Ferrand v. Ferrand

Citation221 So.3d 909
Decision Date31 August 2016
Docket NumberNO. 16–CA–7,16–CA–7
CourtCourt of Appeal of Louisiana (US)
Parties Paula Stephanie FERRAND v. C. Vincent FERRAND

221 So.3d 909

Paula Stephanie FERRAND
v.
C. Vincent FERRAND

NO. 16–CA–7

Court of Appeal of Louisiana, Fifth Circuit.

August 31, 2016


COUNSEL FOR PLAINTIFF/APPELLEE, PAULA STEPHANIE FERRAND, Douglas F. Carey

COUNSEL FOR DEFENDANT/APPELLANT, C. VINCENT FERRAND, Martha J. Maher

Panel composed of Fredericka Homberg Wicker, Robert A. Chaisson, and Robert M. Murphy

WICKER, J.

This litigation arises out of a custody dispute between a biological mother, Paula1 , and her former partner, Vincent2 , who is biologically a female but identifies as a male. In this appeal, Vincent seeks review of the trial court's denial of his petition for custody of the minor children, conceived through artificial insemination during the parties' relationship. The trial court determined that Vincent, as neither the children's biological nor legal parent, failed to meet his burden to prove that the granting of sole custody to Paula would result in substantial harm to the children, as required under La. C.C. art. 133.

For the following reasons, we find that, under the unique set of facts presented in this case, the trial court abused its discretion in denying Vincent's request for a court-appointed evaluator to assist in the custody determination as contemplated under La. R.S. 9:331. Accordingly, we vacate the judgment of the trial court as it relates to the denial of Vincent's petition for custody and remand this matter to the trial court for the purpose of appointing a mental health evaluator pursuant to La. R.S. 9:331 to perform a comprehensive custody evaluation.

Additionally, in this appeal, Vincent seeks review of the issuance of a protective order against him. The protective order prohibits Vincent from contacting Paula, as well as the minor children until they reach the age of eighteen. For the following reasons, we affirm the protective order as it relates to Paula. However, because we find there are no allegations of physical abuse against the children and, importantly, in light of our holding herein to vacate the denial of Vincent's petition for custody, we vacate the protective order as it relates to the minor children.

221 So.3d 914

In this opinion, we address the assignments of error relating to the denial of Vincent's petition for custody and the granting of Paula's petition for protective order separately.

CUSTODY JUDGMENT

Factual and Procedural Background

On February 26, 2014, Vincent filed a "Petition for Custody, Child Support, and Evaluations," seeking sole custody of the minor children or, alternatively, joint custody, with Vincent designated as domiciliary parent. In his original petition, Vincent sought sole custody alleging that he was the primary caregiver for the children and that, "[s]ince May 2012 Petitioner has been having physical custody of the minor children with the mother rarely see [sic] the children." On March 7, 2014, Paula filed an Exception of No Cause/No Right of Action, asserting that Vincent lacked standing to seek custody under La. C.C. art. 132 because he is neither a biological nor legal parent and, further, that his petition failed to state a cause of action because the facts alleged were insufficient to show substantial harm, as required to grant custody to a non-parent under La. C.C. art. 133.

On March 11, 2014, the parties appeared for a hearing and entered into a Consent Judgment. Concerning Vincent's petition for custody, the parties agreed that Vincent would be granted visitation with the children on the third weekend of every month, from Friday afternoon after school until Monday morning.3 On April 30, 2014, the parties appeared before the Domestic Commissioner, who granted Paula's exception of no cause of action, but allowed Vincent the opportunity to amend his petition to state a cause of action.4

Vincent timely filed an amended and supplemental petition, seeking sole custody of the children. In his supplemental petition, Vincent again alleged that he was the children's primary caregiver and that by May 2012, Paula "indicated that she was no longer interested in frequent or regular contact with the minor children and left Petitioner with the exclusive care, custody, and control of the minor children." The supplemental petition further asserted that Paula "abandoned" the children and that the children would suffer substantial harm, as contemplated under La. C.C. art. 133, should she be granted sole custody.

On December 10, 2014, Vincent filed various motions, including a motion requesting the court to appoint a mental health evaluator and to set a hearing date for the custody trial. The transcript from a January 26, 2015 hearing before the Domestic Commissioner reflects that the court informed Vincent he would be permitted to retain an expert at his cost and that Paula would be required to make the children available to meet with any expert Vincent selected. The transcript further reflects that the Domestic Commissioner verbally informed the parties at some point during the hearing that he was "not going to order an evaluation" pursuant to

221 So.3d 915

La. R.S. 9:331 at that time. A written judgment, signed March 9, 2015, states that the hearing on Vincent's request for a court-appointed evaluator, in addition to other matters, was continued and reset to March 24, 2015.5 The record reflects that a hearing did not take place on March 24, 2015.6

On June 26, 2015, the parties appeared before the Hearing Officer for a custody hearing. On that date, the Hearing Officer found that, "[d]ue to the unusual facts and relationship(s) of the litigants and these two (2) children these [sic ] case will require a trial before the [district] judge." The entire custody matter was transferred to the district judge and proceeded to trial on September 9, 2015.

At the custody trial, Vincent testified that he and Paula began dating in the year 2000. In April, 2003, Paula and Vincent participated in a ceremony in Tennessee, in which they together exchanged vows and "wedding rings."7 In 2005, Paula filed paperwork to have her last name legally changed in order to share the same last name as Vincent.

Vincent testified that, following Hurricane Katrina, he and Paula agreed to start a family and sought fertility treatment to have a child.8 At the time of Hurricane Katrina, Vincent owned a construction business that was "booming," thus making

221 So.3d 916

the cost of fertility treatment less formidable. Vincent paid for Paula, who was not working at that time, to undergo in vitro fertilization treatment, which resulted in a pregnancy. On July 5, 2007, Paula gave birth to twins, Caitlin and Vincent, II.9 Vincent was present at the hospital for the children's birth. He testified that he and Paula, both sharing the same last name and wearing wedding bands at the time, represented themselves as a married couple to the hospital staff. He and Paula each signed the children's birth certificates, with Vincent signing as the children's father.10 Vincent testified that the female twin, Caitlin, was born a "well-baby" and was discharged from the hospital before her brother, Vincent, II, who was born weighing approximately 3 pounds and remained in the NICU for days. Vincent testified that, after Paula and Caitlin had been discharged from the hospital, he packaged and delivered breast milk to Vincent, II, in the NICU at the hospital three times each day.

After the birth of the twins, Vincent stayed home with Paula for approximately two months to help with the children while Paula recovered from an emergency C-section. At that time, they lived in a 2800 square foot home in Folsom. When Paula returned to work after the twins' birth, Vincent worked from 6:00 a.m. until 2:00 p.m. daily, after which he returned home to remain with the children in the afternoon/evenings while Paula worked from 2:00 p.m. to 6:00 p.m. Vincent testified that the children referred to him as "Daddy." In October, 2009, Paula and Vincent and the children moved to Metairie.

In 2011, the children began preschool. In order to register the children at a desirable school, Vincent arrived to J.C. Ellis School at 3:00 a.m. to stand in line for preschool registration to ensure the twins would each be accepted. When the children were accepted into J.C. Ellis School for preschool, the school wrote a letter, addressed only to Vincent, informing him that his children had been accepted into the preschool program.11 Vincent testified that he and Paula shared parenting responsibilities while the children were in preschool.

In November of 2011, Vincent remained at home with the children for a weekend while Paula visited her two children from a previous relationship, who lived with their father 200 miles away.12 Vincent testified that his relationship with Paula became strained after he discovered that Paula cheated on him that weekend with a high school boyfriend with whom she had reconnected on Facebook. He testified that Paula moved out of the home on January 28, 2012, when the children were aged 4, into a one-bedroom apartment. He and the children remained in the home and he and Paula shared physical custody of the children,

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13 cases
  • In re C.A.C.
    • United States
    • Court of Appeal of Louisiana (US)
    • November 2, 2017
    ...natural parents, that would cause the child to suffer substantial harm.’ "See also , Ferrand v. Ferrand , 16-7 (La.App. 5 Cir. 8/31/16), 221 So.3d 909, 920, writ denied, 16-1903 (La.12/16/16), 211 So.3d 1164.In Tracie F. v. Francisco D., 15-1812, p. 8 (La.3/15/16), 188 So.3d 231, 238 (citin......
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  • Fairbanks v. Beninate
    • United States
    • Court of Appeal of Louisiana (US)
    • December 23, 2020
    ...a liberty interest protected by the Fourteenth Amendment's due process guarantee. Ferrand v. Ferrand, 16-7 (La. App. 5 Cir. 8/31/16), 221 So.3d 909, 919, writ denied, 16-1903 (La. 12/16/16), 211 So.3d 1164, citing Troxel v. Granville, 530 U.S. 57, 84, 120 S.Ct. 2054, 2070, 147 L.Ed.2d 49 (2......
  • Cook v. Sullivan
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    • Court of Appeal of Louisiana (US)
    • November 18, 2020
    ...between a parent and non-parent is found in La. C. C. art. 133.The court 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, identified this absence of legislative or jurisprudential guidance and provided a compreh......
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