Louisiana custody dispute revisits "bad old days"

Remember the "bad old days" when a lesbian mom could lose custody when ex-husband's minister testified that the kids would all be damned to hell if they were "exposed" to mom's lesbian life-style?  Well, the bad old days still happen.  To wit, Cook v. Cook, 2007 WL 2713074 (La., 2nd Circ. Ct. App., September 19, 2007).  Happily, the appellate court reversed, 3-2, a change of custody determination that was based on such testimony.

The Cooks married in 1987, had kids in 1990, 1994, 1998 and 2000, separated in 2001 and Christi filed for divorce from Porter.  They entered a consent agreement involving 50-50 sharing of the children with two week alternations.  At the time, Christi had a lesbian relationship with Shannon, then age 19.  The consent agreement had what is called in this case "the Shannon clause," stating that neither parent would "allow" Shannon "to be associated with the minor children and thereby not allowing her to live or visit in the home at 2961 Highway 4, Ringgold, Louisiana."

OK, so Porter subsequently finds out Shannon is living in a trailer nearby and draws the logical inference that she is "associating" with his kids.  Shannon is also going with Christi to baseball games in which one of the kids is playing, although testimony shows she is not directly in contact with the kids.  In other words, over time, as the kids grow up and the relationship between Christi and Shannon deepens, the women are constantly looking for ways to be together without violating the Shannon clause, while Porter is suspicious that they are violating it - indeed, he believes that Shannon living next door in a trailer home violates it anyway.  It took him some time to find out because Christi told the kids not to mention Shannon to their father.

So Porter files a motion to hold Christi in contempt, cites a long list of "incidents" in which Shannon may have had contact with one or more of his kids, and asks to be named "domiciliary parent", with Christi only allowed visitation on alternate weeks at her parents' house.  Christi responded by denying Porter's contempt allegations and seeking to have the Shannon clause revoked and the kids placed full-time with her as domiciliary parent.

As one can imagine, the hearing on these motions contained a wide range of conflicting testimony.  There is a battle of the experts, of course, on the impact on kids of "exposure" to a lesbian lifestyle.  One "expert," described by the court as a "mental health councilor," testified "that the children would suffer greatly if brought up in a homosexual environment.  This view was informed by his belief that a lesbian partner would distort the children's (especially the girls') perception of female role models."  Christi presented her own expert witness in opposition, a psychologist who wrote her own report and criticized the first expert's report.  The psychologist refused the councilor's testimony on impact on the children and said Christi was the more "capable and involved parent" so the children would benefit from living with her full-time. 

Then there's the minister's testimony.  While admitting that Christi, a Sunday school teacher at the church, brought the kids to church more often than Porter did, "he fervently disapproved of homosexuality as a sin, as well as exposing children to it.  Although he never personally observed Christi and Shannon engaged in any immoral conduct, he recalled that three unnamed church members had voiced displeasure over Christi's lifestyle.  Because of this, Christi's volunteer position as a preschool teacher" at the minister's church "may change."  Wow.  What judge would allow this kind of testimony in?  One would have thought that ever since the US Supreme Court's decision in Palmore v. Sidoti a generation or more ago, testimony about "disapproval" by non-parties would be ruled out as irrelevant to a court's custody decisions.

Answer as to which judge?: Judge Jimmy C. Teat of the Bienville Parish District Church, who modified the custody arrangement by designating Porter the domiciliary parent and finding Christi in contempt.  Judge Teat found that "being subjected to an openly lesbian relationship 'could very well be destructive emotionally' for the children since it would place them in conflict with 'the ordinary morays of society.'"  The spelling-challenged judge accepted the minister's testimony that Christi's lifestyle "violated Baptist standards" and found that the children needed "stable predictable living in a conflict free environment."  The contempt order was based on the judge's conclusion that Christi violated the order by letting Shannon live in a trailer next door and "deceiving not only her ex-husband but also trying to deceive the court in her testimony."  She was sentenced to six months, suspended, and two years' supervised probation.

By 3-2, the appeals court reversed.  The court found that Judge Teat committed the elementary error of weighing the best interests of the children as between two contending legal parents without making the essential prerequisite finding that there had been a "material change of circumstances."  It is a well-established principle of family law that custody modifications will not be granted unless a material change of circumstances justifies reopening the matter, since stability in living situation is considered a primary goal.  "This record overwhelmingly shows that the circumstances affecting the children and parents are unchanged before and after" their original agreement involving custody.  They both lived in the same places, had the same jobs, used the same arrangements to take care of the children.  After summarizing the evidence about the living routines of the parties, wrote Judge Moore, "In short, we have searched in vain for any change materially affecting the welfare of these children."

The court also found "precious little record evidence" to support Porter's contention that Christi's alleged "violations" of the consent agreement constituted a material change of circumstances.  In brief, the court found that Porter had adopted an unwarrantedly broad interpretation of the "Shannon clause," and that if construed according to its terms, no violation had been proved.  The trial judge's finding was based on speculation and inference rather than hard evidence.  "There is no positive evidence to support the conclusion that violations occurred," said Moore.

However, since Christi had originally agreed to the Shannon clause, Moore wrote, she was bound by it and the court could not modify it any more than it could modify the other parts of the consent agreement without evidence of material change in circumstances.

One dissenter, Judge Stewart, totally disagreed with the majority on all points, finding a change in circumstances based on agreement with Judge Teat that the Shannon clause was violated and letting Shannon live next door was a "material alteration of circumstances."  The other, Judge Caraway, agrees with the majority that the modification of custody was not appropriate, but nonetheless found sufficient evidence for the contempt ruling, commenting that "the mother's deceit and abuse of process before the court was contemptible."  The majority had rejected Judge Teat's decision to impose criminal sanctions; the dissent by Judge Caraway counted this as a mischaracterization of the penalty; since the prison sentence was suspended, it should be characterized as "a civil, coercive punishment making this purely a matter of civil contempt."

Comments

[kimberly jackson]

i live in st.martinsville parish louisiana near lafayette and my x husband and i are divorced and have been for years he just got out of jail for child porn doing a 8 year sentence i am now a lesbian in a relationship with a woman and he is trying to get custody can he be able to get custody in this state just because i am gay

[Art Leonard]

I am not admitted to practice in Lousiana so cannot give you advice on Louisiana law. I can say, generally, that in a dispute between a person convicted of possessing child porn and a lesbian mother, I would expect the lesbian mother to win. But I just don't know how the Louisiana courts would handle this.