Louisiana Appeals Court Awards Shared Custody of Children to Transgender De Facto Father and Estranged Biological Mother

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By Filip Cukovic. The LGBT Bar NY’s LGBT Law Notes is the most Comprehensive monthly publication covering the latest legal developments.

On December 6, 2019, the 5th Circuit Court of Appeals of Louisiana reversed the trial court’s decision that had denied child custody to a transgender co-parent, finding that custody should be shared between the petitioner and the children’s biological mother. Ferrand v. Ferrand, 2019 La. App. LEXIS 2230, 2019 WL 6649379.

Last May, Jefferson Parish District Judge Stephen D. Enright, Jr., awarded sole custody of the two minor children to Stephanie Wilson, their biological mother, even though she had previously neglected her children, who spent considerable time exclusively with their transgender de facto father, Vincent Ferrand. (The court does not label Ferrand as such, and he was never legally married to Wilson, who will be referred to throughout this story as Wilson, her current married surname, to avoid confusion. When she and Ferrand met, she was married to another man, Frannon Dykes, III, and using what was presumably her maiden name, Farrell.) After considering the “best interest of the child” factors applied to a dispute between a biological/legal parent and a third party, the Court of Appeal reversed the lower court’s ruling, ordered that the children must be reunited with Ferrand, and ruled that Wilson and Ferrand should share custody.

In August 2000, Ms. Wilson (then known as Stephanie Harrell) met Vincent Ferrand and began a relationship with him. At that time, she was married to Frannon Dykes, and she had two children with him. Within five months of meeting Ferrand, Wilson left Alexandria, Louisiana — where she was living with her husband and children — and moved to New Orleans with her two children to live with Mr. Ferrand.

The relationship between Wilson and Ferrand continued to progress, and in April 2003 they participated in an unofficial wedding ceremony, in which they exchanged vows and wedding rings. In spite of this ceremony, however, they were never legally married, although they held themselves out to the community as a married couple. Wilson changed her last name from Harrell to Ferrand. Soon the couple decided to start a family, and Ferrand agreed and paid for in vitro fertilization for Wilson, now “Ms. Ferrand,” to become pregnant.

On July 5, 2007, Wilson gave birth to twins: a daughter and a son. At the hospital, Wilson and 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, Wilson was named on the children’s birth certificates as their mother and Ferrand was named on their birth certificates as their father, and they both signed the birth certificates. Over the next four years, they lived together as a married couple and raised the children together. The two minor children have since birth always known Vincent Ferrand as their father and called him “Daddy.” However, Mr. Ferrand was not a biological father to his children, as the couple obtained another man’s semen for purposes of in vitro fertilization.

Problems started to arise between Wilson and Ferrand in November 2011. After an argument, Mr. Ferrand allegedly threated Ms. Wilson with her life if she attempted to separate him from the children. In response, Wilson obtained a court protective order against Ferrand, but the petition in the case was eventually dismissed. At the same time, Wilson stated that she sent an email to her aunt, complaining about Mr. Ferrand’s behavior, in which she also added that she just recently learned that Mr. Ferrand was in fact a female living as a man, which explains why, in ten years, she had never seen him naked.

Despite all the drama and accusations, Wilson continued to live with Mr. Ferrand and their children for some time. However, in January 2012, she moved out of the family home, leaving the children residing with Mr. Ferrand. Although Ms. Wilson and Mr. Ferrand initially agreed to joint custody, Ms. Wilson’s visitations soon become sporadic and she would rarely take the children over night.

In April 2012, she met Robert Wilson. By the end of 2014, they were married with a child. At the same time, the relationship between her and Ferrand had grown more tense, as she would neglect to see her children or to make any financial contributions for their support. More importantly, Ms. Wilson did not see her children from Thanksgiving of 2013 until the end of February of 2014.

Later that winter, Wilson filed her second petition for protection from abuse against Mr. Ferrand, as she alleged that Ferrand threated that if she came around his house, he would “pop a cap on her head.” Finally, after Ms. Wilson picked up her children for visitation, she had Mr. Ferrand’s name removed from the children’s birth certificates as their father and had their last names changed. After multiple court hearings that ensued, Mr. Ferrand was able to maintain some visitation with the minor children, as the court denied Wilson’s request for protective orders against him.

However, in August of 2015, Wilson filed another petition for protection against Ferrand, claiming that he had physically abused her at the children’s first day of school. The incident was caught on camera, and the court issued temporary restraining orders against both Ferrand and Wilson. After the incident, the children remained with Ms. Wilson, and Mr. Ferrand soon petitioned for legal custody of the children.

After trial, District Judge Enright, analyzing this matter as a non-parent’s petition for custody against a parent on September 9, 2015, found that 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 the judge deemed to be required by. La. C.C. art. 133, and therefore the court denied his custody petition. The judge also found that Ferrand had perpetrated domestic abuse against Wilson and issued a protective order for life against Ferrand as it related to Wilson. Further, despite the fact that no allegations of any type of threats or abuse, physical or otherwise, were ever made against Ferrand regarding the minor children, the trial court issued a protective order against Ferrand as it related to the minor children until their eighteenth birthdays.

In February 2018, the Court of Appeal remanded the trial court’s decision, and ordered the court to appoint Dr. Van Beyer to conduct a custody evaluation regarding the minor children. Following Dr. Van Beyer’s evaluation, which concluded that the children would suffer substantial harm if they were separated completely from Ferrand, the domestic commissioner issued a judgment awarding joint custody. Ms Wilson appealed this judgement. At a re-trial, the trial court overturned Dr. Van Beyer’s recommendation and awarded sole custody rights to Ms. Wilson. It is from this judgment that Ferrand appealed to the Louisiana 5th Circuit Court of Appeal.

The Court of Appeal reversed the trial court’s decision that had awarded exclusive custody rights to Wilson. In an opinion by Judge Robert A. Chaisson, the court ordered that Ferrand and Wilson have shared custody of the children, and ordered immediate reconciliation therapy between the children and Ferrand.

In reaching its conclusion, the court began by recognizing that because 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, the court was constrained to analyze this matter as a parent versus non-parent custody dispute. Hence, this dispute was analyzed under the standard provided by the Louisiana Civil Code, which states that 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.

Furthermore, the court recognized that 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 court looks to the “best interest of the child” factors to determine whether an award of custody to the non-parent is required to serve the best interest of the child.

Applying the principles stated above, the court first held that awarding custody solely to Wilson would result in substantial harm to the children. This is mostly because Ferrand fulfilled the role of the primary parent for the children in question during the first six years of their lives. Although the record supports that both Wilson and Ferrand were involved in raising the children during the first few years of their lives, it was clearly Ferrand who took the initiative regarding the children’s education once they started school. Furthermore, Wilson chose to leave the children with Ferrand when she moved out in January 2012, when the children were four and a half years old, and she made no attempt to gain custody of them for the next two years. This means that the children developed a relationship and reliance on Ferrand and that they clearly saw him as their primary care giver. Wilson’s action removing Ferrand from their birth certificates was inconsequential to the children’s understanding of who their father was.

Although Wilson alleged that Ferrand was abusive to her, there are no allegations that Ferrand was every abusive with the children. On the other hand, there are some indications that Wilson’s husband, Robert, has some alcohol abuse issues that could potentially put children who would live solely with Wilson at risk. Furthermore, although Wilson’s expert witness claimed that the children were recently experiencing behavior issues due to the revelation that their father was identified as female at birth, and that he had been abusive toward their mother, Ferrand’s expert witness persuaded the court that the primary reason for these behavioral issues was the constant stream of litigation between the parents; the separation of the children from their primary caregiver; as well as Wilson’s insensitive request to her children that they should refer to her new husband with whom they had no relationship, as their dad.

Hence, when all these factors were analyzed in their totality, Judge Chaisson concluded that it is in the children’s best interest to spend time both with their biological mother, Ms. Williams, and with Mr. Ferrand, whom the children have always seen as their dad, and who was in fact their primary, and in some instances, their only caregiver. Thus, the court reversed the judgement of the trial court, awarding shared custody to Ferrand and Williams.

Wilson is represented by Becki Truscott Kondkar, Shama Farooq. Ferrand was represented by Harold Weiser and William Beaumont in the trial court, but the Court of Appeal’s opinion states that defendant’s counsel is C. Vincent Ferrand, “In Proper Person.”

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