Opinion
No. 2020-CJ-0138
03-09-2020
Paula Stephanie FERRAND v. C. Vincent FERRAND
Writ denied.
dissents and would grant the writ to reinstate the trial court judgment.
I respectfully dissent from the majority decision to deny the biological mother's writ application in this custody case against a non-parent (who is neither a biological nor legal parent), under La. C.C. art. 133 ("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."). Rather, I would grant the writ and reinstate the judgment of the trial court, which granted sole custody of the children to their biological mother, the plaintiff herein.
Neither party has sought review of the appellate court's holdings that "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 nonparent custody dispute," and that "La. Civil Code Article 133 governs a custody dispute between a parent and a non-parent." See Ferrand v. Ferrand , 18-0618, p. 11 (La. App. 5 Cir. 12/6/19), 287 So.3d 150, 159-60 (footnote omitted).
The trial court denied the petition for custody filed by Vincent Ferrand, on a finding that he had failed to meet his burden to prove that a grant of custody to the children's biological mother would result in substantial harm to the children, as required by La. C.C. art. 133. See Ferrand v. Ferrand , 18-0618, pp. 9-11 (La. App. 5 Cir. 12/6/19), 287 So.3d 150, 158-59.
On review, the appellate court recognized that, "[u]nder 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. " Ferrand , 18-0618 at p. 12, 287 So.3d at 160. The appellate court further noted that 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.’ " Id . Thus, the threshold issue in a case in which a non-parent seeks custody from a parent, under La. C.C. art. 133, is whether an award of custody to the children's parent "would result in substantial harm to the child." It is only after a determination that substantial harm would result if custody is awarded to the parent that a court may "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," pursuant to Article 133. "[A] nonparent always bears the burden of proof in a custody contest with a parent." La. C.C. art. 133, 1993 Revision Comment (b).
In this custody case many facts and nearly every opinion was disputed. After hearing the testimony of the parties and several expert witnesses, including the testimony of an expert evaluator appointed by the court pursuant to La. R.S. 9:331, who testified that the plaintiff is a fit mother and that her children have a positive and secure attachment to her, the trial court ruled in favor of the mother. The testimony relied on by the trial court reasonably supports its finding that no substantial harm would be caused to the children by an award of custody to the plaintiff/biological mother and, therefore, Vincent Ferrand failed to bear his burden of proof under La. C.C. art. 133.
Revised Statute 9:331 provides:
A. The court may order an evaluation of a party or the child in a custody or visitation proceeding for good cause shown. The evaluation shall be made by a mental health professional selected by the parties or by the court. The court may render judgment for costs of the evaluation, or any part thereof, against any party or parties, as it may consider equitable.
B. The court may order a party or the child to submit to and cooperate in the evaluation, testing, or interview by the mental health professional. The mental health professional shall provide the court and the parties with a written report. The mental health professional shall serve as the witness of the court, subject to cross-examination by a party.
"After weighing and evaluating expert and lay testimony, the trial court may accept or reject the opinion expressed by any expert." Orrill v. Orrill , 08-0400, p. 6 (La. App. 4 Cir. 2/4/09), 5 So.3d 279, 283 ; Warlick v. Warlick , 27,389, p. 5 (La. App. 2 Cir. 9/29/95), 661 So.2d 706, 710.
Notwithstanding, the appellate reversed the trial court's custody ruling in favor of the mother and ordered immediate reconciliation therapy for Mr. Ferrand and the two minor children, with the goal of achieving, within the next three months, joint shared custody of the minor children between Mr. Ferrand and the children's mother. Ferrand , 18-0618 at pp. 27-28, 287 So.3d at 170. To support its decision, the appellate court found that it was "manifestly erroneous" for the trial court to find the plaintiff/biological mother to be a credible witness, and the appellate court went on to re-weigh the evidence presented to the trial court. Ferrand , 18-0618 at p. 21, 287 So.3d at 166. In so doing, the appellate court erred in its application of the standard of review announced by this court in Stobart v. State through Department of Transportation & Development , 617 So.2d 880, 882 (La. 1993) ; Rosell v. ESCO , 549 So.2d 840 (La. 1989) ; and Mart v. Hill , 505 So.2d 1120, 1127 (La. 1987).
A court of appeal may not set aside a trial court's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." Stobart , 617 So.2d at 882 ; Rosell , 549 So.2d at 844. This court announced a two-part test for the reversal of a factfinder's determinations: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Stobart , 617 So.2d at 882 ; Mart v. Hill , 505 So.2d at 1127.
The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Stobart , 617 So.2d at 882. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id . ; Rosell , 549 So.2d at 844 ; Arceneaux v. Domingue , 365 So.2d 1330, 1333 (La. 1978).
It is only when documents or objective evidence so contradict the witness's story or the story itself is so internally inconsistent or implausible on its face that a reasonable factfinder would not credit the witness's story, that the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Stobart , 617 So.2d at 882 ; Rosell , 549 So.2d at 844-45. Nonetheless, this court has emphasized that the reviewing court must always keep in mind that if the trial court or jury's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobart , 617 So.2d at 882-83 ; Housley v. Cerise , 579 So.2d 973 (La. 1991) ; Sistler v. Liberty Mutual Insurance Company , 558 So.2d 1106, 1112 (La. 1990).
This court has recognized that the reason for this well-settled principle of review is based not only upon the trial court's better capacity to evaluate live witnesses (as compared with the appellate court's access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts. Stobart , 617 So.2d at 883 ; Canter v. Koehring Company , 283 So.2d 716 (La. 1973). "Thus, where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong." Id .
In the instant case, the trial court was presented with conflicting testimony as to whether substantial harm would occur to the children if custody were placed exclusively with their mother, to the exclusion of Mr. Ferrand; however, in such a case, the resolution of conflict in the evidence cannot be manifest error when there is a reasonable basis for the decision of the trial court. Here, in addition to evidence of incidents of domestic abuse by Mr. Ferrand against the children's mother (at least one incident of which was not only observed by an independent and unbiased witness, but also captured on video tape, and resulted in Mr. Ferrand's conviction for the crime of battery), the children's therapist also testified to the extremely negative emotional and physical manifestations that the children experienced when being forced to interact with Mr. Ferrand. This, along with the fitness of the mother as a parent, form a reasonable basis for the trial court rulings in this case. Therefore, the appellate court's finding of manifest error in the trial court decision ran afoul of the above-cited jurisprudence.
Moreover, if Mr. Ferrand had wished to achieve the legal status of father with respect to the plaintiff's biological children, rather than settling for the merely permissive relationship akin to a step-father (albeit with the use of the appellation "Daddy"), he could have sought a legal status by means of entering into a legal marriage with the children's mother and then pursuing an adoption of the children; however, Mr. Ferrand appears to have made no serious attempts to secure a legal relationship with the children during his relationship with their mother. The record herein does not contain sufficient evidence to substantiate Mr. Ferrand's allegation of a legal marriage between the parties, as Mr. Ferrand alleges they were married in Tennessee and the children's mother prepared a wedding announcement stating they were married in North Carolina, purportedly to gain some advantage in a custody dispute related to her two older children, born during a prior marriage to her ex-husband, Frannon Dykes. The staging of a wedding ceremony does not produce legal rights in the participants.
Although not finding it necessary to file a brief in this court, Mr. Ferrand has suggested during the course of litigation before the lower courts that, because he was born a female and identifies as male, he is being denied parental rights that would otherwise be available if had he been born male; however, that is not the case. Same-sex marriages have been legal in some states since 2004 and, as this court recognized in Costanza v. Caldwell , 14-2090 (La. 7/7/15), 167 So.3d 619, that as dictated in Obergefell v. Hodges , ––– U.S. ––––, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015), Louisiana is required by the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution to recognize same-sex marriages performed under the laws of other states. Had Mr. Ferrand validly contracted a marriage with the plaintiff/biological mother herein, the Costanza and Obergefell cases could have augured a different result in this case. However, even one who is born male, who was never married to a child's biological or legal mother and who is not the biological or legal father a child, would have had no greater right than Mr. Ferrand to custody of such a child, as any person who is not a biological or legal parent of a child must proceed under La. C.C. art. 133 to obtain custody of that child.
The parties' relationship began in 2000 and the children at issue were born in 2007.
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Article 133 unequivocally requires a finding of "substantial harm" in the placement of custody of a child with his or her biological parent prior to considering whether it would be in the child's best interest to place custody with a non-parent. In the instant case, Mr. Ferrand failed to bear his legal burden to establish that placement of the custody of the children with their biological mother would cause them substantial harm. Accordingly, the appellate court erred in reversing the trial court's decision to deny custody to Mr. Ferrand, and I disagree with the denial of the mother's writ application, seeking correction of this error.