Background
Jeremy Baker and Krystle Lowe were formerly in a relationship but never married. Lowe conceived through assisted reproductive technology using donated genetic material and gave birth to a child in 2022. Both parties signed a voluntary acknowledgment of paternity. After their relationship ended, Baker obtained interim visitation in an East Feliciana Parish custody proceeding, but that court later sustained Lowe’s exception of no right of action and vacated the visitation order. Baker did not appeal that final judgment.
Baker then filed an ex parte custody motion in East Baton Rouge Parish, alleging that he had acted as the child’s father and seeking nonparent custody under Louisiana Civil Code article 133. The family court issued an ex parte custody order, but the Court of Appeal later vacated that order because Baker’s allegations did not establish entitlement to ex parte relief. At a hearing the same day as that writ ruling, the family court proceeded in Lowe’s absence to hear Baker’s article 133 claim. It later entered a judgment maintaining Lowe’s sole custody while awarding Baker visitation every third weekend. Lowe appealed and separately sought supervisory review.
The Court’s Holding
The Court of Appeal vacated the visitation judgment because Lowe did not receive adequate notice that Baker’s article 133 custody claim would be tried at the December 9, 2025 hearing. The notices and prior proceedings indicated that the scheduled matter was the expedited hearing associated with the ex parte custody order, not a trial on the merits of Baker’s ordinary custody action. An expedited hearing under Louisiana Code of Civil Procedure article 3945(D) does not substitute for a trial on permanent custody, and the earlier writ ruling contained no direction to try Baker’s article 133 claim that day.
The court concluded that deciding the article 133 claim without adequate notice and an opportunity to prepare violated Lowe’s procedural-due-process rights. It also noted that Lowe had not filed an answer and had not waived the statutory restriction against setting an ordinary proceeding for trial before an answer is filed. The court remanded for further proceedings and denied Lowe’s related writ application as moot.
The court separately denied Lowe’s appellate exceptions. It could not consider res judicata because the record did not contain the necessary proof from the earlier East Feliciana Parish proceeding. It held that article 133’s broad language gave Baker a right of action to seek nonparent custody and that his allegations, accepted as true for purposes of the exception, sufficiently stated a cause of action. The court also rejected Lowe’s challenge to service through the court-appointed attorney, finding that she had not proved improper service by a preponderance of the evidence.
Key Takeaways
- Notice of an expedited hearing concerning ex parte custody does not, by itself, provide adequate notice of a trial on the merits of a nonparent’s custody claim.
- A custody judgment entered without adequate notice and an opportunity to prepare violates procedural due process and must be vacated.
- An appellate res judicata exception cannot be decided when proof of its grounds does not appear in the appellate record, although the exception may be raised again on remand.
Why It Matters
The decision distinguishes the limited, temporary function of an expedited ex parte-custody hearing from a merits trial under Louisiana Civil Code article 133. Even when a substantive custody claim remains pending after ex parte relief is vacated, a court must provide clear notice that the merits will be tried and must afford both parties an opportunity to prepare and be heard.
The ruling also illustrates the limits of raising peremptory exceptions for the first time on appeal: the appellate record must contain the proof needed to decide them. The court vacated the judgment on procedural grounds without deciding whether Baker ultimately qualifies for custody or visitation.