74 So. 3d 300
La. Ct. App.2011Background
- B.M.A.J. (biological mother) and B.C.A. (stepfather) petition for intra-family adoption of P.L.A. and D.T.A.
- B.C.A. was married to B.M.A.J.; B.C.A. adopted P.L.A. and is the biological father of D.T.A.; they divorced in 2008.
- No custody order existed at the time of petition; custody litigation was ongoing.
- May 7, 2010 petition alleged B.C.A.’s failure to pay child support as grounds to dispense with consent under La.Ch.Code art. 1245(C)(1).
- November 12, 2010 hearing: B.C.A. objected with exceptions of no cause of action and prematurity; trial court dismissed petition and issued a custody stipulated judgment.
- Joint custody awarded with B.M.A.J. designated as domiciliary parent; this custody order postdates the petition and is not at issue on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether consent is dispensed with under Article 1245 | B.M.A.J. and C.D.J. claim 1245(C) applies due to lack of six-month support or custody rights by B.C.A. | B.C.A. contends ongoing custody dispute and lack of custody order preclude dispensation. | Petition dismissed on procedural grounds; ongoing custody prevents 1245 relief. |
| Does 'otherwise exercising lawful custody' apply where custody is disputed | Argues Landry meaning applies to 'lawfully exercising actual custody' despite dispute. | Disagrees; Landry is distinguishable and not controlling here due to ongoing custody litigation. | Court distinguishes Landry; not dispositive; holds ongoing custody litigation prevents 1245 relief. |
| Proper disposition given no custody order and ongoing litigation | Petition should proceed for intra-family adoption absent legitimate grounds to deny. | Petition should be dismissed pending resolution of custody issues. | De novo review affirms trial court’s dismissal on procedural grounds. |
| Adequacy of hearing after dismissal | Argues hearing should address merits of adoption. | No meritorious reason to rehear given procedural dismissal. | Court declines to address merits; affirms dismissal on procedural grounds. |
Key Cases Cited
- In re Mulvihill, 56 So. 3d 418 (La.App. 4 Cir. 2011) (burden to prove non-consent in adoption cases)
- In re Fleming, 817 So. 2d 371 (La.App. 5 Cir. 2002) (consent dispensation standards in Article 1245)
- In re Landry, 702 So. 2d 1092 (La.App. 3 Cir. 1997) (distinguishes 'otherwise exercising lawful custody' with no custody decree)
- Washington Mut. Bank v. Monticello, 976 So. 2d 251 (La.App. 3 Cir. 2008) (no cause of action reviewed de novo)
- Indus. Cos., Inc. v. Durbin, 837 So. 2d 1207 (La. 2003) (de novo review standard for legal questions)