How great is my luck? Just when I decided to start blogging on Louisiana law, and Louisiana family law in particular, Louisiana courts would offer me such an explosive, cutting-edge family law case to talk about!
That case is Sullivan v. Cook, and the giver of this gift is none other than the Louisiana 2nd Circuit Appellate court, reviewing a case from the Parish Court of Bossier.
Way back in the good old days before Covid, Ms. Sullivan and Ms. Cook were a happy same-sex couple living in rural Louisiana. One day, they decided to start a family, with Ms. Sullivan conceiving the family’s child via a surrogate. They never married — their relationship, and their split (which you probably guessed was coming), all happened before the United States Supreme Court legalized same sex marriages in 2015.
The couple shared custody until 2016, when Ms. Sullivan suddenly cut off all contact between Ms. Cook and her child. As many couples do, they had tried to handle custody informally. And as many informal custody arrangements go, it worked fine, until it didn’t. So without the guidance of a custody judgment, this case was a blank slate for the trial court. Many unresolved facts and questions of law had to be carefully considered. Three and a half years would pass before the once-happy family could get some resolution.
In a carefully considered and well-reasoned opinion, the trial court recognized Ms. Cook’s parental rights. It found that despite no biological or adoptive relationship, the child saw Ms. Cook as her mom; a “psychological parent.”. Also, the court found that Ms. Cook’s absence from the child’s life would be substantially harmful to the child. The court awarded Ms. Cook joint custody rights, ensuring she could see her child on a regular schedule without interference by Ms. Sullivan. Perhaps even more importantly, Ms. Cook would again have the right to participate meaningfully in the upbringing decisions of her child.
Bear in mind: the parents were not married. When they were together, Louisiana law would not let them get married. The child had no biological nor legal relationship to Ms. Cook, not even when they all lived together under the same roof. This is a family whose relationship had no legal recognition whatsoever in Louisiana just a few short years before the trial. How remarkable for a rural Louisiana court to stake out such a boldly progressive stance on notions of what constitutes parenting and family. And they did so with a logic firmly rooted in the law set forth in the Louisiana Civil Code, and the case law that interprets it.
Unfortunately, that is not the end of the story. Ms. Sullivan took her case to the appellate court, and it agreed with her. The trial court’s decision, while well reasoned, was wrong in relying on the notion of a “psychological parent.” This is the recognition of the parental relationship from the subjective perspective of the child, as opposed to an objectively legal and/or biological relationship. It is a perspective that inherently considers the child’s best interests; first and foremost. If the child’s best interest is served by having a person in her life because the child sees him or her as a parent, that person should enjoy custodial rights. It makes sense, since the North Star question in virtually every child custody is “what is in the best interest of the child?” However, in this case, the appeals court did not believe Louisiana law supports this idea.
Normally, the court’s only consideration is whether the custody arrangement is in the best interests of the child. And usually, of course, that results in splitting custody between the parents as evenly as is possible. With Ms. Cook being legally, if not factually, a non-parent, the appeals court placed her in the same category as a grandparent, a distant relative, or a well-meaning neighbor. Employing some fairly Catch-22 logic, the court reasoned that because Ms. Sullivan had successfully prevented the child from seeing Ms. Cook for several years, the child would not suffer substantial harm if she simply went on not seeing her.
The message was clear, and fairly revolutionary: unless denying the non-biological parent custody rights will substantially harm the child in the future, the biological parent’s rights will override all other considerations, including the child’s best interest. In a practical sense, this means that unless Ms. Sullivan suddenly decides to forego parenting her child in favor of a brand spanking new heroin addiction, Ms. Cook will probably never see her child again. Even if it means the child will go her whole life knowing only one parent — something Louisiana law otherwise expressly and almost always recognizes as a capital B. T. Bad Thing — Ms. Cook and her child are out of luck. It is a striking departure from the guiding principle in Louisiana family law that even if it is in two different households, it takes two parents to raise a child.
But the end of the story isn’t written yet. In February, the Louisiana Supreme Court agreed to review the appellate court’s decision. The big picture of this case could be groundbreaking, and it has implications well beyond same sex couples who couldn’t get married before it was legal. Louisiana, like most places nowadays, is full of blended families; with married and unmarried couples alike. What happens when a custody dispute erupts in a family with a tangled web of half-siblings who can’t imagine never seeing each other again? Sullivan v. Cook may change everything, for a lot of people.
The most important lesson from this, in my view, is this: even if you think you can successfully co-parent with your ex, you probably need a basic consent judgment to protect your rights. A consent judgment is a formal agreement that keeps the decision making in your hands. Sure, you can’t always reach an agreement. However, since you are the best person to decide how you manage your child’s life, it is always best to try before some unfeeling panel of judges makes the decision for you. I will bet Ms. Cook would agree.
In the meantime, if you have a question about a blended family, about custody judgments, or about any family law issue, be sure to set up an appointment to talk with a qualified family law attorney today.
