Fooled by a Dildo?

Louisiana appeals court affirms child visitation rights for transsexual dad

A divided three-judge panel of the Court of Appeal of Louisiana ruled on December 30 that Andrew R. Pierre, who was born female but underwent gender reassignment prior to his marriage to Lauraleigh Cefalu, was entitled to visitation rights with the two children Cefalu bore during their marriage.

The children, born in 1998 and 1999, were conceived through donor insemination. The couple was divorced in 2002.

Some aspects of this case have a “stranger-than-fiction” quality to them.

At the time they divorced, Cefalu and Pierre agreed that they would have joint custody of the children, who would live with their mother but enjoy frequent visitation with their father. The arrangement, however, quickly broke down, apparently at least in part due to objections by Cefalu’s parents and her new boyfriend, whom she subsequently married. On the pretext that the young son showed signs of sexual abuse, charges apparently trumped up, Cefalu sought to modify the divorce decree, terminating Pierre’s parental rights and barring him from visitation.

Pierre told the family therapist appointed by Tangipahoa Parish District Judge M. Douglas Hughes that, prior to their marriage, he told Cefalu about his sex change. He had undergone hormonal and surgical treatment and obtained a legal name-change and corrected birth certificate before he met Cefalu, and the couple presented themselves to state officials as an opposite-sex couple when they applied for a marriage license.

Contradicting these statements, Cefalu told the therapist that she was unaware of Pierre’s sexual past when she married him, that throughout the marriage he had deceived her through the use of “sexual devices” and that she didn’t find out about his birth-sex until 2000, when she met a woman looking for a “lost sister” given up as an infant for adoption, and the “lost sister” turned out to be her husband. This statement, which the therapist found to be unbelievable—especially coming from a woman who with graduate degrees who had conceived two children through donor insemination—conflicted with prior statements Cefalu had made during the litigation.

The therapist reported to Hughes that both were fit parents who should continue to have a relationship with the children. The therapist cautioned the judge, “Should the court, legal counsel or any other party become distracted by the issues surrounding sexual organs under the law, the primary issue of the welfare of the minor children will become lost.”

This caution was not heeded, according to the opinion for the Court of Appeals by Judge Randolph H. Parro, since the subsequent court hearing focused obsessively on testimony about Pierre’s genitals and the impact of his sex change on his status as a husband and father. The highlight of Parro’s opinion is a lengthy quotation of Judge Hughes’ reaction to Cefalu’s testimony at the hearing, at which she repeated her claim that she had been unaware that Pierre was not born male.

“I find it incredulous that that young lady would get on that witness stand and say that they were married all of those years and she didn’t know about the genitals,” said Hughes. “I’m sorry, I find that unbelievable. I don’t find that credible. It really does not enter into my thinking in making my decision, but I don’t buy that, I’m sorry, I don’t buy it.”

Hughes concluded, however, that Pierre’s parental rights should be terminated but, in light of his good relationship with the children and their bond with him, that he should continue to enjoy visitation with the children, as any non-parent who has formed a parental bond with the permission of the children’s natural parent might be entitled to have. The family therapist had concluded that it would be harmful to the children to cut off Pierre’s contact with them.

Cefalu appealed this ruling, claiming it was inconsistent to terminate Pierre’s parental rights but require continued visitation. Responding to the appeal, Pierre argued that his parental rights should be restored.

The appeals court found that Hughes lacked jurisdiction to terminate Pierre’s parental rights in the context of a divorce proceeding and the decision terminating his parental rights was vacated. More significantly, however, a majority of the Court of Appeals panel concluded that Hughes had correctly rejected Cefalu’s demand that Pierre’s visitation rights be terminated. Parro wrote that Cefalu would have to show “a material change in circumstances affecting the child’s welfare has occurred since the last custody judgment.” Cefalu had agreed during the initial divorce proceeding that Pierre should have joint custody and visitation rights, and no changes had occurred since then, according to the court.

“Even though Pierre is not the biological parent of the children, there was an award of joint custody by consent between the parties, and there was no showing of a change of circumstances impacting the children between the time that award was made and the time of the hearing,” wrote Parro.

Judge James Kuhn wrote a sharp dissent, asserting, as have judges in Texas and Kansas, that a person who is female at birth may not validly marry another woman, even if he has undergone gender reassignment and obtained a new birth certificate showing male sex. As far as Kuhn is concerned, this was an invalid same-sex marriage, null and void from the outset, and Pierre had no legal relationship to the children and thus no claim to visitation rights.

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