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There is no question that the non-parent bears the heavy burden of proof in a custody contest. The dual prong test to determine whether the non-parent has met that burden is as follows: in a conflict between a parent and a non-parent, the parent enjoys the paramount right to custody of a child and may be deprived of such right only for compelling reasons. The test to determine whether to deprive a legal parent of custody is a dual-pronged test: first, the trial court must determine that an award of custody to the parent would cause substantial harm to the child; if so, then the courts look at the best interest of the child factors to determine if an award of custody to the non-parent is required to serve the best interest of the child.
The child was born as a result of artificial insemination during the course of a long term same-sex relationship between Dr. Lisa Colon and Victoria Adjmi. Dr. Colon carried and gave birth to the child. During the course of their relationship, Dr. Colon executed several documents referring to Adjmi as her “life partner,” and granting Adjmi full and unlimited authority to transact affairs with regard to the care and upbringing of the child. After the parties separated in 2014, Adjmi filed the present Petition for Custody seeking joint custody pursuant to La. C.C. art. 133. Dr. Colon filed exceptions of no cause of action, no right of action, and vagueness to the custody petition. The Trial Court denied the exceptions and appointed Tina Chaisson as the custody evaluator. Chaisson submitted a report, in which she applied the “best interest of the child” legal standard. Adjmi filed a motion requesting the Court to instruct Chaisson to apply the “substantial harm to the child” legal standard as defined by La. C.C. art. 133 relating to a custody claim by a non-parent. The Court granted that motion and Chaisson filed a supplemental report in compliance with that order. Both reports recommended an award of joint custody. After going on trial, the Trial Court rendered judgment in Adjmi’s favor, awarding joint custody and setting forth detailed visitation rights. Dr. Colon appealed, asserting that the Trial Court violated her constitutionally protected fundamental rights as a natural parent in the award of joint custody and liberal visitation to a non-parent, and in finding substantial harm to the child sufficient to deny an award of sole custody to a biological parent.
Did the trial court err in granting joint custody and liberal visitation to a non-parent?
The Court held that the trial court did not abuse its discretion in granting joint custody of a minor child to a biological mother and her former life partner because a complete analysis of all the relevant factors in La. Civ. Code Ann. art. 134 showed that an award of joint custody with liberal visitation was in the child's best interests, and that separation from either of them would cause the child to suffer substantial harm. Moreover, the Court noted that the documents showing the biological mother's confidence in the partner as a good parent, that she viewed the partner as the child's other parent were relevant under La. Code Evid. Ann. art. 401 to show the depth of the emotional bonds. The Court further held that the facts and circumstances did not fit within the intent or purpose of La. Civ. Code Ann. art. 133 because the biological mother was not unfit and the partner was not the third party envisioned by the legislature.