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In re C.A.C.

Court of Appeals of Louisiana, Fourth Circuit

November 2, 2017

IN RE: C.A.C.

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-11840, DIVISION "D" Honorable Nakisha Ervin-Knott, JUDGE.

          Leslie A. Bonin COUNSEL FOR DEFENDANT/APPELLANT.

          Jane Ettinger Booth COUNSEL FOR PLAINTIFF/APPELLEE.

          Court 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.

          Marion F. Edwards, Judge.

         This is 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.

         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. 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.

         Ms. 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.

         The 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 judgment.

         FACTS

         The 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.[1]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.

         In 2007 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. Adjmi's father.

         Two 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 Colon."

         On 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
D. "Children"
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 this Contract.
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 mediator.
3.) Section XIII Waiver of Constitutional or Statutory Challenge
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.

         Additionally, Dr. Colon executed a Power of Attorney in which she granted Ms. Adjmi;

…."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 child;
To provide for the child's food, lodging, housing, recreation, transportation and travel.

         On 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 Under-Tutor.

         Dr. 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 children.

         It is 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 day.

         Dr. 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 accusation.

         Ms. 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.

         Although 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 grandmother.

         Tina 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 attorney.

         Ms. 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.

         Ms. 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.

         Ms. 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.

         Dr. 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.

         In his 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.

         By all 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.

         LAW AND ANALYSIS

         On 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.

         1.) NO CAUSE OF ACTION

         Dr. 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.

         The 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.[2] 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.[3] 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. [4]

         La. 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.

         The 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 ...


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