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In my very first blog post, I discussed a great example of the courts struggling to deal with the new landscape in family law emerging in the wake of the United States Supreme Court’s decision of Obergefell v. Hodges, the decision which legalized same sex marriage throughout the United States.  My first post was based on the decision which came out of Louisiana’s second circuit, and at the time, I predicted that the Louisiana Supreme Court would soon take up the case to address the legal shortcomings the trial court and the court of appeal had raised.

That time has now come.  The Louisiana Supreme Court (and from here on out when I say “Supreme Court” I will be referring to Louisiana unless otherwise noted) took Writs to address legal errors by the trial court and raised by the appellate court.

On September 30, 2021, it issued an opinion that changed everything.

OK, not really.  Actually, other than fleshing out the law and some of the facts in the record a little more clearly, the Court’s opinion was a fairly big disappointment.  Especially if you, like me, are eager for the courts to start stepping up to define the rights and status of same sex couples in the face of a pretty recalcitrant legislature.

It all started out promising, when the trial court attempted to do just that.  To fully understand the matter, it may help to go back and read what I first wrote on the subject here.  But briefly, the trial court found the case in front of it fell into a big, gaping hole in the law and was not adequately defined by any precedential test, and more importantly, by any legal framework set up by the legislature.  Here we have a family, with a child, where the parents are not married.  The couple splits up.  One parent, Ms. Sullivan, is biologically related to the child, but the other parent, Ms. Cook, is not related to the child by birth or adoption.  Nevertheless, the evidence suggested that the child was substantially harmed by the absence of Ms. Cook, whom she saw as a “psychological parent.”  

However, the existing law allows only two options for analysis: when there are two “legal” parents, custody is determined by the best interest of the child in who has custody (which usually results in more or less equal time, barring some exceptional reason to deviate from that standard).  Or, if custody to a parent would result in substantial harm to the child, then custody can be awarded to a non-parent.  

Stated another way, either: (1) there are two legally recognized parents, both of whom are more or less fit and who are vying for custody of the child, where both will get some form of custody, or (2) one or both legally recognized parents are such a hot mess, a third party non-parent can intervene and ask that custody be awarded to him or her to prevent substantial harm to the child.

That’s it.  There are no other analyses under Louisiana law, and this case didn’t fit either one.  Since there was no law to fit these facts, and since the Louisiana legislature didn’t seem too interested in creating any, the trial court rather heroically set out to do the legislature’s job for it by creating its own test based on a “psychological parent” analysis, which more or less looked at the question from the child’s perspective to determine whether the nonparent essentially was a parent in the child’s eyes.

It is important to note here that the trial court wasn’t trying to rewrite the law set forth in the Civil Code.  It very carefully limited its analysis to this situation that the Code fails to address at all. After all, the court’s main job is to do justice to the litigants before it, and the court clearly didn’t want to just declare its hands were tied because the legislature is asleep at the wheel.

Nevertheless, while the appellate court noted its appreciation of the trial court’s efforts and reasoning, courts making up their own rules is kind of a big no-no.  Courts, the story goes, are supposed to interpret laws, not make them.  So in this case, where Ms. Cook is a non-parent seeking custody, the law says the “hot mess” test applies, and since Ms. Sullivan was not at all a hot mess and in fact was a capable, loving parent, the court was bound to find that Ms. Cook (and, I think, the child) was out of luck.

That brings us to where we are now: the Supreme Court.  I had held out some hope that the Supreme Court would find a way out of the hole through some crafty legal reasoning.  After all, I know some of those guys (and lady), and they are a smart bunch.  They didn’t make it to where they are for nothing.  But sadly, either they are as disinterested as the legislature in addressing this gap in the law, or they couldn’t find a way to do it (I have an opinion which one of these is probably the case, but I think I will keep it to myself.  Never know who may be reading this).  The Supreme Court did not exactly rubber stamp the appellate court’s analysis, but they didn’t really add much insight.  The Supreme Court delved a little more deeply in the two types of analysis that don’t really fit these facts. Then it acknowledged that despite Obergefell clearly providing a new framework for same sex relationships under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the Louisiana legislature has not chosen to fill in those blanks, so that is pretty much that.

Which is not really helpful.  Real people, citizens of this state, are left wondering where they fit in, and they have no answer.  To her credit, Justice Piper Griffin (from New Orleans) pretty much explicitly called out the legislature to do something about this conundrum.  After all, while this is a problem for trial courts who have to play by this frankly ridiculous fiction that a parent like Ms. Cook is akin to a stranger as far as the law is concerned, it is really a problem for thousands of Louisiana children, who will not understand that their parents are being taken from them  because no one with the power to do so has the courage to act.

Let’s put our cards on the table here.  Louisiana is a deeply conservative state on social issues.  The legislature reflects those values, and it wouldn’t recognize same sex relationships at all had not the United States Supreme Court dragged it kicking and screaming into this century.  So I fully expect Hell to freeze over before Baton Rouge decides to start prioritizing fleshing out the legal framework of a post-Obergefell world.  That is a disappointment, not a surprise.

But courts can.  Protestations of so-called “judicial restraint” aside, they do it all the time.  The Supreme Court said that same sex couples are protected by the Fourteenth Amendment.  It is the job of courts to interpret the Fourteenth Amendment, and it would have been a small matter for our Supreme Court to say yes: Obergefell is the law of the land, it says same sex parents have the same rights as any one else, and so do their kids.  The Court chose not to, and so now on this issue, in Louisiana anyway, silence and confusion is the law of the land.  

Let’s hope some other states will show Louisiana the way it chose not to take.

In the meantime, there are steps you can take to protect yourself and your kids.  If you are in a same sex relationship and need guidance on your rights, make an appointment to speak with a sympathetic and knowledgeable attorney today.

Greg Nichols

Author Greg Nichols

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