In Re Melancon, 62 So. 3d 759

Minor child conceived via artificial insemination with only one known biological parent, the mother Colette Melancon.
Child has resided with petitioner Kristine M. Berger; Melancon consents to joint custody in petition.
Trial court sua sponte raised an exception of no cause of action and denied a consent custody judgment.
Berger appealed arguing the trial court should honor the mother's consent and grant joint custody.
The court held Berger has no right of action under Art. 132; Art. 133 requires showing substantial harm to award nonparent custody.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a nonparent may seek custody under Art. 132 or 133	Berger	Art. 132 does not apply to nonparents; Art. 133 requires substantial harm	No right of action under Art. 132; Art. 133 not applicable absent harm finding.
Whether the trial court erred by applying the no-right-of-action doctrine sua sponte	Berger	Court may raise no right of action; law supports dismissal	Sustained the no right of action exception; affirmed.
Whether the petition could be amended to state a claim under Arts. 132 or 133	Berger could amend to state a claim or show substantial harm	No remedy under Art. 132/133 for nonparent absent harm	No amendment remedy available; cannot cure defect under existing law.

Badeaux v. Southwest Computer Bureau, Inc., 929 So.2d 1211 (La. 2006) (no right to amend where no legal remedy exists; pleading defects cannot be cured)
Harper v. Layrisson, 764 So.2d 1061 (La. App. 1 Cir. 2000) (de novo review for no cause of action; favors petition interpretation)
Duncan v. U.S.A.A. Insurance Company, 950 So.2d 544 (La. 2006) (clear and unambiguous statute applied as written)
McCormic v. Rider, 27 So.3d 277 (La. 2010) (nonparent custody only if substantial harm shown)
Black v. Simms, 12 So.3d 1140 (La. App. 3 Cir. 2009) (support for no right of action in similar context)