Divorce Lawyer Research - When a Non-Parent Tries to Get Custody

In 2010, the Louisiana Third Circuit Court of Appeal held that a non-parent’s acknowledgement of child by signing his birth certificate did not provide him with rights to pursue custody of and visitation with the child. The application of law to the unique facts in this case produce a result from which we can all learn. Even if you believe you have an uphill battle in being awarded child custody, it is always better to check with a divorce lawyer before jumping to conclusions.

In order to review the case from the perspective of a divorce attorney, let us set out the facts. Michael Lange, a non-parent, signed the birth certificate of a child he expected to raise with the child’s mother. However, the Louisiana Department of Social Services took immediate custody of the child when it learned the child was born with cocaine in his system. He was placed with foster parents with whom he has lived since his birth.

Lange filed a petition to establish child custody. The question in this case revolves around Lange’s custody rights. Can he or does have standing to be awarded child custody? The simple answer is no. Because he admitted he was not the biological father of the child, his acknowledgement signature is without effect. Lange then argues that the DA should be judicially stopped from arguing he is not the father since the DA argued for a child support order.

What does it mean to be judicially estopped? This is a doctrine that is meant to protect the integrity of the judicial process by barring parties from changing positions according to the exigencies of the moment. On one hand, the State is arguing that Lange does not have visitation or custodial rights to the child since he is not the father. But on the other hand, the State is ordering that he pay child support for ‘his’ child.

The Third Circuit did not buy Lange’s argument because he admitted in open court that A.L. was not his biological child. Nonetheless, the Third Circuit Court of Appeal asserted that the actions of DSS were inexcusable. The Court admonished DSS and the DA’s Office for using the judicial process to obtain inconsistent results. But in the end, the Court had to affirm the trial court’s ruling and deny Lange visitation and custody.

So what can a divorce lawyer take from this case? First of all, it’s never good to consume drugs, but even more so when one is pregnant. In this case, the mother’s consumption of cocaine led to her child having cocaine in his system. When pregnant, stay away from drugs.

Secondly, we learn that although Louisiana Civil Code Article 203 does not expressly exclude executing an act duly acknowledged on a birth certificate where no biological relationship exists, the third circuit expressed this conclusion is self-evident by the definition. So in a nutshell, only a biological parent can sign a birth certificate to acknowledge his child. As such, when Lange signed the child’s birth certificate, it was given no legal effect. So when seeking child custody, it is best to speak with a divorce lawyer before you do it on your own and make a consequential mistake like Lange.

The above is simply information on the law, not legal advice. Will Beaumont is an attorney in New Orleans, La.