings of the lower courts as to the relator’s Motion to Vacate Judgment. The child custody ruling of the district court dated October 23, 2013 is a final judgment not subject of judicial review. See La. Code Civ. P. art. 2083. The relator may seek a change in custody by instituting a summary proceeding in the district court. See La.Code Civ. P. arts. 2592 and 2593. The relator “bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.” Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986). In furtherance of such, the relator must prove the change is in the best interest of the child. La. Civ. Code art. 131. The best interest of the child standard is a fact-intensive inquiry that requires the weighing and balancing of factors favoring or opposing custody in the competing parties on the basis of the evidence presented. C.M.J. v. L.M.C., 14-1119, p. 24 (La.10/15/14), 156 So.3d 16, 33. The factors a court considers in determining a child’s best interest are set forth in La. Civ.Code art. 134.

CRICHTON, J.

additionally concurs and assigns reasons.

hi agree with the decision to deny the writ. I write separately to note the threshold matter of the timeliness of this writ application. The court of appeal’s ruling dismissing the subject appeal of this writ application was rendered on August 21, 2015. Twenty-seven days later, on September 15, 2015, Mr. Jupiter deposited the application with FedEx for delivery, as evidenced by the postal markings. The application was delivered to the clerk’s office by FedEx on September 21, 2015, thirty-two days after the court of appeal’s ruling.

Notably, until only weeks ago, this application would have failed to satisfy the timeliness filing requirements set forth in Supreme Court Rule X, § 5. However, on October 12, 2015, Rule X, § 5(d) was amended to allow the presumption of timeliness for applications mailed on or before the 30th day for filing to apply to deliveries made by commercial carriers, whereas this presumption formerly extended only to deliveries made by the United States Postal Service.

Accordingly, under the current rule, the instant writ application was timely filed.  