Cook v. Sullivan
| Decision Date | 18 November 2020 |
| Docket Number | No. 53,741-CA,53,741-CA |
| Citation | 307 So.3d 1121 |
| Parties | Billie COOK, Plaintiff-Appellee v. Sharon SULLIVAN, Defendant-Appellant |
| Court | Court of Appeal of Louisiana — District of US |
GATTI & MERCKLE, By: Emily S. Merckle, Counsel for Appellant
KELLY L. LONG, THE MARLER LAW FIRM, LLC, By: Hannah Marler, Counsel for Appellee
Before MOORE, GARRETT, and STEPHENS, JJ.
Sharon Sullivan appeals a judgment of the Twenty-Sixth Judicial District Court, Parish of Bossier, State of Louisiana, recognizing Billie Cook as a legal parent of Sharon's biological child and awarding the parties joint custody of the minor child. For the following reasons, the judgment of the trial court is reversed.
This matter arises out of a custody dispute between former same-sex partners, Sharon Sullivan and Billie Cook. Sharon and Billie began a romantic relationship together in 2002. After failed attempts at artificial insemination, Sharon gave birth on December 31, 2009, to a child whom she conceived with the assistance of her co-worker and friend, David Ebarb.1 No father was listed on the birth certificate; however, the child was given the hyphenated last name, "Cook-Sullivan." Sharon, Billie, and the child resided together until shortly after Sharon and Billie separated in February 2013. Sharon and Billie never married or entered into a domestic partnership, and Billie never formally adopted the child.2 However, upon separation, the parties shared custody of the child—first with an every-other-week schedule, then with Billie having visitation every other weekend. That arrangement was subsequently terminated by Sharon in July 2016, leading Billie to file a petition to establish parentage, custody, and support on January 11, 2017.
A four-day trial on the merits began on December 13, 2017. However, after one day of testimony, the trial court appointed Dr. Shelley Visconte, Ph.D., to conduct an evaluation. The order appointing Dr. Visconte specifically tasked her with the following:
[T]o evaluate and assist the court in the determination of the issue whether an award of sole custody to the parent Sharon Sullivan has or will result in substantial harm to the child, including in the analysis of substantial harm: 1) The alleged lack of fitness of the parent to maintain custody of her child; and 2) Whether the non-parent seeking custody is seen by the child as a parent or psychological parent such that substantial harm has or will result to the child if the child is deprived of contact with the non-parent and if the non-parent is not awarded custody.
Dr. Visconte submitted her initial report on January 10, 2019. Thereafter, on June 20, 2019, the trial court ordered Dr. Visconte to conduct supplemental evaluations and implement a visitation schedule between Billie and the child. Dr. Visconte's second and final report was submitted on October 7, 2019. Trial resumed on October 11, 2019, and concluded a week later. Following trial, the trial court issued a comprehensive written opinion and a "Considered Decree" in which it: (1) recognized Billie as the child's legal parent; (2) held that failure to reestablish the parental relationship between Billie and the child would result in substantial harm to the child; and, (3) awarded Sharon and Billie joint custody of the child, with Sharon designated as the domiciliary parent. This appeal by Sharon ensued.
In six related assignments of error, Sharon asserts the trial court violated her constitutionally protected fundamental rights as a natural parent and improperly applied the law in holding Billie was a psychological parent and entitled to joint custody. We agree.
Billie testified that she was a mother to the child from the time of the child's birth until Sharon abruptly refused to allow Billie any access to the child. She and Sharon exchanged wedding bands, held themselves out as a married couple, lived together in the manner of married persons, and decided together to start a family, choosing Sharon as the first to conceive because she was the older of the two women. Billie testified that she attended Sharon's doctor appointments throughout her pregnancy and was celebrated as a mother alongside Sharon at a baby shower. According to Billie, after the child was born, the three lived together as a family, with the child referring to each party as a mother. They shared a bank account, child care expenses, and parental duties. They celebrated holidays and took vacations as a family. Billie testified that she was listed as a parent on the child's school and day care records, and even after her separation from Sharon, she continued to exercise visitation with the child as much as Sharon would allow. Billie asserted that once Sharon cut her off completely from the child, she hesitated to take legal action in hopes that Sharon would change her mind and also due to fear that Sharon would act on threats to report Billie for harassment.
Sharon testified that Billie was simply an ex-girlfriend and described her decision to conceive as a personal one made independently of Billie.3 Sharon also asserted she was pressured into hyphenating the child's name, was under the influence of labor drugs when she did and immediately regretted the decision. She stated that Billie was never a mother to the child and that after their separation, only sporadically exercised visits with the child. Sharon testified that she continued to allow Billie to see the child after their separation only out of necessity due to her demanding and unconventional work schedule as a firefighter.
Dr. Visconte testified in her capacity as the court-appointed evaluator and offered testimony consistent with her previously submitted reports, which were admitted into evidence. Dr. Visconte's evaluation included interviews with the parties, separately as well as together with the child; interviews with friends and family of the parties; visits to the homes of the parties; and, review of various documents provided by the parties, including text messages, photographs, and school and financial records.
In her initial report, Dr. Visconte stated that both Billie and Sharon maintain stable employment, have safe and comfortable homes, and are equipped to provide spiritual and moral guidance to the child. She reported that both parties want what they believe to be in the child's best interest, although they disagree on what that is. Dr. Visconte explained that the term "psychological parent" refers to a person whom a child considers to be his or her parent, even though that individual may not be biologically related to the child. She identified the following factors to consider when determining if an individual should be considered a psychological parent: 1) whether the biological parent consented to and fostered the formation and establishment of a parent-like relationship with the child and non-parent; 2) whether the non-parent and child lived together in the same household; 3) whether the non-parent assumed obligations of parenthood by taking significant responsibility for the child's care, education and development, including contributing toward the child's support, without expectation of financial compensation; and, 4) whether the non-parent has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship that is parental in nature. After applying these factors to the information obtained during her evaluation, Dr. Visconte opined that Billie satisfied the criteria of a psychological parent, and that reunification with Billie was in the child's best interest. She recommended Billie and Sharon share joint custody, with the child residing primarily with Sharon and having visitation with Billie every other weekend. Her recommendation also contained a detailed six-month reunification plan which included, among other things, supervised visits and reunification counseling.
In her second report, Dr. Visconte conveyed the child's desire to stop the visits with Billie. The child reported feeling anxious, nervous, mad, and sad about having to attend the visitation sessions with Billie. When asked by Dr. Visconte if she had any memories of Billie, the child responded, Dr. Visconte interpreted the child's both observed and expressed discomfort with Billie as a fear of bonding caused by the child having numerous people she had grown to love and trust eventually disappear from her life.4 She opined that
At trial, Dr. Visconte noted that "psychological parent" was more of a legal term and she preferred to use the psychological term "attachment figure." She testified that she had reviewed a case summary by Sandi Davis, LPC, who had been retained by Sharon as a counselor to the child, and confirmed the child's reporting to Ms. Davis was consistent with the child's reporting to her. Dr. Visconte agreed with Ms. Davis's opinion that the child is a "people pleaser." She further opined that the child had developed an anxious-avoidant attachment style which sometimes causes adults to develop a borderline personality disorder
, leading them to have difficulty with self-esteem, asserting themselves, and forming attachments. She stated Ms. Davis had been appropriately addressing important issues such as those with the child. Dr. Visconte testified that while it was important for the child's voice to be heard, the child's desires could not be the deciding factor in her recommendation because that would place an unfair burden on the child to...
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