221 So. 3d 909
La. Ct. App.2016Background
- Non-parent petitioner C. Vincent (biologically female, identifies male) sought sole or joint custody of twins conceived by artificial insemination during his long-term relationship with biological mother Paula; he alleged he was primary caregiver for extended periods.
- Paula removed Vincent’s name from the children’s birth certificates, changed their surnames, and instructed him not to contact the children; Vincent filed suit soon after (petition filed Feb. 26, 2014).
- Vincent presented evidence (including Dr. Marianne Walsh’s psychological consultation) that the children called him “Daddy,” had a secure bond with him, and that one child expressed fear or distress about Paula’s home; Paula had periods of limited contact and previously relinquished care of older children.
- Trial court dismissed Vincent’s custody petition under La. C.C. art. 133, finding he failed to prove by clear and convincing evidence that awarding custody to Paula would cause substantial harm to the children. The court declined to appoint a court-ordered custody evaluator under La. R.S. 9:331.
- Paula obtained a protective order after a schoolyard altercation; the trial court issued a lifetime order as to Paula and an order forbidding Vincent contact with the children until age 18. Vincent appealed custody denial and the protective order as to the children.
- The court of appeal vacated the custody dismissal and remanded for a court-appointed comprehensive custody evaluation under La. R.S. 9:331, affirmed the protective order as to Paula, and vacated the protective order as to the children (no allegations of physical abuse toward children and custody determination to be revisited).
Issues
| Issue | Vincent's Argument | Paula's Argument | Held |
|---|---|---|---|
| Whether trial court erred in denying request for court-appointed mental-health custody evaluation under La. R.S. 9:331 | Good cause existed given complex, unusual family facts, strong caregiving history, expert concerns about children’s welfare; evaluator needed to assess substantial harm and best interests | No court-ordered evaluation necessary; parties could use privately retained experts; Vincent failed to meet evidentiary burden | Court abused discretion by denying a comprehensive court-appointed evaluation; remanded for appointment under La. R.S. 9:331 |
| Whether a non-parent (Vincent) met La. C.C. art. 133 burden to obtain custody over biological parent | Vincent argued his long-term, intentional co-parenting, primary caregiving, children’s bond, and Paula’s disengagement created risk of substantial harm if sole custody awarded to Paula | Paula argued Vincent is neither biological nor legal parent and Vincent did not prove by clear and convincing evidence that parental custody would cause substantial harm under art. 133 | Court vacated dismissal and ordered further evaluation; did not finally decide art. 133 burden but required factual development via evaluator |
| Whether parental constitutional right precludes consideration of best-interest factors absent a prior finding of substantial harm under art. 133 | Vincent: best-interest factors should inform whether substantial harm exists in modern family contexts (same-sex, co-parenting) | Paula: art. 133 requires non-parent to first prove substantial harm; best-interest analysis only after that threshold | Court emphasized primacy of best interest and evolving family forms; directed evaluator to inform whether substantial harm exists and the children’s best interests; remand required |
| Validity/scope of protective order as to minor children | Vincent: challenged protective order as to children because no allegations he physically abused children and custody issue pending | Paula: protective order necessary for children’s safety given prior abusive allegations against Paula and schoolyard incident | Protective order affirmed as to Paula; vacated as to the children because record lacked allegations of physical abuse to children and custody evaluation remanded |
Key Cases Cited
- Troxel v. Granville, 530 U.S. 57 (U.S. 2000) (parental right to rear children is a fundamental liberty interest)
- Obergefell v. Hodges, 135 S. Ct. 2584 (U.S. 2015) (same-sex couples have a fundamental right to marry; impacts parentage and family recognition)
- Tracie F. v. Francisco D., 188 So.3d 231 (La. 2016) (the best interest of the child is the paramount consideration in all custody determinations)
- In re J.M.P., 528 So.2d 1002 (La. 1988) (recognizes psychological-parent concept in adoption and relevance to best-interest analysis)
- Mullins v. Picklesimer, 317 S.W.3d 569 (Ky. 2010) (non-biological same-sex partner may obtain custody where parent waived superior right by jointly and intentionally co-parenting)
- Ramey v. Sutton, 362 P.3d 217 (Okla. 2015) (nonbiological same-sex partner who engaged in intentional family planning and co-parenting may have standing; best-interests standard applies)