How Louisiana Harms Children of Same-Sex Couples
The Rhodes Law Firm Appeals Ruling Denying Parental Rights to Same-Sex Spouses.
Jonathan Rhodes, founder of The Rhodes Law Firm explains how this case that could expand the rights of same-sex couples across Louisiana. But most importantly, Rhodes is taking up the fight over how Louisiana treats children of same-sex marriages.
Jason Serrano and Jonathan Foret are in many ways your stereotypical family. They dated for years, and then decided they wanted to have children. So, Jason and Jonathan got married. They had a baby shower, decorated a nursery, and welcomed home a baby boy. We’ll call him, Baby D. Jason quit his job with the city to be a stay-at-home parent, while Jonathan continued work at the South Louisiana Wetlands Discovery Center. Jason did the nighttime feedings, the diaper changes, taught Spanish at home, took daily trips to the park and served only healthy snacks. Baby D called Jason Dad, and Jonathan Daddy. A loving father, a happy family.
But like many families, sometimes the marriage doesn’t work. Jonathan decided he wanted to split from Jason and filed for divorce. So, what happens to Baby D? Shouldn’t he spend time with his Dad and his Daddy, the only two parents he’s ever known?
Not in Louisiana. When Jason filed for custody of his son, the Louisiana court in Terrebonne Parish held that Jason had no parental rights. You see, Jonathan was on the birth certificate, but Jason was not. The court’s ruling that Jason had no parental right was quite a different ruling than a heterosexual couple might have under the circumstances.
For heterosexual spouses in Louisiana, the law automatically presumes that the husband is the father of the child. No DNA test needed. No adoption necessary. This approach makes sense in most cases. When a child is born, we don’t want the parents to jump through hoops. Simply sign your name on the birth certificate and the child has a father. More importantly, our laws are written this way because it is in the best interests of the child. Once that child bonds with the father, the only father he might know, we don’t want the father turning around and disavowing the child. We want the law to put the burden on the father to disavow the child, rather than putting the burden on the child to prove he has a father.
This is written into our law, where Louisiana Civil Code Article 185 states that, “The husband of the mother is presumed to be the father of a child born during the marriage.” This traditional mechanism for establishing the paternity of a child rests largely on the heterosexual marriage relationship. Children who were born of a woman were assumed to be the biological children of that woman and were presumed to be the biological children of the woman’s husband. But as we’ll see, this presumption (or lack thereof) has potentially devastating consequences for children of same-sex marriages.
In our case Foret v. Serrano, the court held that Jason does not have a parental right to Baby D because he was not the “husband of the mother” under Article 185. Thus, the court held, the law affords no presumption, and Baby D is without his dad.
There are two major problems with the court’s ruling. First, we have a problem for the child. To take away a child’s parent causes substantial harm to the child. Second, we have a Constitutional problem. To say that Article 185 does not apply to Jason is to deprive him of his equal rights under the constitution, under precedent of cases like Obergefell decided by the U.S. Supreme Court, which requires states to recognize same sex marriage and the “constellation of benefits” that come with marriage. For the best interests of the child, and to make sure our rulings are constitution, the presumption of filiation between married parents must be extended to same-sex couples.
Our laws already provide guidance in the direction of extending the presumption paternity. For example, in Louisiana we also presume the husband of a mother to be the father of a child born by assisted reproduction if he consented to the use of assisted reproduction. Civil Code article 188 provides that, “the husband of the mother may not disavow a child born to his wife as a result of an assisted conception to which he consented.” This legislation, in contrast to the “husband of the mother” presumption of paternity, does not rest on biology at all. In fact, it may well be that the husband of the mother who consented to the use of assisted reproduction is not, in fact, the biological father of the child. Still, he is presumed as such under this statutory presumption.
Similarly, in this case, the husband of the husband may not be the biological father of the child, but he should still be presumed as such under article 188. Furthermore, if the husband of the mother cannot disavow a child born as a result of assisted conception to which he consented, the husband of the father cannot disavow a child born as a result of assisted conception to which he consented. The statute must be applied to same-sex couples as well, and that its failure to be extended in that manner is unconstitutional.
Imagine if the tables were turned, and Mr. Foret was asking for Mr. Serrano to pay child support for a child they planned to have, and which was born during their marriage. Luckily for us, the Louisiana 3rd Circuit Appellate Court has faced this very issue in Boquet v. Boquet, 269 So. 3d 895, 897 (La. Ct. App. 3d Cir. 2019), the facts of which are significantly similar to our case.
Brittany and Nicole Boquet married on December 18, 2015. At the time of the marriage, Nicole was pregnant from a previous relationship that Brittany knew about. The child was born on February 5, 2016. A little over a year later, Brittany filed a petition of divorce, and Nicole subsequently filed an answer seeking child support from Brittany. The court had not granted the petition of divorce for the couple; so, the court ordered Brittany to pay interim child support until it granted a final divorce.
Shortly thereafter, on April 28, 2017, Brittany filed a disavowal action of the child. Brittany argued that article 185’s presumption did not apply to her because she was not the “husband” of the mother, but instead was the “wife” of the mother. Brittany’s claim hinged on a plain-reading and historical interpretation of the language in article 185 to establish that she was not a presumed parent of the child.
The Louisiana Third Circuit Court of Appeal rejected Brittany’s argument and decided that because the child was born of the marriage, Brittany was the presumed parent of the child just as a husband would be. The court stated that because the child was born on February 5, 2016, Brittany owed the child support since her time to file a disavowal action had prescribed. The court reasoned that if article 185 did not apply, the law would not award the same benefits to a female spouse as those awarded to a male spouse and would thereby violate Obergefell v. Hodges.
The Boquet case demonstrates that the presumption of paternity in article 185, as currently written, denies same-sex couples the same “constellation of benefits” that Obergefell requires. This inequitable treatment leaves same-sex couples at an unfair and unwarranted disadvantage when seeking to prove a parent-child relationship.
Similarly, the US Supreme Court held that same-sex married couples must be listed on the birth certificate. Following Obergefell, the United States Supreme Court issued a decision, in Pavan v. Smith, which this Court finds instructive to this case. In Pavan, two married same-sex couples had children through an anonymous sperm donor and sought to list both parents on their children's birth certificate in Arkansas. Arkansas' Department of Health would only issue the certificate listing the birth mother and declined to include the same sex spouse as the other parent. The parents sued, arguing that a provision of Arkansas law provides that if the birth mother was married at the time the child was born, her husband's name must be listed as the father. Thus, that same right should extend to same sex parents, otherwise the law as applied would deny same sex married couples the same benefits that opposite sex married couples enjoy as a benefit of marriage.
Jason Serrano is appealing the court’s decision to the Louisiana 1st Circuit Court of Appeal, seeking to assert his parental rights and protect Baby D from harm. This is an important case. It is important that we get this right, making sure that Louisiana’s laws are applied fairly and adhere to the requirements of our U.S. Constitution, the rulings of U.S. Supreme Court in Obergefell, and of Louisiana’s appellate courts in the Bouquet in 2019 finding specifically that Art 185 on filiation must be applied to same-sex couples as it is to heterosexual couples.