D. A. B. v. C. G. W.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-548

D. A. B.

VERSUS

C. G. W.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 126999
HONORABLE KEITH RAYNE JULES COMEAUX, DISTRICT JUDGE

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ELIZABETH A. PICKETT
CHIEF JUDGE

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Court composed of Elizabeth A. Pickett, Candyce G. Perret, and Sharon Darville
Wilson, Judges.

AFFIRMED.

Heather Duhon Moore
Attorney at Law
112 Church Alley
New Iberia, LA 70560
(337) 321-9245
COUNSEL FOR DEFENDANT- APPELLANT:
C.G.W.

Glenda Huddleston
Decuir & Huddleston
214 E. Washington St.
New Iberia, LA 70560
(337) 365-2336
COUNSEL FOR PLAINTIFF- APPELLEE:
D.A.B.

PICKETT, Chief Judge.

C.W. appeals the judgment of the trial court granting sole custody of G.B. to

his biological mother, D.B.

FACTS

C.W. and D.B. began a same-sex romantic relationship in 2003. G.B. was

born April 16, 2013, to D.B after she underwent in vitro fertilization treatment to

become pregnant. The parties signed a co-parenting agreement on July 4, 2013.

The couple purchased a home together and moved into the home in May 2014.

C.W. and D.B. separated in June or July 2014.

While still in a relationship with D.B., C.W. began an online relationship

with a woman named B.D. B.D. moved to Louisiana to live with C.W. by the end

of 2014. According to D.B., the relationship between C.W. and G.B. “fizzled out”

when B.D. moved to Louisiana.

Citing the provisions of the co-parenting agreement, D.B. filed a Rule for

Child Support in the district court in September 2015. C.W. filed an answer and a

reconventional demand seeking custody. The parties ultimately entered into a

Consent Judgment signed on October 29, 2015. The judgment specified that the

parties would have joint custody and designated D.B. as the domiciliary parent.

The judgment ordered C.W. to pay child support and specified visitation every

other weekend, every Wednesday, and on certain holidays. The consent judgment

also specified that C.W. was required to exercise custody outside of the presence of

B.D.

Obergefell v. Hodges, 576 U.S. 644, 135 S.Ct. 2584 (2015), which held that

there was a constitutional right for people of the same sex to marry each other, was

decided by the Supreme Court on June 26, 2015. At some point after that date,

C.W. married B.D. According to C.W.’s testimony, they were married for seven

or eight months. Six months after the consent judgment, C.W. moved to

Washington state to train for a new job with B.D.’s father. After six or seven

weeks in Washington C.W. returned to Louisiana, but left B.D. in Seattle, stating

she “wasn’t going to let her hit me anymore.”

C.W. began a romantic relationship with another woman, J.W., in September

or October of 2017. They moved in together about a month later. J.W. and C.W.

married in December 2019. J.W. testified that she, D.B., and C.W. maintained a

cordial relationship until C.W. filed a Motion for Modification of Custody and

Contempt in November 2020.

In her motion, C.W. sought to alter the visitation schedule because her new

job required a seven-days-on and seven-days-off schedule, which meant that she

missed her Wednesday visits half the time. C.W. also alleged that since G.B.

began online school because of the COVID pandemic, D.B. had prevented C.W.

from involvement in his education. C.W., who carried insurance for G.B. pursuant

to the consent judgment, also alleged issues with the use of out-of-network

providers. In addition to modification of custody, C.W. sought to hold D.B. in

contempt of court for failure to abide by the terms of the consent judgment.

A hearing officer conference was held on January 4, 2021. The hearing

officer issued a report on January 6, 2021. Both D.B. and C.W. timely objected to

the hearing officer’s findings of facts and recommendation. Before a hearing in

the district court, C.W. and D.B. entered into a Joint Stipulation and Consent

Judgment on March 10, 2021.

The dispute in this appeal arose after two pleadings were filed within days of

each other in March 2022. In the first filing, D.B. filed a Rule to Show Cause Why

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the Consent Judgments Should Not Be Annulled on March 9, 2022. C.W. filed an

exception of no cause of action and prescription in response to the nullity action.

A hearing was held on the exceptions on April 18, 2022, at the end of which the

trial court indicated it would grant the exceptions. The trial court granted the

exceptions of no cause of action and prescription and dismissed D.B.’s nullity

action by judgment dated May 2, 2022. That decision was not appealed.

In the second filing, C.W. filed a Motion for Contempt and Modification of

Custody on March 11, 2022. D.B. filed an Answer and Reconventional Demand

on May 1, 2022, by which she sought sole custody. The matter proceeded to trial

on July 28–29, 2022.

The court took the matter under advisement. In its reasons for judgment, the

trial court found that La.Civ.Code art. 133 applied. Article 133 states:

If an award of joint custody or of sole custody to either parent
would result in substantial harm to the child, the court shall award
custody to another person with whom the child has been living in a
wholesome and stable environment, or otherwise to any other person
able to provide an adequate and stable environment.

Since C.W., the non-parent, failed to show by clear and convincing evidence that

substantial harm would result if D.B., the biological mother, was given full custody

of G.B., the trial court’s inquiry ended. Citing Cook v. Sullivan, 20-1471 (La.

9/30/21), 330 So.3d 152, the trial court rejected the idea that there was any

Louisiana law, either statutory or jurisprudential, recognizing a de facto or

psychological parent.

C.W. filed a Motion for a New Trial, which was denied by the trial court on

November 29, 2022. C.W. now appeals.

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ASSIGNMENT OF ERROR

C.W. asserts one assignment of error:

1. The trial court applied the wrong legal standard regarding a
modification of a third-party custody consent judgment therefore a de
novo review of the record is necessary.

DISCUSSION

The paramount consideration in custody determinations is the best interest of

the child. La.Civ.Code art. 131; Tracie F. v. Francisco D., 15-1812 (La. 3/15/16),

188 So.3d 231; Evans v. Lungrin, 97-541, 97-577 (La. 2/6/98), 708 So.2d 731.

“Every child custody case is to be viewed on its own peculiar set of facts and the

relationships involved.” Cook, 330 So.3d at 157.

We will overturn a trial court’s custody determination only if we find the

trial court abused its discretion. Leard v. Schenker, 06-1116 (La. 6/16/06), 931

So.2d 355.

However, where one or more trial court legal errors interdict the fact-
finding process, the manifest error standard is no longer applicable,
and, if the record is otherwise complete, the appellate court should
make its own independent de novo review of the record and determine
a preponderance of the evidence. A legal error occurs when a trial
court applies incorrect principles of law and such errors are
prejudicial. Legal errors are prejudicial when they materially affect
the outcome and deprive a party of substantial rights. When such a
prejudicial error of law skews the trial court’s finding of a material
issue of fact and causes it to pretermit other issues, the appellate court
is required, if it can, to render judgment on the record by applying the
correct law and determining the essential material facts de novo.

Evans, 708 So.2d at 735 (citations omitted).

D.B. is the mother of G.B., as she gave birth to him. See La.Civ.Code art.

184. Under our law, C.W. is not a parent of G.B. She never adopted G.B. She

was never married to D.B., so any presumption of parentage would not apply. See

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La.Civ.Code arts. 185 and 186. Thus, this case presents as a custody dispute

between a parent and a non-parent.

C.W. argues that the holding in Cook does not apply to this case, because

Cook, 330 So.3d 152, involved an initial custody determination between a parent

and a non-parent. In Cook, Sharon Sullivan and Billie Cook were long-term same-

sex partners. Sullivan gave birth to a child in December 2009, and the child and

the women lived together until their relationship ended in February 2013. After

their separation, the women shared custody of the child until July 2016, when

Sullivan terminated the arrangement. Cook filed a petition to establish parentage,

custody, and support in January 2017.

The trial court found that Cook was a legal parent and awarded joint custody

to Sullivan and Cook, with Sullivan as the domiciliary parent. The court of appeal

reversed, and the supreme court granted writs. The supreme court found that

Louisiana law only considers Sullivan a parent to the child at issue, and Cook is a

non-parent. Upholding the decision of the appellate court, the supreme court held,

“Since this is an initial custody dispute between a non-parent and parent, Billie [the

non-parent] is required to prove by clear and convincing evidence that an award of

sole custody to Sharon [the biological mother] would result in substantial harm to

the child under La.Civ.Code art. 133.” Cook, 330 So.3d at 159. Because Cook

failed to show that substantial harm would result to the child if Sullivan were

awarded sole custody, the trial court erred in analyzing the best interest of the child

under La.Civ.Code art. 134. Id.

Unlike the mother in Cook, in this case, the mother, D.B., agreed to two

different consent judgments allowing C.W. to exercise custody/visitation. C.W.

argues that this is a distinguishing fact that makes Cook inapplicable to this case.

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Instead, she argues, we should apply the rule enunciated by the supreme court in

Tracie F., 188 So.3d 231.

In Tracie F., the father of the child agreed to a consent judgment allowing

the maternal grandmother to act as domiciliary parent. (At all times, the biological

mother was still alive.) The father then filed suit to annul the stipulated judgment.

He later abandoned the nullification theory and asked the court to modify custody.

As an initial matter, the supreme court in Tracie F. explained the paramount

importance of a biological parent’s rights with respect to their children:

[B]iological parents have constitutionally protected rights regarding
their children. Further, as this court has explained, the Fourteenth
Amendment to the United States Constitution protects a biological
parent’s due process right to “the companionship, care, custody, and
management” of a child. See In re Adoption of B.G.S., 556 So.2d 545,
549 (La.1990) (citing Santosky v. Kramer, 455 U.S. 745, 758–59, 102
S.Ct. 1388, 71 L.Ed.2d 599 (1982), and Lassiter v. Department of
Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640
(1981)). Similarly, “we have implicitly recognized that the reciprocal
rights and obligations of natural parents and children are among those
unenumerated rights retained by individuals pursuant to La. Const. art.
1, § 24.” In re Adoption of B.G.S., 556 So.2d at 551. A biological
parent cannot be deprived of these and other related rights without a
procedure that adequately balances three factors:

[F]irst, the private interest that will be affected by the
official action; second, the risk of an erroneous
deprivation of such interest through the procedures used,
and the probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government’s
interest, including the function involved and the fiscal
and administrative burdens that the additional or
substitute procedural requirement would entail.

Id., 556 So.2d at 552.

Tracie F., 188 So.3d at 242.

Finding the trial court and the appellate court applied the incorrect burden of

proof and the incorrect law, the supreme court ruled that the proper rule where a

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parent seeks to modify a consent judgment which afforded some custody rights to a

non-parent is the rule enunciated in Evans, 708 So.2d 731, stating:

For the reasons discussed in this opinion, we are especially
guided by La. C.C. art. 131 and the legislative comments to its
revision, and we hold that the overarching inquiry in an action to
change custody is “the best interest of the child.” Moreover, consistent
with our prior jurisprudence regarding stipulated custody awards, we
further hold that a biological parent with joint custody, who seeks
modification of a stipulated custody award to obtain greater custodial
rights, must prove: 1) there has been a material change in
circumstances after the original custody award; and 2) the proposed
modification is in the best interest of the child. See Evans v. Lungrin,
97–0541, 97–0577, p. 13 (La.2/6/98), 708 So.2d 731, 738; cf.
Bergeron v. Bergeron, 492 So.2d 1193 (La.1986).

Tracie F., 188 So.3d at 235.

Ultimately, the court ruled that the father of the child in Tracie F., who had

increased his involvement in the child’s life, had proven a material change in

circumstances. The court found, however, that the best interest of the child would

be served by maintaining joint custody with the maternal grandmother and the

father, with the maternal grandmother continuing as the domiciliary parent.

The first circuit has applied this holding in a case involving same-sex

partners, albeit before the supreme court issued its ruling in Cook. In In re J.E.T.,

16-384 (La.App. 1 Cir. 10/31/16), 211 So.3d 575, the adoptive mother of a child

filed suit to modify a stipulated judgment of custody which granted joint custody to

herself and her former same-sex partner, who had not adopted the child. After the

relationship ended and the adoptive mother married a man, the adoptive mother

filed suit to modify the stipulated custody decree, arguing that she was the only

legal parent of the child, and, therefore, she should be given sole custody. The

court of appeal, citing Tracie F., found that the adoptive mother had the burden of

proving that there was a material change in circumstances since the consent

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judgment and that a change of custody was in the best interest of the child.

Finding the adoptive mother failed to meet her burden of proof, the court affirmed

the trial court’s ruling denying the change in custody and denying the application

to relocate the child to Texas.

From the jurisprudence, we find the consent judgments agreed to by D.B.,

which gave C.W. some custodial rights, make the supreme court’s holding in Cook

inapplicable to this case. To the extent that D.B. sought, in her reconventional

demand, to modify the consent judgment so that she gets sole custody of G.B., we

find the law applicable to making this determination is the rule found in Tracie F.,

188 So.3d 231. Thus, we find the trial court committed legal error in its finding

that C.W. was required to prove that sole custody to D.B. would result in

substantial harm to G.B. We must, then, conduct a de novo review of the record to

determine if “1) there has been a material change in circumstances after the

original custody award; and 2) the proposed modification is in the best interest of

the child.” Id. at 235.

This court has held that a material change in circumstance is a change that

“negatively impact[s] the welfare of the child.” LeBlanc v. LeBlanc, 06-1052, p. 9

(La.App. 3 Cir. 2/14/07), 951 So.2d 500, 507, writ denied, 07-562 (La. 4/5/07),

954 So.2d 146. Since the second consent judgment, we find D.B. showed a

material change in circumstances. The parties testified that D.B.’s relocation to

Youngsville makes visitation every Wednesday evening unfeasible, and that

increasingly G.B. would prefer to play with his friends than go to visitation with

C.W. On multiple occasions, C.W., in contravention of D.B.’s express directions,

took G.B. into public places during the pandemic. D.B. clearly explained that

G.B.’s history of asthma made caution very important during the height of the

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COVID pandemic. Nevertheless, D.B. testified that C.W. took G.B. to play laser

tag, to go bowling, and to a Hooters restaurant. D.B. and C.W. also could not

reach an agreement about the appropriate tutor for G.B. when he fell behind in

school after being home-schooled for a time during the pandemic. Additionally,

J.W. testified that the parties argued over medical reimbursements beginning in

March 2022. Regarding communication with C.W., D.B. testified, “We hardly

even speak to each other. When we do speak, it does not go well.” This continued

animosity has resulted in G.B. entering counseling, which became another avenue

of contention between D.B. and C.W. C.W. testified that while she did not object

to the counseling, she was not told about it until after the sessions started.

We find this evidence, taken as a whole, indicates that there has been a

material change in circumstances which has had a negative impact on G.B. Thus,

we proceed to the second prong of the analysis under Evans.

In determining the best interest of a child in a custody dispute, we look first

to La.Civ.Code art. 134, which instructs courts to look to all relevant factors,

including:

(1) The potential for the child to be abused, as defined by Children’s
Code Article 603, which shall be the primary consideration.

(2) The love, affection, and other emotional ties between each party
and the child.

(3) The capacity and disposition of each party to give the child love,
affection, and spiritual guidance and to continue the education and
rearing of the child.

(4) The capacity and disposition of each party to provide the child
with food, clothing, medical care, and other material needs.

(5) The length of time the child has lived in a stable, adequate
environment, and the desirability of maintaining continuity of that
environment.

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(6) The permanence, as a family unit, of the existing or proposed
custodial home or homes.

(7) The moral fitness of each party, insofar as it affects the welfare of
the child.

(8) The history of substance abuse, violence, or criminal activity of
any party.

(9) The mental and physical health of each party. Evidence that an
abused parent suffers from the effects of past abuse by the other
parent shall not be grounds for denying that parent custody.

(10) The home, school, and community history of the child.

(11) The reasonable preference of the child, if the court deems the
child to be of sufficient age to express a preference.

(12) The willingness and ability of each party to facilitate and
encourage a close and continuing relationship between the child and
the other party, except when objectively substantial evidence of
specific abusive, reckless, or illegal conduct has caused one party to
have reasonable concerns for the child’s safety or well-being while in
the care of the other party.

(13) The distance between the respective residences of the parties.

(14) The responsibility for the care and rearing of the child previously
exercised by each party.

At trial, D.B. testified that G.B. returned home on Monday after school from

a weekend visit with C.W. in November 2021 with a bruise on his leg. When

asked, G.B could not explain the bruise. D.B. called C.W., who claimed to be

unaware of the source of the injury, but stated that C.W. fell out of a chair, which

may have been the cause. G.B. confirmed that he thought he fell out of a chair.

Reviewing her text messages with C.W. in March 2022, D.B. discovered a

conversation with C.W. in which C.W. acknowledged spanking G.B. during that

November weekend.

C.W. testified that she did spank G.B. on the behind once on that Friday

afternoon in November after she picked him up from school. G.B. had earned a

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demerit for his behavior at school. C.W. stated that she swatted him once on the

behind while he was fully clothed. C.W. made D.B. aware at the time that she had

spanked G.B. C.W. testified that while at her sister’s house the next day, G.B. fell

out of a chair. He “cried a little bit.” She consoled him, and soon he jumped off

her lap to go continue playing with the other children. C.W. did not notice a bruise

on G.B.’s leg during the visit. C.W. first learned of the bruise when D.B. sent her

a text message on Monday evening.

This is the only incident in the record which arguably rises to the level of

abuse as defined by La.Ch.Code art. 603. The evidence is insufficient to prove by

a preponderance of the evidence that C.W. ever abused G.B. Thus, this first factor

in La.Civ.Code art. 134 is not applicable in this case.

While both parties love G.B., the record is clear that D.B. has consistently

placed her love for G.B. ahead of any other relationships in her life, particularly

romantic relationships. C.W. began a relationship with B.D., a person with a

criminal record and an anger problem. C.W. then married B.D. even though the

parties agreed in the first consent judgment that C.W. could not exercise visitation

in the presence of B.D. C.W. also testified that she left B.D. because B.D. was

physically abusive.

G.B. has lived with D.B. his entire life. D.B. has a support system that

includes her mother and her grandparents, all of whom have cared for G.B. since

he was born. D.B.’s grandfather has clearly formed a special bond with G.B. D.B.

resides in her new home in Youngsville with her grandparents. C.W. has been

married twice since the end of her relationship with D.B.

The record does show that C.W. and D.B. have both cared for G.B.’s

material needs, including food, clothing, and medical needs. It is also clear from

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the record that D.B. has always been the person who has taken G.B. to the doctor.

She insures that he has the medication he needs, particularly for his asthma, which

at times has been severe. For these reasons, factor (4) weighs in favor of D.B.

Factors (2), (3), (5), (6), (7), (10) and (14) of La.Civ.Code art. 134 all weigh

in favor of D.B. having sole custody of G.B. There is no evidence in the record of

G.B.’s preference, so factor (11) is not relevant here. Neither D.B. nor C.W. has

fostered a relationship with the other, so factor (12) does not inure to the benefit of

either party. Taken as a whole, we find that the evidence supports a finding that it

is in the best interest of G.B. that D.B. be awarded sole custody. The inability of

the parties to co-parent is a factor in this determination.

CONCLUSION

While we find the trial court’s legal analysis incorrect, we affirm the

judgment of the trial court in its entirety. Costs of this appeal are assessed to C.W.

AFFIRMED.

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