SLS 15RS-190 ORIGINAL
2015 Regular Session
SENATE BILL NO. 134
BY SENATOR PEACOCK (On Recommendation of the Louisiana State Law Institute)
Prefiled pursuant to Article III, Section 2(A)(4)(b)(i) of the Constitution of Louisiana.
FAMILY LAW. Provides for parental authority of married persons, obligations of children,
parents, and other ascendants, and provisional custody by mandate. (1/1/16)
1 AN ACT
2 To amend and reenact Chapter 5 of Title VII of Book I of the Civil Code, consisting of Civil
3 Code Articles 215 through 245, to consist of Articles 221 through 235, Titles VII and
4 VII-A of Book VII of the Code of Civil Procedure, consisting of Articles 4501, 4502,
5 4521 and 4522, to consist of Articles 4501 and 4521, Code of Civil Procedure
6 Articles 683, 732, and 2592, and R.S. 9:571, 572, and 951 through 954, and to enact
7 Chapter 6 of Title VII of Book I of the Civil Code to be comprised of Civil Code
8 Articles 236 through 239, Code of Civil Procedure Article 74.6, R.S. 9:573, and
9 Chapter 3-A of Code Title VIII of Code Book I of Title 9 of the Louisiana Revised
10 Statutes of 1950, to consist of R.S. 9:961 and 962, relative to parental authority of
11 married persons, the obligations of children, parents, and other ascendants, and
12 provisional custody by mandate; to provide for the authority of married fathers and
13 mothers over their minor child; to provide for the rights and obligations of married
14 parents of minor children; to provide for the obligations of minor children; to provide
15 for the authority of a married parent to administer, alienate, encumber, or lease the
16 property of his minor child, or to compromise a claim of his minor child, or to incur
17 an obligation of his minor child; to provide for the delivery of the property of the
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SLS 15RS-190 ORIGINAL
1 child to the child at the termination of parental authority; to provide for an
2 accounting of the administration of the parents to the child; to provide for the
3 delegation of parental authority; to provide for the termination of parental authority;
4 to provide for the obligations of a child regardless of age; to provide for the
5 reciprocal obligations of descendants and ascendants; to provide for the suppression
6 of Civil Code Articles relative to the duties of parents toward their illegitimate
7 children and relative to the duties of illegitimate children toward their parents; to
8 provide for venue for actions to seek court approval by parents during marriage; to
9 provide for proper party plaintiff and proper party defendant for unemancipated
10 minors; to provide for summary proceedings for certain actions; to provide for the
11 administration of minor's property during marriage of parents; to provide for the
12 administration of a court judgment in favor of a minor; to provide for limitations on
13 actions between an unemancipated minor child, his parents, a person having parental
14 authority of the unemancipated minor child, or the tutor of the unemancipated minor
15 child; to provide for acts that may be performed without court approval by a person
16 having parental authority; to provide for a redesignation of a Section relative to
17 uncontested paternity proceedings; to provide for provisional custody by mandate;
18 to direct the Louisiana State Law Institute to replace Comment (b) under Code of
19 Civil Procedure Article 684; to provide for an effective date; and to provide for
20 related matters.
21 Be it enacted by the Legislature of Louisiana:
22 Section 1. Chapter 5 of Title VII of Book I of the Civil Code, consisting of Articles
23 215 through 245, to consist of Articles 221 through 235, is hereby amended and reenacted,
24 and Chapter 6 of Title VII of Book I of the Civil Code, to consist of Articles 236 through
25 239, is hereby enacted to read as follows:
26 BOOK I. OF PERSONS
27 * * *
28 TITLE VII. PARENT AND CHILD
29 * * *
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1 CHAPTER 5. OF PARENTAL AUTHORITY OF MARRIED PERSONS
2 SECTION 1 OF THE DUTIES OF PARENTS TOWARDS THEIR LEGITIMATE
3 CHILDREN, AND OF THE DUTIES OF LEGITIMATE CHILDREN TOWARDS
4 THEIR PARENTS
5 Art. 215. Filial honor and respect.
6 A child, whatever be his age, owes honor and respect to his father and
7 mother.
8 Art. 216. Parental authority.
9 A child remains under the authority of his father and mother until his
10 majority or emancipation.
11 In case of difference between the parents, the authority of the father prevails.
12 Art. 217. Filial obedience.
13 As long as the child remains under the authority of his father and mother, he
14 is bound to obey them in every thing which is not contrary to good morals and the
15 laws.
16 Art. 218. Parental custody and correction.
17 An unemancipated minor can not quit the parental house without the
18 permission of his father and mother, who have the right to correct him, provided it
19 be done in a reasonable manner.
20 Art. 219. Parental appointment of tutors.
21 The father and mother have a right to appoint tutors to their children, as is
22 directed in the title: Of Minors, of their Tutorship and Emancipation.
23 Art. 220. Delegation of parental authority.
24 Fathers and mothers may, during their life, delegate a part of their authority
25 to teachers, schoolmasters and others to whom they intrust their children for their
26 education, such as the power of restraint and correction, so far as may be necessary
27 to answer the purposes for which they employ them.
28 They have also the right to bind their children as apprentices.
29 Art. 221. Parental administration of child's estate.
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1 The father is, during the marriage, administrator of the estate of his minor
2 children and the mother in case of his interdiction or absence during said interdiction
3 or absence.
4 He or she shall be accountable both for the property and revenues of the
5 estates the use of which he or she is not entitled to by law and for the property only
6 of the estate the usufruct of which the law gives him or her.
7 This administration ceases at the time of the majority or emancipation of the
8 children, and also ceases upon judicial separation from bed and board either of the
9 father from the mother or of the mother from the father.
10 SECTION 1. GENERAL PRINCIPLES OF PARENTAL AUTHORITY
11 Art. 221. Authority of married parents
12 The father and mother who are married to each other have parental
13 authority over their minor child during the marriage.
14 Revision Comments - 2015
15 (a) This Article introduces the subject of parental authority, which exists
16 during the marriage of the parents. The Articles in this Chapter establish a regime,
17 or system of rules, governing the relationship of parent and child. The Articles that
18 follow not only prescribe rights and responsibilities of parents to their children and
19 children to their parents but also provide instruction concerning the proper conduct
20 of good children and good parents.
21
22 (b) Parental authority as used in this Article does not refer to the authority
23 of a parent in its broad sense, that is the authority that lasts throughout the lives of
24 both parent and child (see C.C. Art. 236 (Rev. 2015), but instead refers to such
25 authority in its limited sense that lasts until the majority or emancipation of the child,
26 or the termination of the marriage of the child's parents. See C.C. Art. 235 (Rev.
27 2015).
28
29 (c) Fathers and mothers enjoy parental authority over their child during their
30 marriage, with a few exceptions. See C.C. Arts. 232 and 234 (Rev. 2015). Compare
31 C.C. Art. 216 (1870). By contrast, if the father and mother of the minor child never
32 married or if they divorced, the regime of tutorship exists rather than the regime of
33 parental authority. C.C. Arts. 256 and 246 (1870).
34 Art. 222. Representation of minor
35 Parental authority includes representation of the child and the right to
36 designate a tutor for the child.
37 Revision Comments - 2015
38 (a) This Article makes explicit that parental authority includes representation
39 of the child. Despite the reference in the title to representation, C.C. Art. 235 (1870)
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SLS 15RS-190 ORIGINAL
1 provided simply that fathers and mothers may "appear for [their minor children] in
2 court in every kind of civil suit...." The Code of Civil Procedure recognizes the
3 father and the mother as the proper parties plaintiff and defendant for their minor
4 child. C.C.P. Arts. 683, 732, and 4501. However, C.C. Art. 235 (1870) did not
5 contain a general rule of parental representation of the minor in juridical acts but
6 instead referred only to the parents' acceptance of any donation made to their child.
7 C.C. Art. 1472 (Rev. 1991).
8
9 (b) Representation means that the parent may represent the minor child in
10 "legal relations." C.C. Art. 2985 (Rev. 1997). See W. Holmes and S. Symeonides,
11 "Representation, Mandate, and Agency: A Kommentar on Louisiana's New Law,"
12 73 Tul. L. Rev. 1087 (1999). Of course, only the child may enter into some legal
13 relations, such as marriage (C.C. Art. 92 (Rev. 1987) and Ch.C. Arts. 1543 et seq.),
14 making a will (C.C. Art. 1476 (Rev. 1991)), and other legal relations subject to
15 exceptions made by law (see e.g., R.S. 40:1299.35.5). See also Carey v. Population
16 Services, International, 41 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d. 675 (1977).
17
18 (c) Parental authority includes the right of a parent to designate a
19 testamentary" tutor as permitted by C.C. Art. 257 (1870). The designation can be
20 made by authentic act as well as by testament. See C.C. Art. 219 (1870).
21 Art. 223. Parental usufruct on minor child's property
22 Parents have during marriage the enjoyment of the property of their children
23 until their majority or emancipation.
24 This usufruct is nonalienable and exempt from seizure.
25 Art. 223. Rights and obligations of parental authority
26 Parental authority includes rights and obligations of physical care,
27 supervision, protection, discipline, and instruction of the child.
28 Revision Comments - 2015
29 (a) This Article introduces the rights and obligations of parents over the
30 person of their child. Principal among these rights and obligations is the physical
31 care of the minor, this right and obligation that was implicit under C.C. Art. 218
32 (1870). The right to physical care of the child reflects the parents' paramount right
33 to custody of their child, recognized in the jurisprudence. See Reinhardt v.
34 Reinhardt, 720 So. 2d 78, 79 (La.App. 1 Cir. 1998), writs denied 745 So. 2d 22
35 (1999); Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).
36 Furthermore, this right makes possible in a practical way the rights and obligations
37 of supervision, protection, and instruction.
38
39 (b) The parental rights and obligations of supervision and instruction provide
40 the means of performing the parents' obligation of moral and material direction of
41 the child. See C.C. Art. 99 (Rev. 1987). The right to physical care of the child
42 assures parents the opportunity to supervise and instruct their child and to provide
43 for their child's health and safety.
44
45 (c) C.C. Art. 235 (1870) imposed an obligation upon the parents to protect
46 their child but contained no language explicitly creating a right of protection. This
47 revision incorporates both a parental right and obligation to protect the child.
48 Art. 224. Obligations resulting from parents' usufruct
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SLS 15RS-190 ORIGINAL
1 The obligations resulting from this enjoyment shall be:
2 1. The same obligations to which usufructuaries are subjected;
3 2. To support, to maintain and to educate their children according to their
4 situation in life.
5 SECTION 2. OBLIGATIONS OF PARENTS
6 Art. 224. Parental obligation of support and education
7 Parents are obligated to support, maintain, and educate their child. The
8 obligation to educate a child continues after minority as provided by law.
9 Revision Comments - 2015
10 (a) This Article is the first of three Articles imposing obligations upon the
11 parents toward their child and third persons. The obligation of parents to support and
12 maintain their minor child under this Article is identical to its predecessor, C.C. Art.
13 227 (1870), but distinguishable from the obligation of parents who enjoyed a
14 usufruct over their child's property under C.C. Art. 224 (1870). Parents with a
15 usufruct over their minor child's property were obligated to support and maintain
16 their child "according to their situation in life." C.C. Art. 224 (1870). Nevertheless,
17 C.C. Art. 227 (1870) was interpreted as imposing a responsibility upon parents to
18 support their child in accordance with their standard of living during their marriage.
19 See Comment (c) to C.C. Art. 141 (Rev. 1993).
20
21 (b) The parents' obligation to educate their minor child continues after
22 minority for a child who "is a full-time student in good standing in a secondary
23 school or its equivalent, has not attained the age of nineteen, and is dependent upon
24 either parent" and when the child "has a developmental disability, as defined in R.S.
25 28:451.2, until he attains the age of twenty-two, as long as the child is a full-time
26 student in a secondary school." This does not change prior law. See C.C. Art. 230
27 (1870); R.S. 9:315.22(C) and (D).
28
29 (c) Although a parent is obligated to support, maintain, and educate his
30 minor child, the unemancipated child may not enforce the obligation against any
31 person who has parental authority. R.S. 9:571 (Rev. 2015). Nevertheless, in a
32 proceeding for divorce, or while the spouses are living separate and apart, a spouse
33 who seeks custody of a child may also assert a claim for child support. C.C. Art. 105
34 (Rev. 1990), Arts. 141-142 (Rev. 1993); R.S. 9:315-315.26. See also R.S. 9:291
35 (claim for child support if living separate and apart).
36 Art. 225. Parental liability for child's offenses and quasi-offenses
37 Parents are responsible for damage occasioned by their child as provided
38 by law.
39 Revision Comment - 2015
40 This Article does not change the law; it merely replaces C.C. Art. 237 (1870)
41 and recognizes the liability of parents for damage "occasioned by their minor child"
42 as provided in C.C. Art. 2318. This liability rests upon the authority of the parents
43 over the person of their child--the rights to and obligations of the physical care,
44 supervision, protection, discipline, and instruction of the child. See C.C. Art. 223
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1 (Rev. 2015) and Turner v. Bucher, 308 So.2d 270 (La. 1975).
2 Art. 226. Parent's usufruct in child's estate; exceptions
3 This usufruct shall not extend to any estate, which the children may acquire
4 by their own labor and industry, nor to such estate as is given or left them under the
5 express condition that the father and mother shall not enjoy such usufruct. Neither
6 shall such usufruct extend to such estate as is given the children by donation inter
7 vivos unless such estate shall have been donated by written act and the right to such
8 usufruct has been provided for therein.
9 Art. 226. Parental obligation of direction
10 Parents have a moral obligation to provide moral, social, and material
11 direction for their child.
12 Revision Comments -- 2015
13 (a) Parents assume the moral obligation of providing moral, social, and
14 material direction to their child. C.C. Art. 99 (Rev. 1987) explains that, by marrying,
15 spouses mutually assume the moral and material direction of their children.
16
17 (b) Moral direction includes instruction and exhortation concerning moral
18 obligations and common moral principles. Social direction is more expansive and
19 contemplates, for example, instruction concerning acceptable conduct within the
20 broader community and the necessity of considering and balancing the needs of
21 others and the community against the individual's desires. Instruction concerning
22 basic economic matters, such as living within one's means, falls within the purview
23 of material direction.
24
25 (c) C.C. Art. 223 implicitly and Art. 228 (Rev. 2015) explicitly impose
26 obligations upon the child to obey his parents and upon the parent to instruct his
27 child, with the concomitant right to correct the child in a reasonable manner, all for
28 the purpose of assuring a legally practical means of accomplishing the parents'
29 obligation to provide direction for their child.
30 Art. 227. Parental support and education of children.
31 Fathers and mothers, by the very act of marrying, contract together the
32 obligation of supporting, maintaining, and educating their children.
33 SECTION 3. OBLIGATIONS OF CHILDREN
34 Art. 227. Parental control
35 A child owes assistance to his parents and may not quit a family
36 residence without the consent of both parents, except as otherwise provided by
37 law.
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1 Revision Comments - 2015
2 (a) The explicit obligation a child owes to assist his father and mother is
3 new. Assistance includes, at the least, the personal care of an ill or infirm parent,
4 just as the obligation of assistance reciprocally assumed by spouses includes such
5 responsibility. C.C. Art. 98 (Rev. 1987), Revision Comment (c). In addition,
6 assistance more broadly defined includes cooperating and participating in the daily
7 tasks required for the efficient functioning of the family and other responsibilities
8 that are consistent with the purposes and goals of family life. This obligation of
9 assistance, however, does not include monetary support.
10
11 (b) As long as the minor is unemancipated, he may not leave the family
12 home without the consent of both parents for the purpose of establishing a residence
13 separate from his parents. "Quit" does not refer to a temporary absence. On this
14 point, this Article makes no change in the law. C.C. Art. 218 (1870).
15 Art. 228. Marriage settlement or advancement
16 A child has no right to sue either his father or mother for the purpose of
17 obtaining a marriage settlement or other advancement.
18 Art. 228. Child's obligation of obedience; parental correction
19 A child shall obey his parents in all matters not contrary to law or good
20 morals. Parents have the right and obligation to correct and discipline the child
21 in a reasonable manner.
22 Revision Comments - 2015
23 (a) This Article restates the substance of C.C. Art. 217 (1870). The child's
24 obligation of obedience serves as the foundation for the parental right of correction.
25 See C.C. Art. 223 (Rev. 2015).
26
27 (b) Consistently with its predecessor, C.C. Art. 218 (1870), the second
28 sentence of this Article bestows upon parents the right to correct their child in a
29 reasonable manner. This right to correct is essential to compliance with the parental
30 obligations of physical care, supervision, protection, and instruction. Since
31 acculturation of children occurs principally within the family, the law recognizes the
32 necessity of reasonable discipline by those who love the child to instill character,
33 self-discipline, and virtue.
34 Art. 229. Reciprocal alimentary duties of ascendants and descendants
35 Children are bound to maintain their father and mother and other ascendants,
36 who are in need, and the relatives in the direct ascending line are likewise bound to
37 maintain their needy descendants, this obligation being reciprocal. This reciprocal
38 obligation is limited to life's basic necessities of food, clothing, shelter, and health
39 care, and arises only upon proof of inability to obtain these necessities by other
40 means or from other sources.
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1 SECTION 4. AUTHORITY OVER THE P ROPERTY OF THE CHILD
2 Art. 229. Administration of the property of the child
3 Each parent has the right and the obligation to administer the property
4 of the child. The parent must do so as a prudent administrator and is
5 answerable for any damage caused by his fraud, fault, default, or neglect. An
6 action for failure to perform this obligation is subject to a liberative
7 prescription of five years that commences to run from the day the child attains
8 the age of majority.
9 Revision Comments - 2015
10 (a) This Article departs from its predecessor by granting the right to
11 administer the minor child's property to either parent. Under C.C. Art. 221 (1870),
12 the father was the administrator of the minor's estate unless he was interdicted or
13 absent (an absent person under C.C. Art. 47 (Rev. 1990)). See also C.C.P. Art. 683
14 (as amended 2012) and Art. 732 (as amended 2004), which as a general rule made
15 the father the proper party plaintiff and defendant for the minor child during the
16 existence of parental authority. Upon enactment in 1987, however, C.C. Art. 99
17 recognized that parental authority was to be exercised equally. See 1987 Revision
18 Comment to C.C. Art. 99 (Rev. 1987).
19
20 (b) The standard of care imposed upon the parent who administers the minor
21 child's property is that of a prudent administrator, and the administration must be for
22 the benefit of the minor child. Usufructuaries (C.C. Art. 576), spouses who are
23 co-owners of former community property (C.C. Art. 2369.3), managers under a
24 negotiorum gestio (C.C. Art. 2295), and tutors (C.C.P. Art. 4262) are subject to the
25 same standard. Furthermore, this Article imposes the standard of care in the context
26 of the principle that the property be administered for the benefit of the child. In this
27 respect, the responsibility of the parents resembles the responsibility of those who
28 administer the property of another, such as the trustee who has a duty to administer
29 the trust solely in the interest of the beneficiary; R.S. 9:2082.
30
31 Consistent with the standard of care imposed upon the parent who
32 administers the minor's property, this Article imposes liability upon the
33 administering parent "for any damage caused by his fraud, fault, default, or neglect."
34 Similar language appears in C.C. Art. 576 (liability of usufructuary to the naked
35 owner) and Art. 2369.3 (liability of a spouse to the other spouse for failure to
36 manage former community property prudently).
37
38 (c) Acts of administration differ from acts of alienation, encumbrance, or
39 lease. The ability of the parents to act alone without court approval in matters
40 affecting the minor child's property depends upon the nature of the act: either parent
41 may administer the child's property without court supervision; a parent may dispose
42 of the child's property only with prior court approval (See C.C. Art. 230 [Rev.
43 2015]), except as otherwise provided by law (see R.S. 9:572 (Rev. 2015)).
44 Administration contemplates preservation or protection of acquired rights or the
45 exploitation of them without changing the substantial character of the minor's
46 patrimony as a whole. Disposition is any other act that is not administration.
47
48 In the different, yet analogous, regime of tutorship, the Code of Civil
49 Procedure contains detailed articles governing when the tutor needs court approval.
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1 Nevertheless, those articles do not provide a complete solution to the problem of
2 distinguishing between the two types of acts: some acts that require court approval
3 are purely administrative. Other acts are of such gravity that a requirement of court
4 approval might be expected; yet there is no legislation specifically requiring it. This
5 Article clearly contemplates a difference between administration and disposition that
6 more nearly reflects the classic distinction. See Katherine Shaw Spaht, Family Law
7 in Louisiana, 714-715 (2000).
8 Art. 230. Scope of alimentary obligation
9 A. By alimony we understand what is necessary for the nourishment,
10 lodging, and support of the person who claims it.
11 B.(1) It includes the education, when the person to whom the alimony is due
12 is a minor, or when the person to whom alimony is due is a major who is a full-time
13 student in good standing in a secondary school, has not attained the age of nineteen,
14 and is dependent upon either parent.
15 (2) It includes the education, when the person to whom the alimony is due
16 has not attained the age of twenty-two and has a developmental disability as defined
17 in R.S. 28:381.
18 Art. 230. Alienation, encumbrance, or lease of the property of the child;
19 expenditure of fruits
20 Either parent may alienate, encumber, or lease the property of the child,
21 compromise a claim of the child, or incur an obligation of the child for his
22 education, support, and maintenance only with prior court approval, except as
23 otherwise provided by law.
24 Nevertheless, a parent may expend, without court approval, the fruits of
25 the child's property for the shared benefit of the family, excluding major
26 children not living in the household, or for the expenses of the child's household.
27 Revision Comments - 2015
28 (a) In contrast to Article 229 referring to acts of administration, this Article,
29 as a general proposition, requires the parent to obtain prior court approval in the
30 manner provided by C.C.P. Art. 4501 (Rev. 2015), if the act contemplated by the
31 parent is an alienation, encumbrance, or lease of the minor child's property, including
32 the compromise of a claim of the child, or of the act includes incurring an obligation
33 of the child. All such acts must be for the purpose of education, support, or
34 maintenance of the child. See C.C. Art. 224 (Rev. 2015).
35
36 The procedure for obtaining court approval is intended to provide protection
37 to the minor child. See C.C.P. Arts. 4271 and 4501 (Rev. 2015). If a parent does not
38 obtain court approval of a transaction when approval is required, the transaction is
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1 relatively null. See C.C. Arts. 2031 and 2033 (Rev. 1984); Snowden v. Huey P. Long
2 Memorial Hospital, 581 So.2d 287 (La.App. 3 Cir. 1991). See also Succession of
3 Hellmers, 637 So.2d 1302 (La.App. 4 Cir. 1994); and Carter v. Fenner, 136 F.3d
4 1000 (5 Cir. 1998).
5
6 (b) R.S. 9:572 (Rev. 2015) permits a parent to take certain actions without
7 prior court approval, such as alienation of the minor's movable property if the sum
8 received does not exceed $15,000.
9
10 (c) A major exception to the requirement of court approval for alienation of
11 the minor's property is the expenditure of fruits of the minor's property for two
12 purposes - expenses of the child's household, such as electricity, water, rent, or for
13 the shared benefit of the family. "Family" as used in this Article is family in its
14 limited sense under C.C. Art. 3506 (12), which consists of "father, mother, and
15 children." Nonetheless, this Article further restricts the meaning of family to exclude
16 major children not living in the household, even though they are included within the
17 broad definition of "children" in Article 3506 (8).
18
19 (d) The second paragraph of this Article is intended as a substitute for the
20 former parental right of enjoyment, which was a form of usufruct enjoyed by parents
21 during the existence of parental authority. See C.C. Arts. 223-226 (1870). Prior law
22 restricted the type of property of the minor child subject to the right of enjoyment,
23 by excluding, for example, property earned by the minor's own labor and industry
24 or donated to the minor (C.C. Art. 226 (1870)). But property subject to the parents'
25 enjoyment made them the owners of the fruits of the property. As a consequence of
26 being owner of the fruits produced from such property of the minor child, the parents
27 could expend those fruits as they saw fit, for any purpose. This Article changes the
28 law: although it does not create a parental right of enjoyment subject to the rules of
29 the law of usufruct, it does permit the parents to use the fruits from all of the minor's
30 property but only for limited purposes which are described in the Article.
31
32 (e) Code of Civil Procedure Article 4521 (Rev. 2015) contains further
33 protection, in the interest of the minor, when his property consists of a judgment or
34 settlement, as in the case of the minor child's personal injury recovery. The court has
35 authority to order the funds from a minor's personal injury recovery to be deposited
36 in the registry of the court, to be expended only for certain authorized purposes, or
37 to be placed in trust. In addition the court has authority to impose other restrictions
38 upon the use and withdrawal of such funds as it deems necessary to protect the
39 interest of the minor child in accordance with the provisions of C.C.P. Article 4521
40 (Rev. 2015).
41
42 (f) The right of parents to expend the fruits of the child's property for
43 authorized purposes without court approval under this Article is forfeited if one of
44 the parents is declared unworthy to succeed and his child inherits under the
45 provisions of C.C. Art. 946(B).
46 Art. 231. Basis for granting alimony.
47 Alimony shall be granted in proportion to the wants of the person requiring
48 it, and the circumstances of those who are to pay it.
49 Art. 231. Parents' obligation to deliver and account
50 Parents are bound to deliver to the child his property at termination of
51 parental authority.
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1 Parents shall also give an account of their administration when ordered
2 by the court. The action to compel an accounting is subject to a liberative
3 prescription of five years that commences to run from the day the child attains
4 the age of majority.
5 Revision Comments - 2015
6 (a) At termination of parental authority for a cause provided in C.C. Art. 235
7 (Rev. 2015), the parents are obligated to deliver to the child his property in their
8 possession and/or under their control. In addition they are bound to "give an account
9 of their administration...." just as a tutor must. See C.C.P. Art. 4392. For example,
10 they must explain what happened to the child's property that is no longer in their
11 possession or under their control and for what purpose any proceeds were expended.
12
13 (b) The action instituted by the child to obtain an accounting from the
14 parents at termination of parental authority is a summary proceeding. See C.C.P.
15 Art. 2592(9) (Rev. 2015).
16
17 (c) The action to enforce the obligation to deliver the child's property is not
18 subject to liberative prescription. See Yiannopoulos, Property (Civ.L.Treat., vol. 2),
19 Section 279, at 557-558 (4th ed. 2001). In contrast, the action by the child to compel
20 an accounting is a personal action that prescribes in five years from the day the child
21 attains the age of majority.
22
23 (d) The obligations of the parents contained in this Article are governed by
24 general principles of the law of obligations in determining if the obligation of the
25 parents is joint or solidary (C.C. Arts. 1786-1788, 1794-1806 (Rev. 1984)), and if
26 joint, whether divisible or indivisible (C.C. Art. 1789 (Rev. 1984)).
27 Art. 232. Reduction of alimony or discharge from payment
28 When the person who gives or receives alimony is replaced in such a
29 situation that the one can no longer give, or that the other is no longer in need of it,
30 in whole or in part, the discharge from or reduction of the alimony may be sued for
31 and granted.
32 SECTION 5. PERSON HAVING PARENTAL AUTHORITY AND
33 OF ITS DELEGATION AND SUSPENSION
34 Art. 232. Parental authority
35 Either parent during the marriage has parental authority over his child
36 unless otherwise provided by law.
37 Under extraordinary circumstances, such as if one parent is mentally
38 incompetent, committed, interdicted, or imprisoned, or is an absent person, the
39 other parent has exclusive authority.
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1 Revision Comments - 2015
2 (a) Under this Article, which changes the law in part, parental authority may
3 be exercised by either parent. The predecessor of this Article, Civil Code Article 216
4 (1870), acknowledged that parents shared this authority, but "[i]n the case of
5 difference between the parents, the authority of the father prevails." Nevertheless,
6 the jurisprudence never applied the Article strictly. See Wood v. Beard, 290 So.2d
7 675 (La. 1974). Article 99 of the Civil Code, which was later legislation enacted in
8 1987, provides that spouses by the act of marrying "mutually assume the moral and
9 material direction of the family, exercise parental authority, and assume the moral
10 and material obligations resulting therefrom." The Revision Comment to C.C. Art.
11 99 (Rev. 1987) explains that that Article "states a general principle of equality
12 between the spouses in the moral and material direction of the family." This Article
13 explicitly recognizes the general principle of equality of the parents in the exercise
14 of parental authority by permitting either parent acting alone to exercise any facet of
15 this authority, with certain specified exceptions. See the second paragraph of this
16 Article and C.C. Art. 234 (Rev. 2015).
17
18 (b) An instance under this Article for the exercise of one parent's exclusive
19 authority occurs when there are extraordinary circumstances, such as the mental
20 incompetence, commitment, or imprisonment of the other parent or the other parent
21 is an absent person under C.C. Art. 47 (Rev. 1990). The illustrative list of
22 extraordinary circumstances is similar to that contained in C.C. Art. 2355 (Rev.
23 1979).
24
25 The list of extraordinary circumstances in this Article differs from that
26 contained in C.C. Art. 2355 (Rev. 1979) in the following respect: this Article
27 includes interdiction of a parent. Interdiction may be full or limited. If a parent has
28 been fully interdicted (see C.C. Art. 389 [Rev. 2000]), the second paragraph of this
29 Article applies. If the interdiction of a parent is limited (see C.C. Art. 390 [Rev.
30 2000]), the second paragraph applies only if the judgment of limited interdiction
31 places parental authority in his curator. See C.C. Art. 395 (Rev. 2000), which
32 distinguishes the effect of a full and a limited interdiction.
33 Art. 233. Duty to receive in home in lieu of alimony payments
34 If the person, whose duty it is to furnish alimony, shall prove that he is unable
35 to pay the same, the judge may, after examining into the case, order that such person
36 shall receive in his house, and there support and maintain the person to whom he
37 owes alimony.
38 Art. 233. Delegation of parental authority
39 Parents may delegate all or a part of their parental authority to others
40 as provided by law.
41 Parents delegate a part of their parental authority to teachers and others
42 to whom they entrust their child for his education, insofar as may be necessary.
43 Revision Comments - 2015
44 (a) As under prior law, parents may delegate all or a part of their parental
45 authority. This revision recognizes the right of parents to delegate their authority
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1 under the following circumstances: (1) upon execution of a mandate granting
2 provisional custody under the provisions of and for the purposes contained in R.S.
3 9:951-954; (2) upon a voluntary transfer of custody to other responsible adults under
4 the provisions of Children's Code Articles 1510 et seq.; (3) upon an express grant of
5 authority to a person with whom the parent places the child, for example, a
6 babysitter, neighbor, or grandparent; or (4) when the circumstances are such that it
7 is customary for parents to delegate a part of their authority, for example, the child's
8 overnight visits in the homes of friends.
9
10 (b) C.C. Art. 220 (1870) permitted parents to delegate a part of their
11 authority to teachers and others to whom they entrusted their children for education.
12 This revision recognizes that by virtue of the provisions of R.S. 17:223 (discipline
13 of pupils; suspension from school; corporeal punishment), parents by the very act of
14 enrolling their children in school in effect do delegate a part of their authority to
15 teachers and others for the purpose of educating their child. The Article thus
16 accomplishes a legal delegation of parental authority implicit in the provisions of
17 Title 17 of the Revised Statutes.
18
19 (c) A delegation of parental authority does not relieve a parent of liability for
20 a child's offenses or quasi-offenses under C.C. Art. 225 (Rev. 2015) and Art. 2318
21 (Rev. 2008). See C.C. Art. 2318 (Rev. 2008).
22 Art. 234. Parental choice to receive child at home in lieu of alimony payments
23 The judge shall pronounce likewise whether the father or mother who may
24 offer to receive, support and maintain the child, to whom he or she may owe
25 alimony, in his or her house, shall be dispensed in that case from the obligation of
26 paying for it elsewhere.
27 Art. 234. Parental authority; custody award
28 Parental authority continues during marriage, unless modified by a
29 judgment awarding custody to one parent, by a joint custody implementation
30 order, or by a judgment awarding custody to a third person.
31 An ascendant, other than a parent, who is awarded custody has parental
32 authority. The authority of a third person who is awarded custody, other than
33 an ascendant, is governed by the rules of tutorship, unless modified by court
34 order.
35 Revision Comments - 2015
36 (a) This Article is new. It provides that the general rule that parental
37 authority continues until the parents' marriage terminates unless modified by court
38 order. A court order of custody modifying parental authority may be rendered during
39 the marriage pursuant to a rule to show cause while the parents are living separate
40 and apart (R.S. 9:291) or after a petition for divorce has been filed (C.C. Arts. 105,
41 131, and 136). A custody award may also be made in a proceeding for a judicial
42 separation in a covenant marriage See R.S. 9:308(D).
43
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1 (b) The reference to a modification by a joint custody implementation order
2 includes the possibility of the designation under R.S. 9:335(B) of a domiciliary
3 parent, a term that is defined as the parent with whom the child primarily resides.
4 This designation necessarily modifies parental authority because the "domiciliary
5 parent" has sole authority to make all decisions affecting the child unless the
6 implementation order specifically modifies this authority. If no domiciliary parent
7 is named but the implementation order is detailed and provides for decision-making
8 by one or both parents as contemplated by R.S. 9:335(A), the order modifies parental
9 authority. If no domiciliary parent is designated and no specific allocation of
10 decision-making authority is contained in a joint custody implementation order,
11 parental authority is unmodified according to R.S. 9:335(C).
12
13 (c) The reference to a modification by a judgment awarding custody to one
14 parent contemplates the possibility that a custody award to one parent conveying
15 authority over the child can modify parental authority. A sole custody award to one
16 parent may be modified by the provisions of a court order and affect the authority of
17 the custodial parent. The terms of the judgment determine the extent to which
18 parental authority is modified.
19
20 (d) For a parent without parental authority because of a sole custody award
21 to the other parent or the provisions of a joint custody implementation order, certain
22 rights and obligations nonetheless continue. For example, a parent awarded
23 visitation under the provisions of C.C. Art. 136(A) may discipline and correct the
24 child absent a contradictory provision in the court order of visitation. Likewise, the
25 noncustodial parent remains obligated to support, maintain and educate the child, an
26 obligation that is often enforced by a child support award under C.C. Art. 141 and
27 R.S. 9:315 et seq. These rights and obligations attach to parenthood, more generally,
28 and are not limited to a narrower concept of parental authority.
29
30 (e) If the court awards custody of the child to a third person during the
31 existence of parental authority, as it may under C.C. Art. 133, the general principle
32 adopted by this Article is that, with one narrow exception, the third person has the
33 authority of a tutor under C.C. Arts. 246 et seq. The only exception to this general
34 principle is for ascendants, other than a parent, awarded custody of the child. An
35 ascendant awarded custody of a minor child during the existence of parental
36 authority exercises such authority. Although the ascendant with custody has the
37 authority of a parent, the custody award to the ascendant does not displace the
38 obligation owed by a parent to the child to support, maintain, and educate the child,
39 C.C. Art. 224 (Rev. 2015) nor does the ascendant assume a more onerous obligation
40 of support than the reciprocal obligation imposed by C.C. Art. 237 (Rev. 2015) owed
41 by all ascendants and descendants to each other.
42 Art. 235. Parental protection and representation of children in litigation
43 Fathers and mothers owe protection to their children, and of course they may,
44 as long as their children are under their authority, appear for them in court in every
45 kind of civil suit, in which they may be interested, and they may likewise accept any
46 donation made to them.
47 SECTION 6. TERMINATION OF PARENTAL AUTHORITY
48 Art. 235. Termination of parental authority
49 Parental authority terminates upon the child's attaining the age of
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1 majority, upon the child's emancipation, or upon termination of the marriage
2 of the parents of the child.
3 Revision Comment - 2015
4 (a) This Article does not change the law: parental authority terminates when
5 the child reaches majority or is emancipated, or when the marriage of the parents
6 terminates. See C.C. Arts. 221 and 246 (1870) and C.C. Art. 101 (Rev. 1990).
7
8 (b) Parental authority also terminates upon a judgment of separation from
9 bed and board in a covenant marriage (R.S. 9:309). Parental authority is suspended
10 upon the appointment of a guardian under the Children's Code (Ch.C. Art. 682) or
11 upon the rendition of some other judgment by public law which removes the child
12 from the care and custody of his parents or interferes with either or both parents'
13 authority over their child. See, e.g., C.C. Art. 234 (Rev. 2015); Williams v. City of
14 Baton Rouge, 252 La. 770, 214 So. 2d 138 (La. 1968); Redd v. Bohannon, 166 So.
15 2d 362 (La. App 3 Cir. 1964).
16
17 (c) Parental authority lasts until the child reaches majority at eighteen years
18 or is emancipated. A child may be emancipated by judicial emancipation, marriage,
19 or authentic act. See C.C. Arts. 365-369 (Rev. 2008).
20 Art. 236. Justification of parent's assault in defense of children
21 Fathers and mothers may justify themselves in an action begun against them
22 for assault and battery, if they have acted in the defense of the persons of their
23 children.
24 CHAPTER 6. OBLIGATIONS OF CHILDREN AND PARENTS
25 AND OTHER ASCENDANTS
26 Art. 236. Filial honor and respect
27 A child regardless of age owes honor and respect to his father and
28 mother.
29 Revision Comment - 2015
30 The duty of a child to honor and respect his parents is not limited to the
31 minority of a child. See C.C. Art. 215 (1870). Although no direct sanction for the
32 breach of this obligation exists, the purpose of this Article is both hortatory and
33 instructive as to the conduct of a good child of any age. Of course, if the child is a
34 forced heir and the disrespectful act is sufficiently extreme, the parent is permitted
35 to disinherit the child. See C.C. Arts. 1617 and 1621 (Rev. 2001).
36 Art. 237. Parents' liability for offenses or quasi-offenses of children
37 Fathers and mothers are answerable for the offenses or quasi-offenses
38 committed by their children, in the cases prescribed under the title: Of
39 Quasi-Contracts, and of Offenses and Quasi-Offenses.
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1 Art. 237. Obligation of providing the basic necessities of life; ascendants and
2 descendants; exceptions
3 Descendants are bound to provide the basic necessities of life to their
4 ascendants who are in need, upon proof of inability to obtain these necessities
5 by other means or from other sources, and ascendants are likewise bound to
6 provide for their needy descendants, this obligation being reciprocal.
7 This obligation is strictly personal and is limited to the basic necessities
8 of food, clothing, shelter, and health care.
9 This obligation is owed by descendants and ascendants in the order of
10 their degree of relationship to the obligee and is joint and divisible among
11 obligors. Nevertheless, if the obligee is married, the obligation of support owed
12 by his descendants and ascendants is secondary to the obligation owed by his
13 spouse.
14 Revision Comments - 2015
15 (a) This Article contains the provisions of former C.C. Art. 229 (Rev. 1979).
16 It imposes a reciprocal lifetime obligation upon ascendants and descendants,
17 relationships determined in accordance with C.C. Arts. 899-901, to provide the basic
18 necessities of life, which explicitly are limited to food, clothing, shelter and health
19 care. This obligation exists only when the obligee proves that he is unable to obtain
20 these necessities "by other means" or "from other sources."
21
22 (b) The needs of the obligee, referred to in C.C. Art. 238 (Rev. 2015), are to
23 be measured by the basic necessities of life explicitly delineated in this Article as
24 food, clothing, shelter, and basic or essential health care.
25
26 (c) The phrase "by other means" includes the capital resources and the
27 earning capacity of the obligee. See Levy v. Levy, 536 So.2d 742 (La.App. 3 Cir.
28 1988); Landeche v. Airhart, 372 So.2d 598 (La.App. 4 Cir. 1979).
29
30 (d) The phrase "from other sources" includes public assistance.
31
32 (e) For the first time this Article provides a ranking of those descendants and
33 ascendants who owe this reciprocal, lifetime obligation. Furthermore, this Article
34 also directs that, if the obligee is married, the obligation of support owed by one
35 spouse to the other (see C.C. Art. 98 (Rev. 1987)) primes the limited obligation owed
36 by ascendants and descendants. See Matheny v. Matheny, 205 La. 869, 18 So.2d 324
37 (La. 1944); Lyons v. Landry, 293 So.2d 674 (La.App 1 Cir. 1974); McCole v.
38 McCole, 383 So.2d 55 (La.App 2 Cir. 1980); and Simon v. Simon, 127 So.2d 769
39 (La.App. 3 Cir. 1961). The ranking of obligors imposes the obligation first upon the
40 spouse, then upon the descendants and ascendants closest in degree of relationship
41 to the obligee. To determine the closest in degree of relationship to the obligee, see
42 C.C. Arts. 900 and 901 (Rev. 1981).
43
44 (f) This Article specifically provides that this obligation is strictly personal,
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1 not heritable (see C.C. Arts. 1766 and 1765 (Rev. 1984)) and as a consequence may
2 not be enforced by a third person. This Article is explicit that the obligation is joint
3 and divisible among obligors, not solidary. See C.C. Arts. 1786, 1788, 1789, and
4 1790 (Rev. 1984).
5 SECTION 2--OF THE DUTIES OF PARENTS TOWARD THEIR
6 ILLEGITIMATE CHILDREN, AND OF THE DUTIES OF ILLEGITIMATE
7 CHILDREN TOWARD THEIR PARENTS
8 Art. 238. Illegitimate children, freedom from parental authority.
9 Illegitimate children generally speaking, belong to no family, and have no
10 relations; accordingly they are not submitted to the paternal authority, even when
11 they have been legally acknowledged.
12 Art. 238. Amount of support
13 The amount of support shall be determined in accordance with the needs
14 of the obligee, as limited under the preceding Article, and the means of the
15 obligor.
16 Revision Comments - 2015
17 (a) This Article incorporates the content of former C.C. Art. 231 (1870),
18 which contained the general rules for the award of alimony.
19
20 (b) C.C. Arts. 233 and 234 (1870) have been suppressed.
21 Art. 239. Reciprocal duties between parents and illegitimate children
22 Nevertheless nature and humanity establish certain reciprocal duties between
23 fathers and mothers and their illegitimate children.
24 Art. 239. Modification or termination of support
25 The amount of support may be modified if the circumstances of the
26 obligor or the obligee materially change and shall be terminated if it has become
27 unnecessary.
28 Revision Comment - 2015
29 This Article incorporates the provisions of C.C. Art. 232 (1870), which
30 provided for the change or termination of an alimony award if the need of the obligee
31 or the ability of the obligor to pay changed or the award became unnecessary. See
32 Comment (a) to C.C. Art. 238 (Rev. 2015) and C.C. Art. 142 (Rev. 2001), Art. 114
33 (Rev. 2001), and Art. 115 (Rev. 1997).
34
35 Art. 240. Reciprocal duty to furnish alimony
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1 Fathers and mothers owe alimony to their illegitimate children, when they are
2 in need;
3 Illegitimate children owe likewise alimony to their father and mother, if they
4 are in need, and if they themselves have the means of providing it.
5 Art. 241. Illegitimate child's claim for alimony from parents' heirs.
6 Illegitimate children have a right to claim this alimony, not only from their
7 father and mother, but even from their heirs after their death.
8 Art. 242. Conditions governing claim to alimony
9 But in order that they may have a right to sue for this alimony, they must:
10 1. Have been legally acknowledged by both their father and mother, or by
11 either of them from whom they claim alimony; or they must have been declared to
12 be their children by a judgment duly pronounced, in cases in which they may be
13 admitted to prove their paternal or maternal descent;
14 2. They must prove in a satisfactory manner that they stand absolutely in
15 need of such alimony for their support.
16 Art. 243. Termination of duty to pay alimony
17 The obligation of giving such alimony ceases, when the illegitimate child is
18 able to earn his subsistence by labor, or whenever his father or mother have [has]
19 caused him to be instructed in an art, trade or profession fit to procure him a
20 sufficient livelihood, unless some continual sickness or infirmity prevents such child
21 from working for his subsistence.
22 The debt of alimony ceases likewise to be due from the estate of the father
23 or mother of the illegitimate child whenever either of them has provided during his
24 or her life a sufficient maintenance for his or her illegitimate child, or have made to
25 him donations or other advantages which may be sufficient for that purpose.
26 Art. 244. Other rules concerning alimony
27 The other rules established respecting alimony to be granted to legitimate
28 children, take place likewise with respect to illegitimate children, except so far as
29 they may be contrary to the foregoing provisions.
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1 Art. 245. Custody of illegitimate children acknowledged by both parents
2 In a proceeding in which custody of an illegitimate child formally
3 acknowledged by both parents is sought by both parents, and in proceedings for
4 change of custody after an original award, custody shall be awarded in accordance
5 with the provisions on custody incident to divorce contained in Title V of this Book.
6 Section 2. Titles VII and VII-A of Book VII of the Code of Civil Procedure,
7 consisting of Articles 4501, 4502, 4521 and 4522, to consist of Articles 4501 and 4521, and
8 Code of Civil Procedure Articles 683, 732 and 2592 are hereby amended and reenacted, and
9 Code of Civil Procedure Article 74.6 is hereby enacted, to read as follows:
10 Art. 74.6. Actions to seek court approval by parents during marriage
11 During the marriage of a minor's parents, an action to seek court
12 approval to alienate, encumber, or lease the property of the minor, incur an
13 obligation of the minor, or compromise a claim of the minor may be brought in
14 the domicile of the minor, or if the parents seek to compromise a claim of the
15 minor in a pending action, in that action.
16 * * *
17 Art. 683. Unemancipated minor
18 A. An unemancipated minor does not have the has no procedural capacity
19 to sue.
20 B. Except as otherwise provided in Article 4431, the tutor is the proper
21 plaintiff to sue to enforce a right of an unemancipated minor, when one or both of
22 the parents are dead, the parents are divorced or judicially separated, or the minor is
23 born outside of marriage. All persons having parental authority over an
24 unemancipated minor must join as proper plaintiffs to sue to enforce a right of
25 the minor, unless a joint custody implementation order otherwise applies.
26 Nevertheless, with permission of the court, any person having parental
27 authority may represent the minor whenever the other person having parental
28 authority fails or refuses to do so.
29 C. The father, as administrator of the estate of his minor child, is the proper
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1 plaintiff to sue to enforce a right of an unemancipated minor who is born of the
2 marriage of parents who are not divorced or judicially separated. The mother, as the
3 administratrix of the estate of her minor child, is the proper plaintiff in such an
4 action, when the father is mentally incompetent, committed, interdicted, imprisoned,
5 or an absentee. Moreover, with permission of the judge, the mother may represent
6 the minor whenever the father fails or refuses to do so; and in any event she may
7 represent the minor under the conditions of the laws on the voluntary management
8 of another's affairs. During tutorship, the tutor is the proper plaintiff to sue to
9 enforce a right of the unemancipated minor.
10 D. Notwithstanding the provisions of Paragraph A, B, or C, above, an
11 attorney appointed by the court having jurisdiction over an unemancipated minor
12 who is in the legal custody of the Department of Children and Family Services is the
13 proper plaintiff to sue to enforce a right of an unemancipated minor. Upon
14 application of the tutor or parent a person having parental authority who would
15 otherwise be the proper plaintiff to sue pursuant to Paragraph B or C of this Article,
16 the court shall appoint or substitute as the proper plaintiff the best qualified among
17 the tutor, parent, a person having parental authority, or the appointed attorney.
18 Revision Comments - 2015
19 (a) This Article changes the law in part. Under this Article, while the regime
20 of parental authority is in existence, all persons having parental authority must join
21 as plaintiffs to file suit to enforce the right of an unemancipated minor. Either parent
22 during the marriage has parental authority of the child unless extraordinary
23 circumstances exist, such as if one parent is mentally incompetent, committed,
24 interdicted, imprisoned, or is an absent person. See C.C. Art. 232 (Rev. 2015).
25 Additionally, an ascendant of the minor, other than the parent, who is awarded
26 custody during the marriage of the parents, has parental authority. See C.C. Art. 234
27 (Rev. 2015). Therefore, under this revision, all persons having parental authority
28 must be joined, but one person may act alone if extraordinary circumstances exist,
29 see C.C. Art. 232, or with court approval when the other person fails or refuses to
30 act. Under prior law, the father was the proper plaintiff to sue and only if the father
31 was mentally incompetent, committed, interdicted, imprisoned, or an absent person
32 was the mother the proper plaintiff to sue. See Article 683 (as amended prior to
33 2015).
34
35 (b) The failure to join all persons having parental authority can be raised by
36 the peremptory exception of nonjoinder of a party. See C.C.P. Art. 927.
37
38 * * *
39 Art. 732. Unemancipated minor
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1 A. An unemancipated minor has no procedural capacity to be sued.
2 B. Except as otherwise provided in Article 4431, the tutor appointed by a
3 court of this state is the proper defendant in an action to enforce an obligation against
4 an unemancipated minor, when one or both of the parents are dead, the parents are
5 divorced or judicially separated, or the minor is born outside of the marriage. If such
6 a minor has no tutor, the action may be brought against the minor, but the court shall
7 appoint an attorney at law to represent him. Any person having parental authority
8 over an unemancipated minor is a proper defendant in an action to enforce an
9 obligation against the minor.
10 C. The father, as administrator of the estate of his minor child, is the proper
11 defendant in an action to enforce an obligation against an unemancipated minor who
12 is born of the marriage of parents who are living and not divorced or judicially
13 separated. The mother, as the administratrix of the estate of her minor child, is the
14 proper defendant in such an action, when the father is mentally incompetent,
15 committed, interdicted, imprisoned, or an absentee. Moreover, with permission of
16 the judge, the mother may represent the minor whenever the father fails or refuses
17 to do so. During tutorship, the tutor is the proper defendant in an action to
18 enforce an obligation against the unemancipated minor. If a minor has no
19 tutor, the action may be brought against the minor, but the court shall appoint
20 an attorney to represent him until a tutor is appointed for the minor.
21 D. Notwithstanding the provisions of Paragraph A, B, or C above, an
22 attorney appointed by the court having jurisdiction over an unemancipated minor
23 who is in the legal custody of the Department of Children and Family Services is the
24 proper defendant in an action to enforce an obligation against an unemancipated
25 minor. Upon application of the tutor or parent person having parental authority
26 who would otherwise be the proper defendant to be sued pursuant to Paragraph B or
27 C of this Article, the court shall appoint or substitute as the proper defendant the
28 best qualified among the tutor, parent a person having parental authority, or the
29 appointed attorney.
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1 Revision Comments - 2015
2 This Article changes the law in part. When parents are married, any person
3 having parental authority can be the proper defendant in an action to enforce an
4 obligation against an unemancipated minor. Either parent during the marriage has
5 parental authority of the child unless extraordinary circumstances exist. See C.C.
6 Art. 232 (Rev. 2015). Additionally, an ascendant of the minor, other than the parent,
7 who is awarded custody during the marriage of the parents, has parental authority.
8 See C.C. Art. 234 (Rev. 2015). Under prior law, the father was the proper party to
9 be sued and only if the father was mentally incompetent, committed, interdicted,
10 imprisoned, or an absent person was the mother the proper party to sue. See Article
11 732 (as amended prior to 2015).
12 * * *
13 Art. 2592. Use of summary proceedings
14 Summary proceedings may be used for trial or disposition of the following
15 matters only:
16 (1) An incidental question arising in the course of judicial proceedings,
17 including the award of and the determination of reasonableness of attorney fees.
18 (2) An application for a new trial.
19 (3) An issue which may be raised properly by an exception, contradictory
20 motion, or rule to show cause.
21 (4) An action against the surety on a judicial bond after judgment has been
22 obtained against the principal, or against both principal and surety when a summary
23 proceeding against the principal is permitted.
24 (5) The homologation of a judicial partition, of a tableau of distribution or
25 account filed by a legal representative, or of a report submitted by an auditor,
26 accountant, or other expert appointed by the court; and an opposition to any of the
27 foregoing, to the appointment of a legal representative, or to a petition for authority
28 filed by a legal representative.
29 (6) A habeas corpus, mandamus, or quo warranto proceeding.
30 (7) The determination of the rank of mortgages, liens, and privileges on
31 property sold judicially, and of the order of distribution of the proceeds thereof.
32 (8) The original granting of, subsequent change in, or termination of custody,
33 visitation, and support for a minor child; support for a spouse; injunctive relief;
34 support between ascendants and descendants; use and occupancy of the family home
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1 or use of community movables or immovables; or use of personal property.
2 (9) An action to compel an accounting at termination of parental
3 authority; and an action to seek court approval to alienate, encumber, or lease
4 the property of a minor, to incur an obligation of a minor, or to compromise the
5 claim of a minor.
6 (10) An action to annul a probated testament under Article 2931.
7 (10)(11) An action to enforce the right to a written accounting provided for
8 in R.S. 9:2776.
9 (11)(12) An action for dissolution or specific performance of a compromise
10 entered pursuant to Article 1916(B) or by consent judgment.
11 (12)(13) All other matters in which the law permits summary proceedings
12 to be used.
13 Revision Comments - 2015
14 An action under Paragraph (9) of this Article may also be brought ex parte
15 when the undertutor concurs in the recommendation made by the tutor. See C.C.P.
16 Art. 4271. If the undertutor fails to concur in the tutor's recommendation, the tutor
17 may proceed by summary proceedings against the undertutor. Id.
18 * * *
19 BOOK VII. SPECIAL PROCEEDINGS
20 * * *
21 TITLE VII. ADMINISTRATION OF MINOR'S PROPERTY DURING MARRIAGE
22 OF PARENTS
23 Art. 4501. Father or mother as administrator of minor's property
24 A. When both parents are alive and not divorced or judicially separated,
25 property belonging to a minor may be sold or mortgaged, a claim of a minor may be
26 compromised, and any other step may be taken affecting his interest, in the same
27 manner and by pursuing the same forms as in case of a minor represented by a tutor,
28 the father or the mother when the father is mentally incompetent, committed,
29 interdicted, or is an absentee, occupying the place of and having the powers of a
30 tutor.
31 B. Whenever the action of an undertutor would be necessary, an undertutor
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1 ad hoc shall be appointed by the court, who shall occupy the place of and have the
2 powers of an undertutor.
3 Art. 4501. Rights of parents during marriage over minor's property
4 A. Except as otherwise provided by law, during marriage, the parents
5 shall seek court approval to alienate, encumber, or lease the property of the
6 minor, incur an obligation of the minor, or compromise a claim of the minor,
7 in the same manner and using the same procedure as a tutor. The parents shall
8 petition jointly, unless one parent is mentally incompetent, committed,
9 interdicted, or imprisoned, or is an absent person, in which case the other
10 parent shall petition alone. One parent may also petition alone, with permission
11 of the court, if the other parent fails or refuses to do so.
12 B. An ascendant having parental authority shall be considered a parent
13 for the purposes of this Article.
14 Revision Comments - 2015
15 (a) This Article changes the law in part. In this Article, when parents are
16 married, the parents must seek court approval to alienate, encumber, or lease
17 property of the minor, incur an obligation of the minor, or compromise a claim of the
18 minor. Under prior law, the father brought the action unless he was mentally
19 incompetent, committed, imprisoned, or an absent person, in which case the mother
20 brought the action. C.C.P. Arts. 4501 and 4502 (as amended prior to 2015). Venue
21 for the action is found in Art. 74.6 (Rev. 2015).
22
23 (b) The reference to exceptions otherwise provided by law in Paragraph A
24 of this Article includes the acts that parents may perform without court approval
25 found in R.S. 9:572 (Rev. 2015).
26
27 (c) If an ascendant is granted custody during the existence of a marriage, that
28 person has parental authority and will be considered a parent for purposes of this
29 Article. See C.C. Art. 234 (Rev. 2015).
30 Art. 4502. Right of mother to represent minor
31 The mother shall have the authority of the father during such time as the
32 father is mentally incompetent, committed, interdicted, imprisoned, or an absentee.
33 Moreover, with permission of the judge, the mother may represent the minor
34 whenever the father fails or refuses to do so; and in any event she may represent the
35 minor under the conditions of the laws on the voluntary management of another's
36 affairs.
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1 TITLE VII-A. ADMINISTRATION OF COURT JUDGMENT IN FAVOR OF
2 MINOR
3 Art. 4521. Judgment in favor of a minor; court order
4 Whenever a court renders a monetary judgment or a judgment of possession
5 of property in favor of a minor, the court may include in the judgment such orders
6 as the court deems necessary to ensure that the funds or property adjudicated to the
7 minor are used, administered, and conserved to the benefit of the minor, including
8 but not limited to placing it into the registry of the court, in trust in accordance with
9 the Louisiana Trust Code, or into a structured settlement in accordance with Article
10 4522.
11 Art. 4521. Payments to minor
12 A. When a minor is to be paid funds as the result of a judgment or
13 settlement, the court may order any of the following: (1) that the funds be paid
14 directly into the registry of the court for the minor's account, to be withdrawn
15 only upon approval of the court, or (2) that the funds be invested directly in an
16 investment approved by the court, or (3) that the funds be placed in trust in
17 accordance with the Louisiana Trust Code and the provisions of Article 4275.1,
18 or (4) that the funds be paid under a structured settlement agreement that
19 provides for periodic payments and is underwritten by a financially responsible
20 entity that assumes responsibility for future payments, or (5) any combination
21 of Subparagraphs (1) through (4) of this Paragraph of this Article.
22 B. In determining whether a proposed periodic payment schedule is in
23 the best interest of the minor, the court shall consider the following factors:
24 (1) Age and life expectancy of the minor.
25 (2) Current and anticipated financial needs of the minor.
26 (3) Income and estate tax implications.
27 (4) Impact on eligibility for government benefits.
28 (5) Present value of the proposed payment arrangement and the method
29 by which the value is calculated.
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1 Revision Comment - 2015
2 This Article expounds and consolidates its predecessor articles. See C.C.P.
3 Arts. 4521 and 4522 (as amended prior to 2015). Like its predecessors, this Article
4 provides options to the court to protect the minor when he is paid funds pursuant to
5 a judgment or settlement.
6 Art. 4522. Judgment in favor of minor; structured settlement
7 A. Whenever the court renders a monetary judgment in favor of a minor, the
8 court may order that the money be paid under a structured settlement agreement
9 which provides for periodic payments and is underwritten by a financially
10 responsible entity that assumes responsibility for future payments.
11 B. In determining whether a proposed payment schedule is in the best
12 interest of the minor, the court shall consider the following factors:
13 (1) Age and life expectancy of the minor.
14 (2) Current and anticipated financial needs of the minor.
15 (3) Income and estate tax implications.
16 (4) Impact on eligibility for government benefits.
17 (5) Present value of proposed payment arrangement and the method by
18 which the value is calculated.
19 Section 3. R.S. 9:571, 572 and 951 through 954 are hereby amended and reenacted,
20 and R.S. 9:573 and Chapter 3-A of Code Title VIII of Code Book I of Title 9 of the
21 Louisiana Revised Statutes of 1950, to consist of R.S. 9:961 and 962, are hereby enacted,
22 to read as follows:
23 §571. General rule that child may not sue parent Actions between parent, person
24 having parental authority, or tutor and child
25 The child who is not emancipated cannot sue:
26 (1) Either parent during the continuance of their marriage, when the parents
27 are not judicially separated; or
28 (2) The parent who is entitled to his custody and control, when the marriage
29 of the parents is dissolved, or the parents are judicially separated.
30 A. No parent may sue his unemancipated minor child. No other person
31 having parental authority over the minor may sue him.
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1 B. An unemancipated minor may not sue any person having parental
2 authority over him.
3 C. An unemancipated minor may not sue his tutor. The tutor may not
4 sue the minor.
5 Revision Comments - 2015
6 (a) This provision applies during the existence of parental authority, and
7 subsequently during the existence of tutorship.
8
9 (b) C.C. Art. 234 (Rev. 2015) contemplates the possibility that a third person
10 may be awarded custody of the child during the marriage of his parents. That
11 person, if an ascendant, exercises parental authority; but if that person is not an
12 ascendant, that person exercises the rights of a tutor.
13
14 (c) No parent may sue his unemancipated minor child, regardless of whether
15 the parent has parental authority. This rule is an absolute bar, which is unilateral.
16 Therefore, if a parent does not have parental authority, the minor may sue the parent
17 even though the parent may not sue the child. In contrast, other persons having
18 parental authority may not sue the unemancipated minor child and vice versa, a bar
19 that is reciprocal.
20
21 (d) The direct action statute, R.S. 22:1269(B)(1)(d), permits the parent or the
22 child who is injured by the other in an offense or quasi-offense by the other to sue
23 the insurer directly.
24
25 (e) This procedural bar to suit between a minor child and his parents or other
26 persons having parental authority constitutes a denial of a right of action not a cause
27 of action which is substantive. Thus, after the procedural bar to suit no longer exists
28 under the circumstances provided for in this statute a substantive cause of action may
29 be asserted by the child against his parents and other persons having parental
30 authority over him, all of whom may assert a cause of action against the child.
31 §572. Person having parental authority; acts that may be performed without
32 court approval
33 A person having parental authority may perform the following acts
34 without court approval:
35 (1) Alienate any movable property of the minor if the sum to be received
36 does not exceed fifteen thousand dollars.
37 (2) Encumber any property of the minor as security for his obligation
38 if the secured obligation does not exceed fifteen thousand dollars.
39 (3) Compromise a cause of action of the minor if the sum or value of the
40 property to be paid or received does not exceed fifteen thousand dollars,
41 excluding court costs, attorney fees, and other expenses.
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1 (4) Make usual or customary donations of the corporeal, movable
2 property of the minor, if the value of the minor's property transferred by the
3 donation does not exceed one thousand dollars and the minor's property
4 donated without court approval during parental authority does not exceed a
5 total of fifteen thousand dollars.
6 (5) Obligate the minor if the obligation does not exceed fifteen thousand
7 dollars.
8 §572 §573. Uncontested paternity proceedings; proof by affidavit; adoption of court
9 rules
10 The court vested with jurisdiction may provide, by local rule, that in
11 uncontested proceedings to establish paternity, proof may be submitted by affidavit.
12 * * *
13 CHAPTER 3. PROVISIONAL CUSTODY BY MANDATE OF PERSONS
14 HAVING PARENTAL AUTHORITY
15 §951. Provisional custody by mandate; conferring
16 A. Parents acting jointly or, in the event of divorce, or separation from bed
17 and board, or illegitimacy, the natural tutor, tutrix, or cotutors acting jointly, or a
18 grandparent awarded custody, may authorize any person of legal age to provide for
19 the care, custody, and control of a minor child.
20 B. For purposes of this Chapter, any person who could qualify as a natural
21 tutor, tutrix, or cotutor pursuant to Section 2 of Chapter 1 of Title VIII of Book I of
22 the Louisiana Civil Code may confer provisional custody by mandate of a child
23 lawfully within his care, custody, and control, although he has not judicially
24 qualified for the office of natural tutor, tutrix, or cotutor.
25 C. Provisional custody by mandate may not be conferred upon a parent or
26 other person previously denied custody by court order.
27 §951. Provisional custody by mandate of persons having parental authority;
28 delegation
29 A person having parental authority over a child may delegate the
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1 provisional custody of that child by written mandate to any natural person.
2 Revision Comments - 2015
3 (a) This provision differs from its predecessor, R.S. 9:951, in that it applies
4 only during the existence of parental authority under C.C. Arts. 221 through 235
5 (Rev. 2015) while the parents of a child are married. When parental authority
6 terminates or a third person other than an ascendant is awarded custody of the child
7 during parental authority as C.C. Art. 234 (Rev. 2015) recognizes to be a possibility,
8 R.S. 9:961 (Rev. 2015) applies.
9
10 (b) Even though this provision only applies during the existence of parental
11 authority, ascendants awarded custody of a child during the marriage of his parents
12 have parental authority (see C.C. Art. 234, second paragraph, (Rev. 2015), and are
13 extended the same opportunity as parents to delegate custody of the child by
14 provisional mandate. This changes the law.
15
16 (c) Provisional custody by mandate is temporary. See R.S. 9:952 (Rev.
17 2015).
18 §952. Duration of provisional custody; termination
19 A. The mandate of provisional custody shall be effective for the duration of
20 time provided therein, term stipulated, but in no case shall it the stated term shall
21 not exceed one year from the date of execution.
22 B. Regardless of the duration provided above, term stipulated, the mandate
23 of provisional custody shall terminate:
24 (1) When revoked by either parent, by a natural tutor or tutrix, by either
25 natural cotutor, or by a grandparent awarded custody any person having parental
26 authority.
27 (2) When the agent mandatary resigns or otherwise renounces the mandate.
28 (3) Fifteen days after the death of either parent, natural tutor or tutrix, natural
29 cotutor, or grandparent awarded custody any person having parental authority.
30 (4) Upon the qualification of a court appointed tutor or provisional tutor.
31 §953. Functions, powers, and duties of agent Authority of the mandatary
32 In addition to the general functions, powers, and duties accorded to tutors
33 pursuant to Chapter 8 of Title VI of Book VII of the Code of Civil Procedure, except
34 those that require court approval, a mandate of child custody may provide for the
35 health, education, and welfare of the child, which, if so indicated, may include the
36 following:
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1 A mandate of provisional custody of a child may provide for the health,
2 education, and welfare of the child, including the following:
3 (1) Consenting to and authorizing such medical care, treatment, or surgery
4 as may be deemed necessary for the health, safety, and welfare of the child.
5 (2) Enrolling the child in such schools or educational institutions as may be
6 deemed necessary for his due and proper education.
7 (3) Disciplining the child in such reasonable manner as may be necessary for
8 his proper rearing, supervision, and training.
9 (4) Doing and performing all other such acts as may be necessary for the
10 shelter, support, and general welfare of the child.
11 §954. Statutory form
12 The following is a suggested form which may be used by a parent, natural
13 tutor, tutrix, or cotutors acting jointly, or a grandparent awarded custody, to confer
14 the power of provisional custody for the care, custody, and control of the named
15 minor child as authorized herein:
16 PROVISIONAL CUSTODY BY MANDATE
17 STATE OF LOUISIANA
18 PARISH OF ___________________
19 BE IT KNOWN THAT on this ___ day of __________, 20___, before me,
20 the undersigned notary, and in the presence of the competent witnesses hereinafter
21 named and undersigned:
22 Personally came and appeared:
23 (affiant's name, marital status, and mailing address), who is the (parent(s), or, in the
24 event of divorce, separation, or illegitimacy, the natural (co)tutor or tutrix), or
25 grandparent awarded custody of (minor child(ren)) who, by these presents make,
26 name, constitute, and appoint (agent's name and mailing address) and grant
27 provisional custody of the above named child(ren), to provide for the health,
28 education, and welfare of the child as provided by the law on Provisional Custody
29 by Mandate, specifically including the authority to:
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1 INITIAL ALL APPLICABLE PROVISIONS:
2 ____ (1) Consent to and authorize such medical care, treatment, or surgery as may
3 be deemed necessary for the health, safety, and welfare of the child.
4 ____ (2) Enroll the child in such schools or educational institutions as may be
5 deemed necessary for his due and proper education.
6 ____ (3) Discipline the child in such reasonable manner as may be necessary for his
7 proper rearing, supervision, and training.
8 ____ (4) Do and perform all other such acts as may be necessary for the shelter,
9 support, and general welfare of the child.
10 This Provisional Custody by Mandate will continue to be effective until
11 ___________, 20 __, or one year from date hereof, whichever period is shorter.
12 I agree that any third party who receives a copy of this document may rely
13 upon the authority granted the agent as indicated herein and may act in reliance on
14 such authority. Revocation or termination by operation of law is not effective as to
15 a third party until he has actual knowledge thereof. I agree to indemnify and hold
16 harmless the third party for any claims that arise against him because of reliance on
17 this Provisional Custody by Mandate.
18 The undersigned agent does hereby accept the provisional custody of the
19 children named herein.
20 THUS DONE AND PASSED at _________________, state of
21 ________________, in the presence of _____________ and _____________,
22 competent witnesses, who sign these presents with the appearers and me, notary,
23 after due reading of the whole.
24 WITNESSES:
25
26 ______________________ _______________________________
27 (Parent, Tutor, Tutrix, or Grandparent
28 awarded custody)
29
30 ______________________ _______________________________
31 (Other parent, Cotutor, or Grandparent
32 awarded custody)
33
34 ______________________________
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1 (Agent)
2 _________________________
3 NOTARY PUBLIC
4 The following is a suggested form that may be used by a person having
5 parental authority to delegate the provisional custody of the named child:
6 PROVISIONAL CUSTODY BY MANDATE
7 STATE OF LOUISIANA
8 PARISH OF ___________________
9 BE IT KNOWN THAT on this ___ day of __________, 20___, before me,
10 the undersigned notary, and in the presence of the competent witnesses
11 hereinafter named and undersigned:
12
13 Personally came and appeared:
14
15 (affiant's name, marital status, and mailing address), who is the (person(s) having
16 parental authority) of (child(ren)) and who, by these presents makes, names,
17 constitutes, and appoints (mandatary's name and mailing address) and grants
18 provisional custody of each of the above named children, to provide for the
19 health, education, and welfare of each child as provided by the law on
20 Provisional Custody by Mandate, specifically including the authority to:
21
22 INITIAL ALL APPLICABLE PROVISIONS:
23
24 ____ (1) Consent to and authorize such medical care, treatment, or surgery as
25 may be necessary for the health, safety, and welfare of each child.
26
27 ____ (2) Enroll each child in such schools or educational institutions as may be
28 necessary for his proper education.
29
30 ____ (3) Discipline each child in such reasonable manner as may be necessary
31 for his proper rearing, supervision, and training.
32
33 ____ (4) Do and perform all other such acts as may be necessary for the
34 shelter, support, and general welfare of each child.
35
36 This Provisional Custody by Mandate will continue to be effective until
37 ___________, 20 __, or one year from date hereof, whichever period is shorter.
38
39 I agree that any third party who receives a copy of this document may
40 rely upon the authority granted the mandatary as indicated herein and may act
41 in reliance on such authority. I agree to indemnify and hold harmless the third
42 party for any claims that arise against him because of reliance on this
43 Provisional Custody by Mandate.
44
45 The undersigned mandatary does hereby accept the provisional custody
46 of each child named herein.
47
48 THUS DONE AND PASSED at _________________, state of
49 ________________, in the presence of the undersigned, competent witnesses,
50 who sign these presents with the appearer(s) and me, notary, after due reading
51 of the whole.
52
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1 WITNESSES:
2
3 _________________________ _______________________________________
4 (Person having parental authority)
5
6 _________________________ _______________________________________
7 (Other person having parental authority)
8
9 _______________________________________
10 (Mandatary)
11
12 _________________________
13 NOTARY PUBLIC
14
15 Revision Comment - 2015
16 The provisional custody by mandate as provided in R.S. 9:951 (Rev. 2015)
17 need not be in authentic form, only in writing, even though this "suggested form"
18 does provide for the signatures of two witnesses and the notary. See C.C. Art. 1833
19 (Rev. 1984).
20 CHAPTER 3-A. PROVISIONAL CUSTODY BY MANDATE OF A TUTOR
21 OR GRANDPARENT WITH CUSTODY
22 §961. Provisional custody by mandate of a natural tutor or cotutors with
23 custody, but not yet judicially qualified, or a grandparent
24 awarded custody of a child; delegation
25 A natural tutor or cotutors with custody, but not yet judicially qualified,
26 or a grandparent awarded custody of a child after parental authority
27 terminates, may delegate the provisional custody of that child by written
28 mandate to any natural person, subject to the same rules governing the duration
29 of the mandate and the authority and obligations of the mandatary as those
30 governing the provisional custody by mandate of persons having parental
31 authority.
32 Revision Comments - 2015
33 (a) This provision expands and clarifies its predecessor, R.S. 9:951.
34 Authority to execute the mandate is extended to a grandparent awarded custody by
35 the court even if not appointed tutor. It clarifies prior law by limiting the tutor
36 authorized to execute the mandate to the tutor with custody of the minor child, not
37 a tutor with administration of the minor's property only.
38
39 (b) The provisional custody by mandate of natural tutors and cotutors and
40 grandparents with custody is to be subject in all respects, including duration and
41 content, to the provisions governing a mandate of provisional custody granted by
42 parents. See R.S. 9:951 (Rev. 2015).
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1 §962. Statutory form
2 The following is a suggested form that may be used by a natural tutor or
3 cotutors with custody, but not yet judicially qualified, or a grandparent
4 awarded custody of a child to delegate to any natural person the custody of the
5 named child:
6 THE FOLLOWING FORM IS ALL NEW
7 PROVISIONAL CUSTODY BY MANDATE
8 STATE OF LOUISIANA
9 PARISH OF ___________________
10 BE IT KNOWN THAT on this ___ day of __________, 20___, before me,
11 the undersigned notary, and in the presence of the competent witnesses
12 hereinafter named and undersigned:
13
14 Personally came and appeared:
15
16 (affiant's name, marital status, and mailing address), who is the (natural tutor or
17 cotutors with custody, but not yet judicially qualified, or a grandparent awarded
18 custody) of (minor child(ren)) and who, by these presents makes, names,
19 constitutes, and appoints (mandatary's name and mailing address) and grants
20 provisional custody of each of the above named child(ren), to provide for the
21 health, education, and welfare of each child as provided by the law on
22 Provisional Custody by Mandate, specifically including the authority to:
23
24 INITIAL ALL APPLICABLE PROVISIONS:
25
26 ____ (1) Consent to and authorize such medical care, treatment, or surgery as
27 may be necessary for the health, safety, and welfare of each child.
28
29 ____ (2) Enroll each child in such schools or educational institutions as may be
30 necessary for his proper education.
31
32 ____ (3) Discipline each child in such reasonable manner as may be necessary
33 for his proper rearing, supervision, and training.
34
35 ____ (4) Do and perform all other such acts as may be necessary for the
36 shelter, support, and general welfare of each child.
37
38 This Provisional Custody by Mandate will continue to be effective until
39 ___________, 20 __, or one year from date hereof, whichever period is shorter.
40
41 I agree that any third party who receives a copy of this document may
42 rely upon the authority granted the mandatary as indicated herein and may act
43 in reliance on such authority. I agree to indemnify and hold harmless the third
44 party for any claims that arise against him because of reliance on this
45 Provisional Custody by Mandate.
46
47 The undersigned mandatary does hereby accept the provisional custody
48 of each child named herein.
49
50 THUS DONE AND PASSED at _________________, state of
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1 ________________, in the presence of the undersigned, competent witnesses,
2 who sign these presents with the appearer(s) and me, notary, after due reading
3 of the whole.
4
5 WITNESSES:
6
7 _________________________ ____________________________________
8 (Natural tutor or cotutors with custody, but
9 not yet judicially qualified, or a
10 grandparent awarded custody)
11
12 _________________________ ____________________________________
13 (Other Cotutor or Undertutor)
14
15
16 ______________________________
17 (Mandatary)
18
19 _________________________
20 NOTARY PUBLIC
21
22 Revision Comment - 2015
23 The provisional custody by mandate as provided in R.S. 9:961 (Rev. 2015)
24 need not be in authentic form, only in writing, even though this "suggested form"
25 does provide for the signatures of two witnesses and a notary. See C.C. Art. 1833
26 (Rev. 1984).
27 Section 4. The Louisiana State Law Institute is hereby directed to replace Comment
28 (b) under Code of Civil Procedure Article 684 with the following comment:
29 (b) The exception at the beginning of the second paragraph avoids a conflict
30 with the articles recognizing: (1) the right of a guardian of a nonresident
31 incompetent appointed by a court of another state to act in Louisiana without the
32 necessity of appointment and qualification by a court of this state; and (2) the right
33 of an interdict to sue to terminate the interdiction. See Arts. 4431 and 4554.
34
35 A mental incompetent who is a minor is under the authority of his father and
36 mother, or of a tutor, until he reaches the age of majority. See C.C. Arts. 232 and
37 235 (Rev. 2015). There is neither a need nor an ability to have him interdicted until
38 he becomes a major. During his minority, Article 683 provides the proper plaintiff
39 to sue to enforce his rights, and Article 732 provides the proper defendant to be sued
40 to enforce obligations against him.
41 Section 5. This Act shall become effective on January 1, 2016.
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Julie J. Baxter.
DIGEST
SB 134 Original 2015 Regular Session Peacock
Present law (C.C. Art. 215) provides that a child, whatever be his age, owes honor and
respect to his father and mother.
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Proposed law (C.C. Art. 236) retains present law.
Present law (C.C. Art. 216) provides that a child remains under the authority of his father
and mother until his majority or emancipation and in case of difference between the parents,
the authority of the father prevails.
Proposed law (C.C. Arts. 221, 232, 234, and 235) revises present law to provide that a
married father and a mother share parental authority over their minor child, unless modified
in accordance with law, until the child attains the age of majority or is emancipated, or upon
termination of the marriage of the parents of the child.
Present law (C.C. Art. 217) provides that as long as the child remains under the authority of
his father and mother, he is bound to obey them in everything which is not contrary to good
morals and the laws.
Proposed law (C.C. Art. 228) retains present law.
Present law (C.C. Art. 218) provides that an unemancipated minor cannot quit the parental
house without the permission of his father and mother, who have the right to correct him,
provided it be done in a reasonable manner.
Proposed law (C.C. Arts. 227 and 223) retains present law.
Present law (C.C. Art. 219) provides that the father and mother have a right to appoint tutors
to their children.
Proposed law (C.C. Art. 222) retains present law.
Present law (C.C. Art. 220) provides that fathers and mothers may delegate a part of their
authority to teachers and other persons.
Proposed law (C.C. Art. 233) retains present law.
Present law (C.C. Art. 221) provides for the parental administration of a child's estate by the
father and in some cases by the mother, during their marriage, until the child attains the age
of majority or is emancipated.
Proposed law (C.C. Art. 229, 230, and 231) provides that each parent has the right and the
obligation to administer the property of their unemancipated minor child in accordance with
law, until the termination of parental authority.
Present law (C.C. Art. 223) provides that parents have during marriage a usufruct over the
property of their unemancipated minor child.
Proposed law (C.C. Arts. 229, 230, and 231) provides for the rights and obligations of
parents who administer the property of their unemancipated minor child.
Present law (C.C. Art. 224) provides for the obligations resulting from the parents' usufruct
over the property of their unemancipated minor child.
Proposed law (C.C. Arts. 229, 230, and 231) provides for the rights and obligations of
parents who administer the property of their unemancipated minor child.
Present law (C.C. Art. 226) provides for exceptions to the parents' usufruct over the property
of their unemancipated minor child.
Proposed law suppresses the present law of C.C. Art. 226.
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Present law (C.C. Art. 227) provides that fathers and mothers, by the very act of marrying,
contract together the obligation of supporting, maintaining, and educating their children.
Proposed law (C.C. Arts. 223, 224, and 226) retains present law.
Present law (C.C. Art. 228) provides that a child has no right to sue either parent for a
marriage settlement or other advancement.
Proposed law (R.S. 9:571) provides that an unemancipated minor child may not sue any
person having parental authority over him.
Present law (C.C. Art. 229) provides for the reciprocal alimentary duties of ascendants and
descendant.
Proposed law (C.C. Art. 237) retains present law.
Present law (C.C. Art. 230) provides for the scope of the alimentary obligation.
Proposed law (C.C. Arts. 237, 238, 239, and 224) retains present law.
Present law (C.C. Art. 231) provides that the alimony shall be granted in proportion to the
wants of the person requiring it, and the circumstances of those who are to pay it.
Proposed law (C.C. Art. 238) retains present law.
Present law (C.C. Art. 232) provides for the reduction of alimony or the discharge from
payment.
Proposed law (C.C. Art. 239) retains present law.
Present law (C.C. Art. 233) provides that if the obligor cannot pay alimony, the judge may
require that the obligor receive the obligee in his house and maintain him.
Proposed law suppresses present law.
Present law (C.C. Art. 234) provides that a father or mother may offer to receive and support
a child in his or her house and be dispensed with paying alimony.
Proposed law suppresses present law.
Present law (C.C. Art. 235) provides that fathers and mothers owe protection to their
children and may appear for them in court.
Proposed law (C.C. Arts. 223 and 222) retains present law.
Present law (C.C. Art. 236) provides that fathers and mothers may justify themselves in an
action against them for assault and battery if they have acted in defense of their children.
Proposed law (C.C. Art. 223) provides that parents have the right and obligation to protect
their child.
Present law (C.C. Art. 237) provides that fathers and mothers are answerable for the offenses
and quasi-offenses of their children.
Proposed law (C.C. Art. 225) retains present law.
Present law (C.C. Arts. 238 through 245) provides for the duties of parents toward their
illegitimate children and for the duties of illegitimate children toward their parents.
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Proposed law suppresses present law.
Proposed law (C.C.P. Art. 74.6) is new. Proposed law provides for venue for actions to seek
court approval by parents during marriage.
Present law (C.C.P. Art. 683) provides for proper party plaintiff for an unemancipated minor.
Present law (C.C.P. Art. 683(C)) provides that the father is the proper plaintiff to sue to
enforce a right of an unemancipated minor and provides for exceptions to this rule.
Proposed law (C.C.P. Art. 683(B)) provides that all persons having parental authority of an
unemancipated minor must join as proper plaintiffs to sue to enforce a right of an
unemancipated minor and provides for exceptions to this rule.
Present law (C.C.P. Art. 732) provides for proper party defendant for an unemancipated
minor. Present law (C.C.P. Art. 732(C)) provides that the father is the proper defendant in
an action to enforce an obligation against an unemancipated minor and provides for
exceptions to this rule.
Proposed law (C.C.P. Art. 732(B)) provides that any person having parental authority of an
unemancipated minor is a proper defendant in an action to enforce an obligation against a
minor.
Present law (C.C.P. Art. 2592) provides for summary proceedings.
Proposed law (C.C.P. Art. 2592(9)) provides that summary proceedings may be used for trial
or disposition of an action to compel an accounting at termination of parental authority; an
action to seek court approval to alienate, encumber, or lease the property of a minor, incur
an obligation of a minor, or compromise the claim of a minor.
Present law (C.C.P. Art. 4501) provides that when married, a father or the mother under
specific circumstances, may use the same forms and procedures as a tutor to sell or mortgage
the property of a minor, or compromise a claim of the minor, or take any step affecting the
interest of the minor.
Proposed law (C.C.P. Art. 4501) retains present law in part. Proposed law (C.C.P. Art.
4501) revises present law to provide that the parents shall seek court approval to act for a
minor and provides exceptions to this rule. Proposed law (C.C.P. Art. 4501) also provides
that an ascendant having parental authority shall be considered a parent for the purposes of
proposed law.
Present law (C.C.P. Art. 4502) provides for when a mother can act for or represent her child.
Proposed law suppresses present law, because the rights of a mother have been provided for
in proposed law (C.C.P. 4501).
Present law (C.C.P. Arts. 4521 and 4522) provides for the administration of court judgments
in favor of a minor.
Proposed law (C.C.P. Art. 4521) provides for the combination of the principles of present
law and for additional protections for a minor.
Present law (R.S. 9:571) provides that a child who is not emancipated cannot sue either
parent during the marriage of the parents or the parent who has custody when the marriage
of the parents is dissolved or the parents are judicially separated.
Proposed law (R.S. 9:571) provides that a parent, a person having parental authority, and a
tutor may not sue the unemancipated minor child. Proposed law further provides that the
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unemancipated minor child may not sue a person having parental authority or his tutor.
Proposed law (R.S. 9:572) is new. Proposed law provides a list of the acts which a person
having parental authority may perform without court approval.
Proposed law (R.S. 9:573) is a redesignation of present law (R.S. 9:572).
Present law (R.S. 9:951-954) provides for provisional custody by mandate.
Proposed law (R.S. 9:951-962) revises present law of provisional custody by mandate to
provide for separate rules for persons having parental authority and for tutors.
Proposed law (Section 4 of this Act) provides for a new Comment (b) for C.C.P. Art. 684.
Effective January 1, 2016.
(Amends C.C. Arts. 221, 223, 224, 226-239, C.C.P. Arts. 683, 732, 2592, 4501, and 4521,
and R.S. 9:571, 572, 951, 952, 953, and 954; adds C.C. Arts. 222 and 225, C.C.P. Art. 74.6,
and R.S. 9:573, 961, and 962; repeals C.C. Arts. 215-220 and 240-245 and C.C.P. Arts. 4502
and 4522)
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