LOUISIANA LAW OF PERSONS



LOUISIANA LAW OF PERSONS

BILBE

FALL 1999

TITLE I. MARRIAGE

Chapter 3:Entry into Marriage

3.5 Conditions to Lawful Marriage

86 Marriage is a legal relationship b/t a man and a woman that is created by civil contract. The relationship and the K are subject to special rules prescribed by law.

87. K of marriage; requirements

The Req’s for the K of marriage are:

1) the absence of legal impediment

2) a marriage ceremony

3) the free consent of the parties to take each other as husband and wife, expressed at the ceremony.

3.6 the absence of a legal impediment

88 Impediment of existing marriage

A married person may not K another marriage

89 Impediment of same sex they cannot K marriage.

90 impediments of relationship ascendants and descendants nor collaterals w/ in the 4th degree whether whole or the half blood can K marriage. If they are adopted they can have the impediment removed if the judge feels that it won’t affect the family adversely.

8. a marriage ceremony

91. the marriage ceremony must be performed by a 3rd person who the parties reasonably believe is qualified to perform it. The parties must be physically present at the ceremony

92. a marriage may not be performed by procuration. That means that no party can be represented and thus must be present at the ceremony.

- an officiant can be a person who is a member of the clergy, judge, etc.

- if the parties comply to this in good faith then they will have a valid marriage.

- The officiant must wait for 72 hours b/t the time of the awarding of the marriage license before a ceremony can be performed. If he does not comply w/ this the state can impose sanctions on him and may revoke his permit to officiate.

- There must be 2 witnesses present at the ceremony.

- To marry people under the age of 16 the parties must 1st get judicial permission.

3.9 registration of the marriage

9:251 the form for the license, authorization to the officiant to perform the ceremony, and the marriage certificate may be incorporated into a single form.

252. a duplicate of the marriage forms should be kept.

253. “”

254. penalty for non-compliance

255. state issues a list showing the marriages

256. if false info as to the time of the performance of the ceremony is entered regarding the ceremony the performer can face penalties and maybe jail time.

3.10 Registration of a Covenant Marriage.

The registration shall show that the marriage is a covenant marriage.

3.11 Proof of Marriage

testimony of the parties or of the officiant may be sufficient to show that there was a marriage. The reputation of being married may also be sufficient to show that the parties were married.

3.12 “the free consent of the parties”

93. Consent is not free when given under duress or when given by a person incapable of discernment.

-ignorance of the law is insufficient to be considered an unfree consent.

-the spouse of the person of unsound mind does not have standing to have a marriage annulled on that ground.

-an incapable person can be considered such b/c of alcohol, drugs, mental disability, or is too young to understand the consequences of the marriage ceremony.

-the rules of duress for conventional obligations applies.

3.13 legislative jurisdiction over the right to marry

-a M that is legal in state in which it was contracted in is observed in this state unless it violates a public policy of that state.

Chapter 4: The Nullity of Marriage

1. The Causes of Nullity

94: Absolute Nullity

it is absolutely null when it is contracted w/o a marriage ceremony, by procuration, or in violation of an impediment. A judicial declaration of nullity is not required, but an action to recognize the nullity may be brought by any interested person.

95: relatively null; confirmation

it is relatively null when one of the parties did not give their free consent. The person whose will was not given freely can either have it declared null or can have it confirmed.

96: Civil effects of absolute null marriage; putative marriage

if the party who contracted into an absolutely null marriage in good faith it can produce civil effects in that party’s favor.

If a party who was in good faith but was never the less still married to a prior party, then the effects continue in the 2nd spouse’s favor until that 2nd spouse has the marriage pronounced null or contracts into another marriage.

A marriage contracted in good faith produces civil effects in favor of the children.

A marriage b/t 2 people of the same sex produces no civil effects.

97: Civil effects of a relatively null marriage.

A relatively null marriage produces civil effects until it is declared null.

2. Marriage Specifically Declared Null But Subject to Confirmation

95: relatively null; confirmation

it is relatively null when one of the parties did not give their free consent. The person whose will was not given freely can either have it declared null or can have it confirmed.

- Proof that the parties have lived together as man and wife will continue to be persuasive evidence that the one whose consent was initially defective subsequently intended that a valid marriage subsist.

The mistake regarding the person that was in the former 91 was not included in the present 93. This type of mistake was so narrowly defined that the redactors found that it was unnecessary to include it.

Lacoste v. Guidroz

The husband in this case was threatened w/ violence and of criminal charges if he did not marry the girl. The court found that the husband should not be considered to have consented to the M. The threat of violence aside, the threat of criminal charges, even if valid, cannot be used to coerce a person into marriage.

Stier v. Price

The “mistake regarding the person” that was in the former 91 did not apply to the reputation, pedigree, habits, etc of the party. It was only to used in the case of the totally mistaken identity. I.e. they actually married the wrong person.

Verneuille v. Verneuille

Another case of mistake regarding the person using the former 91. The ct said that it could not be used when the wife had told the husband that she was pregnant. There is no such thing as fraud as a vice of consent in a marriage. It would be regarded as an induced mistake. As such the mistake of identity cannot be used as the cause to annul the marriage.

4.3 Marriages specifically Declared Null and not Ratifiable

94: Absolute Nullity

it is absolutely null when it is contracted w/o a marriage ceremony, by procuration, or in violation of an impediment. A judicial declaration of nullity is not required, but an action to recognize the nullity may be brought by any interested person.

-no declaration of nullity is req’d in the case of an absolutely null marriage.

-a party can marry another w/o having an Ab Null M judicially annulled.

4.4 Marriages specifically Declared Null and not Ratifiable: Previously Undisolved Legal Marriages

88: A married person cannot K another marriage.

94: See above

95: “ “

101: A marriage terminates upon divorce or death, or a declaration of nullity of a relatively null M.

-a marriage is not considered final or definitive until the judgement is signed

4.5 Marriages specifically Declared Null and not Ratifiable: Same Sex

a marriage b/t people of the same sex is considered an absolute nullity, and it produces no civil effects.

4.6 Marriages specifically Declared Null and not Ratifiable: Relationship

a marriage b/t relatives as listed in 90 produces an absolute nullity; However, if the related are so by adoption the ct can allow them to be married if it will not have an adverse effect on the family.

4.7 Marriages specifically Declared Null and not Ratifiable: Marriage Defective in Form of Celebration

91-92, 94

all of the things that the parties are req’d to do in order to married have at one time or another been declared to without affect as to the validity

4.8 The effects of the Nullity of M

96: Civil effects of absolute null marriage; putative marriage

if the party who contracted into an absolutely null marriage in good faith it can produce civil effects in that party’s favor.

If a party who was in good faith but was never the less still married to a prior party, then the effects continue in the 2nd spouse’s favor until that 2nd spouse has the marriage pronounced null or contracts into another marriage.

A marriage contracted in good faith produces civil effects in favor of the children.

A marriage b/t 2 people of the same sex produces no civil effects.

97: Civil effects of a relatively null marriage.

A relatively null marriage produces civil effects until it is declared null.

151: Proceeding for declaration of the nullity of M; interim incidental relief

In a proceeding for the declaration of nullity of M, a Ct may award a party the incidental relief afforded in a proceeding for divorce.

-this article affords the parties to a nullity action the same right to claim interim incidental relief as the parties to a divorce action. In the case of a relatively null M, that right is ultimately based on the existence of the M. In the case of an absolutely null M, the right to claim incidental relief is based entirely on this article, unless they are allowed relief based on the concept of a putative marriage.

-this article is intended only to affect interim relief, 152 is for relief after the nullity judgement.

152: A party which is entitled to the civil effects of marriage may seek the same relief as may a divorced spouse.

Incidental relief which would be granted to a party based on 151 but not entitled to the civil effects of M ends when the judgement of nullity is granted.

Nevertheless, a party which is not entitled to the civil effects of M may still get child support, custody, and visitation.

-a relatively null M produces civil effects until it is annulled.

-an absolutely null M produces no civil effects unless one of the parties was in good faith.

-the civil effects of a M continue to flow to a party who K in good faith for as long as they remain in good faith, and in favor of a child of the parties.

-the civil effects terminate at the time that the party learned or should have learned of the impediment.

-However, if the parties could not have a valid M b/c of the prior undissolved M of one of the parties than the 2nd spouse can continue to have effects (even after learning of the impediment) until they have the M annulled or when the innocent party remarries.

Succession of Marinoni

Guy marries Gal. Guy and Gal have child. Guy dies. Guy had been married to another prior to marrying Gal. That marriage had never been annulled. Guy was bad faith. Gal was good faith. The child was allowed to participate in the succession of Guy. Gal was entitled to the benefits of M while she was in good faith.

Succession of Rossi

When there is no documentary proof, nor any other credible evidence that the parties had married, the wife cannot reasonably claim that there was a putative M. There must have been some type of ceremony that would have made the party believe that they were actually M.

Eddy v. Eddy

Wife had no idea that her husband had not actually obtained a divorce at the time that she married Eddy. So, the Ct ruled that she was in good faith in the M. If she had more of an education she would have been expected to investigate the matter to greater degree, but, in this case it was adequate. There is (or maybe was or sometimes is) a presumption that if a person knows that there future hubby was previously M, that the person should immediately ask the future husband for documented proof of legal divorce. A little unrealistic. In this case the judge let her slide b/c she was dumb.

Succession of Barbier

The girl in this case was 15 at the time of the M. The family had heard a rumor that the man was already M. The girl relied on the investigation of her father into the matter to determine if the rumor was indeed true. The Ct ruled that though the investigation did not reveal the prior M, the girl was in good faith b/c the investigation was adequate and her age was also taken into account.

Gathright v. Smith

If a person knows that the other had been married at a previous time they have a duty to investigate the divorce; However, there is a presumption of good faith.

Mara v. Mara

If a person had been previously married and the divorce was improper, it is up to that person to prove that they K’d the 2nd M in good faith. This is the case in which the wife drove to AL to get a divorce from an attorney. The Ct determined that the wife was an unwitting victim of the attorney and was indeed in good faith. In this case the wife was granted a putative M even though she was still married b/c she was in good faith at the time of the M. Another factor in this case was the fact that the 2nd husband had actually encouraged her to get the divorce in the form that she did.

Evans v. Eureka Grand Lodge

The wife in this case was not allowed to collect on her husband’s life insurance policy b/c she was no longer in good faith at the time of his death. She had learned of his previous and undissolved marriage to another woman. This would no longer be the case b/c the civil effects of a marriage b/t a good faith party and a married person continues until the judicial annulment of the M or the remarriage of the good faith spouse.

Holcomb v. Kincaid

The Ct awarded damages under 2315 for fraud in inducing into marriage.

4.9 Legislative and Judicial jurisdiction Over Nullity of Marriage.

3519: the state which would have its policies most seriously impaired is the one w/ jurisdiction. ???

the relationship of each state to the parties, the dispute, and the person whose status is at issue.

The policies stated in 3515.

The policies of sustaining the validity of obligations voluntarily undertaken, of protecting the children, minors, and others in need of protection, and of preserving family values and stability.

3520: a marriage that is valid in the state where contracted, or in the state where the parties were 1st domiciled as husband and wife, shall be treated as a valid marriage unless to do so would violate a strong public policy of the state whose law is applicable to the particular issue under 3519.

Chapter 5: Entry into Marriage

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Chapter 6: The Patrimonial Effects of Marriage Between the Spouses

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TITLE II. DISSOLUTION OF MARRIAGE

Chapter 7: Causes for Divorce

7.1 Modes of Dissolution of Marriage

101: marriage terminates either by divorce, death or a judicial declaration of nullity when the M is only of relative nullity, or the issuance of a court order authorizing the party to remarry when the spouse is presumed to be dead.

9:301: this states how the court can allow the remarriage of a person when the person is a member of the military. If he is actually alive at the time of the judgement then it is still treated as if the marriage is terminated.

7.2-7.7 The Development of Separation and Divorce law

LA went through many years of slowly accepting divorce and liberalizing the law correspondingly. At present we now allow no-fault divorces which require that the parties merely live separate and apart for a period of only 180 days from the filing of the petition.

Separation is no longer required in a standard marriage but many of the old rules still apply in the recently enacted doctrine of the “covenant” marriage. The covenant marriage mandates that for the parties to obtain a divorce they must perform the separation procedure and agree to take all reasonable steps to preserve the marriage. The period of separation req’d is 1 year or 1½ years if there are children of the marriage.

7.8 Causes for Divorce in a Standard Marriage.

102: Except in the case of a covenant marriage, a divorce shall be granted upon motion of a spouse when either spouse has filed a petition for divorce and upon proof that 180 days have elapsed from the service of the petition, OR from the waiver of the service, and that the spouses have lived separate and apart continuously for at least 180 days prior to the filing of the rule to show cause.

103: Except in the case of a covenant M, a divorce shall be granted on the petition of a spouse upon proof that:

1) the spouses have been living separate and apart continuously for a period of 6 months or more on the date the petition is filed;

2) The other spouse has committed adultery; or

3) The other spouse has been sentenced to death or imprisonment at hard labor.

-the lapse of time nor the living separate provisions connote that either of the parties were at fault.

7.9 Causes for Divorce in a Standard Marriage---- Adultery

103(2)

Wynn v. Wynn

The Ct in this case ruled that the M could not be annulled in this case based on the claim of adultery. To prove adultery you must be able to prove more than the fact that he was living w/ in the same house with another woman. In this case they were living in separate bedrooms. The Ct said that she had merely proven that the 2 had the opportunity to commit adultery and that for them to inference any more would merely be an exercise of their imagination.

IAC the Ct ruled that the party must present evidence that is sufficient for a just and reasonable man to believe that adultery had actually occurred.

Bennett v. Bennett

To prove adultery it is not necessary that one have actually seen the act. The man claimed that he could not have committed adultery b/c he was impotent. The Ct however felt that the way they were acting such as going to family functions together, and checking into no-tell motels were sufficient evidence that a reasonable and just man could conclude that they had in fact committed adultery.

Menge v. Menge

Woman admitted that they had been participating in “other acts;” However she denied having had sex w/ him. They had been seen in an apartment w/ the light off, smooching, etc. The Ct felt that this was sufficient.

IAC the Ct ruled that other acts can be considered adultery.

IAC the pregnancy of the wife in an unconsummated Marriage was sufficient proof.

7.10 Causes for Divorce in a Standard Marriage----Commission of a Felony and Sentence

103(3)

Nickels v. Nickels

The guy was convicted and sentenced. He claims that the divorce was not timely filed because the guy had not had a chance to appeal the conviction. The Ct said that the wife had the right to get an immediate appeal and that it was not necessary that she wait until he has exhausted all possible appeals.

Otis v. Bahan

The requirement of living separate and apart cannot be satisfied by the husband having been away while on military duty. She moved into the house of her mother in law when he left to go over seas during that time and that gives further evidence that she did not have the intention to leave at that time.

Adams v. Adams

The wife ruled that the separate and apart time period can commence during the period that a party is forced to be away. In this case the wife had the husband committed to a mental institute. She did, however, have the intention of leaving him by having him committed. She expressed this prior, when committed, and during the period of commitment.

7.12 Causes for Divorce in a Standard Marriage----Living Apart from Filing Petition.

102

This was added as a substitute for legal separation. It eliminated the long period necessary for the parties to maintain two households, and to reduce the cost thus preserving scarce financial resources. This was ultimately to benefit the children.

The only defenses to a 102 is that the parties reconciled, the period of 180 days was not completed, or some other procedural error. There is no requirement that the parties prove that there was any type of fault committed by the parties.

Watters v. Watters

The P filed a 102. After the required period he filed for a default judgement a/g the D. the D answered saying in a reconventional demand that she was filing for divorce on the grounds of adultery. The court said that the adultery claim could not stand in the way of the 102 b/c no fault on a party is needed to file for that claim. The court said that she has also in no way been prejudiced by this decision as she will have the opportunity to litigate her claims of fault.

Tomeny v. Tomeny

The Ct ruled that either party has the right to pursue the 102 once it has been initiated even if the submitting party has withdrawn it, at least after the husband has already accepted it.

Morrow v. Morrow

An incidental demand cannot be attached to a 102. A 102 can be performed w/ a default judgement and may result in parents losing the right to see there kids again b/c they didn’t answer a court order.

Borel v. Borel

The Ct stated that there was no reason that the 102 should have been allowed a continuance b/c she had no defense to the ruling.

Parker v. Parker

Mr. Parker initiated the divorce proceeding. He claimed that they had been living separate and apart for merely 3 and ½ months. This was not enough time to have lived separate and apart to file the petition. The petition was for 102 and 103(1). 6 months after the petition was filed there was a judgement of divorce. She ,2 years later, filed for a nullity of judgement. He never filed a “motion to show cause after the 180 days” as is required by 102. Thus the Ct states that the divorce action had been abandoned. In addition he could not at that instance receive the 103(1) b/c at the time of the filing only 3 and ½ months had passed.

7.13 Causes for Divorce in a Standard Marriage---Spouse Missing in Action

9:301: See 7.1

7.14: Causes for Divorce and Separation in a Covenant Marriage.

9:307: Only Reasons for Divorce after the parties have attempted reconciliation.

1) Adultery

2) Committed a felony w/ hard labor or death

3) Abandonment of 1 year w/ constant refusal to return

4) Physically or sexually abused spouse or child.

5) Separate and apart for 2 or more years

6) a) Separate and apart for 1 year after judgement of separation.

b) if there is a child from the marriage 1 and ½ years unless he or she was abusive to the child.

Only Reasons for Separation after the parties have attempted reconciliation.

1) Same as Above

2) Same as Above

3) Same as Above

4) Same as Above

5) Same as Above

6) On account of habitual intemperance of the other spouse, or excesses, cruel treatment, or outrages of the other spouse, if such habitual intemperance, or such ill-treatment is of such a nature as to render their living together insupportable.

7.15 Causes for Divorce and Separation in a Covenant Marriage-----Adultery

See 7.9

7.16 Causes for Divorce and Separation in a Covenant Marriage----Commission of Felony and Sentence

See 7.10

7.17 Causes for Divorce and Separation in a Covenant Marriage-----Abandonment for One Year.

Abandonment has always bee defined as a withdrawal from the common dwelling, w/o lawful cause, and a constant refusal to return home.

Von Bechman v. Von Bechman

Ct refused to allow “refusal to initiate sex” to be considered cruelty. He would participate when he was asked though w/ little enthusiasm. This cannot be considered a lawful cause to abandon the spouse. However, he was unable to prove abandonment b/c he told her that he was happier once she had left and the fact that he had changed the locks on the house. To be considered abandonment the spouse must (it looks like) be willing to accept the spouse back after she has left.

Durand v. Willis

The woman left claiming that she left b/c he was a jerk. The Ct said that she had the option of obtaining a no-fault divorce but having moved out w/ no more cause than that he was a jerk was of no legal cause that could overcome an abandonment judgement.

7.18 Causes for Divorce and Separation in a Covenant Marriage -----Physical or Sexual Abuse of Child or Spouse

Self Explanatory

7.19 Causes for Divorce and Separation in a Covenant Marriage----Living Separate and Apart for 2 years.

See 7.11

7.20: Divorce after Legal Separation in Covenant Marriage

See 9:307(6)

7.21: Separation in Covenant Marriage for Habitual Intemperance and Mental Cruelty

Excessive use of alcohol or drugs. This is the only cause which need to be habitual. Each case is decided on its own merits, there is no set rule for the amount of cruelty that would be necessary.

7.22: Personal Nature of the Action for Divorce

An action for divorce is personal in nature. Thus it dies when a party croaks.

7.23 Divorce Meditation

Parties can arrange support, etc though mediation. However, there must still be divorce through a Ct. The only thing that can be done through alternative dispute resolution at this time is child custody and visitation.

Chapter 8: Exceptions to Causes for Divorce

8.1 The Exceptions in General

104: The Cause of action for divorce is extinguished by reconciliation of the parties

8.2 Reconciliation

The reconciliation of the parties must come before the judgement.

At one time one act of sex was sufficient to prove that there was a reconciliation but that is no longer the case.

Millon v. Millon

Sexual intercourse, though strong evidence of a resumption of relations, is not conclusive. In this case the Ct found that the sex was involuntary and was not sufficient to prove that there was a desire for reconciliation.

Quotes of the day: “she didn’t object too much at certain times,” and “she didn’t put up no kind of resistance, hardly.”

Jordan v. Jordan

The parties attempts to bring the marriage back together counted as a reconciliation in their marriage.

Hickman v. Hickman

LA does not consider whether or not a reconciliation was performed for fraudulent purposes.

Tablada v. Tablada

You can have a conditional reconciliation.

4. Connivance

Schwartz v. Schwartz

The Ct. dismissed the case from the husband b/c the transgression which the wife committed was supported or at least unprevented by the husband.

8.5 Excuse due to Mental or Psycological Disorder

Courville v. Courville

There is a defense of mental or psychological incompetence at the time of the transgression.

Seltzer v. Seltzer

The Mental illness needs to be the cause of the specific thing that the person did. So, the wife had no excuse for her Christmas adultery.

Doane v. Benenate

The mental illness must be the cause of the problem in the marriage and, thus, must have pre-dated the problem.

Chapter 9: Divorce Jurisdiction and Procedure

9.1 Judicial Proceeding Required

a judicial proceeding is required to obtain a divorce though such is not specifically stated in the code.

9.2 Special Rules for Divorce Proceedings

there are no jury trials;

though it is not so in most cases, there can be summary judgement or a judgement on the pleadings in a divorce under 103(1) if both parties are represented, have a written stipulation of facts and request for judgement and sworn verification by both parties, and the proposed judgement is signed stating that the parties agree w/ the ruling.

9.3 State and Federal Judicial Jurisdiction

States have Jurisdiction. Even if the parties have Diversity Jurisdiction the US S Ct has rejected these cases.

9.4 Interstate Jurisdiction

Williams v. North Carolina I

B/c the party was a “domicile” of Nevada the S. Ct. ruled that the state of North Carolina must give Nevada Full Faith and Credit.

Williams v. North Carolina II

S. Ct found this time that NC could make its own determination as to domicile and that the FF, and C did not apply to that issue. NC was stating that the supposed domicile in NV was actually a sham.

Since the decision in Williams most commentators accept that a state may apply its own law on divorce in its own courts to one of its own citizens (domiciliary). If the D spouse is a citizen of another state it will suffice if he or she is given notice by a form of service satisfying the requirements of procedural due process.

Sherrer v. Sherrer

The S. Ct held in this case that the petitioner had full opportunity in the other state to disprove the domicile of his spouse. The S. Ct. held that the home state should not be given a chance to relitigate the issue.

Johnson v. Muelberger

If the Ct of the other state would not allow her to challenge that state’s jurisdiction, she cannot challenge it in her own state on that same grounds b/c of FF, and C.

Tjaden v. Tjaden

The D in the case argues that the P had not achieved domicile or the intent of domicile in NV at the time of the divorce proceeding in NV. The Ct held that she was a proper domicile of the state of NV b/c she had lived there for the proper time required and the D could not prove that she had the intent to move back to LA. She had lived in NV for 3 months w/ her family and was looking for a residence in TX.

In the Matter of the Succcession of Talmadge D. Bickham, Jr.

In this case the wife, 10 years after the divorce decree, tries to have the decree set aside. The Ct ruled that she had full opportunity to challenge the marriage. She even remarried the guy twice since that time which proves that she understood the legal ramifications. She even testified at the Arkansas proceedings, so, she did have notice of the divorce.

Everett v. Everett

The parties to this divorce went to the Dominican Republic to obtain a divorce. The Full Faith and Credit Clause only applies to divorces granted in other states. It does not include goofy court proceedings in 3rd world countries.

9.5 Louisiana Assertions of Judicial and Legislative Jurisdiction for Divorce

there is a rebuttable presumption that a person is a domicile if a spouse has maintained a residence in a LA parish for 6 months.

Thus, LA accepts the more common construction of Williams I, which permits a non-domiciliary to claim a divorce a/g a LA domiciliary by application of LA law.

Some states refuse to entertain divorce suits of persons who have not lived there for a certain period of time. The S.Ct has allowed this type of prohibition to stand despite its equal protection implications. In this way there are some people who may not be able to obtain a divorce in either state b/c they are no longer a domicile of the old state and they are not qualified for a divorce in the new state.

9.6 Intrastate (Interparish) Jurisdiction

The parish of last domicile or where either is domiciled is the proper forum.

If you lived there for 6 months there is a rebuttable presumption of domicile.

Either one or both must be domiciled in LA.

there must be proper service, jurisdiction, etc. in the proper parish. The rules are made to prevent forum shopping.

9.7 Appeals

All appeals to granting or refusal of divorce are suspensive and must be filed w/in 30 days of the judgement, the court’s refusal to grant a new trial, or the mailing of notice of such refusal in those instances in which the applicant is entitled to such notice.

Chapter 10: The Provisional and Incidental Proceedings for Divorce and Nullity

10.1 List of Provisional and Incidental Proceedings in Divorce and Nullity Suits

105: Determination of Incidental Matters

In a proceeding for divorce or thereafter, either spouse may request a determination of custody, visitation, or support of a minor child; support for a spouse; injunction relief; use and occupancy of the family home or use of community movables or immovables; or use of personal property.

151: Proceeding for Declaration of Nullity of a Marriage; Interim Incidental Relief

In a proceeding for declaration of nullity of marriage, a Ct may award a party the incidental relief afforded in a proceeding for divorce.

9:308D: This is a restatement of 105 but pertaining to a divorce of a Covenant Marriage.

10.2 Custody of Children of the Marriage

131: In a proceeding for divorce or thereafter, the Ct shall award custody of a child in accordance w/ the best interest of the child.

132: If the parents agree who is to have custody, the Ct shall award custody in accordance w/ their agreement unless the best interest of the child requires a different award.

In the absence of agreement, or if the agreement is not in the best interest of the child, the Ct shall award custody to the parents jointly; However, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent.

133: 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 w/ whom the child has been living in a wholesome and environment, or otherwise to any other person able to provide an adequate and stable environment.

134: Factors in determining child’s best interest

1) love, affection, and other emotional ties b/t each party and the child.

2) 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.

3) The capacity and disposition of each party to provide the child w/ food, clothing, medical care, and other material needs.

4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity in the environment.

5) The permanence, as a family unit, of the existing or proposed custodial home or homes.

6) The moral fitness of each party, insofar as it affects the welfare of the child.

7) The mental and physical health of each party.

8) The home, school, and community history of the child.

9) The reasonable preference of the child, if the Ct deems the child to be of sufficient age to express a preference.

10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship b/t the child and the other party.

11) The distance b/t the respective residences of the parties.

12) The responsibility for the care and rearing of the child previously exercised by each party.

135: A custody hearing may be closed to the public

136: Visitation Rights

A. A parent not granted custody or joint custody of a child is entitled to visitation rights unless the Ct finds, after a hearing, that it would not be in the best interest of the child.

B. Under extraordinary circumstances, a relative by affinity or blood that is not granted custody of the child may be granted visitation rights if the Ct finds that it is in the best interest of the child.

This can be granted upon the length and quality of the prior relationship.

Whether the child is in need of guidance, enlightenment, or tutelage which can best be provided by the relative.

The preference of the child.

The willingness of the relative to encourage a close relationship b/t the child and his parent or parents.

The mental and physical health of the child and the relative.

9:281: Spouses may not sue each other except for divorce, for separate property, and for support. Support of child or of spouse must be filed while the parties are living separate and apart.

9:308D: In a covenant M the parties may be granted the same forms of relief that may be granted in a normal M agreement.

9:331: Evaluation by a Mental Health Professional

A Ct may order for and compel parties to comply to an evaluation of mental health, for good cause, in a proceeding to determine visitation or custody.

9:332: The Ct may order the parties to mediate their differences in determining what the visitation and custody should be for the children.

9:333: Duties of the mediator

9:334: Necessary Qualifications of a Mediator.

Joint Custody

9:335: Joint Custody Decree and Implementation Order

When Joint Custody is decreed the judge shall issue an implementation order

The implementation order shall state the times when the parents will have custody.

-To the extent that it is possible the Ct shall grant physical custody equally if it is in the best interest of the child.

-The order shall allocate the legal authority and responsibilities of the parents.

It shall designate the domiciliary parent.

-the domiciliary parent is the parent w/ whom the child shall primarily reside, but both parents should be granted adequate time w/ the child.

-The domiciliary parent shall have authority to make decisions regarding the child unless stated in the decree. All major decisions are subject to judicial review if demanded by the other parent. It shall be presumed that the Dom’s decisions are in the best interest of the child.

-if a Dom is not designated then both parents shall share the same rights and responsibilities.

9:336: Joint Custody obligates the parents to exchange information concerning the health, education, and welfare of the child and to confer w/ the other in exercising decision-making authority.

9:337: the joint custody decree may order:

A person w/ joint custody may be granted an amount to pay for housing expenses even when the child is not w/ that parent.

That the tax exemption for a child be granted to either party.

9:341: If you abuse your child you can’t get custody or visitation. However, they may get restricted visitation.

9:342: a bond can be ordered to insure that the parent return the child.

9:343: the Ct may order a sheriff make the parent return the child.

9:344: if one of the parents dies the family of that parent may be granted visitation.

9:345: a child may be allowed to have an attorney appointed to represent him in the custody battle.

9:351: the records of the child may not be denied to the other parent solely b/c he is not the child’s custodial or domiciliary parent.

9:361-369: Post-Separation Family Violence Relief Act.

Creed v. Creed

Though in LA the best interest of the child is always considered when it is for custody b/t a parent or a non-parent the party moving to take the child away from the parent has to prove that there would be substantial harm to the child. Also, they must prove that the child would only have a better life if custody is awarded to a non-parent.

2 Prong Test: 1) there would be substantial harm if awarded to a parent

2) it would be in the best interest of the child to go to non-parent.

Evans v. Lundgren

Custody is broken down into 2 components: physical and actual custody. The T Ct ordered that the parents be granted custody w/ equal time. The Ct stated that this would not be in the best interest of the child. The Ct also decreed that the T Ct’s fact finding was skewed b/c they tried to implement the presumption present in the old law that the children should have equal time. The Ct determined that the best interest of the child would be in LA where she would have the support of extended family where as in WA w/ the mom they would not have that. The Ct did, however, refuse to overturn the T Ct’s determination that the child should remain in Joint Custody. They did say that the child should not be shuffled back and forth from WA to LA in 4 month intervals.

Lundin v. Lundin

Even though the mom was a dike, the Ct allowed her to have joint custody. But, the father got the greater custodial time b/c of the goofy mom.

Timmons v. Timmons

The Ct. has wide discretion in determining the competence of a parent to have custody of a child. The mom had been a substance abuser and the father had cared for the children while she was in rehab. T Ct felt that the mom had been successful in her rehabilitation. The Ct also has wide discretion in determining whether there should be a psychological evaluation. Mom got domiciliary b/c the appeals Ct ruled that it was in the T Ct’s discretion to award such.

Simmons v. Simmons

To be considered to have had a history of family violence the spouse needs to have put numerous whoopins on his wife and even more whoopins if she was a ho.

Bergeron v. Bergeron

The Ct stated that to have a Ct order modification the Ct must prove that the situation during which the original Ct ordered the original decree has substantially and materially changed.

Page v. Page

Ct found that there was sufficient need to change the custody arrangement of the children. The mom’s new boyfriend and her were always fighting and doing bad stuff.

Ramos v. Ramos

In this case the Ct held that the child should not leave the state b/c the child was really close to the father and b/c of the extended family in LA that was available to the child if she stayed here.

10.3 Support for Children

141: The Ct may order may order either of the parents to pay child support based on the needs of the child and the ability of the parents.

The Ct may order interim child support but only when a demand for final support is pending.

142: An award of child support may be modified if the circumstances of the child or of either parent change and shall be terminated upon proof that it has become unnecessary.

227: Fathers and Mothers by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children.

230: The Alimony Obligation is what is necessary for the nourishment, lodging, and support of the person who claims it. It includes the education when the person is a minor or a 19 year old that is still in high school and is in good standing.

231: Alimony shall be granted in proportion to the wants of the person requiring it, and the circumstances of those who are paying it.

232: When the person who receives alimony is no longer in need or if the provider is no longer capable of providing it, the Ct may discharge or reduce the obligation.

233: If the person, whose duty it is to furnish alimony, shall prove that he is unable to pay the same, the judge may, after examining into the case, order that such person shall receive in his house, and there support and maintain the person to whom he owes alimony.

234: The judge shall pronounce likewise whether the father or the mother who may offer to receive, support, and maintain the child, to whom he or she may owe alimony, in his or her house, shall be dispensed in that case from the obligation of paying for it elsewhere.

3501.1: The money judgement prescribes after a lapse of ten years from the time that the judgement became final, no appeal has been filed, etc.

9:303: The Ct shall as part of child support order an income assignment unless there is a written agreement b/t the parties or the Ct finds good cause that an immediate income assignment is unnecessary.

A good cause would be if the obligor:

- has had no delinquencies in the past 6 months

- agreeable to income assignment if necessary

- not likely to become delinquent

- any other sufficient evidence

9:304.1: The Ct may allow the party to file to get delinquent w/o paying if they in poverty or lack of means

9:305: The time for filing suit for disavowal of paternity shall be suspended during the period of erroneous belief (can be caused by fraud, misrepresentation, etc.) or for 10 years, which ever ends 1st.

This shall not affect the child support payments or arrears paid, due, or owing prior to the filing of a disavowal action if the action is actually obtained.

9:307: See 7.14

9:311: There must be a change in circumstances to get a child support order changed.

The fact that there are past dues does not by itself show that there is a need for a reduction.

A change in circumstances would be met if: there would be a change in 25% in the decree by strictly following the guidelines; it would be in the best interest of the child to have the change made

There is no need for a change in order to have a modification to include medical support for the child.

9:315: Definitions

9:315.1: The Ct may deviate but must state why they are doing such.

In determining whether or not to deviate they may consider the following:

1) what to do when the income is below the scale, or if above the scale they must follow 315.10B

2) the other childrens of the parties that they must also support.

3) Medical expenses of a party.

4) Community debt of a party

5) The need for immediate and temporary support

6) The permanent or temporary disability of a party.

7) Any other consideration which is in the best interest of the child

The Ct may review any stipulations made by the parties. The Ct in its determination may order the

parties to produce income statements.

9:315.2: Each party needs to show income statements and past earnings

If a person is voluntarily un- or underemployed the Ct may reduced

The parties shall add their incomes together and then divide the appropriate support listed in proportion to the relative incomes of the parties.

The Ct shall determine by using 315.14 w/ Income and # of childrens.

9:315.3: Net child care costs shall be added to the basic child support obligation.

9:315.4: The Ct may order that one of the parties provided health ins and shall make the determination of which policy is of the best value.

9:315.5: By agreement of the parties or order of the Ct, extraordinary medical expenses on behalf of the child shall be added to the basic child support obligation.

9:315.6: Schooling of the child and any expenses of the child in transporting the kid to the parent w/ visitation rights may be added to the support award.

9:315.7: Income of a child may be deducted from the child support req’d unless the kid is in school.

9:315.8: Calculation of total child support obligation worksheet.

Add the stuff that should be added and subtract the stuff that should be subtracted.

In a case of joint custody the time that the kid spends w/ each parent can be considered if it would reduce the amount that the parent will be paying.

9:315.9: If a party is voluntarily unemployed etc. shall be determined as if she were employed at her potential. This will not apply if they are incapable or if caring for a child 6months, 2) the right of the parent has been terminated b/c criminal or unfitness or voluntary surrender and has lived in the new home for >1year.

The interlocutory can be revoked for good cause prior to the final decree. Interlocutory expires after 2 years.

The DSS must keep up w/ the home during the period and make reports to the Ct.

The rights and duties of the parents are terminated when the final decree is filed if they hadn’t already been terminated by surrender or judgement.

The Ct can order that the child be removed from the home if it decides that it is not in the best interests of the child to have an interlocutory or final decree rendered.

B. Private Adoption

To get a private adoption there must be a Preplacement Homestudy. A certification for adoption must be obtained from an approved person or by Ct order. It must be obtained prior to placement in the home. If they are a close relative this is not necessary. If approval is requested by homestudy they can contract for it privately. There must be a search for any past child abuse or neglect as well as past arrests and convictions. The certification is good for 2 years.

If they do not get a certification it can be done by Ct order. The judge will evaluate them in the judges chambers. If anything is found subsequent a rehearing can be held.

Once the child has been placed in a home, the parents must file the petitions as in Agency adoption. If a parent can’t be located then a curator can be appointed. There is an interlocutory period unless 1) the child’s parents have no rights to the child and he has been living w/ them for > 1 year, 2) the child was born out of wedlock, or 3) a married couple jointly petitions to adopt a child born out of wedlock to one of them.

After 1½ years they can petition for final decree. This is all judged as in agency.

C. Intrafamily Adoption

Must be step-parent married to parent, or grandparent w/ whom the child has lived for at least 6 months.

Consent of the parents is not necessary if:

1) the grandparent has custody and a)the parent has not supported for 1 year, b) nonresident hasn’t supported for 1 year since custody judgement, c) parent has refused to communicate w/ child;

2) stepparent is married to parent w/ custody and non-custodial, non-resident parent hasn’t supported > 1 year

3) “””””””””, resident parent hasn’t supported > 1 year, or hasn’t communicated for > 1 year.

There is a limited investigation about the adopting parents.

Appeals

An appeal must be filed w/ in 30 days

Annulments

Fraud and Duress are the only grounds to annul. Other failures are cured by the final decree.

Grandparents Visitation

The Ct will only grant this if the parents of the child died causing the necessity of adoption, or if the child of the grandparents was booted b/c he didn’t pay support or failed to communicate. They may get psychological report about the effect there might be.

Confidentiality

It is highly guarded. It will only be released for a “compelling necessity” such as inheritance, medical necessity, voluntary registration, or required to be disclosed by law. If it is opened only that which is necessary is disclosed.

Voluntary Registration

Can register to meet parent and child after 25 years have passed. The registry is good for 5 years. And, they must attend counseling b/f they can meet.

In Re Landry

Mother and stepfather did not have actual custody of the child and could not adopt the child w/o the consent of the father even though he had failed to communicate or support.

14.4 Adoption of Persons Over Seventeen

9:461: A person over 17 can be adopted by notarial act. It shall be confidential. If the person to be adopted is older than the adopting person and is not an interdict, then the Ct shall conduct the investigation as to why they are doing it and can disapprove if they choose. The act shall be recorded in the locality.

9:462: The name of the adopted person may be changed in the act of adoption.

Using 214, the spouse must still consent to the adoption.

In the Matter of R.E.

Natural father filed notice of opposition to adoption after mother surrendered child for adoption. Following remand, District Court ruled that adoption could not take place without father's consent and granted him custody of child. Private adoption agency, attorney, and curator ad hoc for child, and Department of Social Services then intervened and applied for supervisory writs. The Supreme Court held that: (1) father did not have constitutionally protected right to parental relationship with child until he demonstrated his fitness and commitment according to previously established standards, and (2) when child's mother executed authentic act of voluntary surrender of child to private adoption agency, that agency became legal custodian of child, and continued to be legal custodian pending either adoption or proper determination that unwed father had established his parental rights and was entitled to legal custody.

Succession of Plummer v. Plummer

Decedent's grandson filed rule to show cause why his stepmother, who had been adopted by his deceased father, should not be declared incapable of inheriting from decedent's succession. District Court ruled in favor of grandson, and declared adoption null and void. Stepmother and succession representative appealed. The Court of Appeal held that husband could not adopt his wife.

14.5 Conflict of Laws

3519: The status of a natural person and the incidents and effect of that status are governed by the law of the state whose policies would be most seriously impaired if its law were not to be applied to the particular issue.

TITLE IV MINORS AND INCAPABLES

Chapter 15: Parental Authority

15.1 The Scope of Parental Authority

99: spouses mutually assume the moral and material direction of the family, exercise parental authority, and assume the moral and material obligations resulting therefrom.

215: a child, whatever his age, owes honor and respect to his parents.

216: a child remains under the authority of his parents until his majority or emancipation.

217: as long as the child remains under the authority of his father and mother, he is bound to obey them in every thing which is not contrary to good morals and the laws.

221: a father administers the estates of his minor children unless interdicted in which case the mother does. He or she is accountable for both properties and revenues of the estates.

The administration ceases at majority or emancipation and also by judicial separation of the mother and the father.

229:There is a reciprocal duty for ascendants and descendants to help each other if they are in need (food, clothes, etc.)

235: mothers and fathers owe protection to their children, and can appear in court for them for any civil suit, in which they may be interested, and they may likewise accept any donations made to them.

236: you can beat someone up if you are defending your child and not get sued.

237: you can be sued for any injuries that your kid causes.

2318: the father and mother, or the surviving spouse are responsible for the injuries caused by the unemancipated minor.

15.2 Parental Sharing of Authority

218: you can’t leave home if you aren’t emancipated and your parents haven’t given you permission.

220: authority can be delegated to teachers, etc. , such as restraint and correction, so far as it is necessary for the purposes for which they employ them.

You can also bind your kid as an apprentice.

15.3 Transfer, Delegation, and Termination Parental Authority

Authority cannot be transferred permanently or wholly, this would corrupt the purpose of adoption.

15.4 Custody Incidental to Parental Authority.

This is the right to supervise and direct the care of the child and his activities w/a view to his proper rearing and development and his health and safety. Ex. Adoption agency, or person given authority by Ct.

Wood v. Beard

Habeas corpus proceeding was brought by mother of two-year-old daughter against child's maternal grandparents. District Court awarded custody to the grandparents, and mother appealed. Court of Appeal affirmed, and certiorari was granted. The Supreme Court held that where mother was not found to be unfit to have the custody, where she had not forfeited her right to parenthood, where she was prepared and able to provide a home for the child, she could not be deprived of custody because it was allegedly to the child's 'best interest' to remain with the grandparents.

15.5 Child’s Right to “Quit the Parental House”.

Have to obey, and can’t run away.

15.6 Parental Right to Correct Child

you can beat your childrens, but not too much. It must be a reasonable whoopin.

15.7 Binding Children and Apprentices.

No longer applicable b/c apprenticeship of this sort no longer exists.

15.8 Responsibility of Parents for Damage Caused by Minors.

The parent can get sued.

Turner v. Bucher

Pedestrian who was injured when six-year-old boy struck her with his bicycle and husband of the pedestrian brought action against father of the child and father's insurer. The Court of Appeal affirmed judgment in favor of father and his insurer. Supreme Court held that where actions of six-year-old child would be tortious when measured by normal standards, child's father was liable therefor whether or not he could have prevented the act of the child; that strict liability imposed upon the father for the acts of a child which would be found tortious except for the child's inability to discern the consequences of his acts could be escaped only when the parent showed that the harm was caused by the fault of the victim, by the fault of a third person, or by a fortuitous event.

Deshotel v. Casualty Reciprocal Exchange

Nonresident defendant's exceptions to citation and service of process and to jurisdiction over his person in a personal injury action arising out of an automobile accident involving his minor son, who resided in Louisiana with his mother. The Court of Appeal held that: (1) evidence supported the trial court's finding that the defendant was domiciled in the state of Arkansas, but (2) the nonresident motorist statute was applicable and service of citation and process under it was valid and brought the defendant within the jurisdiction of the court where at the time the record in the case was made up, neither a suit

Williams v. City of Baton Rouge

There are times when a person will not be held responsible for the actions of their child such as when in the armed forces, but in this case in which the kid was a lifeguard at a BREC pool there was no escape for the parent from vicarious liability.

9. Parental Enjoyment of Minor’s Assets.

223: parents have during marriage the enjoyment of the property of their children until their majority or emancipation. This usufruct is nonalienable and exempt from seizure.

224: The obligations resulting from the enjoyment shall be: 1) the same obligations to which usufructuaries are subject, 2) to support, to maintain and to educate their children according to their situation in life.

226: the U shall not extend to any estate, which the children may acquire by their own labor or industry, nor to such estate as is given or left them under the express condition that the parents not touch it. Nor to donations intervivos unless the estate shall have been donated by written act and the right to the usufruct was given.

-so, the only things that are left are things given in the succession. Notice it only says intervivos.

15.10 Security for minors

224

There is no requirement for security

15.11 Assets Included in Parental Enjoyment

226

15.12 Termination of Parental Environment

246:

Ends w/ parents divorce or separation

15.13 The Administration and Disposition of the minor’s Assets

99, 221

The Civil Code make a clear distinction b/t “administration” and “disposing” in regard to the child’s assets.

Snowden v. Huey P. Long Hospital

Following settlement of medical malpractice action involving minor, motion was brought to rescind, annul, and reinstate the previously dismissed suit. District Court granted the motion to annul and the lawsuit was reinstated. State appealed. Court of Appeal held that: (1) settlement of medical malpractice action brought on behalf of minor child was absolute nullity; (2) evidence that claims were compromised in an amount which represented maximum amount by law, that money was paid in full, and most of money was used for ultimate benefit of child was outside scope of action; and (3) substantial compliance with the law is not sufficient when settling claim of minor, even if claim was settled in good faith.

15.14 Representation of the Minor

99, 221

The father, and by exception the mother, represents the minor in all civil acts in his name, not in the minor’s name.

15.15 Collateral Reading.

See additional reading if you’re really bored.

15.16 Suits b/t parent and Child.

9:571: the child cannot sue either parent while he is not emancipated and they are married, If they are divorced, he can sue the parent who has no custody rights.

The minor has no right to sue their parent. That does not mean that they have no cause of action. The opposite would also be true, parent can’t sue kid.

15.17 Support and Alimony b/t Ascendents and Descendants.

224, 227-34

233:

Look at these articles they clear up the fact that a spouse should not be able to claim that the other should turn to their family.

Towell v. Towell

Ex-husband sought reduction of alimony he paid to ex-wife and "child support" he paid for benefit of parties' 20-year-old physically handicapped child. District Court denied request, and ex-husband appealed. The Court of Appeal held that (1) "child support" paid to ex-wife for benefit of parties' child was actually alimony under statute dealing with reciprocal alimentary duties of ascendants and descendents; (2) reduction of such alimony obligation was not warranted even though ex-husband had remarried and adopted new wife's children; and (3) reduction or cancellation of ex- husband's alimony obligation to ex-wife was not warranted.

Although child support is generally due only to minors, "child support" that ex-husband paid to ex-wife for benefit of parties' 20-year-old physically handicapped child was actually alimony under statutes dealing with reciprocal alimentary duties of ascendants and descendents and was governed by statutes relating to such alimony.

-ct was stating that the child should have been able to do this on her own, but since she couldn’t the ct ruled that the wife could bring it under alimony.

Muse v. Muse

Kid can sue siblings for the support that he gave to his parents.

Chapter 16. Tutorship.

16.1 Occasions for Tutorship

246: an unemancipated minor is placed under the authority of a tutor if his parents divorce or separate.

256: the mother of an illegitimate child is the tutrix of her child if he is not acknowledged by the father, or ack’d by the father w/o the mother’s concurrence.

238: illegitimate children generally speaking, belong to no family, and have no relations; accordingly they are not subject to parental authority even when legally ack’d.

Whenever a child is not subject to parental authority, he is subject to tutorship.

16.2 Functions of Tutorship

The tutor has obligations to the person of the minor (custody), and to his patrimonial interests (administration, and as necessary, disposition of his assets). Must represent the minor is his civil acts, substantive and procedural, personal and patrimonial.

16.3 Division of Tutorship Functions b/t 2 Persons

In Re Tutorship of Werling

Attorney petitioned to be appointed separate tutor of property of decedent's minor son, alleging that he was friend and personal attorney to decedent and that decedent's son's interest in insurance policies on decedent's life conflicted with those of his mother. District Court maintained mother's exception of no right of action, and dismissed suit, and attorney appealed. Court of Appeal held that attorney had standing as “interested person” to seek appointment as separate tutor.

Petition by attorney alleging that he was friend, professional associate and personal attorney to decedent, noting possibility that fact that decedent's wife had killed decedent might disqualify her as first named beneficiary on valuable life insurance policies, and arguing that decedent's minor son's interests as second named beneficiary on policies were in conflict with those of his mother, stated cause of action for appointment of attorney as separate tutor. LSA-C.C.P. art. 4069.

State ex rel. Bannister v. Bannister

Habeas corpus proceedings instituted by natural mother and paternal grandmother to determine custody of minor. Family Court entered order and stepmother applied for writs of certiorari and prohibition. The Court of Appeal held that where upon death of natural father who had been awarded custody of minor child in previous divorce proceeding stepmother was appointed dative tutrix in minority proceedings held before District Court to afford minor representation in succession of his deceased father, and natural mother and paternal grandmother instituted habeas corpus proceedings before Family Court to determine custody of minor, District Court had jurisdiction to appoint dative tutor to superintend and administer estate of unrepresented minor but Family Court had exclusive jurisdiction to determine issue of physical custody of person of the minor.

Affirmed and remanded.

Appointment of stepmother as dative tutor to superintend and administer estate of unrepresented minor upon death of natural father who had been awarded custody in divorce proceeding was legal and proper and stepmother was entitled to retain that tutorship until her removal or discharge therefrom in accordance with law.

16.4 Other Agencies of Tutorship

Formerly there was the classification of the undertutor and the family meeting. The undertutor acts on the behalf of the kid if the tutor fails to act or act wrongly. The family meeting was a meeting of relatives who would oversee the tutorship. These were dissolved so that there would be more judicial oversight of tutorship and so that the family would have less control.

The undertutor is still law in this state.

16.5 The Kinds of Tutors

247: There are 4 kinds of tutorships: by nature, by will, by the effect of law, by the appointment of the judge.

248: By nature takes place of right, but must qualify for the office. In every other type the tutor must be confirmed or appointed by the Ct, and must qualify for the office.

249: For every sort of tutorship, the tutor is accountable.

250: A person is entitled to get tutorship if:

1) if a spouse dies, the other gets tutorship.

2) if they divorce, the person who gets child gets tutorship.

3) if they divorce and joint custody is awarded, they get cotutorship, unless otherwise stated.

4) if a cotutor dies, then the surviving spouse gets sole tutorship.

252: A tutor shall not be appointed till its birth. If necessary, a Ct can appoint a tutor to administer the estate of the child, and that person shall be the undertutor once the child is born.

257: Only a parent, the one which lives the longest, can appoint a relation or a stranger as a tutor.

If one parent is the curator of the other, it is the curator’s right. If he comes back to reality, then it ends.

This is called tutorship by will. It can be done by testament or by notary.

258: If one parent has sole custody, then that parent has the right to will tutorship. If they are cotutors then the surviving spouse has that right. However, if both parents appoint tutors, then the tutors administer the property of the parent which has appointed him.

259: The tutor by will is not compelled to accept the tutorship to which he is appointed.

If he refuses the tutorship, he loses in that case all the legacies and other advantages, which the person who appointed him may have made in his favor under a persuasion that he would accept this trust.

262: if there are several persons appointed to the children by the parent, the first mentioned shall be sole tutor, and if can’t fulfill then 2nd, 3rd, etc in succession would have sole tutor.

263: When the parent has not been appointed or the one appointed was not qualified or excused the Ct shall appoint one from the close relations one which would be in the best interest of the child.

270: When there are no relations, then the Ct shall appoint one.

16.6 The Order of Call to the Tutorship

The order of call is natural, will, legal, dative. There are 2 exceptions. 1st: If only one parent has custody then that one can will it to someone else than the surviving parent. 2nd: If the a parent is interdicted or a notoriously insane, the other can appoint someone else other than the surviving spouse.

16.7 The Natural Tutor

248, 250,

9:196: a natural tutor can, w/o qualification, perform or discharge any act affecting a right or interest of the minor of less than $7500.

They are w/ equal authority unless stipulated.

16.8 The Unborn Child

252

16.9 The Tutor by Will

257-259, 262, LCCP 4062,

9:601: says the same as 257.

LCCP 4602: gives the judge the right to refuse to confirm the the designated tutor.

16.10 The Legal Tutor

263, LCCP 4063, 4065-67

The relatives listed must reside in the state. All must be served w/ a copy of the petition.

16.11 The Dative Tutor

270, LCCP 4064-67, 4463

No one is obliged to accept a dative tutorship.

16.12 The Provisional Tutor

LCCP 4070-73

A provisional tutor can be appointed if the permanent has not yet been appointed. The provisional tutorship can be terminated by the judge before a regular tutor has been certified.

16.13 Judicial proceedings Required

LCCP 4061-70

All tutors must qualify in judicial proceedings and to receive letters of tutorship before exercising the duties of the office.

16.14 Relatives’ Obligations to Seek Appointment of a Tutor

308: There is a duty for the family members of the minor, who reside in the parish of the judge, to apply to the Ct so that the Ct can appoint a tutor w/in 10 days of the act which caused tutorship to be necessary.

309: Minors who are relatives do not need to apply.

310: If a relative does not apply can be liable for any damages caused to the minor b/c of a lack of tutorship. It is enforced a/g the relatives in the order of succession rights to the minor. The debt is not charged in solido to the neglecting relatives.

311: The tutor to the child shall bring the 310 action w/in 1 year of his appointment. If he doesn’t do so he can be liable for his neglect in not doing so.

16.15 Qualification of Tutor. Inventory or Descriptive List.

LCCP 4101, 02

16.16 Q of T. Security

322: the recording of the certificate acts as a legal mortgage in favor of the minor on all immovable property in the parish.

333: the mortgage can be enforced by making the tutor sell the mortgaged property.

LCCP 4131-37

4134: he may substitute a surety bond.

THESE RULES APPLY TO ALL EXCEPT NATURAL TUTORS.

16.17 Oath and Letters of Tutorship

LCCP 4171-72

16.18 When Does One Become Tutor

a person can be considered before he has even qualified. Natural tutors become tutors w/o judicial intervention.

16.19 “. Tutorship After Divorce or Legal Separation (covenant marriage) of Parents

246, 250, 9:196

Though the law says that the parent gets tutorship as soon as the custody is determined, the Ct’s haven’t treated it that way. The Ct’s usually do not consider them tutor, besides for liability purposes, until they are qualified and the letters are delivered.

Appendix to Griffith

Natural Tutorship has existence, as do all other tutorships, only after appointment of the tutor by a judicial tribunal, as provided by the LCCP. A parent who is awarded custody under the CC 157 is by that fact alone constituted tutor and can be deprived of custody thereafter only through a proceeding to remove the tutor. While tutorship is inclusive of custody in most instances, a custody award in connection w/ separation and divorce proceedings does not include appointment of a tutor, nor does it institute the regime of tutorship. Tutorship by nature takes place of right, but the natural tutor must qualify for the office as provided by law.

16.20 The Undertutor

273: In every tutorship there shall be an undertutor.

278: if an undertutor fails to cause to be inscribed, the evidence of the minor’s legal mortgage a/g his tutor, he will be liable for any damages caused and this claim does not prescribe so long as the minor’s right of action exists a/g his tutor.

280: the duties of the undertutor are at an end at the same time w/ the tutorship.

16.21 Excuse, Disqualification, Removal, and Resignation of Tutor or Undertutor.

292: A person can be dispensed or excused for tutorship by the privilege of their offices or functions.

293: if a person accepts tutorship after they had already been in office, they can’t use 292.

294: if 292 does apply, they can apply for the appointment of another.

295: No person, who is not a relation of the minor by blood, or who is related to him beyond the 4th degree, can be compelled to accept the tutorship.

296: every person over the age of 65 may refuse to be a tutor. If older than 70 can be excused.

297: if a person gets seriously sick he can be excused from the tutorship.

298: a person who already has 2 tutorships does not need to take a 3rd.

299: if he has a reason that he should not be a tutor he must present that reason w/in 10 days.

300: during the pendency of the litigation relative to the validity of his excuses, the tutor who is appointed shall be bound provisionally to administer as such, until he shall have been regularly discharged.

301: The causes herein expressed, or any other, cannot excuse a parent from the obligation of accepting the tutorship of his children.

LCCP 4231-4237

16.22 Responsibility of Heirs of Tutor.

4238

16.23 Custody and Supervision of the Minor

246, LCCP 4069, 4261

you can have a separate tutorship of the person and of the property. The one w/ tutorship of the person has custody of the child and the other oversees his property.

16.24 Expenses of the Minor’s Rearing

LCCP 4261

The tutor has the obligation to provide for the minor. The tutor can use the minor’s money for the support and education of the minor. If the tutorship is divided, he can demand property as need to care for the child.

16.25 Responsibility for Delicts of the Minor.

2318.

The tutor “of the person” of the minor is the only one which is liable for the acts of the minor.

16.26 “Administration” of Minor’s Assets: Disposition Thereof.

336: the prohibition a/g the alienation of immovables of the minor does not extend to the when a judgement is rendered a/g the minor.

337: a minor does not need to accept a succession that may fall to them, but such acceptance shall have the force of a formal acceptance.

360: In addition to the rights of tutorship, the parents shall retain, during the marriage and for the minority of the retarded child, all rights of administration granted to parents of normal children during their minority.

16.27 Acts of 3rd persons on Behalf of the Minor

2292-2297

a person in whose interest another has acted is obliged by the acts of that person on his behalf under the condition of these articles.

16.28 Acts of the Minor on His Own Behalf

*

16.33 Representation of Minor W/o Tutor

if a minor does not have a tutor, an attorney can be appointed to represent him.

*

16.35 Adjudication of Minor’s Interest to Parent Co-owner.

A parent who is a co-owner of a property in indivision can dispose of the property in the child’s best interests.

*

Chapter 17. Emancipation of Minors

17.1 Kinds of Emancipation and Their Effects.

216: a child remains under the authority of his parents until his majority or emancipation.

246: an unemancipated minor is placed under the authority of a tutor if his parents divorce or separate.

365: There are 3 types of Emancipation:

1) Emancipation conferring the power of administration.

2) Emancipation by marriage.

3) Emancipation relieving the minor from the time prescribed by law for attaining the age of majority.

-For 365(3) the person must be at least 16.

EMANCIPATION CONFERRING THE POWER OF ADMINISTRATION

370: The minor who is emancipated has the full administration of his estate.

371: However, he cannot bind himself to any obligation > 1 year’s salary.

372: An emancipated minor has no right to a claim of restitution on a plea of simple lesion a/g which do not exceed one year’s salary. If he has multiple creditors, then a judge can reduce them at his discretion if they together exceed 1 year’s salary. The judge should take into account the probity and dishonesty of the persons who have dealt w/ him.

373: the emancipated minor can’t alienate immovable property w/o Ct approval on the recommendation of his tutor.

374: an emancipated minor can’t make donations unless it is by marriage to the person whom he is marrying.

376: if an emancipated minor is engaged in trade, he is considered a major for all acts which have any relation to such trade.

BY MARRIAGE

382: Special effects of emancipation by marriage.

He can administer his own estate, but he can’t do anything to his immovable property w/o authorization until he is 16.

383: emancipation by marriage can’t be revoked.

384: in other respects minors emancipated by marriage are bound by the rules laid down in the regular emancipation.

FOR ATTAINING THE AGE OF MAJORITY

385: a minor 16 years of age can be declared a major.

-this article acts as a restiriction on when 365(c) can be used.

Under all 3 the child is relieved of parental authority, and is given full procedural capacity.

17.2 Modes of Emancipation for Administration.

366: a minor can be emancipated by their father, or in his absence mother, or if divorced or separated by his natural or co-tutor.

368: the minor can be emancipated a/g his will if they illtreat, refuse to support, or give corrupt examples.

A tutor who is not a parent can’t emancipate.

Held v. Wilt and XYZ Insurance Co.

Wrongful conversion action was brought against minor and his parents. District Court entered summary judgment in favor of parents. Plaintiffs appealed. The Court of Appeal held that emancipation by declaration before notary relieved parents of responsibility for damage caused by child.

17.3 Emancipation by Marriage

379: the minor, whether male or female, is emancipated of right by marriage.

Marriage or right emancipates the minor and the emancipation is irrevocable. Thus it survives a divorce.

17.4 Emancipation Conferring Majority

There must be good cause for the emancipation and the minor must be capable of handling his own affairs.

Speziale v. Kohnke

Actions against four minors and their parental guardians for injuries sustained when plaintiffs were struck by fireworks allegedly thrown from moving automobile by minors. District Court rendered judgment and plaintiffs appealed. The Court of Appeal held that injury resulting from throwing of fireworks from moving automobile was not injury 'arising out of use' of automobile within meaning of automobile policy and that judicial emancipation of 18-year-old son relieved father from any liability for his son's alleged tort.

17.5 Conflict of Laws

3519

Chapter 18. Interdiction, Continuing Tutorship, and Commitment.

18.1 Definition of Interdiction

389: if a person is a major and is an insane, etc shall be allowed to administer his own estate.

389.1: if a person is declared incapable the Ct shall appoint a limited curator. The curator shall have duties conferred to him which are limited to those things which the incapable could not care for himself.

404: a judge in the place of the interdict’s domicile shall appoint a curator if all appeals are unsuccessful.

422: it is not only for lunatics and idiots. Anyone incapable can have a curator appointed.

9:1002: a person who is a drunk can be considered an incapable

9:1021: veterans who need to be interdicted.

9:1031: can be a non-profit group which does the interdiction.

9:1032: the relationship is the same as the minor and tutor.

18.2 Continuing Tutorship

354: a person who is mentally retarded or deficient can be placed in continuing or permanent tutorship

355: a person over 15 w/ mental ability of < 1/3 a person of his age, a parent may w/ concurrence of the coroner of his parish petition for a continuing tutorship which can’t be revoked except by Ct order.

356: a person over 15 but ................
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