VICKI C. WALKER
STEFANIE K. ZACHARIAS IN RE STEFANIE K. ZACHARIAS
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-NINTH JUDICIAL
DISTRICT COURT, PARISH OF ST CHARLES, STATE OF LOUISIANA,
DIRECTED TO THE HONORABLE M. LAUREN LEMMON, DIVISION
''D'', NUMBER 84, 755
composed of Judges Fredericka Homberg Wicker, Stephen J.
Windhorst, and Hans J. Liljeberg
GRANTED IN PART; DENIED IN PART; V.W. GRANTED FIFTEEN DAYS
LEAVE OF COURT TO AMEND
writ application, relator seeks review of the district
court's September 20, 2018 decision denying relator's
exceptions of no cause of action and no right of action.
Relator, S.Z., is the mother of a minor child, M.C.
Respondent, V.W., the paternal grandmother of the child, has
temporary custody of the child and is seeking full custody.
14, 2018, V.W. (the "grandmother") filed a petition
for custody and ex parte order of custody against S.Z. (the
"mother") in which she alleged that S.Z. and the
child's father (A.C.) were married and had a child, M.C.
She further alleged the mother and the father executed a
"custody by mandate" in her favor while they both
were deployed as active duty members in the United States
armed services.V.W. filed the underlying petition alleging
the minor child was in danger as a result of the actions of
S.Z. and that "immediate and irreparable injury
[…] would result to the minor child" if the child
remained in S.Z.'s care. In furtherance of her claim,
V.W. alleged S.Z. has a history of intoxication and has been
charged with domestic abuse, child endangerment, and simple
appellate court's standard of review is de novo
for both an exception of no cause of action and an exception
of no right of action. Tr. v. Schwegmann v. Schwegmann
Family Tr., 09-968 (La.App. 5 Cir. 9/14/10), 51 So.3d
737; Wells v. Fandal, 13-620 (La.App. 5 Cir.
2/12/14), 136 So.3d 83. For the following reasons, we grant
this writ application as to the exception of no cause of
action, but deny it as to the exception of no right of
of No Cause of Action
exception, the mother argues that V.W. does not state a cause
action for child custody by a non-parent under La. C.C. Art.
133. The court based its findings on the allegations that
V.W. does not allege that an award of joint custody or of
sole custody to either parent would result in substantial
harm to the child. The mother argues that because the father
was not made a party to the litigation and V.W. does not
allege that an award of custody to the child's father
would be harmful to the child, V.W.'s petition should be
denying the exception of no cause of action, the district
court found the allegations sufficient to state a cause of
action under La. C.C. art. 133, based on the allegations that
the mom is unfit, that the dad is moving around the country,
and that the grandmother has been caring for the child.
review of the petition for custody and for the following
reasons, we find that the trial court erred in denying the
mother's exception of no cause of action. The function of
an exception of no cause of action is to test the legal
sufficiency of a petition by determining whether the law
affords a remedy on the facts alleged in the pleadings.
Gereighty v. Domingue, 17-339 (La.App. 5 Cir.
5/30/18); 249 So.3d 1016, 1026 (citations omitted). La. C.C.
art. 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.
this article, a non-parent seeking custody of a minor must
show that an award of joint or sole custody to either parent
would result in substantial harm to the child. We interpret
this to mean that the non-parent must allege in the petition
for custody that neither parent is capable of caring for the
minor child without the child experiencing substantial harm.
Therefore, a non-parent may properly assert a cause of action
for custody by making allegations that a minor child will
experience substantial harm if he or she is placed in the
custody of either the mother or the father. Substantial harm
under La. C.C. art. 133 includes parental unfitness, neglect,
abuse, abandonment of rights, and is broad enough to include
any other circumstances that would cause the child to suffer
substantial harm. Ramirez v. Ramirez, 13-166
(La.App. 5 Cir. 8/27/13), 124 So.3d 8.
present case, although the petition alleges that the minor
child will suffer substantial harm if he is placed in the
custody of his mother, the petition does not contain any
allegations that substantial harm would result if he were
placed in his father's custody. Therefore, we find the