Cook v. Sullivan

• Decision Date: 30 September 2021
• Docket Number: No. 2020-C-01471,2020-C-01471
• Citation: 330 So.3d 152
• Parties: Billie COOK v. Sharon SULLIVAN
• Court: Louisiana Supreme Court

330 So.3d 152

Billie COOK

v.Sharon SULLIVAN

No. 2020-C-01471

Supreme Court of Louisiana.

September 30, 2021

McCALLUM, J.

The issue in this child custody matter is whether the trial court applied the correct law in awarding joint custody to Sharon Sullivan, the biological parent, and Billie Cook, a non-parent and Sharon's former same-sex partner. The court of appeal reversed the trial court, concluding that an analysis of the best interest of the child under La. Civ. Code art. 134 was not warranted, because the evidence did not show that an award of sole custody to Sharon would result in substantial harm to the child under La. Civ. Code art. 133. Finding the trial court committed legal error, we did a de novo review of the record, and affirm the court of appeal judgment for the reasons herein.

FACTS AND PROCEDURAL HISTORY

Sharon and Billie began a romantic relationship and cohabitating in 2002. After failed attempts at artificial insemination, Sharon gave birth on December 31, 2009, to a child conceived naturally through intercourse with a friend and co-worker, David Ebarb. 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.¹ 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. In July 2016, Sharon unilaterally terminated the visitation arrangement, leading Billie to file a petition to establish parentage, custody and support on January 11, 2017.

After the trial on the merits began, the trial court appointed Dr. Shelley Visconte, Ph.D., to conduct an evaluation.² The order appointing Dr. Visconte tasked her with the following:

[T]o evaluate and assist the court in the determination of the issue [of] whether an award of sole custody to the parent Sharon Sullivan has or will result in substantial harm [,considering]: 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.

After submitting her initial report, the trial court asked Dr. Visconte to conduct supplemental evaluations and implement a visitation schedule between Billie and the child. After the trial court received Dr. Visconte's second and final report, the trial resumed. In addition to Dr. Visconte's expert opinion, the trial court had the benefit of testimony and evaluations from Ms. Sandi Davis, a licensed marriage and family therapist retained by Sharon to counsel the child for emotional issues she was experiencing at the time. Sharon, Billie, Mr. Ebarb, and several other lay witnesses testified as to the facts and circumstances of the parties and their relationship.

Following trial, the trial court issued a written opinion and a Considered Decree³ in which it: (1) recognized Billie as a legal parent of the child; (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.

In its written opinion, the trial court noted the lack of legal precedent in Louisiana on the issue of custody arising out of the relationship of same-sex couples as well as the legislature's failure to address the evolution of same-sex marriage and conception by same-sex couples. However, the court opined that "disputes between same-sex individuals who are living in the same household and where one of them conceives a child through assisted reproduction methods or adopts a child are clearly distinguishable from a traditional third-party dispute with a biological parent." Thus, instead of treating Billie as a non-parent and applying La. Civ. Code art. 133, the trial court formulated and applied the following test to determine whether Billie should be deemed a "legal parent":

1) The parties entered into and engaged in assisted reproduction measures, voluntarily and jointly planned, which resulted in conception by one of the parties;

2) The parties resided in the same household before and for a substantial time after the birth of the child sufficient to form a parental bond;

3) The non-biological parent engaged in full and permanent responsibilities and caretaking of the child without expectations or compensation;

4) The non-biological parent acknowledged publicly and held [herself] out to be a parent of the child;

5) The non-biological parent established a bonded and dependent relationship with the child of a parental nature; and

6) The biological parent supported and fostered the bonded and dependent relationship between the child and non-biological parent.

The trial court's test included the factors discussed by Dr. Visconte in her report, with the addition of the first element addressing assisted reproduction. In support of its test, the trial court relied on the doctrine of psychological/de facto parent as set forth in Ferrand v. Ferrand , 2016-7 (La. App. 5 Cir. 8/31/16), 221 So. 3d 909, writ denied , 2016-1903 (La. 12/16/16), 211 So. 3d 1164, as well as cases from other "southern states." As to the burden of proof, the trial court opined:

The non-biological parent must establish parentage by "clear and convincing" evidence of the above-mentioned factors. The requirement to show substantial harm to the child is not an evidentiary requirement for a parent under Louisiana prevailing custody/visitation statutes and case law, only the best interest requirement sent [sic] forth in La. C.C. Art. 134. If the non-biological individual establishes parentage then the same parental rights attach as those of the biological parents and then only the best interest test applies along with the change in legal burden to preponderance of evidence.

The trial court concluded that Billie showed by clear and convincing evidence that she met the listed requirements to be identified as a "legal parent" and, consequently, as a parent, was not obligated to meet Article 133 ’s requirement of showing substantial harm.

The court of appeal reversed, finding the trial court erred in applying its own test rather than La. Civ. Code art. 133 and by holding that Billie had established parentage and therefore had the same rights as a natural parent. The court explained that Louisiana law does not currently provide for the award of custody to a nonparent based on her status as a psychological parent; therefore, custody disputes between former same-sex partners must be decided under La. Civ. Code art. 133. The court of appeal commended the trial court for its detailed reasons for judgment and recognized its effort to formulate a ruling that it believed to be both fair to Billie and in the best interest of the child. However, the court of appeal acknowledged "it is not the judiciary's role to fill in gaps left by the legislature." Cook v. Sullivan , 53,741 at p. 13 (La. App. 2d 11/18/20), 307 So. 3d 1121, 1128.

After reviewing the evidence in the record, the court of appeal found the trial court clearly abused its discretion in failing to follow Louisiana law. The court of appeal found that Billie is not a biological parent of the child, and she never legally adopted the child; therefore, the trial court erred in treating Billie as a parent and by failing to properly analyze the matter under La. Civ. Code art. 133. Id ., 53,741 at p. 13-14, 307 So. 3d at 1128.

The court of appeal reasoned that, although the trial court specifically held that "failure to reestablish the parental relationship between Billie and the child would result in substantial harm to the child," id . 53,741 at p. 16, 307 So. 3d at 1129, the court is not "tasked with determining whether or not the child in the past suffered any emotional distress that could be considered substantial harm when she was initially cut off from Billie." Id ., 53,741 at p. 18, 307 So. 3d at 1129. Rather, the substantial harm standard of Article 133 requires "a finding [by the court] that sole custody to Sharon would result – future tense - in substantial harm to the child." Id . (emphasis in original).

The evidence, according to the court appeal, indicated that the child is happy, healthy and thriving, and aside from Sharon's "questionable decision to remove Billie from the child's life," Sharon is a loving, attentive and nurturing parent. Id ., 53,741 at p. 19, 307 So. 3d at 1130. The court opined that "[w]hile Sharon's decision to remove Billie from the child's life may seem callous and controversial, her decision is protected [under the laws of the United States and Louisiana] as a fundamental liberty interest of a parent in the absence of substantial harm or neglect." Id ., 53,741 at pp. 19-20, 307 So. 3d at 1130. The court found no grounds in the record to support a finding that an award of sole custody to Sharon would result in substantial harm to the child that would warrant an analysis of the best interest of the child under La. Civ. Code art. 134 and the trial court erred in awarding joint custody. Id ., 53,741 at p. 20, 307 So. 3d at 1130.

Billie filed a writ application, arguing that the court of appeal erroneously reversed the trial court and prioritized Sharon's right to parent over the best interest of the child. She emphasized that the trial court was in the best position to make a determination as to the best interest of the child, and the role of the appellate court was not to reweigh the evidence or assess the credibility of the witnesses. She also argued that the court of appeal ignored the...