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Walker v. Zacharias

Court of Appeals of Louisiana, Fifth Circuit

December 20, 2018

VICKI C. WALKER
v.
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

          Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg

         WRIT GRANTED IN PART; DENIED IN PART; V.W. GRANTED FIFTEEN DAYS LEAVE OF COURT TO AMEND

         In this 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.

         On June 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.[1]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 battery.

         Discussion

         The 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 action.

         Exception of No Cause of Action

         In this 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 dismissed.[2]

         In 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.

         Upon 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.

         Under 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.

         In the 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 ...


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