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* Second Place, 2017 Howard C. Schwab Memorial Essay Contest; Southern University
Law Center, J.D. 2017; special projects coordinator, Pelican Center for Children and Families.
In the Case of Biology v. Psychology:
Where Did My “Parent” Go?
MICHELLE M. GROS*
Introduction
In 2015, four percent of children in the United States were living with
relatives or nonrelatives with no biological parent present in the home.
Additionally, there were 3.3 million cohabiting couples with children
under age eighteen, which is a drastic increase from 1.2 million children
in 1996. Disconcertingly, millions of children in the United States are
raised by a person who is not biologically related to them but who has
essentially become their parent. The child and nonparent have no legal
relationship, but over time, they develop a parent-child relationship and
psychological attachment. For various reasons, many children are raised
jointly by a parent and nonparent or solely by a nonparent. This situation
is typically the result of the biological parent’s lack of nancial resources
or family support, age, behavioral issues with the child, incarceration,
military deployment, physical illness, mental illness, disability, substance
abuse, cognitive decits, unsafe living arrangements, employment hours,
unemployment, or abandonment of the child to pursue personal agendas.
Additionally, a parent in either a same-sex or heterosexual relationship may
decide to cohabitate with his or her partner but remain unmarried. These
circumstances often result in the couple sharing physical custody (but not
Published in Family Law Quarterly, Volume 52, Number 1, Spring 2018. © 2019 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
148 Family Law Quarterly, Volume 52, Number 1, Spring 2018
in a legal sense) and “parenting” responsibilities for the child.1 Sometimes
the biological parent even intends for the child’s birth to coparent with
his or her partner.2 Unfortunately, if this couple breaks up, the child risks
permanently losing his or her “mommy” or “daddy.”
In the rst same-sex-couple child custody dispute in Louisiana since
the United States Supreme Court’s Obergfell decision,3 the Louisiana Fifth
Circuit Court of Appeal, in Ferrand v. Ferrand, timely considered the lack
of consistent provisions and regulations available to Louisiana courts
when multifarious and nontraditional child custody disputes arise.4 With
so many children living in nontraditional homes, the lack of adequate and
consistent legal protections for a nonparent who has essentially become
the child’s parent arguably preclude a custody determination that is in the
best interest of the child. Further, when states fail to provide necessary
legal avenues for protecting a child’s welfare, the responsibility of caring
for the child may fall directly to the citizenry of the state. For these reasons,
many states have adopted more malleable legal doctrines to ensure that the
child’s welfare is paramount in terms of both policy and procedure.5
Adopting a legal doctrine such as the psychological parent doctrine
allows states to address traditional parentage expectations in light of
present-day challenges and ever-changing demographics of American
families. While states are neither required to make dreams come true
nor guarantee a child’s happily-ever-after, children deserve full and fair
evidentiary trials to ensure the stability and protection of the only family
structure a child may have known. Irrespective of one’s agreement with a
biological parent’s or nonparent’s lifestyle choices, states must not neglect
the bond that may exist between a nonparent and child in the absence of a
legal relationship. This is the conversation that the Fifth Circuit’s decision
in Ferrand implores us to have.
This Case Note provides the reader with an in-depth exploration of
the Ferrand decision and discusses the implications of the child custody
1. Child trends data Bank, Family strUCtUre: indiCators on Family and yoUth 1
(2015), http://www.childtrends.org/wp-content/uploads/2015/03/59_Family_Structure.pdf.
2. In re Gracie Marie Melancon, 62 So. 3d 759, 763 (La. Ct. App. 2010) (nding that the
biological parent intended her same-sex partner to co-parent the child she conceived by articial
insemination).
3. See Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (holding that the right to marry is a
fundamental right inherent in the liberty of the person and, under the Due Process and Equal
Protection Clauses of the Fourteenth Amendment, couples of the same-sex may not be deprived
of that right and that liberty).
4. Ferrand v. Ferrand, No. 16-CA-7, 2016 LEXIS 1600, at *19–27 (La. Ct. App. Aug. 31,
2016).
5. See e.g., Chatterjee v. King, 280 P. 3d 283, 291–92 (N.M. 2012).
Published in Family Law Quarterly, Volume 52, Number 1, Spring 2018. © 2019 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
