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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.

What Our Clients Say
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I highly recommend Louis
I hired Louis to represent me in my custody battle. From the start he was upfront and honest with me, if he said he was going to do something he did it and he never attempted to settle for anything less than what I was asking. He was not afraid to go head to head with opposing counsel which is what we ended up having to do. Thanks to Louis and his experience and knowledge of family law we won our case. I highly recommend Louis and will always use him for my future family Court needs.
Caleb
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Brilliant Mind and Excellent Communication
I had no idea how to even look for an attorney when I found myself needing one. Mr. Cosenza is the best attorney I have encountered, and I took a lot of time finding one. He is brilliant in matters of the law. He approached my case from every angle. I am so thankful he was my attorney. I started out knowing absolutely nothing about court related matters. He answered even my smallest questions and guided me through to understand what was best for me and my children. He was excellent in communication with quick replies. He will have all of my recommendations.
Becky
★★★★★
Attorney Cosenza at his craft
My journey with Mr. Cosenza began nearly 3 years ago when I contacted him about divorce proceedings. During our initial consultation he told me exactly what to expect and we discussed cost, which I thought reasonable. After retaining him as my attorney and finalizing my divorce, things became fairly intense during the negotiation of the property settlement; yet he was relentless and tenacious. In the end, we prevailed victorious and everything came together perfectly. Attorney Cosenza always responded in a timely manner to my many calls, emails and texts. He gave clear, detailed, rational explanations of what I could expect. His work on my case has been life changing, in the best way possible. I am forever in his debt.
Sean
★★★★★
He does his very best
Working with Louis Cosenza truly helped to make my very difficult emotional and legal situation feel much more comfortable as I knew his experience and expertise was there to support and guide me. He knows the law and he does his very best to use that knowledge to represent his clients in and out of the courtroom.
Craig
★★★★★
Hands down the best experience I’ve had with a lawyer
I would like to start by saying I am from TX and my ex wife tried to file a judgment in LA. I contacted a number of lawyers that explained to me that this maybe a process that they could look into. I spoke with Mr. Cosenza with his 30 plus year of experience and he assured me this was not going to be a issue. He was very informative on the proceedings that where going to take place. He couldn’t have called it any better. There wasn’t even a need for me to travel to show in court. It is definitely worth a little extra to hire one of the best. I hope I hope won’t be needing his help again but if I do need another lawyer in LA. I won’t hesitate to contact him and he will be my lawyer again.
Michael