Same Sex Parents and Child Custody

Same sex couples, like heterosexual ones, go to Louisiana courts and fight about child custody. In all cases, Louisiana judges are guided by the best interest of the child. Judges must also consider, however, the constitutionally protected rights of parents. Judges may not give custody to someone other than a parent unless the parent’s custody would result in “substantial harm to the child”.

Traditionally, “substantial harm to the child” meant that a parent was unfit due to:

• Physical abuse or neglect of the child or
• Emotional abuse or neglect of the child

Examples of an unfit parent’s behavior included:

• Failure to provide clothes and shoes appropriate to the child’s age, sex, and the weather.
• Failure to provide the child regular, healthy meals.
• Beating the child.
• Cursing or otherwise verbally humiliating the child.
• Failing to obtain medical care for the child.
• Failing to ensure the child attended school.
• Being a moral hazard to the child due to criminal behavior such as drug use or prostitution.

For many years, an express definition of “parent” in custody cases seemed necessary. A “parent” was a mother or a father. There were two types: mothers and fathers by blood and mothers and fathers by adoption. In the former, a couple’s status as mother and father arose from conception by the woman as the result of her receipt of sperm from the man. In the latter, it arose by operation of law.

For many years, society disapproved of homosexual and lesbian relationships. Same sex marriage was not permitted. Today that disapproval has decreased. Marriage between persons of the same sex is a constitutionally protected right. These changes have not, however, made “parents” out of non-parents. A person who is not a child’s parent by blood or adoption is still a non-parent.

What if the parent is not unfit? Is there any hope for custody in favor of a same sex non-parent? The answer is “yes”. The “yes” answer depends on many facts. In lawyer-speak, it is fact sensitive. The case Ferrand v. Ferrand is an example of the facts that judges may consider.

The Ferrands were both women. Vincent Ferrand identified as a man. At that time, they could not marry but did exchange vows and rings. Paula legally changed her last name to Vincent’s last name. Paula was the biological mother of twins conceived by in vitro fertilization treatment after she and Vincent became a couple. Vincent paid for the fertilization treatment. He was at the hospital for the twins’ births. At the hospital Vincent and Paula presented themselves as husband and wife. Vincent signed the birth certificates as the children’s father. The couple named the boy after Vincent.

Vincent was very active in the children’s lives. He took regular physical care of them. During the four years they lived together as a family, the twins and Vincent developed a close and loving relationship. They called him Daddy.

Then Paula left Vincent and the twins and dated and got married to a man. One day, without warning, Paula picked the twins up from school and refused to allow Vincent to see them. Vincent hired a lawyer. The lawyer filed a petition asking for Vincent to have custody of the children.

The trial judge dismissed Vincent’s petition. In his opinion, because Vincent was not the legal parent of the twins (that is, by blood or adoption), he had to prove that Paula was unfit. Vincent appealed the dismissal of his case. The Louisiana Fifth Circuit Court of Appeals reversed the trial judge. It sent the case back for further proceedings and the appointment of a mental health evaluator.

The Court of Appeals reinstated Vincent’s custody petition because there was evidence that Vincent had become the twins’ psychological parent. Denying the twins contact with Vincent, the only father they had ever known, might cause them “substantial harm”. A mental health evaluator would help the trial judge decide whether custody rights for Vincent would be in the children’s best interests.

If you are in a custody battle, it’s too late to re-live the past. If you are not, here are some things you can do to improve your chances of obtaining custody:

• Get married. Marriage shows your commitment to the relationship. Marriage brings stability to your partnership and your children.
• Get biological. If you are able, donate your eggs to your partner for use in conception. Select a sperm donor with the characteristics of the partner who will not do the childbearing. Use a surrogate and have both of you contribute sperm.
• Share the load. Be there during labor and delivery. Participate in naming the child. Feed the baby, change the baby, play with the baby. Be active in the child’s life at every stage.
• Stay out of court. Work on your relationship with your partner. Do what you can to keep your partnership together. Go to counseling if necessary.

Same sex non-parent partners with children are not without legal recourse. At present, however, the “non-parent’s” burden of proof to obtain custodial rights is high. Only you can put together the evidence to support your claim for custody of the children. Even if you have that evidence, you will need a lawyer who is experienced in child custody litigation and dedicated to your case.