J.P. v. ET AL (2026)

A nonparent appeals a judgment that awarded sole custody of the minor child to the biological mother. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

T.M.¹ is the biological child of L.T. (the mother) and T.M. (the father). The parents began dating in 2019, and the relationship continued off-and-on for about four and a half years. The mother became pregnant with T.M. (the child) in April 2022. Toward the end of her pregnancy, the mother developed a friendship with plaintiff, J.P. The child was born in December 2022.

The mother first met J.P. in October 2021, when she hired J.P. to do psychic readings for her. At the time, the mother was grieving the recent death of her mother. After the mother became pregnant, J.P. invited the mother to join her tarot circles. Once the child was born, J.P. offered to keep the child for a few days at a time to give the mother a break. J.P. also offered to watch the child when the father returned from working offshore so the parents could have some time together. The mother accepted these offers of assistance from J.P.

In February 2023, the mother learned that the father was expecting a child with another woman. Soon after, the mother showed up at the other woman's obstetrician-gynecologist appointment. Leaving T.M. and her two older children outside in the vehicle, the mother entered the doctor's office and physically attacked the father, who was there with the pregnant woman. The mother later pled guilty to criminal trespass, battery of a dating partner, simple battery, disturbing the peace by fighting, simple criminal damage to property less than $1,000, and child desertion. For these offenses, the mother was sentenced to serve three weekends in jail and was placed on probation for a year.² J.P. helped care for the child while the mother was incarcerated.

According to J.P., the child's stays with her got progressively longer because she “knew [the mother] was struggling with things” and the mother did not live close to her. The first time J.P. kept the child for “multiple days” was on April 6, 2023, when she kept the child for four nights. The child began to stay with her “full-time” in August 2023, after the parents’ relationship ended and the mother got a job. That same summer, the mother entered an inpatient hospital for postpartum depression and suicidal thoughts. The mother confided to J.P. about the difficulties she was experiencing during this period. When the mother was unable to attend the child's WIC and doctor's appointments because of her work schedule, she asked J.P. to bring the child to the appointments for her. On October 17, 2023, the mother executed a document that gave J.P. provisional custody of the child for a year.

Meanwhile, the mother's legal troubles continued. In October 2023, the mother broke a window in the father's car and poured alcohol in his front passenger seat while she was still on probation for the prior offenses. The mother acknowledged that she had been drinking that day. Based on the incident, the father filed for, and was granted, a protective order against the mother. Because of the protective order, the mother's probation was revoked and she returned to jail the following spring to complete her sentence.

The mother's friendship with J.P. ended in October 2023. On or around October 25th, the mother called J.P. to tell her that she was coming to pick up the child. J.P. refused to return the child. Instead, J.P. called the father, saying she feared for the child's safety, and she filed for a protective order against the mother. J.P. testified that she refused to return the child because the mother had brought the child to the mother's sister's house, where J.P. believed someone with a history of sexual molestation was staying.

On November 14, 2023, J.P., through counsel, filed a petition for nonparental custody against both parents, averring that the child would suffer irreparable harm if left in her parents’ custody. J.P. specifically prayed for an ex parte award of temporary custody pursuant to La. C.C.P. art. 3945 ³ and a permanent award of sole custody with no visitation by the parents, or alternatively, supervised visitation at the P.A.C.T. Place Supervised Visitation Center (P.A.C.T. Place).⁴ The following day, the trial court signed an order granting J.P. immediate temporary sole custody of the child with supervised visitation by the parents at P.A.C.T. Place until the parties appeared before the court for the custody hearing. Later, the trial court granted J.P.’s request for a protective order against the mother.

On December 15, 2023, the mother, through counsel, filed an answer denying the allegations and praying to have the child returned to her custody. Alternatively, she prayed that custody be awarded to a member of her family.

The custody hearing was postponed several times. On one of those occasions, the mother filed a motion to continue the hearing due to her incarceration. Because the motion was opposed by J.P., the trial court set the motion for a hearing. On the day of the hearing, March 28, 2024, J.P. and the father informed the trial court that they had reached an agreement by which the father would grant J.P. sole custody of the child “as it relates to the rights of the [f]ather.”⁵ On April 15, 2024, the trial court signed a consent judgment memorializing their agreement and continuing the custody hearing.⁶

On June 16, 2024, the mother's sister contacted local law enforcement seeking to press charges, claiming the mother had come to her house drunk, telling the sister to take her children, hitting the trunk area of the sister's vehicle, causing dents, and destroying the sister's phone by knocking it out of her hand. As a result of the incident, the mother was charged with simple criminal damage to property. However, by the time of the custody hearing, the mother's sister no longer wished to pursue the charges and the sister denied that the events occurred as she initially reported.

The custody hearing commenced on July 26, 2024. During the hearing, the trial court heard testimony over the course of three non-consecutive days from J.P.; the mother; the mother's sisters and niece; Sergeant Cody Schmill of the Assumption Parish Sheriff's Office; and Pam Guidry of P.A.C.T. Place. At the end of the third day, the trial court denied J.P.’s petition. In its oral reasons, the trial court framed the matter as an initial custody determination between a parent and non-parent that was governed by La. C.C. art. 133.⁷ Under article 133, J.P. -- as the nonparent -- bore the burden of proving by clear and convincing evidence that an award of joint or sole custody to the parent would result in substantial harm to the child. The trial court then found that J.P. did not meet that burden, providing extensive and thoughtful reasons for the ruling:

As it relates to the finding of substantial harm, which is the first hurdle that has to be crossed before I can even get to whether or not it's in the best interest of the child to remain with [J.P.], the showing of substantial harm, if the child were to remain with [the mother], has to be shown by clear and convincing evidence. And, I say that to distinguish from the preponderance of the evidence standard, which was - which applied to the protective order. In this case, the Court finds that the petitioner has not met the standard of clear and convincing evidence that there would be substantial harm if the child were returned to [the mother].

[The mother] has two other daughters who live with her who have never been removed from her care. [The mother] has also, since November of 2023, been consistently visiting with [the child] at the PACT Place. The report from the PACT [P]lace filed into the record shows that from December of 2023 up until December of 2024 there have been roughly two visits per month by [the mother] with the child. Some have been canceled. I think two were canceled by each party. But, the children of [the mother] have accompanied her to visit with their sister at the PACT place, and since the incident in July of this year with [the mother] and her sister, there really have not been any -- there's been nothing that would cause the Court concern as it relates to [the mother's] ability to care for the child.

I think that the issue with the Assumption Parish charges and the simple criminal [damage to] property, it sounds like that was more of an issue between [the mother] and her sister, which, you know has not been concluded yet. [The mother] has not been convicted of that. There's been testimony that the sister has asked that the charge be dismissed. I think that was more of a misunderstanding between [the mother] and - - and her sister, and not necessarily an incident that would put -- that would cause substantial harm to any of [the mother's] children.

․

[The mother] has admitted that she is not a perfect mother, that she has made mistakes in her past, and that she has done things that she is not proud of. However, she has, since the inception of this case, been adamant that she loves her daughter. She wants her daughter to be in her custody, that she wants to take care of her daughter. She has shown up to all of the visitations at the PACT [P]lace. She has done everything that -- that she could do to show that she wanted [the child] back in her life. And, her family, also testified to that issue as well, that the family misses having [the child] in their lives, the siblings miss having [the child] in their lives.

So, the Court just does not find that there was clear and convincing evidence of a substantial harm in this case. For those reasons, the Court will deny [J.P.’s] petition for custody. I will order, though, that each party bear their own costs, given the circumstances that led to this case being filed.

On January 29, 2025, the trial court signed the judgment in accordance with the oral ruling, dismissing J.P.’s petition with prejudice.⁸ ,⁹

After the conclusion of the custody hearing, J.P.’s counsel withdrew and J.P. began representing herself in this matter. Proceeding pro se, J.P. filed multiple unsuccessful motions seeking to halt the implementation of the judgment.¹⁰ J.P. also appealed the judgment. After taking the appeal, J.P. filed a writ application asking this Court to stay the enforcement of the judgment pending J.P.’s appeal. The writ was denied. Pitre v. Tilford, et al., 2025-CW-0204 (La. App. 1 Cir. 2/26/25), 2025 WL 659236, rehearing denied (La. App. 1 Cir. 3/7/25).

ASSIGNMENTS OF ERROR

On appeal, J.P. (appellant) urges in six pro se assignments of error that the trial court erred by: failing to apply the “best interest of the child” inquiry set forth in La. C.C. art. 131; failing to consider certain “best interest” factors enumerated in La. C.C. art. 134; modifying a consent decree without finding a material change in circumstances; violating La. C.C.P. art. 3945 by using an ex parte procedure to modify custody; demonstrating judicial bias and impermissibly retaliating against her exercise of appellate rights by issuing a protective order against her; and establishing a pattern of governmental retaliation that violates her federal civil rights under 42 U.S.C. § 1983.¹¹

LAW AND DISCUSSION

Each child custody case must be viewed in light of its own particular set of facts and circumstances, with the paramount consideration being the best interest of the child. Weicks v. Stromberg, 2023-1004 (La. App. 1 Cir. 3/22/24), 388 So.3d 398, 402. The trial court is in the best position to ascertain the best interest of the child given each unique set of circumstances. Accordingly, a trial court's determination of custody is entitled to great weight and will not be reversed on appeal unless an abuse of discretion is clearly shown. See Yepez v. Yepez, 2021-0477 (La. App. 1 Cir. 12/22/21), 340 So.3d 36, 41. Additionally, in most child custody cases, the trial court's determination is based heavily on factual findings. Yepez, 340 So.3d at 41. It is well settled that a court of appeal may not set aside the trial court's factual findings in the absence of manifest error or unless those findings are clearly wrong. See Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse those findings even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Yepez, 340 So.3d at 41-42.

Assignment of Error Nos. 1 & 2

Appellant contends the trial court erred by failing to consider the “best interest of the child” under La. C.C. article 131 ¹² and certain “best interest” factors set forth in La. C.C. article 134 before rendering the judgment.¹³ While appellant points to the mandatory language contained in these Civil Code articles, her argument fails because she neglects to consider another Civil Code article -- La. C.C. article 133 -- which governs initial custody contests between a parent and nonparent.

Under Louisiana Civil Code article 131, “the court shall award custody of a child in accordance with the best interest of the child.” Louisiana Civil Code article 133 then sets forth the standard that applies to custody disputes between a nonparent and parent:

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, or otherwise to any other person able to provide an adequate and stable environment.

See Ardoin v. Grice, 2015-0972 (La. App. 3 Cir. 4/13/16), 190 So.3d 440, 453. Proof that an award of custody to either parent would result in “substantial harm” to the child was adopted as the standard “because it represents an efficient means of giving effect to a parent's paramount right to custody of his child as against any nonparent.” La. C.C. art. 133, Revision Comments--1993, Section (b).

The law is well settled that a parent enjoys a paramount or superior right to custody of his child as against a nonparent. Jones v. Jones, 415 So.2d 300, 302 (La. App. 2 Cir., 1982) (cited in La. C.C. art. 133, Revision Comments--1993, Section (b). See also Deville v. LaGrange, 388 So.2d 696, 697 (La. 1980). It is not proper to merely compare the parent's circumstances and situation with that of the nonparent and award custody on the basis of best interest of the child. Jones, 415 So.2d at 302. Rather, when a nonparent seeks custody of a child, the parent's right to custody is superior unless the parent is unable or unfit, having forfeited parental rights. Weicks, 388 So.3d at 402, citing Cook v. Sullivan, 2020-01471 (La. 9/30/21), 330 So.3d 152, 158.

The nonparent seeking custody bears the initial burden of proving by clear and convincing evidence that an award of custody to the parent would result in substantial harm to the child. Weicks, 388 So.3d at 402. Only if the nonparent meets this heightened burden of proof and establishes that substantial harm to the child would result from an award of custody to the parent does the court proceed to consider the best interest of the child. See Weicks, 388 So.3d at 402.

The trial court in this case stated that it was dismissing appellant's custody petition because the appellant did not satisfy her burden of showing by clear and convincing evidence that an award of custody to the parent would result in substantial harm to the child. This was the proper legal inquiry under Article 133, and the trial court did not err by dismissing appellant's petition without addressing the “best interest” factors.

Assignment of Error No. 3

Appellant next contends the parties entered a consent judgment before the trial court conducted the hearing on the appellant's custody petition, and that accordingly, the trial court erred by failing to apply the legal standard that governs the modification of consent judgments. Here, appellant's argument lacks merit because the mother was not a party to the consent judgment.

A consent judgment is a bilateral contract by which the parties adjust their differences by mutual consent, with each party balancing his hope of gain against his fear of loss. Hebert v. Drewitz, 2009-0798 (La. App. 1 Cir. 10/27/09), 29 So.3d 607, 608, citing La. C.C. art. 3071. Its binding force arises from the voluntary acquiescence of the parties, rather than the adjudication by the court. Hebert, 29 So.3d at 608. Where parties consent to a custodial arrangement and a consent decree or stipulated judgment is rendered, a party seeking to modify the custody plan is required to prove (1) a change of circumstances materially affecting the welfare of the child, and (2) the proposed modification is in the best interest of the child. See Burns v. Burns, 2017-0343 (La. App. 1 Cir. 11/3/17), 236 So.3d 571, 573; see also Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So.2d 731, 738. The modification of a previous consent decree that established joint custody between a biological parent and a nonparent is governed by La. C.C. art. 131, not La. C.C. art. 133. Diamond v. Jenkins, 56,330 (La. App. 2 Cir. 5/21/25), 412 So.3d 1131, 1141; see also In re J.E.T., 2016-0384 (La. App. 1 Cir. 10/31/16), 211 So.3d 575, 586-87.

Here, appellant points to the trial court's April 15, 2024 “Consent Judgment and Order of Continuance,” as the basis for her contention that the trial court should have applied the legal standard that governs attempts to modify previous consent decrees. However, that consent judgment memorialized a custody agreement whereby the father granted appellant sole custody of the child “as it relates to the rights of the [f]ather.” There is no evidence the mother was a party to the custody agreement or in any way acquiesced to the custody agreement. The trial court, in the same judgment, continued the custody hearing due to the mother's incarceration. Thus, the consent judgment has no binding force on the mother, and the trial court properly applied the “substantial harm” standard at the custody hearing. See Hebert, 29 So.3d at 608; see also Meadows v. Adams, 2018-1544 (La. App. 1 Cir. 11/9/20), 316 So.3d 5, 13.

Assignment of Error No. 4

Appellant also contends the trial court “effectively entered a permanent custody modification” that failed to comply with La. C.C.P. art. 3945“s mandatory procedural safeguards. Article 3945 allows for an ex parte, temporary custody award after specific, verified allegations, showing immediate and irreparable harm to the child. Trettin v. Trettin, 37,260 (La. App. 2 Cir. 3/17/03), 839 So.2d 1272, 1275. The ex parte order must be immediately followed by the adversarial summary proceeding or “rule to show cause.” See La. C.C.P. art. 3945. A judicial order is said to be ex parte when it is taken or granted at the instance and for the benefit of one party only, and without notice to, or contestation by, any person adversely interested. Black's Law Dictionary, Sixth Edition (1991).

Here, appellant contends the trial court failed to apply the legal standard that governs an ex parte award of custody-- i.e., an award of custody without a hearing-- to an award of custody that was rendered after a hearing. This argument lacks merit. The trial court's custody award was not ex parte and thus the rules that govern an ex parte award of custody do not apply.

Assignments of Error Nos. 5 & 6

In her final assignments of error, appellant argues that a protective order rendered against her on May 1, 2025 demonstrates judicial bias by the trial judge and other Lafourche Parish government officials, and constitutes impermissible retaliation in violation of her federal civil rights. Appellant attached a copy of the protective order to her appellate brief. However, this protective order is not the subject of the instant appeal, and it is not part of the record on appeal in this case. Thus, we cannot consider this argument. New v. Louisiana Department of Public Safety and Corrections, 2015-1160 (La. App. 1 Cir. 2/24/16), 190 So.3d 345, 347 n. 5, citing Tranum v. Hebert, 581 So.2d 1023, 1026 (La. App. 1 Cir. 1991), writ denied, 91-1417 (La. 1991), 584 So.2d 1169.¹⁴ We also point out that “[a]dverse rulings alone do not call into question a judge's impartiality.” Alexander v. Perez, 184 F.3d 817, 817 (U.S. 5th Cir. 1999).

After careful review, we find that the trial court properly applied La. C.C. art. 133’s “substantial harm” standard to this custody dispute between a nonparent and biological mother. Thus, we find the trial court did not abuse its discretion by dismissing appellant's petition for custody on the basis that she did not prove, by clear and convincing evidence, that an award of custody to the mother would result in substantial harm to the child. See Weicks, 388 So.3d at 405. Rather, we find the trial court's ruling and reasons for judgment are eminently reasonable in light of the record reviewed in its entirety. See Yepez, 340 So.3d at 41-42. We therefore affirm.

CONCLUSION

The January 29, 2025 judgment of the trial court is affirmed. Costs of this appeal are assessed to the appellant, J.P.

AFFIRMED.

FOOTNOTES

1.   The initials of the child, the parents, and the nonparent seeking custody of the child are used herein in accordance with Uniform Rules-Courts of Appeal, Rule 5-2.

2.   On March 8, 2024, the pregnant woman obtained a protective order against the mother because of these events.

3.   Louisiana Code of Civil Procedure article 3945 sets forth the terms and requirements that govern the issuance of an ex parte order of temporary custody of a minor child.

4.   Alternatively, J.P. requested an award of nonparental visitation.

5.   Under the terms of the consent judgment, J.P. agreed to grant the father reasonable visitation rights.

6.   The April 15, 2024 judgment entitled, “Consent Judgment and Order of Continuance,” included language decreeing that, “[J.P.] shall be granted sole custody of the minor child [T.M.] as it relates to the rights of the Father, [T.M.].” (All-caps and bold font removed).

7.   Louisiana Civil Code article 133 provides that the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment, if an award of joint custody or of sole custody to either parent would result in substantial harm to the child.

8.   However, the trial judge ordered briefing and set a hearing to address the possibility of granting nonparental visitation to J.P.

9.   While the judgment only refers to a January 3, 2025 hearing, the matter was actually heard on three dates: July 6, 2024, November 26, 2024, and January 3, 2025.

10.   On January 27, 2025, J.P. filed a request for an emergency stay order in the trial court, seeking to have the child immediately returned to her custody. J.P. then filed a memorandum asking the court to impose a litany of restrictions on the parents.

11.   On September 11, 2025, J.P. filed a motion seeking to supplement the record with documents she claimed were erroneously omitted. J.P. later filed a motion to remand the case “for completion and correction of the record.” (All-caps and bold font removed). On January 30, 2026, this Court granted in part and denied in part J.P.’s motion to supplement, and ordered the Clerk of the Seventeenth Judicial District Court to supplement the record with the complete transcript from the January 3, 2025 custody hearing and the March 28, 2024 hearing. J.P.’s motion to remand was denied. On March 5, 2026, the Clerk of the Seventeenth Judicial District Court supplemented the record, as ordered, with the missing portion of the transcript from January 3, 2025, and indicated that no testimony was taken at the March 28, 2024 hearing. Thus, we are reviewing this appeal with a complete record.

12.   Louisiana Civil Code article 131 provides that, “[i]n a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child.”

13.   Louisiana Civil Code article 134(A) states that, except in cases involving family violence or domestic abuse, the court “shall consider all relevant factors in determining the best interest of the child,” including:(1) The potential for the child to be abused, as defined by Children's Code Article 603, which shall be the primary consideration.(2) The love, affection, and other emotional ties between each party and the child.(3) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.(4) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.(5) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.(6) The permanence, as a family unit, of the existing or proposed custodial home or homes.(7) The moral fitness of each party, insofar as it affects the welfare of the child.(8) The history of substance abuse, violence, or criminal activity of any party.(9) The mental and physical health of each party. Evidence that an abused parent suffers from the effects of past abuse by the other parent shall not be grounds for denying that parent custody.(10) The home, school, and community history of the child.(11) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.(12) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party, except when objectively substantial evidence of specific abusive, reckless, or illegal conduct has caused one party to have reasonable concerns for the child's safety or well-being while in the care of the other party.(13) The distance between the respective residences of the parties.(14) The responsibility for the care and rearing of the child previously exercised by each party.

14.   While appellant attached a copy of the protective order to her appellate brief, the protective order is not part of the record on appeal. Pursuant to La. C.C.P. art. 2164, an appellate court must render its judgment upon the record on appeal. The record on appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcript, jury instructions, judgments, and other rulings, unless otherwise designated. See La. C.C.P. arts. 2127 and 2128. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Tranum, 581 So.2d at 1026. The appellate briefs of the parties are not part of the record on appeal, and this Court has no authority to consider on appeal exhibits attached to the briefs, if those facts are not in the record on appeal. Id.

GREENE, J.