Code I - Persons & Domicile Flashcards
1
Q
What is a natural person? When does personality start?
A
A natural person is a human being. A natural person is a human being.
Commencement of personality commences from the moment of live birth and terminates at death.
After live birth, the child is consdiered to have been a natural person from the time of coneption; inheritance rights relate back to the moment of conception.
2
Q
What is an exception to the live birth requirement for personality to commence?
A
A fetus does not need to be born alive in order to maintain a wrongful death action
3
Q
When does natural personality terminate? How is death established?
A
Natural personality terminates at death.
Death is established by the following:
a. Docter’s certification (brain + heart death)
b. Judicial declaration (presumed dead by circumstances; absent person for five years)
4
Q
What state’s law controls when determining the status of a natural person?
A
The statue of a natural person and the effects of that status are governed by the law of the state whose law would be most seriously impaired if its law were not applied.
5
Q
What is a juridical person?
A
An entity to which law attributes personality.
6
Q
What test factors are taken into account for conflict of laws regarding status?
A
Relationships; policies and needs of systems/minimizing local prejudice.
7
Q
What are other factors when determining the status of a person?
A
- State denotes also foreign countries and territories in addition to states.
- Renvoi, when the law of another state is applicable, that law shall not include the law of conflict of laws of that state.
- Cannot apply foreign laws if it would result in the violation of the federal or state constituiton.
8
Q
Is an in vitro ovum a juridical person?
A
Yes. An in vitro fertilized ovum is a juridical person.
- Fertilized ovum exists as a juridical person until it is implaned in the womb.
- Apply the best interest test to the in vitro fertilized ovum.
- An ovum has no inheritance rights unless it is born alive. Cannot retain inheritance rights from its biological donor parents when donated to another couple.
9
Q
Are business and governmental organizations juridical persons?
A
Yes.
10
Q
What is the domicile of a natural person?
A
The domicile of a natural person is his habitual residence. Generally can only have one domicile even if you have multiple residences.
11
Q
Is there a presumption in favor of one domicile?
A
Yes, strong legal presumption in favor of ancient domicile or domicile of origin.
12
Q
What test to apply to person with multiple domiciles?
A
Any residence may be considered the domicile or habitual residence at the option of perons whose interests are affect. STATE OF FACTS CONTROL.
13
Q
What is the test for domicile?
A
Presence in a particular parish + intent to have that parish as habitual residence.
14
Q
What law determines domicile?
A
The comivile of a person is determined in accordance with the law of this state.
15
Q
What are the requirements to change domicile?
A
Must meet both prongs of the domicile test; the act of residing in another parish PLUS the intent to make that new location his habitual residence.
16
Q
How does one prove intent to change domicile?
A
Depends on the circumstances. Sworn declaration may be considered as evidence of intent.
17
Q
Who bears the burden of presumption on changing domicile?
A
Must overcome legal presumption that domicile has not changed; must prove as matter of fact plus requisite intent.
18
Q
Is domicile forfeited upon moving away temporarily?
A
No, unless person demonstrates contrary intent.
19
Q
Do spouses necessarily have a common domicile?
A
Spouses may have either a common domicile OR separate domiciles.
20
Q
What is the domicile of an unempancipated minor?
A
Domicile of the parent or parents which whom the minor usually resides. If parents are living together, domicile of parents. If situation of legal authority or tutorship, domicile with tutor/legal authority.
21
Q
What is the domicile of persons under continued or permanent tutorship?
A
Domicile of his tutor
22
Q
What is the domicile of an interdict?
A
Interdicts have the domicile of their curator; limited interdicts retain their domicile.
23
Q
Why is domicile important?
A
The parish where an action may properly be brought depends on the domicile of the parties.
24
Q
What does domicile give to subject matter jurisdiction?
A
Domicile gives Louisiana courts subject matter jurisdiction over certain actions.
25
What are the domicile requirements for divorce?
To annul a marriage or obtain a divorce, one or both of the parties must be domiciled in the state.
26
When is there a rebuttable presumption that a spouse has a domicile in this state?
If the spouse has established and maintained a residence in the parish for six months.
27
What is the importance of domicile for community property regime?
Domicile establishes the rules for classifying property; also establishes the rules for partitioning property after termination of a community of acquests/gains when one or both spouses are domiciled in Louisiana.
28
What is marriage?
Marriage is a legal relationship between a man and a woman created by civil contract. Many rules regarding marriage cannot be altered by contract.
29
What are the requisites for a valid marriage?
1. Absence of legal impediments (exisitng, same sex, incest); 2. Marriage ceremony; 3. Mutual consent of both parties expressed at the ceremony.
30
What constitutes incest?
Direct line relatives; collaterals within the fourth degree unless married prior to 1993 and over 55 years old. Adopted relatives are treated like blood relatives for the purposes of incest. However, no impediment exists if people are related by marriage.
31
What are the requirements for a marriage ceremony?
1. Qualified celebrant, or parties reasonably believe he is qualified (3rd party); 2. Both parties attend the ceremony; 3. Other ceremonial formalities (marriage license; two witnesses over 18; signed certificate by parites, witness, and celebrant; summary of applicable laws).
32
How many hours before the marriage ceremony must the license be issued?
72 hours.
33
What constitutes mutual consent during the marriage ceremony?
1. No duress (vice of consent) Duress occurs from violence or threat of violence; threats of criminal prosecution. 2. No mental impediment (insanity, drunkenness, mental retardation)
34
At what ages are parental or judicial consent required to marry?
1. Minors have no capacity to marry without approval of both parents; (2) Minors under 16 MUST have juvenile court authority to marry.
35
What is a covenant marriage?
1. Must receive special counseling; 2. Declare their intent to contract a covenant marriage on their application; 3. Execute a notarized declaration of inent to contract a covenant marriage. (can convert already married into covenant marriage) People in covenant marriage must commit to take all reasonable efforts to preserve the marriage, including marital counseling.
36
How can one end a covenant marriage?
1. Divoce (only after counseling, AND only after one of the following grounds exists--adultyery; felony and sentenced to death; one spouse has abaonded the matrimonial domicile and refuses to return; physical or sexual abuse of the spouse or child seeking a divorce; spouses has been living apart for two years; spouses have been living apart for one year--judgment of separation + childless; spouses ahve been living apart for 1.5 years with child.
37
Does judgment of separation apply to non-covenant marriages?
No.
38
How can covenant spouses become legally separated?
1. Through a judgment of separation, only after counseling and onlyafter [all grounds available for divorce] plus the other spouse is habitually intemperate or engages in other excesses, cruel treatment or other outrageous conduct.
39
Can a covenant marriage by rescinded by agreement?
No.
40
Do covenant spouses have to comply with all marriage provisions for non-covenant marriages?
Yes.
41
What circumstances make a marriage a relative nullity?
1. A marriage lacking consent (must be raised by nonconsenting party, unless nonconsenting party later confirmed the marriage, e.g., living together).
42
What are the effects of declaring a marriage a relative nullity?
1. A relatively null marriage is valid until officially declared null by the court. 2. A relatively null marriage produces civil effect until it is officially declared null.
43
When is a marriage an absolute nullity?
1. Impediment (incest, etc.); 2. No ceremony.
44
What are the effects of declaring a marriage an absolute nullity?
1. Null ab initio--null from the moment of its inception. Party can remarry withou a judicial declaration of nullity. 2. Putative marriage doctrine--civil effects can flow to the blindsided party.
45
When does the putative marriage doctrine apply?
1. Absolutely null marriage + at least one of the spouses was in good faith.
46
What is good faith for the purposes of the putative marriage doctrine?
1. Honest and reasonable belief that there exists no legal impediment to the marriage. A. Factual and legal errors are taken into account; B. Presumption of good faither on part of the party making a putative marriage claim is presumed; C. First-hand actual knowledge of impediment vitiates good faith, second-hand knowledge imposes duty to inquire; D. Only in truly exceptional circumstances can a spouse have good faith without a marriage ceremony.
47
What are the civil effects of a putative marriagE?
Civil effects are the same except with regard to community property; putative spouse is eligible for spousal support; children are legitimate; good faith spouse can recover marital portion; good faith spouse can sue for wrongful death of putative spouse.
48
What are the effect of a putative marriage on property that would have been community property?
1. One spouse in bad faith--his half of the community goes to first wife; other half to putative spouse. 2. Both spouses in good faith--husband heir's acquire his half of the community, while first spouse and putative spouse share the remaining half.
49
What are the duration of civil effects of a putative marriage?
Civil effects continue as long as the spouse remains in good faith. BIGAMY EXCEPTION: civil effects continue after nonbigamous "spouse" learns of impediment unitl either (1) declaration of nullity; or (2) remarriage of innocent spouse.
50
Does putative marriage produce civil effects for the childrem?
Yes.
51
Putative effects for same-sex couples?
No.
52
What are provisional and incidental proceedings in actions of nullity?
1. Generally can receive the incidental relief afforded in a proceeding for divorce; 2. Interim relief pending the nullity action such as interim spousal support; 3. Pemanent relief intended to continue past the effective date of the judgment of nullity is generally only available to parties to relatively null marriage; or parties to absolutely null marriage entitled to civil effects as putative spouses.
53
What are mutual duties in marriage?
1. Fidelity (sex and do not engage in adultery); Support; Assistance.
54
Can spouses sue on duties during marriage?
Generally no, these duties are generally only relevant in the context of separation.
55
Does marriage change your surname?
No; can use the surname if you wish but marriage does not change either spouse's surname.
56
What are conflict of laws regarding marriage?
1. If marriage is valided in state of contract will be recognized in LA unless it violates public policy; 2. Same-sex marriages are not recognized in Louisiana for any purpose.
57
How does marriage terminate?
Death; judicial declaration of nullity; authorization to remarry; divorce.
58
How many types of divorce are there?
1. No-fault divorce (separation after service); 2. No-fault diveroce (separation before service); 3. Fault-based divorce (immediate adultery); 4. Fault-based divorce (immediate felony conviction)
59
What are steps for no-fault divorces; separation after service? Article 102 Divorce?
1. Parties need to have lived apart continuously for either 180 or 265 days after serivce of petition or written waiver of service. 180 days: separate and apart continuously if there are no minor children of the marriage. Can only slip into 180 day time period with minor children of the marriage if the court finds that spouse physically or sexually abused the other spouse or child/injunction in place. 365 days: separate and continusouly apart if there are minor children of the marriage.
60
What is the procedure for no-fault divorce?
1. Petition verified by affidavit; 2. Either party may file rule to show cause to set for hearing--rule to show cause must allege service; allege time period since service; allege separation time period; by verified by the affidavit of the mover.
61
What is the required evidence for hearing on rule?
1. Petition for divorce; 2. Return on serviee of petition (sheriff's return/personal service/return receipt/written waiver); 3. Rule to show cause and verifying affidavit; 4. Return of personal serive of the rule or "written waiver" of service; 5. Affidavit of mover, executed after filing of the rule, swearing that time period has been met (separate from affidavit filed with the rule to show cause).
62
When is a petition for divorce deemed abandoned?
1. If a rule to show cause is not filed within two years of service of original petition.
63
Are SJ or JOTP applicable to no-fault divorce proceedings?
No.
64
What must accompany a dismissal of an article 102 petition?
Must be filed by way of a joint motion or a contradictory motion filed by the plaintiff.
65
What are the steps for a no-fault divorce--separation prior to filing petition?
1. Live separate and apart for 180/365 days BEFORE petition is filed; physical separation must be voluntary on part of at least one party.
66
What is the procedure for a no-fault divorce if the separation is prior to filing petition? Article 103(1) divorce?
1. File petition; answer required within 15 days; no affidavits are required.
67
What are the requirements for immediate adultery divorce? Article 103(2) divorce?
1. Adultery must be proved at trial by corroborated testimony, admission of adulterous spouse alone not sufficient. Proof must be specific, finding of sexual intercourse is not necessary. 2. On finding of adultery, the divorce is immediate.
68
What are the requirements for immedicate felony-conviction divorce? Artile 103(3) divorce?
Spouse must be convicted of a felony and must be sentenced to death or imprisonment at hard labor.
69
What are the procedural defenses to divorce actions?
1. Requirements of Article 3951 have not been met.
70
Does reconciliation extinguish a divorce action?
Yes. 1. Resumption of life together; 2. Isolated sex acts during separation may not be reconciliation need intent to resume life together; 3. Element of forgiveness after knowledge of offense may constitute reconciliation.
71
Is mental condition of at-fault spouse a defense?
Yes; if mental illness caused an adulterous relationship, it may be a defense.
72
What are actions incidental to divorce that can be resolved in the same proceeding?
1. Children--custody/vistiation/child support can be resolved in the same proceeding; 2. Spousal support; 3. Use of property.
73
What use of proeprty can be determined at the divorce proceedings?
1. Community or separate matrimonial domicile: 1. Physical child custodian can seek the use and occupancy of the matrionial domicile whether separate or community--spouse must have custody of the children--pertinent consideration is the best interest of the family. Custodial parent can use separate reisdence until partition of the community or until 180 days following termination of the marriage; can use community property until further order of the court. 2. Other Community Immovables or Movables: 1. Court can award spouse the use of community immovables in line with the best interest of the family. Use of personal property is limited to other items deemed necessary for safety/well-being.
74
What are conflicts of laws regarding divorce?
1. Louisiana courts may grant a divorce only under Louisiana law.
75
What is the Domestic Abuse Assitance Act?
1. Civil remedy for domestic violence affording the victim immediate protection; 2. Specific and mandatory requirements govern content of petition; 3. Provides for issuance of ex parte TRO granting, among other things, relief from ahrassment/temporary custody of minor children; 4. Contradictory hearing required in twenty-one days. Plaintiff must prove allegations of abuse by a preponderance of the evidence.
76
When is spousal support awarded?
In a proceeding for divorce or thereafter, the court may award interim periodic support to a party or may award final periodic support to a party who is in need of support and who is free from fault prior to the filing of a proceeding to terminate the marriage.
77
When does the obligation of spousal support end?
1. Remarriage of obligee; death of either party; cohabitation.
78
When is interim spousal support awarded?
1. One spouse has a need; 2. Other spouse has the means to pay; 3. Based on the standard of living the parties enjoyed during the marriage. Intended to termiante at the judgment of divorce.
79
What is the role of fault with respect to interim spousal support?
Fault is irrelevant; evan a party who is at fault can receive interim spousal support.
80
Who has the burden of proof with respect to interim spousal support?
1. Spouse seeking interim spousal support bears the burden of proving entitlement.
81
What are considerations when determining spousal support?
1. Look at pre-sep circumstances to determine who is the claimant; who is the payor? Typically, the primary income-earner is the payor. Court considers the claimant's/payor's needs to maintain standard of living parties enjoyed while living together.
82
What does the Court consider the Claimant's income and needs?
1. Claimant spouse's income is the primary consdieration--generally do not require claimant to deplete her assets to live. Earning capacity of the claimant is generally not considered when determining interim support. Courts that don't consider earning capacity focus on spouse's staus at the time of separation; courts that do consider earning capacity fosu on the ability of the spouse to immediately secure employment and enter workforce.
83
How does the court consider the payor's means?
1. The payor's means are calculated after considering the payor's entire financial condition--courts will consider both income and assets; and earning capacity of the payor.
84
How much discretion does the trial court have when determing how much interim spousal support is appropriate?
1. Tremendous discretion--court may award interim spousal allowance; appellate courts will overturn an award only for abuse of discretion.
85
*What is the duration of an award of interim spousal support?
1. Terminates upon the rendition of a judgment of divorce--unless if there is a pending claim for final spousal support when divorce is rendered, ISS wil terminate at earlier of judgment awarding/denying final support or 180 days from the renditionof the judgment of divorce.
86
When can ISS be modified?
Periodic support may be modified if the circumstances of either party materially changes and shall be terminated it if has become unnecessary. Remarriage of the obligor spouse is not a change of circumstance.
87
Can you waive ISS in a prenup?
No, against public policy and is therefore invalid.
88
What is the standard for final spousal support?
A court may award final periodic support to a party free from fauly prior to the filing of a proceeding to terminate the marriage--the award must be based on the needs of the claimant and the ability of the party to pay.
89
What are the needs of claimant for FSS?
1. Inability of claimant to meet his necessary expenses--courts consider standard of living; do not limit recovery to things required for basic survival.
90
What constitutes ability of the party to pay for FSS?
The entire financial picture of the payor spouse is considered.
91
**What are considerations for awarding FSS?
1. Income and means of parties; financial obligations of the parties; earning capacity of the parties; child custody arrangements; rehabilitation; age and health of the parties; duration of the marriage--degree to which spouse relied on other; tax consequences.
92
What kind of fault must claimant show to obtain FSS?
1. Freedom from pre-petition fault that led to breakup of marriage. Misconduct must be of serious nature and an independent proximate cause of the separation. Following factors constitute fault for the purposes of FSS: adultery; conviction of a felony and sentence to hard labor or death; intemperance or cruelty (series of acts); abandonment--abandoned spouse must have sought other spouse's return, can also read constructive abandonment. Reconciliation or nonblameworth conduct shows no legal fault.
93
What are other fault grounds to forcelose award of FSS?
Defamation; attempted murder; fugitive; nonsupport; spouse's failure to live up to his or her mutual duties of fidelity, support and assistance should constitute fault sufficient to preclude final support.
94
Does provoking spouse constitute legal fault for purposes of FSS?
No, not if spouse provokes the other's anger/indignation/resenement or leaving, e.g. A finds out B is cheating and then A burns her clothes.
95
What are defenses to claim of fault?
Condonation; conduct caused by mental illness; mental incapacity or physical infirmity; and reconciliation (pre-reconciliation fault does not bar final spousal support)
96
Are there any monetary limitations on FSS?
Amount of final periodic support shall not exceed one-third of the obligor's net income.
97
How are support awards enforced?
Courts use income-assignment orders to enforce spousal support and child support awards.
98
How are attorneys' fees for FSS collected?
Prevailing party receives attorneys' fees--these arrearages are subject to five-year liberative prescription.
99
What are the grounds for modification/termination of the FSS?
FSS may be modified if the circumstances of either party materially change and shall be terminated if it becomes unnecessary. The subsequent remarriage of the obligor spouse shall constitue a change of circumstance.
100
What is the procedure to modify, waive or terminate a FSS?
1. Judgment by a court of competent jurisdiction, party seeking modification must prove a material change in circumstances of either party; 2. Juridical act--authentic act (notary + two witnesses) or act under private signature duly acknowledged by the obligee. Also, prenuptial waivers forbidding payment of FSS are allowed, as compared to ISS. However, courts unlikely to uphold agreement requiring FSS as a condition of a prenuptial agreement.
101
Can party challenge FSS on the grounds that divorce occurred in other state?
No, cannot deny on grounds that one spouse obtained a valid divorce from the other spouse in a court of another state/country which had not jurisdiction over the person of the claimant spouse.
102
What is the time period for seeking spousal support?
Right to claim spousal support after divorce is subject to a peremption of three years. Peremption begins to run from the latest of the following events: 1. Day the judgment of divorce is signed; 2. Judgment terminating a previous award is signed; 3. Last payment of a voluntary payment of spousal support.
103
What are contributions to earning capacity of spouse?
Applies when: 1. Spouse/former spouse made financial contributions to other's training or eduction during marriage that increased other spouse's earning power; 2. Claimant did not benefit during marriage. Remember: this is a separate claim. Not CP or spousal support award.
104
When does claim for contributions to earning capacity arise?
Claim arises when divorce action is filed and prescribes three years after date of the signing of the judgment of divorce.
105
What is the characterization of contribution to earning capacity of spouse?
Neither a spousal support nor a community property award; may be in addition to them.
106
How do courts calculate the contribution to earning capacity award?
1. "De la Rosa" award. Half of the earning spouse's income that was used for joint living expenses minus half of the student spouse's income uses for joint living expenses, plus costs of direct educational expenses.
107
Is contribution for earning capacity a personal right?
Yes. Pending action abates when either spouse dies. However, an award reduced to judgment becomes a debt against the estate.
108
What is the touchstone of custody orders?
Custody orders are always modifiable and are always based on the best interest of the child.
109
What are the factors bearing on the child's best interest?
(Weight afforded each factor in the discretion of the court); Factors relevant in actions to change/initially fix custody. 1. Emotional ties; 2. Ability to nurture; 3. Ability to provide; 4. Prior relationship; 5. Stability; 6. Moral fitness; 7. Health; 8. History; 9. Preference of Child; 10. Cooperation with Other Party; 11. Location; 12. Past caregiver.
110
Does the best interest rule also apply to actions to change custody?
Yes, same factors apple in actions to change custody.
111
What is a Bergeron considered decree?
If a custody decision is rendered as a considered decree, there is an additional requirement to change custody. The proponent of the change must show that a change in circumstances has occurred such that the continuation of the present custody arrangement is deleterious to the child as to justify a modification of the custody decree, or thar harm from change in environment is likely to be substantially outweighed by its advantages to the child.
112
What factors need to be taken into account for change of custody when it is a consent custody judgment?
A party seeking modificaion of a consent decree need prove only (1) material change in circumstances; and (2) proposed modification is in the best interest of the child.
113
What is the order of custody preferences?
1. In accordance with agreement of parents; 2. Parental Custody; 3. Non-parent custodian.
114
What are the factors for custody when in accordance with agreement of parents?
1. Still must be in child's best interest; afgreement will not be implemented if not in the child's best interests.
115
What are the factors for awarding parental custody if no agreement?
In the absence of agreement, custody is awarded to the parents jointly, or if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award sole custody to that parent alone.
116
Is there a preference for joint custody?
Louisiana law strongly prefers joint custody. However, joint custody is inappropriate when parents are engaged in continuous acrimony and conflict.
117
Is an implementation naward required for a joint custody decree?
Yes. In a proceeding in which joint custody is decreed, the court shall render a joint custody implementation order except for good cause shown.
118
What is allocated in an implementation order?
1. Equal physical custody preferred; equal sharing is not mandatory. 2. Allocation of legal authority and responsibility. 3. Court shall designate a domicilary parent. 4. Exchange of information.
119
How does the court designate a domicilary parent?
1. The domicilary parent is the parent with whom the child shall primarily reside, but the other parent shall have physical custody too. 2. DP has autority to make all decision affecting the child; all major decisions by DP are subject to review by the court upon motion of the other parent. 3. If no DP is designated, then joint custody confers on same rights/responsibilities.
120
What are the custody provisions for formally acknowledged illegitimate children?
If acknowledged by both parents, then custody of illegitimate children is governed by the general custody articles.
121
What are the custody provisions for illegitimate children that have not been acknowledged?
If not acknoweldge, no custody provisions. However, tutorship rules apply. Mother is of right the tutor of her illegimate child when the child has not been acknowledged by the father; or has been acknowledged by him alone without the mother's concurrence. If mother dies, court first looks to her family and then to the father.
122
Is there a distinction between tutorship and child custody?
Yes, although conflated by the courts.
123
What are the parental visitation rights?
A parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court fins that vistation would not be in the best interest of the child.
124
What are visitation rights of non-parents?
Under extraordinary circumstances, a relative by blood or affinity/former stepparent or step-grandparent not granted custody of the child may be granted reasonable visitation rgiths if court finds it is in the child's best interest.
125
What factors are considered for non-parent visitation?
1. Prior relationship; 2. Need for guidance; 3. Preference of child; 4. Cooperation with Parents; 5. Health.
126
What are visitation right after death, interdiction, or incarceration of parent?
Parents of deceased, interdicted or incarcerated parents, and siblings of that child can be awarded visitation if in the BIOC. Applies even if unavailable parent was not amrried to surviving parent.
127
What are non-parent visitation rights during separation?
If parents of minor child are legally separated or living apart for six months, the child's grandparents and siblings may obtain reasonable visitation rights if in BIOC.
128
Can courts grant ex parte interim custody?
Courts are not to grant ex parte interim custody unless imeediate and irreparable injury is imminent. Any such order can last only 30-45 days and the other parent must be given visitation (unless harm).
129
What are parameters for custody hearings?
1. Custody hearings may be closed to the public; 2. Court may appoint an attorney for the child if appropriat;e 3. Before denying the parent the right to visit a child, the law generally requires proof by clear and convincing evidence of the facts warranting such denial.
130
When can the court order an evaluation of a party or child in custody?
Can order evaluation for good cause shown. Evaluator serves as a witness of the court, and is subject to cross-examination by parties.
131
Does an appeal suspend the execution of a custody judgment or visitation order?
No.
132
What is standard of review for parent abiding by the schedule or custody order?
A parent must abide by the schedule unless good cause is shown.
133
What is the remedy for failure to exercise or allow visitation or custody?
A contempt action can be brought against the parent who fails to exercise visitation or custody/fails to allow. The prevailing party can receive costs for counseling; any actual expenses incurred, and attorneys' fees and costs. Affirmative defenses: mutual consent, beyond control of the parent, or good cause.
134
What are guidelines for relocating residence of a child subject to custody/visitation order?
1. Relocation statute applies in two sitatuions: a. Child will be relocated outside the state; 2. Child will be relocated 150 miles from primary custodian within the state.
135
How may days before relocation must the parent notify the other parent of the proposed relocation of the child's principal residence?
1. Notice must be made by registered or certified mail, return receipt requested, 60 days before the relocation. Failure to provide notice may constitute warranted modiciation of the custody order.
136
After notice, does other parent have opportunity to object to relocation?
Yes. Parent must obtain court authorization, after a contrary hearing, to relocate, or must get the written consent of the other parent prior to relocating. The court will consider various factors to determine whether relocation is in the best interest of the child.
137
Do military parents have any special protections/
Yes, Military Parent and Child Custody Proection Act. 1. Deployment alone does not constitute a material change in circumstances to permanently modify custody. No modifications to the prior order may be made until 90 days after the parent returns from deployment.
138
What should apply in the event of custody determinations between states?
Uniform Child Custody Jurisdiction and Enforcement Act.
139
How do courts determine the child's "home state" for the purposes of UCCJEA?
1. State where child lived with a parent for at least six months prior; 2. Child's home state within the past six months and the child is absent from the state and a parent still lives in the state; 3. Is the state that had been child's home state for the past twelve months and the child is absent b/c of emergency.
140
When does home state standard not apply?
1. No other state has home state jurisdiction/court of home state has declined jurisdiction. Louisiana court can exercise jurisdiction if (A) child and at least one parent have a significant connection with the state; (B) substantial evidence is available within the state concerning child's care. 2. All other states decline jurisdiction; 3. No other state has jurisdiction.
141
What is exclusive, continuing jurisdiction for the puproses of custody matters?
A court that makes an initial jurisdiction determination has "exclusive, continuing jurisdiction" until 1. Either state court determine neither the child nor the parents continue to reside in the state; 2. Issuing state court determines child no longer has connection with the state.
142
When can a Louisiana court modify another state's order?
A Louisiana court must have initial jurisdiction under the rules, and, other state court determines that it no longer has continuing jurisdiction or the Louisaian court or other state court determine that the parties do not reside in the state.
143
When may a court decline jurisdiction?
If the court determine that it is an inconvenient forum or the party seeking jurisdiction has engaged in unjustifiable conduct.
144
When does the court has temporary emergency jurisdiction?
If the child has been abaondoned/necessary in an emergency.
145
What are the court considerations for child support?
Based on the 1. Needs of the child; 2. Ability of the parents to provide support. Award may be modified if the circumstances of the child or either parent materially change and shall be terminated upon proof that is has beomce unnecessary.
146
What is the duration of child support?
Child support is to be paid until the child reaches majority or until the child is fully emancipated.
147
What are other circumstances affecting the duration of child support award?
1. Child support to be paid to child who is unmarried, is dependent on parents, has not graduated from high school, and is a full time student in good standing, until his 19th birthday or graduation from high school, whichever occurs first. 2. Child support continues with respect to a developmentally disabled child until he turns 22 as long as he is a fulltime student in a secondary school. 3. Alimony is to be paid if the child is in necessitous circumstances and is over 18--limited to basics. 4. Alimony is to be paid if the child is incapacitated.
148
What is the duration of the award when for more than one child?
1. Per child support--if specific amount for each child, child support obligation to that child automatically terminates when that child reaches majority; 2. In globo award--award continue in full until the youngest child reaches majority.
149
What factors are considered when determining the amount of child support?
Louisiana adopted child support guidelines based on the income shares model.
150
How is gross income defined for the purposes of the income shares model?
Incomes means actual income or potential income if parent is voluntarily unemployed or underemployed.
151
Is income imputed as the result of voluntary unemployment?
Income is imputed to parents who are voluntarily unemployed or underemployed; no income is attributed to the unemployed parent who is caring for a child of the marriage under five years.
152
What is the result of exepnse sharing when determining income?
Court may consider as income the benefits a party derives from expense-sharing through marrying or co-habitating with a nonparent spouse/friend. However, the court shall not consider the income of the nonparent, except to the extend that such income directly reduces the cost of a party's actual expenses.
153
What constitutes adjusted gross income?
Court will substract an preexisitng child support obligation/spousal support obligation paid to someone who is not a party to proeeding from each aprty's gross income.
154
What happens with combined income?
Court combines the parties' adjusted gross incomes--then it computes (as %) each party's proportionate share of the combined amount--amount obtained for each party is his/her % share of the combined adjusted gross income.
155
What does the court look to after combined income for basic child support obligation?
Court looks to child support schedule for the parties' basic child support obligation.
156
What happens with gaps in the child support schedule?
1. Child support amount can be extrapolated from guidelines if combined adjusted gross income falls between two amounts on schedule; 2. Off-the-chart income--can result in higher award then allowed under schedule; 3. Below-the-chart income--court shall use discretion but in no event shall it be less than one hundred dollars.
157
How do courts calculate the total support obligation?
Court adds the cost of health insruance and net child care costs to the basic support oblibation to compute the total support obligation. Extraordinary expenses may be added by agreement of the parties.
158
How does the court calculate each party's share?
1. Court computes each party's share of the total child support obligation by multiplying each party's percentage by the total child support obligation; 2. Rebuttable presumption that an award based on the guidelines is correct. Court can deviate; when they devisate, must state reasons for deviation on the record, any deviation will be affirmed unless it constitutes manifest error.
159
Can there be adjustement to child support award on the basis of a joint custody arrangement?
Courts shall consider the period of time spent by the child with the non-domicilary parent as a basis for adjustement to the amount of child support to be paid during that period of time. 1. Physical custody for more than 73 days; and non-domicilary parent experiences financial burden.
160
Is child support award retroactive?
Yes, retroactive to the date of filing petition (or rule) requesting it unless good cause is shown. In no event can an award be retroactive to a date prior to judicial demand.
161
How is child support award enforcer?
Can be enforced by a summary contempt proceeding to recover past due amounts.
162
When does right to recover past due child support payments prescribes?
Prescribes in ten years; compare to five years for spousal support.
163
What other agencies can assist in enforcing child support awards?
Louisiana Department of Social Services' Banks; Claimant can seek payment of federal tax redunds.
164
When can courts modify a child support award?
Material change in circumstances between the time of the award and time of motion to modify. If state is providing enforcement services, judicial review of the amoutn can be sought every three years.
165
Is income assignement mandatory in child support orders?
Yes, for all child support orders signed after January 1, 1994. No income assignement required if the parties agree to the contrary in writing.
166
Can a child support obligor request an accounting of funds?
Yes, may petition the court for an order directing recipient to account for her use of child support funds.
167
How long must child support be paid?
Must be paid until the child support judgment is terminted either by court order or by an express or implied agreement between the parties to terminate the obligation.
168
**What is filiation?
The legal relationship between the child and his parent--either biological or by adoption.
169
How is maternity proved?
Maternity may be estalbished by proof that the child was born of a particular woman; proof must be by a preponderance of the evidence. Evidence of maternity can include testimony of witnesses to the fact of birth/documentary evidence. Birth is the relevant issue.
170
What about surrogates?
Rule that the woman who gives birth to the child is the mother is consisten with La law that comepnsated surrogacy contracts are null.
171
What about married husband and wife that provide sperm and egg for in vitro fertilization to surrogates?
As long as they are married, and the surrogate is related by blood or affinity to the husband or wife.
172
What about ovum?
If in vitro fertilization patients renoucne parental rights for in utero implantation, ovum is available implantation to a married couple who will be recognized as parents after executing an adoption of in vitro fertilized ovum.
173
What are ways in which paternity is established?
1. Presumption of paternity of the husband; 2. Presumption of paternity by a marriage or acknowledgment; 3. Or through a formal acknowledgment; 4. Action instituted by the child; 5. Action instituted by the father.
174
What is the presumption of paternity of the husband?
Husband of the mother is presumed to be the father of a child born during the marriage or within 300 days from the date of termination of the marriage. Strongest presumption in the law/
175
What are additional presumptions when child is born after termination?
1. If a child is born within 300 days from the termination of the marriage and the mother is remarried at the time of the child's birth, the first husband is presumed to be the father. If the first husband disavows, the second husband is presumed to be the father. Second husband can disavow within a one-year peremptive period from the day of the judgment of disavowal.
176
How does husband or his heirs overcome the presumption of paternity of the husband?
1. Diavowal action by husband; 2. Mother files a contestation action.
177
How does a husband maintain a disavowal action?
1. Husband may disavow paternity of the child by clear and convincing evidence that he is not the father. Father's testimony must be corroboraed by other evidence--DNA, tangible evidence.
178
What are the time limits for a disavowal action?
1. One year after hasband learned or should have learned of the BIRTH of the child. Exception when hsuband lived separately and apart from the mother continuously during the 300 days preceding the birth of the child, suit may be filed within one year from the date that the husband is notified in writing that a party in interest has asserted that he is the father.
179
What are the time limits for a disavowal action when filed by the heirs of the husband?
If husband dies before prescription has accrued, the successor whose interest is adversely affected may file suit withint one year from the death of the husband. If presecription has not yet run, successor may file suit within one year that he is notified in writing that party has asserted that husband is father of the child.
180
What is the importance of the time limits for disavowal action?
Presumption of paternity becomes irrebuttable even if another man is later proved to be the child's biological father.
181
Are there any exceptions to the right to disavow?
A husband cannot disavow a child boran as a result of assisted conception.
182
How does a mother determine the filiation of her child?
A mother can bring an action in her own name--in a contestation action--to determine the filiation of her child.
183
What are the two requirements for a contestation action?
Mother can file suit to establish that 1. Her former husband is not the father of the child; and and that her present husband is the father only if the present husband has acknowledged the child by authentic act or has signed the birth certificate.
184
What is the standard of proof in a contestation action?
Clear and convincing evidence; mother's testimony must be corroborated by other evidence.
185
What is the time limit for a contestation action?
1. 180 days of her marriage to the present husband and 2. Within two years from the birth of the child.
186
What must judgment in a contestation action contain?
1. Any judgment decreeing that the former husband is not the father of the child must also decree that the present husband is the father of the child.
187
What is the presumption of paternity by subsequent marriage and acknowledgment?
A man who marries the mother of a child is presumed to be the father of that child if he acknowledges the child by authentic act or signs the birth certificate. Child must not be filiated to another man, and the mother must concur in the form of a juridical act.
188
How can person overcome the prresumption of paternity by subsequent marriage and acknowledgment?
1. Disavowal action--within 180 days from the day of the marriage or the acknowledgment.
189
Does the presumption of paternity by subsequent marriage and acknowlegment apply if the child is filiated to another man?
Yes, a child whose filiation is already established to one man can nonetheless prove his filiation to another man unless he is the father of the child, who must file an avowal action under article 198.
190
Does the presumption of paternity by SMA apply if the mother brings a contestation action?
No, in a contestation action, th epresumption due to SMA does not apply and the mother must prove the paternity of her present husband by clear and convincing evidence.
191
What are the three other methods of establishing paternity?
1. Formal acknowledgment by father; 2. Child's action to prove paternity; 3. Father's action to prove paternity.
192
What constitutes a formal acknowledgment by the father?
1. A man may acknowledge a child who is not filiated to another man as hiw own by authentic act or by signing the birth certificate. Acknowledgment creates a presumption that the man is the father.
193
What is the effect of formal acknowledgment by the father?
1. Creates a presumption hat man is the father that can only be invoked on behalf of the child. (Can use as if judgment of paternity)
194
Does formal acknowledgment create a presumption in favor of the father?
An acknowledgment does not create a presumption in favor of the man except in child support, custody, and visitation cases.
195
Is a formal acknowlegment by the father valid if there is no biological connection?
If man executed formal act of acknowledgment is not the biological father, the act is absolutely null and without legal effect.
196
Can a formal acknowledgment be revoked without cause?
Yes, may be revoked without cause within 60 days of signing by submitted sworn statement or in a judicial hearing. After--can only be revoked within two years of signing and upon clear and convincing evidence by fraud, duress, mistake, or that the man is not the biological father.
197
Can anyone bring an action to challenge formal acknowledgment?
Yes, and no limitations on who may bring action or time period.
198
Is signing the baptismal registry a formal acknowledgment?
No, not under the present law.
199
Does informal acknowledgment create a presumption of paternity?
No, informal acknowledgment does not create a presumption of paternity. Can be used as evidence to prove paternity.
200
Can a child file suit to prove paternity even though the child is presumed to be the child of another man?
Yes, Louisiana recognizes dual paternity.
201
What is the burden of proof in a child's action to establish paternity?
Living alleged parent--preponderance of the evidence; Dead alleged parent--clear and convincing evidence.
202
What are the time limits for a child's action to establish paternity?
1. For sucession purposes--child must file within one year of the death of the alleged father. 2. For all other purposes--not limited by one year limit (e.g., wrongful death suit)
203
What evidence is admissible to prove paternity?
1. Blood tests, informal acknowledgment, and cohabitation of the mother anf father at the time of conception.
204
What happens in post mortem artificial conception cases?
A child born after the death of a sperm (or egg) donor is deemed to be the donor's child if (1) born to the surviving spouse within three years of death; (2) donor spouse authorized in writing that the spouse could use the gametes.
205
Can a father file an action to establish paternity?
Yes, a man can file suit to establish his paternity of a child. The action is strictly personal--avowal action.
206
What is the burden of proof on a father's action to establish paternity?
Preponderance of the evidence.
207
What are the time limits for filing an avowal action?
1. Child is presumed the child of another man--action must be filed within one year of the birth of the child. Child is not presumed the child of another man--action may be filed at any time, but no later than one year from the child's death.
208
Is there an exception to the time limits for filing an avowal action?
Yes, if the mother in bad faith decieved the father regarding his paternity, the action must be filed within one year of father knew/should have known of paternity or within ten years from the birth of the child, whichever occurs first.
209
What is the presumption of fatherhood for purposes of child support?
If the father fails to contest the identification, there is a presumption of fatherhood for child support purposes only.
210
How long does an adjudicated father to set aside the judgment?
If adjudicated father has actual or constructive knowledge that he has been adjudged to be the father of a child or that there is a proceeding to adjudicate his aternirty, he has two years to set aside the judgmnet if he can prove, through genetic testing, that he is not the biological father.
211
What is the effect of setting aside a judgment of fatherhood?
Ends the obligation of support, but does not affect child support due, paid, or owing.
212
What law governs the adoption of minors?
Governed by the Children's Code.
213
What are the effects of adoption?
Adopted person to adopted parents: adopted person is the legitimate child of his adoptive parents for all purposes including inheritance rights; Adopted person to biological family: most legal rights and duties between the adopted person and his biological parents and blood relatives terminate with two exceptions--stepparent adoptions; inheritance by adopted person from his blood relatives.
214
What is an adult adoption?
Adoption of a person over the age of eighteen.
215
When is judicial authorization for an adult adoption needed?
1. Adult stepparent adoption--no judicial authorization needed. Parent and the person to be adopted can consent in an authentic act of adoption. 2. All other adult adoptions? In non-stepparent adult adoptions, the adoptive parent and the person to be adopted must file a joint petition and the court can authorize the adoption if it is in the best interest of the parties.
216
When is consent of spouse necessary for an adult adoption?
In any adult adoption, the consent of the spouse of both the adoptive parent and the person to be adopted, if applicable, must be obtained in an authentic act of adoption.
217
Are there any limiations on adult adoption?
A person cannot adopt his spouse in an effort to permit the spouse to participate in his parents' succession.
218
What are children's obligations to their parents?
1. Honor and respect; obey; remain home.
219
What are the rights of parents?
Authority of the father prevails; if someone has custody of a child in deroagtion of the parents' rights, the parents may bring a habeas corpus proceeding to regain custody of their child.
220
What are the rights of parents to discipline their children?
Right to correct children, but in a reasonable manner.
221
What other parental rights?
Parents have right to appoint a tutor for their children and to delegate some authority to those to whome they entrust the children's education.
222
Which parent has the right ot adminsiter the estate of his minor child?
During the marriage, the father is the administrator of the estate of the minor child. If he is absent, committed, etc., the mother shall have the right to administer the child's estate.
223
How long do parents have the right to administer the child's estate?
Administrator must have court approval to alien or mortgage immovables of the child; administration ends on majority, emancipation or divorce of parents; administrator is accountable to child for property and all revenues to which he is not entitled as usufructary.
224
Do parents have usufruct over child's property?
Yes, parents have usufruct over minor's property while parental authority exists; usuruct is nonalinable and nonlienable.
225
What does parents' usufruct not extend to?
Child's labor; specifically excluded inheritance; intervivos donation.
226
Wat are the obligations of parents?
To suuport, maintain, and educate; to protect; to assume vicarious liability for the torts of their children.
227
What are wrinkles with respect to parents' assumption of vicarious liability?
1. A parent can be strictly liable for harm caused by his child even if the child was not negligent; child need not live with parent for parent to be vicariously liable.
228
Can children sue their parents?
Children have no right to sue their parents (if married) or their custodian (if the parents are divorced prior to emancipation or majority.
229
What is the scope of alimentary obligations?
Parents, children, have a reciprocal duty to maintain one another's basic necessities of food, clothing, shleter, and health care upon proof by the nedy person of an inability to obtain those from other sources. Called alimony--includes only what is necessary for nourishment, lodging, and support of claimant.
230
Are there any alternatives to alimentary obligations?
Court may order person who owes--that such person shall receive in his house, and there support and maintain the person to whom he owes alimony.
231
Does an illegiimate child have an obligation to recognize parental authority?
No, an illegitmate child has no family, even when they have been legally acknowledged.
232
What are the receiprocal alimentary obligations of parents and illegitimate children?
Illegitimate child is entitled to receive alimony when absolutely in need--illegitimate child must be filiated in order to owe it or get it.
233
When is tutorship necessary?
Occasion for tutorship whenever parental authority does not exist as to a unemancipated minor child--whenever a child is not under parental authority, he must be under tutorship.
234
Where is venue appropriate for tutorship action?
Parish where: 1. Child resides; 2. Suriving parent is domiciled; 3. Wheter the parent awarded custody is domiciled.
235
What are the four types of tutorship?
1. Tutorship by nature; 2. Tutorship by will; 3. Tutorship by effect of law; 4. Tutorship by appointment.
236
What is tutorship by nature?
Parents are the natural tutors of their legitimate children. Upon the death of one parent, the other parent automatically becomes the child's tutor.
237
How is the tutorship of an illegitimate child determined?
1. When father has not acknowledged illegitimate: Mother is the tutrix or right. After death of mather, court gives first consideration to the mother's parents and to her siblings, and, secondly, to the father. 2. When both parents have acknoweldged illegitimate: court appoints one after considering the best interest of the child.
238
How is tutorship by will determined?
The right of appointing a tutor belongs exclusively to the spouse dying last.
239
What are the types of will for the purposes of determing a tutorship by will?
1. Testament; can also be given before death by any declaration in an authentic act executed before a notary and two witnesses.
240
Which divorced spouse has the right to appoint a tutor?
Spouse with sole custody has sole right to appoint tutor; as to parents with joint custody, spouse duing last has right to appoint tutor. Each parent may separately appoint a tutor of the property of the children.
241
Who can appoint a tutor for the illegitimate child?
Parent entitled to tutorship under article 256 (mother) can appoint a tutor for the child, but the oucrt must approve.
242
What is a tutorship by effect of law?
When a tutor has not been appointed by a parent dying last or when a new tutor is necessary, the court selects a tutor from: (1) qualified direct ascendants; (2) child's qualified collaterals by blood within the third degree; and (3) the child's stepparent, keeping in mind the best interest of the child. Need to notify all qualified people so they can contest.
243
What is tutorship by appointment?
When minor is orphan--parents have appointed no tutor/child has not relations to be tutors, the court shall appoint a tutor.
244
What are the modes of establishing tutorship?
Tutorship by nature takes place of right, but the natural tutor must qualify for the office as provided by law. In every other kind of tutorship the tutor must be confirmed or appointed by the court, and must qualify for the office as provided by law.
245
What are the qualifies for a tutor?
Age 18 or older; not interdicted or incompetent; not a felon; not indebted to minor; not an adverse party to a lawsuit in which the minor is a party; not infirm; not of bad moral character.
246
Can a parent by exccused from obligation of tutorship?
No, but others can be, including certain elected officials, ill people, etc.
247
What is the oath of tutorship?
Most tutors must take an oath prior to taking office--most tutors, except natural ttors, must furnish security in an amount equaling at least the total value of the minor's movable property. After the tutor has taken the otah--clerk of court issues him letters of tutorship.
248
What are the duties of the tutor?
Tutor shall have custody and shall care for the person of the minor. He shall see that the minor is properly reared and educated in accordance with his station in life. Tutor and undertutor have a fiduciary duty to tutee. Tutee's action against tutor for tutor's acts prescribes four years after majority.
249
What are the rights and obligations of a tutor?
Lawsuits; property management; donations; tutor is required to file an annual accounting of all property of the minor.
250
When does tutorship terminate?
Tutorship expires on majority or emancipation of tutee--exception for mentally incapacitated children.
251
What is the procedecure for continuting tutorship of mentally incapacitated children?
1. Person has less than two-thirds mental ability of normal person of samge age, then parent/person entitled to be tutor may petition court for order of continuing tutorship. 2. Continuing tutorship restricts person's legal capacity to that of a permanent minor. 3. A continuing tutorship decree may be contested by the tutee or by any other interested party. If evidence would just full emancipation, continuing tutorship decree is set aside.
252
What is an underturor?
In every tutorship there shall be an undertutor. The undertutor performs any acts that the tutor fails to perform. The undertutor does not step in and ssume the tutor's duties if he dies or resigns.
253
What are the qualifications for the undertutor?
Over 18; mentally competent; not a felon; not an adverse party in a suit against the minor. Undertutor must take oath; ends with the principal tutorship.
254
What are the three types of emancipation?
1. Judicial emancipation; 2. Emancipation by marriage; 3. Limited emancipation by authentic act.
255
What is the standard for judicial emancipation?
For good cause, a court can order full or limited emancipation of a minor age 16 years or older.
256
Are there different levels of judicial emancipation?
Full judicial emancipation--confers all effects of majority on the person emancipated; Limited judicial emancipation--confers the effects of majority as specified in the judgment of limited emancipation.
257
What constitutes good cause for the purposes of judicial emancipation?
Good cause may exist when a minor's parents need to be protected from liability for the acts of the minor; when the minor needs capacity to enter juridical acts; or when the parents treat the minor poorly.
258
Who may file the petition for judicial emancipation?
The minor, 16 years or older, or the parents can individually file the petition for judicial emancipation. Parties may also jointly file.
259
What is the effective date of judicial emancipation?
Judicial emancipation is effective when the judgment is signed.
260
Can a judgment of emancipation be modified or terminated by the court?
Yes, for good cause, and the minor is returned to a state of minority. Effective against third parties when filed for registry.
261
Can emancipation occur by marriage?
Yes, a minor is fully emancipated when married. Termination of marriage does not affect emancipation.
262
What is limited emancipation by authentic act?
Minor and parents or tutor of the minor can execute an authentic act of limited emancipation. Minor can make juridical acts as stated in the act of limited emancipation. Effective date of a limited emancipation by authentic ct is when the act is executed. Can modify or terinate in subsequent authentic act. An authentic act of limited emancipation cannot relieve parents of liability for the acts occassioned by their minor child.
263
What are the types of interdiction?
Full interdiction; limited interdiction; temporary or preliminary interdiction.
264
What is the standard for ordering a full interdiction?
A court may order the full interdiction of a natural person of the age of majority, or an emancipated minor, who due to an infirmity, is unable consistently to make reasoned decisions regarding the care of his person and proeprty, or to communicate those decisions, and whose interests cannot be proteced by less restrictive means.
265
What is a limited interdiction?
Defendant must be incapable of caring for his own person OR managing his estate. A limited curator has only those powers that are necessary to meet demonstrated needs, and the judgment of limited interdiction must specifically delinieate powers and responsibilities of the limited curator.
266
Can a court order a temporary or preliminary interdiction?
Yes, when a petition for interdiction ispending--substantial likeliohood that grounds for interdiction exist.
267
Who is appointed to represent the interdict?
A court shall appoint a curator to represent the interdict in juridical acts and to care for the person or affairs of the interdict, or any aspect of either. The duties and powers of a curator commence upon his qualification.
268
What are the duties and powers of the curator?>
A curator shall exercise reasonable care, diligence, and prudence and shall act in the best interests of the interdict. The court shall confer upon a curator of a limited interdict only those powers required to protect the interests of the interdict.
269
What is an undercurator?
The court shall appoint an undercurator (watchdog of the curator)
270
What is the liability of a curator or undercurator?
Neither a curator nor an undercurator is personally responsible to a third person for a tort committed of the interdict in his charge SOLELY by reason of his office. Can be respnsible for damages resulting his/her acts or omissions. If unpaid, curators shall not be personally liable unless torts caused by gross negligence.
271
What are the effects of interdiction?
Full interdict--lacks the capacity to make a juridical act. Limited interdict--lacks the capacity to make a juridical act relating to property within the control of the curator.
272
What are the effects of interdiction on donations mortis causa?
If property is under the authority of the curator, the limited interdict cannot make or revoke a disposition of the property inter vivos.
273
Does interdict affect the validity of a juridical act made prior to the interdiction?
No, not if made prior to the effective date of interdiction.
274
What about interdicted acts made after the filing of the petition?
All acts of person to be interdicted are relatively null from the date of the filing of the petition for interdiction, if the petition is granted.
275
What is the standard for modifying a judgment of interdiction?
A court may modify or terminate a judgment of interdiction for good cause.
276
What is the standard for removing a curator or undercurator?
A spouse, relative, or interested person can petition for removal of the curator or undercurator upon a clear showing that neither the curator nor the undercurator are adequately performing their duties. The court will remove the curator if it is in the best interest of the interdict.
277
What factors do the court consider when determining whether to remove the curator or undercurator?
1. Curator is about to mess with the interdict's property; 2. Curator's failure to render any account required by law; 3. Curator's failure to obey an order of the court; 4. Curator's gorss misconduct or mismanagement of duties; 5. Curator's incapacity; 6 Abuse of the interdict.
278
How can one obtain a preliminary or temporary interdiction?
1. Judgment of preliminary interdiction granted after an adversarial hearing terminates thirty days after being signed, unless extended by the court for good cause; 2. A judgment of interdiction granted ex parte terminates ten days after being signed. On motion and for extraordinary reasons, can extended for one additional period of tend days.
279
What is the effective date of an order terminating or modifying a judgment of interdiction?
Effective on the date signed by the court.
280
What is the reuslt of wrongful filing of an interdiction petition?
A petitioner whose petition for interdiction is denied is liable for damages caused to defendant if the petitioner knew or should have known that factual allegations concerning interdict's ability to make reasoned decisions was false.
281
What is an absentee?
An absentee is a person who (a) has no representative in the state; and (b) cannot be located with diligent effort.
282
Can an absentee be appointed a curator?
If the absentee owns property in Louisiana, upon the petition of any interested party and a showing of necessity, a court may appoint a curator to manage or dispose of the property. 1. Necessity--need to show that appointment of curator is necessary to protect the absentee's/petitioner/third party's interest. 2. Must show that effort to locate the person would be futile, e.g. the absentee is dead.
283
What is the effect of an appointment of a curator for an absentee?
The appointment of a curator does not deprive the absentee of the capacity to make juridical acts. The absentee's own disposal of immovable is subject to the public records doctrine--curator can seel proeprty even if absent person sold it if not recorded.
284
What are the powers of curator for an absentee?
1. Curator may adminsiter and dispose of the absentee's property; 2. When absent spouse is a spouse in community, the curator has authority only over the spouse's separate property. 3. Curator must account for his management and restore the property when curatorship terminates.
285
How does curatorship of an absentee terminate?
Curatorship terminates when the absentee appoints a representative to represent his interests in this state; absentee reappears; absentee dies.
286
What is the presuption of death for absetnees?
If absentee is absent for five years, he is presumed to be dead. 1. Katrina/Rita--person is presumed dead after two years. 2. Judgment of death may be amended if there is clear and convincing evidence that the date fixed was wrong.
287
What are the succession rights of absentee?
A person presumed dead or declared dead at a time when a sucession would have opened in his favor cannot be a successor; act as if he predeceased.
288
Can a person declared dead who reappears reclaim his property?
Yes, can recover his property that still exists in the condition found from his succesors or their transferees by gratuitous titles.
289
Can a person declarded who reappears reclaim his inheritance?
Yes, same rules as for property. The absent person who reappears is treated like an omitted heir ina succession. If the absent person reappears within TWO YEARS from the date of a final judgment of possession, he can demand immovable property from transferees by onerous title if the transferee acquired that immovable property from an heir in the judgment of possession. Not entitled to recover fruits of his proeprty from his successors, who are considered to be good faith possessors.
