9.2.2 Child Custody Issues

It can sometimes be complicated to advise LGBTQI+ clients about their parental rights in Louisiana. This is especially true in cases involving children shared by unmarried same-sex partners. In some cases, the victim may be the sole party with an adoptive or biological filiation to the child or children. In other cases, the victim may be the parent with no adoptive or biological filiation to a child they have raised since birth. In the latter situation, victims can feel especially trapped and fearful of losing rights and access to shared children. Louisiana’s courts of appeal have applied varying and confusing standards to cases like these, and outcomes in both trial and appellate courts have been unpredictable and sometimes conflicting.1

Technically, under Louisiana law, these cases would fall under La. C.C. art. 133’s test for non-parent custody. Under Article 133, a non-parent seeking custody bears the heavy burden of proving that “substantial harm” would result to the child if the legal parent is awarded custody. In multiple cases, however, Louisiana’s trial and appellate courts have applied a standard much more akin to a “best interest” test if the child or children’s conception occurred during the relationship and as a result of a shared decision, or where the parent with the biological or adoptive filiation had previously consented to prior a judgment of shared or joint custody.2

It is worth noting that, in 2019, Louisiana’s Fifth Circuit Court of Appeal decided an unusual case that created helpful precedent for parents of shared children who do not meet the current legal definition of “parent” in Louisiana; at the same time, the case created dangerous precedent for domestic violence victims. In Ferrand v. Ferrand, the Fifth Circuit reversed a trial court order that had denied custodial rights to Vincent Ferrand, a transgender man who was not a “legal” parent under Louisiana law but had acted as a parent to the children for the first four years of their lives. Mr. Ferrand had also been convicted for battery of the children’s mother, after physically attacking her in the children’s school yard and spitting on her in front of the children. The mother had been awarded a permanent order of protection and, before that, had filed for protective orders on grounds that Mr. Ferrand had abused her and threatened to shoot her in the head when she attempted to retrieve the children from him. In the custody case, the Fifth Circuit overruled the trial court’s credibility determinations and findings of abuse (despite a conviction), and instead adopted Mr. Ferrand’s factual allegations about the mother in the “Facts” of its opinion. The court then conducted a best interest analysis based on those “Facts,” discredited expert testimony from the children’s therapist that the children feared Mr. Ferrand and that contact with him created anxiety and behavior problems and concluded that the mother had “alienated” the children from Mr. Ferrand. The Fifth Circuit awarded Mr. Ferrand shared custody of the children, five years after the children had last seen or visited with him.3

The Ferrand decision created legal precedent that may be helpful for LGBTQ parents with no biological or adoptive filiation to their children. But the opinion reflected palpable disdain for the mother, who had been subjected to abuse. The court made repeated reference to the mother’s “choice” to stay in a relationship with Mr. Ferrand for eleven years. And it opined that three earlier incidents of domestic violence, including a strangulation, even if true, would have “no bearing on the children’s psychological and emotional well-being” because of their remoteness in time.4  The court referred to the video-recorded incident during which Mr. Ferrand flung the mother to the ground by her hair and spit in her face in front of children and schoolteachers as “extremely poor judgment.” And although the trial court concluded that Mr. Ferrand’s own conduct had led to the children’s “alienation” from him, the Fifth Circuit concluded instead that the mother was at fault for having alienated the children from Mr. Ferrand. The Court applied a lower legal burden to Mr. Ferrand—who had been convicted for his abuse of an intimate partner—than the PSFVRA burden that would have applied to a “legal” parent under Louisiana law.

• 1Cook v. Sullivan, 53,741, p. 20 (La. App. 2 Cir. 11/18/20), 307 So. 3d 1121, 1130, aff’d, 2020-01471 (La. 9/30/21); 330 So. 3d 152 (finding that shared custody between unwed same-sex couple was improper under 133 standard). But see Ferrand v. Ferrand, 18-618, p. 1 (La. App. 5 Cir. 12/6/19), 287 So. 3d 150 (finding that joint custody between unmarried same-sex couple was appropriate under 133 standard).
• 2See In re J.E.T., 2016-0384, p. 14 (La. App. 1 Cir. 10/31/16), 211 So. 3d 575 (explaining the approach under Article 133 to nonparent custody termination).
• 3Ferrand, 287 So. 3d 150.
• 4This rationale conflicts directly with the Post-Separation Family Violence Relief Act, which imposes no recency requirement for family violence and does not give courts discretion to conclude that family violence committed by one parent against the other has no bearing on children’s well-being.