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Ferrand v. Ferrand

Court of Appeals of Louisiana, Fifth Circuit

December 6, 2019

PAULA STEPHANIE FERRAND
v.
C. VINCENT FERRAND

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 708-409, DIVISION "N" HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, PAULA STEPHANIE FERRAND Becki Truscott Kondkar Shama Farooq

          DEFENDANT/APPELLANT, C. VINCENT FERRAND In Proper Person

          Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Robert A. Chaisson

          ROBERT A. CHAISSON JUDGE

         REVERSED AND REMANDED WITH INSTRUCTIONS

         RAC

         JGG

         MEJ

         In this child custody dispute, Vincent Ferrand appeals a May 29, 2018 judgment of the trial court that granted his former intimate partner, Paula Ferrand (now named Stephanie Wilson) sole custody of two minor children, denied Mr. Ferrand any custody rights or visitation with the two minor children, and denied his Motion for Reconciliation Therapy.[1] For the reasons that follow, we reverse those parts of the May 29, 2018 judgment of the trial court that denied Mr. Ferrand's motion to set custody, sustained Ms. Wilson's objection to the domestic commissioner's February 22, 2018 Order, granted sole custody of the minor children to Ms. Wilson, and denied reconciliation therapy. Further, we render judgment immediately instituting reconciliation therapy for Mr. Ferrand and the two minor children with Dr. Karen Van Beyer, in accordance with the specific instructions contained in the conclusion of this opinion.

         PROCEDURAL HISTORY

         This is the second time that this matter has come before this Court on appeal. See Ferrand v. Ferrand, 16-7 (La.App. 5 Cir. 8/31/16), 221 So.3d 909, writ denied, 16-1903 (La. 12/16/16), 211 So.3d 1164. In the first appeal, Mr. Ferrand sought review of the trial court's denial of his petition for custody of the minor children after it found that Mr. Ferrand had failed to meet his burden to prove that the granting of sole custody to the children's mother would result in substantial harm to the children, as required pursuant to La. C.C. art. 133.

         On appeal, this Court found that under the unique set of facts presented in this case, the trial court abused its discretion in denying Mr. Ferrand's request for a court-appointed evaluator to assist in the custody determination as contemplated under La. R.S. 9:331. Accordingly, we vacated the judgment of the trial court as it related to the denial of Mr. Ferrand's petition for custody and remanded the matter to the trial court for the purpose of appointing a mental health evaluator, pursuant to La. R.S. 9:331, to perform a comprehensive custody evaluation. Additionally, in light of vacating the denial of Mr. Ferrand's petition for custody and finding no basis for the issuance of a protective order against Mr. Ferrand relating to the minor children, we also vacated that portion of the trial court's judgment that issued a protective order relating to the minor children.

         On remand, in accordance with this Court's instructions, the trial court appointed Dr. Karen Van Beyer to conduct a custody evaluation regarding the minor children.[2] Following Dr. Van Beyer's evaluation, the 24th Judicial District Court domestic commissioner held a two-day hearing on Mr. Ferrand's motions to set custody and for reconciliation therapy. On February 22, 2018, the commissioner issued a judgment awarding joint shared custody of the two minor children, designating Ms. Wilson as the domiciliary parent, and ordering immediate commencement of reunification therapy.[3]

         Ms. Wilson filed an objection to the commissioner's ruling, and the trial court held another trial on Mr. Ferrand's petition for custody. After the re-trial, the trial court, rejecting the opinion of Dr. Van Beyer regarding substantial harm to the children and the best interests of the minor children, awarded Ms. Wilson sole custody of the two minor children, denied Mr. Ferrand any custody rights or visitation with the children, and denied his Motion for Reconciliation Therapy.[4] It is from this judgment that Mr. Ferrand now appeals.

         FACTS[5]

         In August of 2000, Ms. Wilson (then known as Stephanie Harrell) met Vincent Ferrand and began a relationship with him.[6] At that time, Ms. Wilson was 24 years old and living with her husband, Frannon Dykes, III, in Alexandria, Louisiana. Ms. Wilson and Mr. Dykes were the parents of two boys, who, at that time were a four-year-old and a one-year-old infant. Within five months of meeting Mr. Ferrand in person for the first time, Ms. Wilson left Alexandria and moved with her two children into Mr. Ferrand's home in New Orleans, Louisiana, over 150 miles away.[7] In the subsequent custody proceedings regarding her two children, Mr. Dykes objected to Ms. Wilson moving over 150 miles away with their children. When the court would not allow Ms. Wilson to permanently move the children to the New Orleans area, Ms. Wilson, rather than return to the Alexandria area with her two children, chose to continue living in the New Orleans area with Mr. Ferrand. The court therefore awarded Mr. Dykes and Ms. Wilson joint custody of the children and named Mr. Dykes the domiciliary parent. In October of 2001, the children moved back to the Alexandria area to live with their father, Mr. Dykes. Ms. Wilson was awarded visitation with her two small children every other weekend and two weeks out of the summer.[8]

         Although Ms. Wilson and Mr. Ferrand were never legally married, on April 12, 2003, they participated in a wedding ceremony in Tennessee[9], in which they together exchanged vows and "wedding rings."[10], [11] Thereafter, Ms. Wilson and Mr. Ferrand held themselves out to the community as a married couple.[12] In 2005, Ms. Wilson legally changed her last name from Harrell to Ferrand so that she would have the same last name as Mr. Ferrand.[13] Also in 2005, Ms. Wilson, despite relinquishing domiciliary custody of her two older children in order to live with Mr. Ferrand, decided that she wanted to have more children and start a family with Mr. Ferrand.[14] Although initially reluctant to start a family in his forties, Mr. Ferrand eventually agreed and paid for in vitro fertilization treatments for Ms. Wilson to become pregnant.

         On July 5, 2007, Ms. Wilson gave birth to twins: a daughter that they named "CF", and a son that they named "VF II".[15] At the hospital, Ms. Wilson and Mr. Ferrand held themselves out to the medical personnel, just as they had done to the community at large over the prior four years, as husband and wife. Accordingly, Ms. Wilson was named on the children's birth certificates as their mother and Mr. Ferrand was named on their birth certificates as their father, and they both signed the birth certificates.[16] Over the next four years, Ms. Wilson and Mr. Ferrand lived together as a married couple and raised their two children. The two minor children, since birth, always knew Mr. Ferrand as their father and called him "Daddy."

         In November of 2011, Ms. Wilson went to Alexandria to visit her two older sons. When she returned, she and Mr. Ferrand argued about a telephone number of one of Ms. Wilson's former high school boyfriends that Mr. Ferrand found in Ms. Wilson's cell phone. This argument resulted in Ms. Wilson filing a petition for protection from abuse against Mr. Ferrand on November 15, 2011, in which she alleged that on November 13, 2011, Mr. Ferrand threatened her life if she attempted to take their children away from him.[17] Ms. Wilson attached to this petition a copy of an email that she sent to her "Aunt Tina" a year earlier, on August 9, 2010. After ten years of being in an intimate relationship with Mr. Ferrand and having two children through in vitro fertilization with him, Ms. Wilson stated in that email that she had only just recently learned that Mr. Ferrand was in fact a female living as a man, and that explained why, in ten years, she had "never got to see him naked."

         On December 6, 2011, the domestic commissioner dismissed Ms. Wilson's petition when she failed to appear for the scheduled hearing. Despite Ms. Wilson's accusations of threats against her, she continued to reside in the family home with Mr. Ferrand. Two months later, on January 28, 2012, when Ms. Wilson ultimately moved out of the family home, she left the children residing with Mr. Ferrand.

         Ms. Wilson and Mr. Ferrand agreed to a shared custody arrangement of the children with the children residing with Mr. Ferrand and visiting with Ms. Wilson.[18] This custody arrangement initially worked for a few months, but Ms. Wilson's visitation later became much more sporadic with her rarely taking the children overnight.

         During that time, Ms. Wilson met Robert Wilson at her apartment complex in April of 2012, four months after moving out of Mr. Ferrand's home, and started dating him a few months later. In October of 2013, Mr. Wilson moved into Ms. Wilson's apartment. In November of 2013, Ms. Wilson and Mr. Ferrand argued over financial issues regarding the children when Mr. Ferrand asked Ms. Wilson to help provide financial assistance for the children. Also in November of 2013, Mr. Ferrand found out that Mr. Wilson had moved in with Ms. Wilson and objected to the children visiting in their home because of Mr. Wilson's mental health and alcohol issues.[19] Ms. Wilson did not visit with her children from Thanksgiving of 2013 until the end of February of 2014. In February of 2014, Ms. Wilson found out that she was pregnant with Mr. Wilson's child.[20]

         On February 19, 2014, Ms. Wilson filed her second petition for protection from abuse against Mr. Ferrand.[21] At that point, they had not resided together for over two years and Ms. Wilson had resided with Mr. Wilson for five months and was pregnant with his child. In that petition, Ms. Wilson alleged that the most recent incident of abuse was three months earlier, on November 20, 2013, when Mr. Ferrand threatened that if Ms. Wilson came around his house again, he was going to "pop a cap in her head," and also threatened that he would take the minor children out of state and disappear. Ms. Wilson did not allege that Mr. Ferrand threatened or abused the children in any manner. Also, without stating the dates of any alleged prior abuse, Ms. Wilson again described the previously mentioned 2001 shoving incident, before the children were born, and the previously mentioned 2008 choking incident, when the children were one-year-old.

         Additionally in this petition, Ms. Wilson disclosed for the first time that Mr. Ferrand "has since been removed from childrens (sic) birth certificates and their last names have been changed."[22] Although in a later pleading verified by Ms. Wilson, she alleged that the Louisiana Office of Vital Records, "through its own efforts," amended the birth certificates, she later admitted in sworn testimony that she in fact had Mr. Ferrand's name removed from the birth certificates and the last names of the children changed on the birth certificates.[23] The domestic commissioner declined to issue a temporary restraining order against Mr. Ferrand on the allegations of this petition, but set the matter for hearing.

         On February 21, 2014, two days after the domestic commissioner declined to issue a temporary restraining order against Mr. Ferrand, Ms. Wilson sent Mr. Ferrand an email in which she informed him directly for the first time that she had his name removed from the children's birth certificates as their father and had their last names changed. She also told him in that email to never contact them and threatened to have him arrested for kidnapping if he picked the twins up. Five days later, on February 26, 2014, Mr. Ferrand filed a petition seeking custody of the minor children and requesting a custody evaluation.

         In response, Ms. Wilson, having had Mr. Ferrand removed from the birth certificates as the children's father, filed exceptions arguing that Mr. Ferrand, as a non-parent, had no cause of action and no right of action for custody of the minor children. After several hearings before the domestic commissioner, a number of continuances of hearings, and several agreements reached by Ms. Wilson and Mr. Ferrand, Mr. Ferrand was able to maintain some visitation with the minor children up until July of 2015, at which time Ms. Wilson denied Mr. Ferrand any visitation with the children. At that time, the children were eight years old and had lived with Mr. Ferrand for six and a half of those years, always knowing him as their father.

         On August 10, 2015, Ms. Wilson filed her third petition for protection from abuse against Mr. Ferrand, alleging that Mr. Ferrand abused her on that date. In that incident, Mr. Ferrand arrived at the children's school on their first day of school, just as he had done every year that the children were in school, and attempted to approach them to take their pictures. As Ms. Wilson rushed the children into the school and yelled at Mr. Ferrand that they were not his children and to leave them alone, a physical altercation ensued during which Mr. Ferrand grabbed Ms. Wilson's hair and knocked her to the ground. This incident was captured by the school's video surveillance system.

         On August 14, 2015, Mr. Ferrand filed a petition for protection from abuse against Ms. Wilson based upon the same August 10, 2015 incident. The domestic commissioner issued temporary restraining orders against both Mr. Ferrand and Ms. Wilson, and after a hearing, protective orders against both Mr. Ferrand and Ms. Wilson. Both Mr. Ferrand and Ms. Wilson filed objections to the domestic commissioner's orders and the matters were set for hearing on those objections, along with Mr. Ferrand's petition for custody, on September 9, 2015.

         After trial of the matters on September 9, 2015, the trial court, analyzing this matter as a non-parent's petition for custody against a parent, found that Mr. Ferrand had failed to meet his burden to prove that the granting of sole custody to the children's mother would result in substantial harm to the children, as required by La. C.C. art. 133, and therefore denied his petition for custody. The trial court also found that Mr. Ferrand had perpetrated domestic abuse against Ms. Wilson and issued a protective order for life against Mr. Ferrand as it related to Ms. Wilson. Further, despite the fact that no allegations of any type of threats or abuse, physical or otherwise, were ever made against Mr. Ferrand regarding the minor children, the trial court issued a protective order against Mr. Ferrand as it related to the minor children until their eighteenth birthdays (in effect, a ten-year protective order despite the fact that there has never been an allegation that the children themselves have ever been abused).

         On appeal of that judgment, this Court found that under the unique set of facts presented in this case, the trial court abused its discretion in denying Mr. Ferrand's request for a court-appointed evaluator to assist in the custody determination as contemplated under La. R.S. 9:331. Accordingly, we vacated the judgment of the trial court as it related to the denial of Mr. Ferrand's petition for custody and remanded the matter to the trial court for the purpose of appointing a mental health evaluator pursuant to La. R.S. 9:331 to perform a comprehensive custody evaluation. Additionally, in light of vacating the denial of Mr. Ferrand's petition for custody and finding no basis for the issuance of a protective order against Mr. Ferrand relating to the minor children, we also vacated that portion of the trial court's judgment that issued a protective order relating to the minor children.[24]

         On remand, despite this Court finding no basis for a protective order against Mr. Ferrand in relation to the minor children, the trial court refused Mr. Ferrand's request to restore temporary visitation rights to him pending the outcome of the custody evaluation and retrial of his petition for custody. In accordance with this Court's instructions, the trial court appointed Dr. Van Beyer to conduct a custody evaluation regarding the minor children.

         Following Dr. Van Beyer's evaluation, the domestic commissioner held a two-day hearing on Mr. Ferrand's motions to set custody and for reconciliation therapy. On February 22, 2018, the commissioner issued a judgment awarding joint shared custody of the two minor children, designating Ms. Wilson as the domiciliary parent, and ordering immediate commencement of reunification therapy. In his written findings of fact and reasons for judgment, the commissioner specifically found that the minor children had suffered and would continue to suffer substantial harm in Ms. Wilson's sole custody and that, considering the factors set forth in La. C.C. art. 134, it was in the best interests of the children that joint custody be awarded to Mr. Ferrand and Ms. Wilson.[25]

          Ms. Wilson filed an objection to the commissioner's ruling, and the trial court held another trial on Mr. Ferrand's petition for custody. After the re-trial, the trial court, rejecting the opinion of Dr. Van Beyer regarding substantial harm to the children and the best interests of the minor children, awarded Ms. Wilson sole custody of the two minor children, denied Mr. Ferrand any custody rights or visitation with the two minor children, and denied his Motion for Reconciliation Therapy. It is from this judgment that Mr. Ferrand now appeals.

         DISCUSSION

         Because Mr. Ferrand is not these children's biological father, and because at the time of their births he could not qualify as their legal father under Louisiana law, we are constrained to analyze this matter as a parent versus non-parent custody dispute.[26] La. Civil Code Article 133 governs a custody dispute between a parent and a non-parent, and provides as follows:

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.

         In our prior opinion, this Court set forth the appropriate analysis required by La. C.C. art. 133 as follows:

The Louisiana Circuit Courts of Appeal have determined that La. C.C. art. 133 requires a dual-prong test. This Circuit has set forth the burden a non-parent in a custody contest must meet under La. C.C. art. 133 as follows:
In a conflict between a parent and a non-parent, the parent enjoys the paramount right to custody of a child and may be deprived of such right only for compelling reasons. The test to determine whether to deprive a legal parent of custody is a dual-pronged test: first, the trial court must determine that an award of custody to the parent would cause substantial harm to the child; if so, then the courts look at the "best interest of the child" factors to determine if an award of custody to the non-parent is required to serve the best interest of the child.
Thus, a non-parent seeking custody under La. C.C. art. 133 must show that an award of joint custody or sole custody to the parent would result in substantial harm to the child. A showing of substantial harm "includes parental unfitness, neglect, abuse, abandonment of rights, and is broad enough to include 'any other circumstances, such as prolonged separation of the child from its natural parents, that would cause the child to suffer substantial harm.'" Under the current jurisprudence applying the "dual-prong" test of La. C.C. art. 133, the best interest of the child and, specifically, the factors set forth in La. C.C. art. 134, are not considered until after a finding of substantial harm. (citations omitted)

Ferrand, 221 So.3d at 919-20.

         Thus custody contests involving a parent and non-parent present the confluence of two powerful and basic principles: the child's substantive right to live in a custodial arrangement which will serve his or her best interest and a parent's constitutional right to parent his or her biological child. Id. at 918-919. While the interest of a parent in having a relationship with his children is manifestly a liberty interest protected by the Fourteenth Amendment's due process guarantee, that right is not unconditional. Id.

         Each child custody case must be viewed in light of its own particular set of facts and circumstances, and courts must consider the "overarching and overriding concern for the best interest of the child as well as the parent's concomitant rights and responsibilities." Tracie V. v. Francisco D., 15-224 (La.App. 5 Cir. 9/21/15), 174 So.3d 781, 796. The Louisiana Supreme Court reiterated that "the overarching inquiry" in any custody contest is "the best interest of the child." Tracie F. v. Fancisco D., 15-1812 (La. 3/15/16), 188 So.3d 231, 235. The Court emphasized that the best interest of the child is the paramount goal in all custody determinations, including contests between a biological parent and a non-parent. The Court stated:

According to 1993 Revision Comment (a), "the best interest of the child [is] the overriding test to be applied in all child custody determinations. The primacy of that test has been statutorily mandated in Louisiana since 1979 (C.C. Arts. 134, 181(A)(1992); Acts 1979, No. 718), and the best interest principle itself has been jurisprudentially and legislatively recognized at least since 1921." Leaving no room for doubt that the best interest of the child is the test for "all child custody determinations," (La. C.C. art. 131, 1993 Revision Comment (a)), a later comment to Article 131 stresses that "[t]his Article should be followed in actions to change custody as well as in those to initially set it." La. C.C. art. 131, 1993 Revision Comment (d). Similarly, the comments to La. C.C. art. 134, which lists ...

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