FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-11840,
DIVISION "D" Honorable Nakisha Ervin-Knott, JUDGE.
A. Bonin COUNSEL FOR DEFENDANT/APPELLANT.
Ettinger Booth COUNSEL FOR PLAINTIFF/APPELLEE.
composed of Judge Terri F. Love, Judge Roland L. Belsome,
Judge Joy Cossich Lobrano, Judge Marion F. Edwards, Pro
Tempore, Judge Terrel J. Broussard, Pro Tempore.
F. Edwards, Judge.
an appeal from a trial court judgment granting joint custody
of a minor child to the biological mother and her former life
partner. For reasons that follow, we affirm.
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. After the parties separated in
2014, Ms. Adjmi filed this 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. After this Court and the Louisiana Supreme Court
denied Dr. Colon's writ applications for review of the
ruling denying the exceptions, the parties participated in
the custody evaluation with Ms. Chaisson.
Chaisson submitted a report to the court on January 4, 2016
in which she applied the "best interest of the
child" legal standard. Ms. Adjmi filed a motion
requesting the court to instruct Ms. 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 Ms. Chaisson
filed a supplemental report in compliance with that order.
Both reports recommended an award of joint custody.
matter went to a trial on the merits, after which, the trial
court rendered judgment in Ms. Adjmi's favor. The
judgment, which awards joint custody and sets forth detailed
visitation rights, is supported by comprehensive reasons for
facts regarding the relationship of the parties and the
conditions of the child's birth are undisputed. Dr. Lisa
Colon and Victoria Adjmi began a romantic relationship in
1996, and lived together as a committed couple for over 18
years.During that time they built a home
together, shared finances and bank accounts. Both women are
financially successful. Dr. Colon is a
gynecologist/obstetrician and Ms. Adjmi is a business woman
who owns several retail stores.
the couple decided to start a family. It was decided that Dr.
Colon, who is 10 years younger than Ms. Adjmi, would undergo
an artificial insemination procedure. Both women were
involved in the selection of the donor, the pregnancy and the
birth. Both women agreed that the donor should be Jewish, Ms.
Adjmi's faith. The procedure was successful and Dr. Colon
gave birth to a baby girl on October 27, 2007. Ms. Adjmi was
present at the birth and cut the umbilical cord. The child
was named Charlie Adjmi Colon (Charlie) in a tribute to Ms.
days after Charlie's birth, Dr. Colon hand wrote and
signed a notarized document that states. "In the
unlikely event of my demise (death) Vicki Susan Adjmi is to
attain total/complete/sole custody of Charlie Adjmi
April 4, 2008, the parties entered into a "Domestic
Partnership Agreement". The effective date of the
agreement was October 27, 2007, the date of Charlie's
birth. There are three pertinent sections of this agreement.
1.) Section I Definitions
The children of the Parties is defined as Charlie Adjmi
Conon, and any other children subsequently born of, or
adopted by one or either of the Parties, during the term of
2.) Section VII Child Custody
Notwithstanding the contrary laws of any state, including
Louisiana, it is the intent of the parties and it is agreed
to herein that in the event of the termination of this
Contract, each Party, whether or not the biological or
adoptive parent of Charlie Adjmi Colon or any other children
subsequently born to or adopted by any Party during the term
of this Contract, will be granted joint custody and
reasonable visitation rights of Charlie Adjmi Colon and any
other children while they are minors. The Parties agree that
if a dispute arises related to this provision, they will
mediate their differences with the assistance of a
professionally licensed and/or certified family counselor or
3.) Section XIII Waiver of Constitutional or Statutory
The Parties agree to waive any constitutional challenge,
whether under the Constitution of the United States of
America or the constitution of any of the fifty states
including Louisiana, to the validity and or enforceability of
the Domestic Partnership Contract.
The Parties further agree to waive any right to invoke
statutes or laws of the United States, or any of the fifty
states including Louisiana, that expressly or implicitly
provide that this contract is null or void based on the
gender or intent of the Parties.
Dr. Colon executed a Power of Attorney in which she granted
…."absolute full and unlimited power and
authority for and in the name of Appearer and in
Appearer's behalf and to Appearer's use to conduct,
manage and transact all and singular Appearer's
affairs, business, concerns and matters of whatever nature or
kind, without any exception or reservation whatsoever,
related to the care and upbringing of my child, Charlie Adjmi
Colon, including, but not limited to the following:
(emphasis and underline in original)
To enroll the child in school and extracurricular activities;
To obtain medical, dental and mental health treatment for the
To provide for the child's food, lodging, housing,
recreation, transportation and travel.
April 21, 2009, Dr. Colon executed her Last Will and
Testament in which she bequeaths her property to her
"life partner, Victoria Susan Adjmi" and her
daughter Charlie Adjmi Colon. The will provides for a trust
to be set up for Charlie with Ms. Adjmi as the sole Trustee.
Most significant are the following provisions:
(6) If Charlie Adjmi Colon survives me and has not yet
reached the age of 18 years on the date of my death, I
appoint Victoria Susan Adjmi, my life partner and the
co-parent of Charlie Adjmi Colon, to be Charlie Adjmi
Colon's legal Guardian and Tutor, intending for her to
have all responsibilities and benefits bestowed under law to
the legal parent of a child.
(8) It is important to me and it is my specific request that
both the Colon Family and the Adjmi Family share in the life
and upbringing of my daughter, Charlie Adjmi Colon.
Therefore, if she has not yet reached the age of 18 years on
the date of my death, I instruct the two families to grant to
each other liberal and frequent visitation and involvement in
her life, no matter who serves as her Trustee, Tutor and/or
Colon, Ms. Adjmi and Charlie lived as a family for the first
seven years of Charlie's life. Then, in 2014 Dr. Colon
became romantically involved with Ms. Adjmi's
sister-in-law (the wife of Ms. Adjmi's brother), Amanda
Adjmi, and the couple separated as a result. Dr. Colon now
resides with Amanda Adjmi, Charlie and, during their
visitation with their mother, Amanda Adjmi's two
obvious from the filing of this action for custody and the
actions and testimony of the parties that the breakup
resulted in an acrimonious relationship between Dr. Colon and
Ms. Adjmi. Since the breakup Dr. Colon has taken steps to
limit Ms. Adjmi's participation in Charlie's life.
Dr. Colon testified that she has limited Ms. Adjmi's
ability to communicate with Charlie's school specifically
to prevent Ms. Adjmi from attending parent-teacher
conferences. Dr. Colon also admitted that she will not allow
Ms. Adjmi to take Charlie on trips because on one trip to New
York Charlie developed a fever and Ms. Adjmi did not take the
child to a doctor. Ms. Adjmi explained that she called Dr.
Colon from New York when Charlie became ill to ask advice
because Dr. Colon is a medical doctor. Dr. Colon flew up to
New York that night and took Charlie to a doctor the next
Colon also expressed concerns about Ms. Adjmi's living
conditions. Specifically, Dr. Colon stated that Ms.
Adjmi's sister smokes marijuana in front of Charlie.
However, both Ms. Adjmi and her sister denied that
Adjmi testified that Dr. Colon has completely barred her from
any communications with Charlie's school, does not inform
her of school activities, extracurricular activities, or
doctor's appointments, and does not allow her to take
Charlie on vacation. Ms. Adjmi also testified that Dr. Colon
is in complete control of Charlie's schedule and does not
allow sufficient time or communications with Ms. Adjmi. Dr.
Colon admitted she controls Charlie's schedule but
asserts that she is aware of the strong bond between Charlie
and Ms. Adjmi and allows visits and communications between
the two as she deems appropriate.
Dr. Colon testified that it was she who parented Charlie and
made all of the decisions, she acknowledged that there is a
love bond between Charlie and Ms. Adjmi and that Charlie
thinks of Ms. Adjmi as a mother. She also testified that
Charlie loves to be with Ms. Adjmi and is comfortable in her
home, which is a few blocks away from Dr. Colon's home.
Other testimony from relatives and experts shows that Charlie
thinks of both Dr. Colon and Ms. Adjmi as her mothers and
that Charlie considers Ms. Adjmi's mother to be her
Chaisson, the court appointed expert testified that both
parties cooperated with the custody evaluation and provided
additional information. During her evaluation Ms. Chaisson
met with Charlie alone and observed her with each of the
parties in their homes. Ms. Chaisson also reviewed school,
medical and mental health records as well as the domestic
partnership agreement, Dr. Colon's will and power of
Chaisson found each home to be appropriate and comfortable
for Charlie, who had her own room in each. Charlie talked
about both homes and both of the parties. She loves both
women and enjoys both homes. Charlie calls Dr. Colon
"Mom" and Ms. Adjmi "Bae", but considers
both to be her parents.
Chaisson found both parties to have capable parenting
abilities with no negative cues in either. Ultimately, Ms.
Chaisson's recommendation to the court was that the
parties should be awarded joint custody with Dr. Colon as the
domiciliary parent and time divided 60/40. Ms. Chaisson also
made specific recommendations for liberal visitation with Ms.
Adjmi and opined that there is no justification for barring
travel with Ms. Adjmi.
Chaisson specifically addressed the issue of substantial
harm. She stated that a failure to award joint custody of
Charlie would result in substantial emotional harm to the
child. Ms. Chaisson explained that Charlie was raised, cared
for and mothered by both parties for her entire life and
enjoyed a parent-child relationship with each party. Ms.
Chaisson's concern was that if Dr. Colon were granted
sole custody, she would have the ability and the inclination
to completely cut Ms. Adjmi out of Charlie's life.
Colon offered testimony from Dr. Edward Shwery, a clinical
psychologist, who did not conduct a custody evaluation and
did not have the opportunity to interview the child with both
parties. The trial court allowed Dr. Shwery to testify as an
expert, noting that he was retained by Dr. Colon and did not
interview Ms. Adjmi.
testimony, Dr. Shwery explained that, because he did not have
the opportunity to see all three parties, he was unable to
make a custody evaluation. He stated his opinion is limited
to the single question of whether an award of sole custody to
Dr. Colon would cause substantial harm to Charlie. To address
this issue, Dr. Shwery reviewed the psychological literature
and learned that the concept of substantial harm is defined
consistent with the child abuse statutes of brutality,
neglect, severe neglect, physical abuse, and emotional abuse.
These are the situations which lead to substantial harm,
manifested in symptoms of a syndrome, depression or anxiety.
Based on this clinical definition of "substantial
harm" and his testing of Charlie, Dr. Shwery did not
believe Charlie would suffer substantial harm from an award
of sole custody to Dr. Colon.
accounts, Charlie is a happy, well-adjusted child with two
mothers one she calls "Mom" and one she calls
"Bae", and a loving extended family. There is no
indication that either party is unfit in any way to parent
Charlie. The evidence is sufficient to show that both women
clearly love the child and are fit parents who provide for
all of her needs.
appeal, Dr. Colon assigns six errors in which she asserts 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. Dr. Colon also
argues the trial court erred in denying her exception of no
cause of action and in admitting the domestic partnership
agreement, power of attorney, and last will and testament.
CAUSE OF ACTION
Colon argues that the trial court erred in denying her
peremptory exception of no cause of action. The denial of
this exception was reviewed by this Court and the Louisiana
Supreme Court as an interlocutory ruling. Both courts denied
the application for supervisory writs. On appeal, Dr. Colon
maintains the trial court should have sustained that
exception because the petition for custody failed to properly
allege that substantial harm would result if the minor child
remained solely in the biological parent's custody.
However, the majority of her argument centers on whether Ms.
Adjmi can meet her burden of proof at trial, not whether the
petition states a cause of action.
limited function of an exception of no cause of action is to
determine whether the law provides a remedy to a plaintiff
against these particular defendants. The pertinent question is
whether, when viewed in the light most favorable to the
plaintiff and with every doubt resolved in his behalf, the
petition states any valid cause of action for
relief. An exception of no cause of action should
be granted only when it appears beyond doubt that the
plaintiff can prove no set of facts in support of any claim
that would entitle him to relief. 
C.C. art. 133 provides:
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.
custody petition asserts a claim by a non-parent for custody
pursuant to La. C.C. art. 133 and alleges that "(t)he
removal of the child from her (Ms. Adjmi) care will result in
substantial harm to the minor child and is not in the
child's best interest." We find this petition states
a cause of ...