Fascinating Louisiana Appellate Ruling in Custody/Visitation Dispute of Former Lesbian Partners

This case seems to have flown under the radar, as the court's opinion is 6 months old but it just showed up on Westlaw today -- with an official citation but no Westlaw citation!  I'm wondering whether the court dithered about releasing the opinion for publication because of all the dirty family linen strewn through the opinion.  I'm thinking the best thing for me to do here is refer to the parties by their initials, although anybody seeking to do legal research by reading the opinion can find it through the citation.  So for my purposes here, it is A.P. v. J.M., 10 So.3d 748, 2008-0075 (La. App., 4th Cir., 1/7/09, rehearing denied, 1/28/09).

Here's the story.  A.P. and J.M.. were a lesbian couple for 24 years.  They met in New Orleans, apparently when they were students.  They both have professional degrees and careers.  At some point in their relationship they moved together to California.  After 17 years together, they decided to have a kid.  A.P. couldn't become pregnant through donor insemination after several tries, so J.M. then took her turn, became pregnant, and bore their daughter, I.P.  Being that they lived in California, A.P. was able to do a second-parent adoption, and an amended birth certificate lists both of them as parents.  They moved back to Louisiana when I.P. was two years old.  They jointly parented until A.P. took on a job that required her to live in California; she came for frequent visits but during that year apart the relationship with J.M. deteriorated - there is some evidence, but it is disputed, that she developed a relationship with another woman, but it's also possible, from hints in the opinion, that she developed doubts about her sexual orientation.  In any event, a separation ensued, Hurricane Katrina intervened with further dislocation.... and the end result of all this was that I.P., 9 years old at the time of trial, was living with J.M., who had cut off I.P. from contact with her other mother, A.P.  Indeed, a major point in the case is that whether intentionally or indirectly, J.M. had alienated I.P. from A.P. to the extent that I.P. indicated she didn't want to see A.P. any more.

The trial judge was Orleans Parish Civil District Judge Herbert A. Cade.  Each parent was claiming the right to sole custody.  There were dueling experts to the extent that although both of the principal expert witnesses agreed that there should be sole custody because the relationship between A.P. and J.M. was so fraught that they could not possibly manage shared custody, they disagreed about who should have sole custody, one favoring J.M. and the other favoring A.P.  Judge Cade decided given all the factors that Louisiana courts consider in custody cases that I.P. should remain with J.M.  He also concluded that it would not be in I.P.'s best interest to have visitation with A.P., so he terminated the temporary visitation that had been occurring in the period leading up through the trial.  J.M. had argued that A.P. was not even a parent entitled to seek custody, because Louisiana does not allow second-parent adoptions, but Judge Cade determined that the California adoption was entitled to full faith and credit in Louisiana, so A.P. is a legal parent of I.P.

On appeal, the court agreed that sole custody was the only solution here, and -- one suspects with some reluctance -- that the factors weighed in favor of J.M., if only because several factors go to issues involving the child's schooling, neighborhood, friends, settled home environment, etc., that tend to weight the decision in favor of the status quo if the status quo is not endangering the child.  So the custody ruling was affirmed.

However, the court pointed out, a legal parent has a right to visitation unless the parent opposing visitation meets a rather heavy burden of showing that would be bad for the child.  "Absent conclusive evidence that visitation would seriously endanger the child's physical, mental, moral, or emotional health, a noncustodial parent is entitled to reasonable visitation rights," wrote Judge Patricia Rivet Murray for the Court of Appeal panel.  "The evidence in this case does not come close to meeting this standard," Judge Murray asserted.  While the expert who supported custody for J.M. had also recommended against visitation on the ground that it would be "stressful" for I.P., the court of appeal did not consider that this amounted to the kind of evidence of harm necessary to deny visitation rights to a legal parent.

Thus, the recognition of the California adoption was crucial to A.P.'s visitation claim.

The court recommended that the trial court, which will be charged on remand with determining the appropriate "parameters" of visitation, also appoint a "parenting coordinator" to serve as a mediator between the parents.  Since A.P.'s parental rights are recognized and she is going to have visitation, there will be issues about the way in which visitation is carried out.  Indeed, the court identified 16 items in a detailed list of topics as to which there will need to be negotiations in order to effectuate smooth visitation, considering the various differences between the parents.  The court called on the parents to "put animosity and self-interest aside and truly consider the best interest of their child.  It will not be an easy task, but they have the resouces to do so; the question is, do they have the will."

J.M. is represented by S. Guy deLaup, of Metairie, Louisiana.  A.P. is represented by National Center for Lesbian Rights and cooperating attorney Bennett Wolff, also of Metairie.  Shannon Minter, Legal Director of NCLR, argued the appeal.

Comments

[Julie Shapiro]

Perhaps they delayed publication because of the pending case on the issuance of a Louisiana birth certificate for two men who completed the adoption of a child born in Louisiana? (I've discussed the progress of that case and the legislation that arose from it at some length on my blog.)

It's pretty clear that Louisiana does not want to recognize lesbian/gay adoptions. As this case makes clear, they do have to do that. But perhaps the court was reluctant to be the vehicle by which that point was made.