Tag Archives: Custody

Louisiana Allows Embryos to Sue their Parents

In January, 2017, I was  asked by a Times-Picayune reporter to give my opinion on the Jefferson Parish case involving actress Sofia Vergara and her unborn embryos, which are being held in cryogenic storage in California, much to the ire of their biological father, Nick Loeb.

The upshot is this:  In Louisiana, embryos have legal personality, meaning that just like you and I, they can sue in court, even though, in this case, the embryos have not only not been born, but have not even been implanted in a woman’s uterus yet.

Biology aside, this is a very interesting case.  Vergara and Loeb created two embryos, now being called Emma and Isabella, and they were put into storage for a later time.  The couple then broke up, and the embryos remained in storage.  At some point a trust fund was set up for the benefit of these unborn children, and the trust was established here, in Louisiana.

The embryos, Emma and Isabella, have filed suit against their mother. They  insist that they have been abandoned and neglected by Vergara, who has chosen not to carry the embryos yet in her womb.   The suit requests that the embryos be implanted in a surrogate, and that Vergara’s rights as a parent be terminated. Once born, Nick Loeb proposes to have sole custody of the girls, and Sofia Vergara would have no rights to the children, or presumably to the trust established for their benefit.

There has never been a case like this before in the country, and Louisiana is the only place in America where this could happen, because of laws allowing unborn embryos to assume legal personality and sue their parents.

Since the filing late last year, Sofia Vergara has managed to move the suit to Federal Court, where she has claimed it should be dismissed altogether.  She has argued that Louisiana is not the proper state in which to make arguments concerning the embryos, which are being housed in California, and that there are certain indispensable parties, namely Nick Loeb and the facility holding the embryos, who were not named in the original lawsuit.  It will be interesting to see if the law permitting the creation of the trust and giving these embryos the power to sue will be strong enough to allow Louisiana to retain jurisdiction over the suit.  I for one am watching closely to see what happens next.

Holding it Together

Our Civil Code is very big on family.  And even though it was first written over 200 years ago, a basic principle of our family law is that children benefit from the care of both parents.  The law requires that parents make an effort to foster good relations between themselves and their children.  Parents are required to take care of their kids, and, incidentally, children have a duty to take care of their parents.

Somehow, though, when the subject of visitation comes up, there always seems to be an excuse as to why the other parent should not see their children:

“I’ve never gotten a dime in child support!”  

“He/she doesn’t deserve to see his/her kids!”

“We always argue when we see each other, and it’s better if he/she just stays away.”

I find that a lot of parents are mistaken on issues of custody law.  A parent with physical or domiciliary custody over his or her children does not have the right to put up barriers that keep children from knowing both parents.  It doesn’t matter if one parent has been negligent in paying support or if you still have your differences since breaking up.  The law wants you to work things out for the benefit of your children, and the law will help to facilitate the mending of broken family ties.

The child support question and “earning” the right to see a child

Does a parent have to pay child support?  Absolutely.  Does a parent’s failure to pay child support affect his or her right to visitation?  Not at all.  These are two entirely different matters in the eyes of the law.  Although frustrating to have a parent withhold support, the law provides a process by which child support can be collected by the State, so as far as it’s concerned that issue is being taken care of.  In the meantime, the law still requires parents to facilitate a relationship between children and both of their parents.  In other words, failure to pay support is not an excuse to remove visitation privileges.

Parental conflict as a barrier to parenting

Obviously if a parent is talking to me instead of the person he or she had a child with, there’s a conflict problem.  I certainly try to minimize conflict between parents when I can, and emphasize the importance of clear communication when dealing with the children they have in common.  The reason I do that is the law requires parents to not only communicate, but takes into account the extent to which a parent is willing to reach across the divide and keep the relationship between the child and the other parent alive.

Now, please understand that I am not talking about domestic violence here.  If you are in a situation where you or your children are in danger of harm because of violent behavior between you and the other parent, allow the court to resolve the issues involved.  You may need a protective order to help keep the peace, and supervised visits may be ordered to protect the children if the court feels it is necessary.  The court may also want to order counseling for you and the children to help the family cope with and prevent family violence.

You need a caring, trusting advisor in child custody and visitation cases

No matter what the underlying problem is, the two of you have a child together, and until that child is grown you will both have to make concessions in the best interest of that child.  That’s hard advice to swallow, but with a caring, trusted advisor on your side you can make the tough decisions the law requires you to make.

Meneray Family Law does nothing but work with family members to resolve these and other important family law matters.  Call Liz Meneray for a consultation today at (504) 330-5522 or e-mail her at liz@menerayfamilylaw.com.

And enjoy your kids, they grow up so fast!

‘I Think I’ll Dust My Broom’

I’ve been cleaning out my closets lately.  You know how it is; things get worn out, things become too tight (or if you’re really lucky, too loose), things go out of style, and sometimes you don’t know why you bought a thing in the first place.  So, you gather up those things and hope someone else can make use of them, but for you they’re just no good anymore.

There’s an old saying that comes to mind, “Dust my broom.”  If you need a change and want to start fresh, then you “dust your broom” and get on with it.  It can take awhile before you begin the cleaning, but you know once you get started you will feel so much better about having cleared away the clutter.  Once those boxes are off to Goodwill, or the last customer has left the yard sale, you can rest easy.

It’s that way with most things.  Your to-do list has probably been nagging at you for some time.

  • Do you need a will?  Do you need to update the will you have?
  • Do you want to donate property or set up a trust or foundation?
  • Do you have a living will that lets your family know what medical decisions you would want made in the event you could not speak for yourself?
  • Do you have a power of attorney so that someone can manage your affairs if you’re unable to make decisions for yourself?
  • Do you have a guardian chosen for your children if something should happen to you and your spouse?
  • Have you recently had a baby, gotten married or lost a spouse?  You may want to change the beneficiaries on your investments and insurance policies.
  • Are you getting married soon?  Do you want to separate certain property from the community with a prenuptial agreement?
  • Have you been contemplating a divorce?
  • Did you get a divorce in the last few years but never divided up your community property?  If you want to refinance that property you will need to clear title to it before you can refinance in your name alone.
  • Are you paying child support but want to know how a job change affects you?
  • Do you have a child with someone who has never paid support, or has stopped paying support?
  • Has it been a while since you’ve visited with your kids?  Would you like to be able to see them more regularly?

Give me a call at (504) 330-5522 if you’re ready to ‘dust your broom.’  I can help you get your legal house in order.

The ABC’s of Child Custody

Custody disputes are complicated matters.  They involve legal issues, certainly, but also intense emotional ties, uncertainty and stress.   Trying to calm the waters of a bitter custody battle is no small task, but there are some constants in the process that can be boiled down to these ABC’s:

A:  ALLOWING BOTH PARENTS TO PARTICIPATE – Joint custody is the preferred state of affairs in Louisiana law.  Our society likes to see parents cooperate and participate in the raising of their children.  Unfortunately, the reason custody cases exist is when parents disagree about how to parent their children, and even the law can’t make them see eye to eye.  However, it’s important to understand that a disagreement between the parents is not a good reason for one of them to withhold a child from the other.  Both parents have equal rights to their children, and the law prefers to see both of them parent the child.  That’s not to say there aren’t ways for a parent to lose the right to be a parent.  But,  to the extent possible our laws favor allowing both parents to participate in the raising of their children.  Our courts will work to make that happen to benefit the child.  That brings us to…

B:  BEST INTEREST OF THE CHILD – Our Civil Code challenges courts in family law matters to be a watchdog for the best interests of our children.  It is the court’s role to make certain that decisions made are truly best for the children involved.  To do that, courts use “The Best Interest of the Child Factors” in the Civil Code.  Not all of these factors apply in every case, and there may be factors not on the list that also apply, but generally this is what the court wants to know about a child’s situation:

  • Love, affection and emotional ties between the child and the parties
  • Spiritual and emotional guidance provided to the child by the parties
  • Food, clothing, medical care and other material needs available to the child
  • Continuity of a stable, adequate environment
  • Permanence of the family unit
  • Moral fitness of the parties
  • Mental and physical health of the parties
  • Home, school and community history of the child
  • The child’s preference, if he’s old enough to have one
  • Each party’s willingness to help and encourage the child to have a close and continuing relationship with the other party
  • Distance of the parties’ residences
  • The care and rearing previously exercised by each party

C:  CONSENT JUDGMENT OR COURT-ORDERED CUSTODY –  When parents are able to agree, it is not necessary that a judge decide where a child lives or how often he visits with a parent.  The parties can create their own guidelines for custody and visitation in the form of a Consent Judgment.  The Consent Judgment basically sets out the law as it relates to the parties – the parents get to make the rules they believe are fair for their situation.  If things change at a later date, the parties may still be able to go to court and ask the judge to make a decision.

If the parties are unable to agree and a Consent Judgment is not the best solution for them, the parties can go before a judge, or a hearing officer in some parishes, and the court can decide using the Best Interest of the Child Factors outlined above, along with any other evidence the parties are able to present.  If things change at a later date, however, it is much harder to get a court-ordered custody arrangement changed than if the parties had a judgment entered into by consent of the parties.

D:  DECIDE TO CONTACT LIZ – I’ll throw in one more step – give me a call at (504) 330-5522 if you have a custody question.  I will be happy to sit down with you and help you make a plan that fits  your situation.  It is always my hope that parents can find some middle ground for the benefit of their children, but when necessary the courts are here to make certain that the rights of parents, and their responsibilities toward their children, are maintained and respected.