Persons

Question 1

Natural Persons

Answer 1

A natural person is a human being

i. Begins: live birth and terminates at death.
1. Respiration/crying is the test for live birth.
2. retroactive to conception (ex: inheritance)

Exception: Wrongful Death

ii. enjoy general legal capacity to have rights and duties, and once they reach majority make juridical acts.
iii. Terminates: death. Establish death by:
1. Certification by licensed medical doctor. Death can be: Irreversible cessation of spontaneous cardiopulmonary functions, brain dead
2. Judicial Declaration: Presumed Dead, Absent person (5 years)

Question 2

Conflict of Laws Regarding Status of Natural Persons

Answer 2

Status of natural person is governed by the law of the state whose law would be most seriously impaired if its law not applied.

Balancing test Test:

a. Relationships of each state to the dispute, to the parties, and to the person whose state is in dispute
b. Policies and needs of interstate and international systems, including policies of:
i. Justified expectations of parties ii. Minimizing prejudice that accrues to subjecting a party to a law of more than one state

Renvoi – When foreign law is applicable, that law doesn’t include law of conflicts. But in determining which state’s law applies, law of conflicts of other states may be considered

Question 3

Juridical Person

Answer 3

“An entity to which law attributes personality”

Business and Governmental Organizations

Fertilized Ova (human embryo statute) – in vitro fertilized ovum is a juridical person, once implanted a natural person assuming live birth

1. No inheritance rights unless born alive. Ovum has no right to inherit from biological donor when donated to another couple. (unlike adoption)

Question 4

Domicile

Answer 4

Domicile Generally

**place of Habitual residence **

1. can only have one domicile.
2. Strong presumption in favor of ‘domicile of origin’.
3. Multiple domiciles if person resides nearly equally in several places and no written declaration of domicile, then any one of those can be considered domicile on choice of that person ii.

Question 5

Domicile Imposed as a Matter of Status/unemancipated minors/interdicts/military personnel

Answer 5

Spouses can either have a common domicile or separate domiciles.

Unemancipated minors – can have domicile of parent or parents with whom minor usually resides.

1. under legal authority of one parent or another person –> domicile of that person is the domicile of the minor.
2. under tutorship –> with the tutor with whom the minor primarily resides.
   a. Same rule applies to continued/permanent tutorship.

Interdicts have the domicile of their curator. A limited interdict retains his domicile unless otherwise indicated.

Military personnel serving in Louisiana and not domiciled elsewhere may be domiciliary of LA and parish if he has been (a) in state for 6 months and (b) in parish where suit filed for at least 90 days before filing

Question 6

Importance of Domicile

Answer 6

Venue

Subject Matter Jurisdiction Over Certain Actions

1. Divorce – To obtain divorce or annul, one or both parties must be domiciled in Louisiana for at least six months. (Rebuttable presumption upon 6 months of residency)
2. Adoption, emancipation, interdiction, tutorship, curatorship, custody, and similar issues
3. Community Property Regime for property acquired by married persons who are domiciled in LA

Question 7

Marriage Definition

Answer 7

Marriage is a legal relationship between a man and a woman created by a civil contract. However, many rules are governed by public policy and cannot be altered by rules of contracts.

Question 8

Absence of Legal Impediment to Marriage

Answer 8

i. Existing Marriage – no bigamy
ii. Same-Sex Marriage – persons of the same sex cannot marry
iii. Incest – off-limits relatives include:
1. Direct-line relatives – ascendants and descendants
2. Collaterals
a. Collaterals within the 4th degree, whether by whole or half-blood (aunt- uncle, uncle-niece, siblings, first cousins
b. Exception – if collaterals within the 4th are 55 or older and marriage was solemnized before 1993.
c. Adopted relatives are treated like blood relatives, but written judicial approval can be obtained for marriages
d. No impediment exists if collaterals are related by affinity (by marriage) – step-sibling is fine, if not adopted

Question 9

Marriage Ceremony

Answer 9

Qualified Celebrant – must be performed by a third-party celebrant who is qualified or who parties believe is reasonably qualified

Attendance by Parties – no marriage by procuration/representative)

Other Formalities – even if not followed, still a marriage:

1. Marriage License – license must be issued 72 hours before ceremony unless waived by judge/justice of the peace for a. Orleans Parish exception to 72-hour delay if serious and meritorious reasons given
2. Witnesses – two competent witnesses, over 18 years
3. Signed Certificate – signatures of parties, witnesses, and celebrant on the certificate
4. Celebrant Must Summarize Laws on Community Property and Covenant Marriage

Question 10

Consent to Marriage

Answer 10

Parties must verbally express consent during the ceremony, and it cannot be implied

i. Parties’ consent must be free of vices, including duress
1. Duress - actual and threatened violence if threat is pending when consent is given.
2. Threats of criminal prosecution may be duress in some circumstances, but not if warranted by facts.
ii. Persons “not capable of discernment” may not consent. Insanity, drunkenness, and mental retardation are vices of consent.
iii. Age
1. Minors have no capacity to marry without approval of either both parents, tutor, parent with custody, or juvenile court
2. Minors under 16 must have juvenile court’s authority to marry

Question 11

Covenant Marriages

Answer 11

Formation – A covenant marriage is between one male and one female who understand that the relationship between them is a “lifelong relationship”.

Parties must meet normal marriage requirements plus

(a) receive special counseling,
(b) declare intent to contract a covenant marriage when applying for marriage license, and
(c) execute a notarized declaration of intent to contract

Commitment to Counseling – parties commit to take all reasonable efforts to preserve marriage (Unless abuse)

Agreement cannot be dissolved by mutual consent of parties

Question 12

Relatively Null Marriage

Answer 12

Relative Nullity - Marriage lacking consent may be declared relatively null

1. Nullity must be declared in a judicial proceeding by the party whose consent was not free.
2. Marriage cannot be declared null if the nonconsenting party later confirmed the marriage. Cohabitation is evidence of confirming.
3. Effects:
   a. A marriage must be declared relatively null, and therefore is valid unless declared otherwise by court.
   b. A relatively null marriage produces civil effects until officially declared null.

Question 13

Putative Marriage Doctrine

Answer 13

Civil effects can flow to one or both ‘spouses’

It applies when marriage is absolutely null and at least one spouse was in good faith when contracting marriage

Good faith = ‘honest and reasonable belief that there exists no legal impediment to the marriage’

i. Applies to both errors of law and fact.
ii. Good faith is presumed for party making the claim. A spouse who is a party to previous undissolved marriage has burden of proving good faith in contracting second marriage (belief of prior divorce)
iii. First-hand actual knowledge of impediment vitiates good faith. Second-hand knowledge imposes a duty to inquire (can’t just rely on word).
iv. Only in exceptional case can spouse believe she is married in absence of marriage ceremony.

Question 14

Duties of Husband/wife

Parental Authoirty

Surnames

Answer 14

Mutual Duties of Husbands and Wives

1. Fidelity – negative/positive
2. Support – ongoing duty to furnish necessities of life
3. Assistance – must care for ill or infirm spouse

Not Enforceable During Marriage – spouses generally cannot sue each other during marriage

Parental Authority – Parents jointly exercise parental authority and assume “moral and material” obligations

Surnames – Marriage does not change either spouse’s surname, but married person may use surname of either or both spouse. A widowed/divorced/remarried woman may use former spouse’s name.

Question 15

Conflict of Laws and Marriage

Answer 15

• If marriage is valid where contracted or where parties were first domiciled as married, it is valid in LA unless validity would violate strong public policy of the state whose law governs
• Same-sex marriages violates strong public policy in LA, no recognition

Question 16

Termination of Marriage

Answer 16

Marriage only terminates upon:

i. Death of either spouse
ii. Judicial declaration of relative nullity
iii. Authorizations to Remarry by court order to spouse of person on active duty who is presumed dead
iv. Entry of a judgment of divorce

Question 17

No-Fault Divorces

Answer 17

Article 102 Divorce - No-Fault, file then separate

Article 103(1) Divorce - No-Fault, Separation then Filing

Question 18

Article 102 Divorce

Answer 18

No-Fault, Separation After Service

Permits divorce after parties have lived apart continuously for either 180 or 365 days after service of petition or waiver of service

i. Can file while living together, but requires personal service.
ii. 180 days – live apart for 180 days if no minor children of the marriage (Unless abuse)
iii. 365 days – live apart for a year when there are minor children at time Rule to Show Cause filed under 102 or at time petition filed under 103(1)

Question 19

Article 102 Divorce Procedure

Answer 19

i. Petition – Art 102 petition must allege jurisdiction and venue and must be verified by affidavit of P.
ii. Rule to Show Cause – after time period from service or waiver, either party may file rule to show cause to set for hearing. Must:
1. Allege proper service of initial petition, must be requested within 90 days of filing
2. Allege requisite time period has elapsed since service/waiver
3. Allege parties living separate and apart
4. Verified by affidavit of mover
iii. Required Evidence at Hearing – facts entitling moving party to hearing may be established by petition for divorce, return on service, rule to show cause and affidavit, return on service of rule, affidavit of mover executed after filing of rule
iv. Miscellaneous Article 102 Provisions:
1. Petition abandoned if rule to show cause not filed within 2 years of service
2. Cannot make motions for summary judgment or motion on the pleadings
3. Any dismissal of a 102 petition must be by way of a joint motion or contradictory motion by the plaintiff

Question 20

Article 103(1) Divorce

Answer 20

No-Fault, Separation Prior to Filing

Easier than 102 (once in court)

Permits living separate and apart continuously for either 180 or 365 days before petition is filed

Physical separation must be voluntary with intent to end marital association. Big impact is on community property.

Same time periods as 102 divorces.

Question 21

Article 103(1) Divorce Procedure

Answer 21

i. Regular delays for pleading apply, can be waived
ii. Answer required within 15 days of service, can be waived
iii. Preliminary default possible on 16th day following service, can confirm default 2 business days after preliminary default
iv. No affidavits are technically required

Question 22

Fault-Based Divorces

Answer 22

“Immediate Adultery Divorce” (103(2))

Adultery must be proved at trial by corroborated testimony (admission of adulterous spouse insufficient). Circumstantial evidence OK but it “must lead fairly and necessarily to conclusion that adultery committed” Sex not required.

Divorce is immediate, no physical separation required, but court docket delays do apply

General procedural rules apply

“Immediate Felony-Conviction Divorce” (103(3))

Similar to adultery divorce, spouse must be convicted of a felony and must be sentenced to death or hard labor.

Question 23

Defenses to Divorce Action

Answer 23

1. Procedural requirements not met (in a 102 proceeding)
2. Reconciliation:
   a. Resumption of life together with mutual intent to resume marriage extinguishes divorce action
   b. Effect of Sex – not isolated sex acts, need the mutual intent to resume life
   c. Reconciliation after Adultery or Conviction – some element of forgiveness or condonation after knowledge of offense may amount to reconciliation
3. Mental Condition – mental condition of at-fault spouse is defense, but must cause or induce the conduct

Question 24

Actions Incidental To Divorce

Answer 24

i. In a divorce action under Article 102 or 103, can resolve other matters:
1. Injunctions (no waste of community property, no abuse, no harassment or contact)
2. Custody and visitation of children
3. Money
a. Spousal Support
b. Use of Property:
i. Community or Separate Matrimonial Domicile – a Custodian of child can seek use and occupancy of matrimonial domicile whether separate or community if in the best interest of the family.
1. Can use separate residence until partition of community or until 180 days following termination of marriage.
2. Can use community residence until further order of the court.
ii. Community Immovables or Movables can be awarded for use in best interest of the family.
1. Personal property can be awarded ex parte
ii. Miscellaneous Divorce Methods
1. Louisiana courts may only grant a divorce under Louisiana law. (Can use foreign law for nullity or for ancillary matters).
2. Domestic Abuse Assistance Act - A civil remedy for domestic violence affording the victim immediate protection. Note: No immediate divorce for abuse.

Question 25

Spousal Support

Answer 25

Two types: interim support or final support, if the party is in need of support and is free of fault prior to the filing of a proceeding to terminate.

Trial court has great discretion

The obligation of spousal support (interim/final) terminates on:

i. Remarriage of the oblige
ii. Death of either party
iii. Judicial determination that oblige has cohabited with another person of either sex in the manner of married person (have to go to court)

Question 26

Interim Spousal Support

Answer 26

Pending Final Support Award

one spouse has a need, whether the other spouse has the means to pay, based on the standard of living the parties enjoyed during the marriage.

at-fault spouse can get interim spousal support.

The spouse seeking support bears burden of proof.

Court considers claimant’s needs and payor’s means to maintain standard of living, and attempt to maintain financial status quo that existed prior to physical separation:

1. Claimant/Payor depends on status quo ante. Primary income earner will generally be the payor-spouse
2. Claimant’s Income and Needs: Claimant-spouse’s income is primary consideration. Not assets Earning Capacity of claimant usually not considered if they were not working during the marriage.
3. Payor’s Means – generally calculated after considering payor’s entire financial condition. May include gifts received by payor.Consider payor’s income and assets.Some courts find that payor’s obligations to creditors are primed by alimentary obligations. Earning capacity is often considered for payors.

Trial court has substantial discretion in interim support determinations, and is reviewed on abuse of discretion.

Duration – interim support terminates upon rendition of judgment of divorce. However, if pending claim for final spousal support when divorce itself rendered, interim support continues and terminates on judgment of final spousal support or 180 days from divorce (unless showing of good cause such as disability)

Modification or Termination – can be modified if either party’s circumstances materially change and can be terminated if it has become unnecessary. Subsequent remarriage of obligor spouse is not material change of circumstance.

Cannot waive interim support in a pre-nup, against public policy

Question 27

Final Spousal Support

Answer 27

Court may award final periodic spousal support to a party free from fault prior to the filing of a proceeding to terminate the marriage Award based on needs of claimant and ability of other party to pay.

1. Needs of Claimant = inability of claimant to meet necessary expenses (not necessarily status quo), but not just basic survival
2. Ability of Other Party to Pay – entire financial picture

Considerations – court shall consider all relevant factors (TAF CRIED):

1. Tax Consequences
2. Age and Health of Parties
3. Financial Obligations
4. Child Custody Arrangements and Effect on Earning Capacity
5. Rehabilitation – time necessary for claimant to acquire education or employment (rehabilitative support that terminates after set period of time)
6. Income and Means of the Parties, including liquidity
7. Earning Capacity of the Parties
8. Duration of Marriage (degree of reliance on spousal income)

Freedom From Fault – claimant has to prove pre-petition fault that led to breakup of marriage. Misconduct must be serious and an independent contributory or proximate cause of separation. Serious faults:

1. Adultery – adultery-based divorce based on non-claimant adultery presumes claimant is free from fault
2. Conviction of Felony and Sentence to Death/Hard Labor
3. Intemperance or Cruelty that Renders Living Insupportable
   a. Reconciliation condones acts prior to reconciliation, but continuing conduct revives pre-reconciliation acts
   b. Incompatibility, nagging, criticism not enough.
4. Abandonment – leaving dwelling without lawful cause and refusing to return after request
   a. Living apart by agreement is not abandonment.
   b. Abandoned spouse must have sought other spouse’s return
   c. Can have constructive abandonment
5. Public defamation
6. Attempted murder of spouse
7. Spouse is fugitive from justice, proof must exist of guilt
8. Intentional Non-Support of Spouse
9. Failure to Live Up to Mutual Duties of Marriage (Fidelity, Support, Assistance) Cant be enforced during marriage

Miscellaneous Fault Issues

1. Provocation – where one spouse provokes the other’s anger or resentment, latter’s justifiable leaving or ordering the other to leave are not legal fault
2. Defending Claim of Fault = (1) condonation, (2) conduct caused by mental illness, incapacity, infirmity, and (3) reconciliation

One-Third Limitation – final periodic support cannot exceed 1/3 of the obligor’s net income (no limit on child support, though)

Enforcement of Support Awards

1. Income-Assignment Orders – DSS or employer pays directly
2. Collection of Arrears
   a. Court must enter judgment making past-due payments executor, can get attorneys fees and costs to prevailing party (unless good cause shown)
   b. Action to make past-due payments executor has a five-year prescriptive period, every payment of payment constitutes interruption of prescriptive period

Modification, Waiver, or Termination – can be modified if either party’s circumstances materially change and can be terminated if it has become unnecessary. Subsequent remarriage of obligor spouse is not material change of circumstance.

1. Procedure:
   a. Judgment
   b. Juridical Act – authentic act (notary and 2 witnesses) Pre-Nuptial Waivers – final support can be waived any time before or during marriage

Miscellaneous Final Spousal Support Issues

1. Cannot be denied on basis that one spouse obtained a valid divorce in a court of another state which had no jurisdiction over the person of the claimant
2. Time Period for Seeking Spousal Support – right to claim/seek support is subject to a preemptive period of three years (no suspensions), begins to run from the latest of the following events:
   a. Date of judgment of divorce is signed
   b. Judgment terminating previous judgment of spousal support is signed, if within 3 years
   c. Date of last payment made when spousal support is performed by voluntary payment

Question 28

Contributions to Earning Capacity of Spouse

Answer 28

(1) claimant makes financial contribution to other spouse’s training or education during marriage that increases that spouse’s earning power and (2) claimant did not benefit from it during marriage.

Claim arises when divorce action is filed and prescribes three years after date of signing of judgment of divorce

Not spousal support or community property, and may be made in addition to them

Calculation (De La Rosa formula) – half of earning spouse’s income that was use for joint living expenses and subtracts half of student spouse’s income used for joint living expenses and adds cost of direct educational expenses

Claim - personal right and abates when either spouse dies. award - reduced to judgment survives remarriage or death of payor.

Question 29

BOIC

Answer 29

Court will award custody in accordance of BIOC

Best Interest of the Child Factors (PA HELPS CHAMP)

i. Prior Relationship – length of time child has lived in stable environment and desirability of continuing that environment
ii. Ability to Nurture – capacity and disposition of party to give love/guidance and continue child’s rearing
iii. History – home, school, community history of child
iv. Emotional Ties – love, affection, emotional ties between party and child
v. Location – distance between parties’ residences
vi. Past Caregiver – responsibility for care previously exercised by parties
vii. Stability – permanence of existing or proposed custody home
viii. Cooperation With Other Party – willingness to assist child’s relationship with other party
ix. Health – party’s physical and mental health
x. Ability to Provide Material Needs
xi. Moral Fitness of Party as it Affects Child
xii. Preference of Child – reasonable preference, if old enough to give it

No ex parte interim custody unless ‘immediate and irreparable injury’ imminent, and order can only last 45 days

Custody Hearings – May be ordered closed to the public, can appoint an attorney for child, and need clear and convincing to deny visitation

Custody Evaluation – court can order evaluation of party or child and evaluation requires showing of good cause.

Appeals – appeals do not suspend execution of custody judgment or visitation order

Compliance

i. When judgment or order entered, parents must abide by schedule unless good cause shown
ii. Failure to Exercise or Allow – contempt action can be brought in either circumstance, can get attorneys fees, costs, cost of counseling for child, actual expenses, additional visitation

Question 30

Change of Custody

Answer 30

Best interest rule applies in actions to change custody

Bergeron Standard – if custody decision is a “considered decree”, proponent of change must show that change in circumstances has occurred such that ‘continuation of present custody is so deleterious to child to justify modification or harm caused by change in environment is substantially outweighed by’ benefits to child

1. Applies to modify designation of domiciliary parent

Consent Custody Judgments – modification requires only (1) material change of circumstances and (2) proposed modification is in best interest of child (Evans test)

Question 31

Custody Preferences (A Hierarchy)

Answer 31

1. Agreement of Parents
2. Parental Custody – court should award custody jointly unless single-parent custody is shown by clear and convincing evidence that sole custody is in BIOC
3. Strong preference for joint custody except where parents are engaged in continuous acrimony/conflict
4. Implementing Joint Custody:
   a. Implementation Order required, shall be rendered unless good cause shown
   b. Allocation of Physical Custody – Order shall allocate time periods during which each parent has physical custody so that child is assured of ‘frequent and continuing contact’ with both parents
   i. Equal sharing is not mandatory.
   c. Allocation of Authority and Responsibility of Parents must be included in the order.
5. Designation of Domiciliary Parent
   a. In decree of joint custody, court must designate a domiciliary parent
   i. Domiciliary parent has primarily resides, other parent shall have physical custody for ‘frequent and continuing contact’
   ii. Domiciliary parent has authority to make all decisions affecting child unless order states otherwise. All major decisions are subject to review of court on motion, but all major decisions are presumed to be in best interests of child.
   iii. If no domiciliary parent in custody order, joint custody confers same rights as those in the code (father’s decision prevails)
6. Non-Parent Custodian (3P) – if joint/sole custody to either parent would result in substantial harm to child, custody can be awarded to person child has been living with or any person able to provide adequate and stable environment (often grandparents)

Question 32

Custody of Illegitimate Children

Answer 32

Custody of illegitimate child who has been formally acknowledged by both parents is governed by general custody articles

Non-Legitimated, Non-Acknowledged Children – tutorship rules apply.

1. Mother is of right tutor of child when not acknowledged by father or has been acknowledged by him without mother’s concurrence.
2. On mother’s death, court gives consideration to appointment as tutor to (1) her parents or siblings and then (2) the father, subject to best interests of the child

Question 33

Visitation by Noncustodians

Answer 33

Parental Visitation – parents not granted custody/joint custody are entitled to reasonable visitation unless court finds not in best interest of child

Joint Custody does not have visitation**

i. Natural parent whose felony rape led to conception = no visitation rights

Grandparents may be granted reasonable visition if in best interest of the child

Nonparent Visitation – under extraordinary circumstances (drug addiction), relative by blood or affinity, or former step-parent/step-grandparent not granted custody may be granted reasonable visitation rights if court finds in child’s best interest. (Only applies after divorce or non-married parents.) Court considers:

i. Prior relationship – length and quality of prior relationship between child and relative
ii. Need for guidance of child
iii. Preference o child if sufficient age and maturity
iv. Cooperation with Parents
v. Health (mental and physical) of child and relative

Visitation After Death, Interdiction, or Incarceration of Parent – grandparents or sibling of the child don’t have to prove extraordinary circumstances in these circumstances if in best interest

Visitation of Separation (Legal or De Facto) – if parents legally separated or living apart for six months, grandparents and siblings may obtain reasonable visitation if in best interest

Question 34

Jurisdiction in Child Custody

Answer 34

• Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applies
• Initial Custody Determination
  i. Primary Test – “Home State” has jurisdiction – lived with parent for at least 6 consecutive months or was home state within past 6 months and child absent from state and a parent still lives in state or state that was child’s home within past 12 months and child absent because of disaster and unable to return for extended time
  ii. Does not apply if home state declines jurisdiction or no state has it. LA can exercise if child and one parent have significant connection to LA and substantial evidence is available in state concerning child’s care
• Exclusive Continuing Jurisdiction – court that makes initial custody determination has until (1) either state court determines neither child or parents continue to reside there or (2) initial issuing state court determines child no longer has significant connection and no substantial evidence
• Modifying Another State’s Order – in order to modify, LA must have initial jurisdiction and (1) other state determines it no longer has continuing jurisdiction or (2) LA court or other court determines that parties do not reside in other state
• Declining Jurisdiction – a court may decline jurisdiction if it determines inconvenient forum or party seeking has engaged in unjustifiable conduct
• Temporary Emergency Jurisdiction – only if (1) child has been abandoned or (2) necessary in emergency to protect child because child, sibling or parent abuse. Child has to be in LA

Question 35

Child Support

Answer 35

In divorce proceeding or after, either or both parents may be ordered to provide interim or final support based on needs of child and ability of parent to support. Modification requires material change in circumstance or termination when unnecessary

Pay Until Majority (18) or Fully Emancipated

i. Supposed to be paid to unmarried child who is dependent on parents, has not graduated from high school, and is full-time student in good standing, until his 19th birthday or graduation from high school (whichever first)
ii. Developmentally Disabled Child – continues until 22 or as long as full-time student in secondary school
iii. “Alimony” is to be paid if child is in necessitous circumstances and is over 18. Limited to basic necessities. Duty arises on proof of inability to obtain necessities from other sources (such as welfare)
1. Child incapacity triggers alimentary rule also.

Duration for Multiple Children

i. Per-Child Award automatically terminates for each child as above.
ii. In Globo Award – continues in full until youngest child reaches majority, however payor can file to reduce when one child reaches 18

Question 36

Calculating Amount of Child Support

Answer 36

LA child support is based on “the income shares” model.

Income

1. Court first determines each party’s gross income (actual income or potential if party is voluntarily unemployed/underemployed)
   a. Court can consider as income benefit party gets from expense-sharing through marriage or co-habiting with non-parent, but no consideration of income of the non-parent unless it directly reduces parent’s expenses
2. Court then subtracts preexisting child support or spousal support paid to any non-parties from each party’s gross
3. Court then combines parties’ adjusted gross income. Then percentages each party’s proportionate share of combined.
4. Basic Child Support Obligation – based on schedules
   a. If off the schedule, court can use discretion, extrapolate from guidelines
   b. Can place funds in a spendthrift trust for the child
   c. Can never be less than $100
5. Total Child Support – court then add health insurance, net child care costs, and possibly extraordinary expenses for total order
6. Court then computes each party’s share by multiplying total support obligation by party’s percentage

Non-custodial parent owes the other their share as a money judgment

Adjustment for Joint Custody – can be appropriate but only in rare circumstances (when parent has physical custody for 73 days [20% of a year] and non-domiciliary parent has increased financial burden from child care and domiciliary parent has decreased financial burden of child care)

Retroactive to the date of filing petition/rule absent good cause

Enforcement – can be enforced through summary contempt

1. Can get costs and fees, contempt, past due amounts made executory, revoke licenses, intercept income tax refund
2. Right to recover past due child support prescribes after 10 years

Modification – based on proof of material change of circumstance between time of award and time of motion to modify

Income Assignment Orders (employer paying spouse) mandated

Request for Accounting – obligor may petition court to direct support recipient on good cause to submit affidavit of how proceeds spent

Question 37

Biological Filiation

Answer 37

Filiation – legal relationship between child and parent, is either biological (proof of maternity or paternity) or by adoption

Biological Filiation

i. Proof of Maternity
ii. Proof of Paternity

Question 38

Proof of Maternity

Answer 38

maternity can be established by proof that child was born of a particular woman by preponderance of the evidence

1. Surrogate – general rule is that the surrogate is the parent (LA rule of birth over DNA)
   a. Exception – Husband and wife who provide sperm and egg for in vitro into surrogate who is related by blood or marriage
   b. In Vitro fertilized ovum – person who gives birth has full maternal rights

Question 39

Proof of Paternity

Answer 39

1. Presumption of Paternity by Husband
2. Presumption of Paternity by Subsequent Marriage of Parents and Acknowledgement
3. Formal Acknowledgment by Father – as long as child not already filiated, can acknowledge by authentic act or signing birth certificate. No need to file paternity action.
4. Child’s Action to Establish Paternity
5. Father’s Avowal Action

Limited presumption of fatherhood if notice given to father of identification and father fails to contest. Presumption for child support only

Adjudicated father has 2 years to set aside judgment if he can prove through genetic testing that he is not biological father

Courts can award interim and final child support in paternity proceedings

Question 40

Presumption of Paternity by Husband

Answer 40

husband of mother is strongly presumed to be father if child born during marriage or within 300 days of date of marriage termination

a. If child born within 300 days from termination of marriage and mother has remarried, first husband is father. Absent disavowal or contestation, present husband has no rights.
i. If first husband disavows, 2nd husband presumed father and has 1 year preemptive period to disavow

Question 41

Presumption of Paternity by Subsequent Marriage of Parents and Acknowledgement

Answer 41

Man who marries mother of a child not affiliated with another man presumed to be father if acknowledges by authentic act or signs birth certificate and mother concurs by juridical act

Disavowal Act – Mancan disavow, but subject to 180-day peremptive from date of marriage or acknowledgement

Child can bring avowal action even if already filiated to another.

Contestation action by mother– Presumption due to subsequent marriage doesn’t apply, prove paternity by clear and convincing

Question 42

Formal Acknowledgment by Father

Answer 42

As long as child not already filiated, can acknowledge by authentic act or signing birth certificate. No need to file paternity action.

i. Creates presumption in favor of child, and can only be invoked on behalf of child.
ii. Permits custody, support, and visitation, but gives no other rights to father. Requires avowal action.
iii. If acknowledging father is not biological father, acknowledgement has no legal effect. (Need to adopt child.)
iv. Can revoke acknowledgement, without cause, within 60 days of signing, or with cause after within 2 years and prove clear and convincing that act induced by fraud/duress/mistake/non-biological
v. No limitation as to who can bring action to rebut and no time period to challenge
vi. Signing baptismal registry is not enough.
vii. Informal acknowledgment doesn’t create presumption of paternity and still requires child to institute paternity action (and can use as evidence)

Question 43

Child’s Action to Establish Paternity

Answer 43

Child may file suit to prove paternity even if child filiated to another. LA recognizes dual paternity.

Child has to prove by preponderance if father alive or clear and convincing after death of father

Time Limits

1. For succession, file within 1 year of death of alleged father. Time is peremptive.
2. No time period in other circumstances

Post-Mortem Artificial Conception – child born after death of donor parent is deemed donor’s child if born within 3 years of death and donor authorized in writing that survivor could use donor’s gametes

Question 44

Father’s Avowal Action to Establish Paternity

Answer 44

Man can file suit to establish his paternity.

Requires preponderance and use same type of evidence that would be used in the child’s action

All time periods under this section are peremptive:

1. If child is presumed to be child of another, action must be filed within 1 year of birth
   a. If mother deceives in bad faith, action must be filed within 1 year from day father knew or should have known or 10 years of birth
   b. Must be instituted within 1 year of child’s death, no matter what
2. If child not presumed child of another, may be filed anytime, but no later than 1 year of child’s death

Question 45

Types of Adoption

Answer 45

Adult Adoption – governs adoption of persons over age 18

Child Adoption – adoption of minors covered by Children’s Code

b. Effects of Adoption
i. Adopted person is the legitimate ‘child’ of adoptive parents for all purposes, including inheritance rights
ii. After adoption, most legal rights between biological parents and children will terminate
1. Step-Parent Adoption – if adoptive parent is married or was married to blood parent of adopted child, relationship of blood parents to child are unaffected
2. Inheritance – adopted child may inherit not only from adoptive parents but also from natural parents and relatives

Question 46

Adult Adoption

Answer 46

Adult Step-Parent Adoption – no judicial authorization required – when adoptive parent is spouse or surviving spouse of adult to be adopted, no judicial authorization necessary and can simply consent to authentic act

Other Adult Adoptions – need judicial authorization, need joint petition of adult and adopter – court can authorize if best interest of parties

In any adult adoption, both spouses of both parties have to consent.

Effective when act or judgment is filed for registry.

Cannot adopt spouse to permit spouse to participate in succession

Question 47

Children’s Obligations and Parental Authority

Answer 47

1. Duration – child remains under parental authority until either emancipation or majority. Death or divorce of parents ends parents and starts tutorship
2. Duties – Honor and respect at any age, obey unless immoral or illegal, remain in parental home
3. Rights of Parents – father and mother have joint authority, but in case of difference the authority of father prevails
   a. Right to have custody, discipline reasonably, appoint tutors and delegate authority
   i. Provisional Custody by Mandate – can authorize any person to have custody for up to 1 year
   b. Right to administer child’s estate (father is general administrator)
   c. Right to enjoy usufruct over child’s property (use and enjoy, but not alienate)
   i. This usufruct is non-alienable and non-lienable and must use to support/educate child
   ii. Usufruct extends to all of child’s property except child’s labor, specifically excluded child’s inheritance, inter vivos donation to child

Question 48

Reciprocal Alimentary Obligation of Parents and Children

Answer 48

1. Parents, children, and ascendants and descendants have a reciprocal duty to provide one another’s basic necessities upon showing of needy person’s inability to obtain from other sources
   a. Grandparents’ obligations are secondary to parents’
   b. Distinct from child support and can be awarded even after child reaches age of majority
2. This obligation is called “alimony”
3. alimony shall be granted in proportion to the needs/wants of the person and teh circumstances of those who are to pay it balancing test.
4. If unable to pay, court can order that person “shall be received in the house” of the person who can’t afford to pay

Question 49

Tutorship

Answer 49

whenever parental authority does not exist as to an unemancipated minor child, a child must be under tutorship.

Tutor has rights and obligations to minor and to minor’s property.

i. Necessary when one or both parents deceased or parents are divorced (tutor is parent with custody)
ii. Venue – in parish where (a) child resides, (b) surviving parent domiciled, or (c) in divorce, where person awarded custody
iii. Can be divided between child and property.

Question 50

Types of Tutorship

Answer 50

i. Natural Tutorship
1. Tutorship on Death – upon death of a parent, the other automatically becomes tutor
2. Tutorship on Divorce – tutor is parent with custody, if joint custody, two tutors share equal authority
3. Illegitimate Child: (art 256)
a. When Father Has Not Acknowledged – mother is tutrix of right, if mother dies, then mother’s parents or siblings, and only then father, but subject to best interests of child
b. When Both Parents Acknowledged – court appoints one after considering best interests, joint custody = cotutors
ii. Tutorship by Will – right of appointing tutor belongs exclusively to the spouse dying last. If spouse is an interdict and other is interdict’s curator, curator has right to appoint a tutor by will.
1. Named tutor not required to accept tutorship, but if refuses, he loses other legacies based on the tutorship
2. Divorced Parents – spouse with sole custody has sole right to appoint tutor; joint custody applies last-to-die rule
a. Each parent may appoint tutor for property of the children.
3. Several Tutors Named – if several are named, the person mentioned first is tutor, and second will be called if first refuses, dies, or is absent
4. Illegitimate Child – parent entitled to tutorship can appoint tutor but requires court approval
iii. Tutorship by Effect of Law – when last parent dies and tutor has not been appointed, court selects tutor from (1) child’s qualified direct ascendants, (2) qualified collaterals by blood within 3rd degree (aunt/uncle), (3) child’s step-parent, based on best interest of child
iv. Tutorship by Appointment (Dative Tutorship) – if orphan with no tutor and child has no relations, court shall appoint tutor

Question 51

Appointing a Tutor

Answer 51

i. Tutorship by nature takes place of right, but tutor must qualify for office.
ii. In every other tutorship, tutor must be confirmed or appointed by the court, and must qualify for the office.
iii. Qualifications – Age 18 or older, not interdicted or incompetent, not a felon, not indebted to a minor, not infirm, not of bad moral character
iv. Acceptance of Tutorship – parent cannot be excused from obligations of tutorship, but others can be (elected officials, members of armed forces, ministers, teachers, over 65, ill, tutors to 2+ others, remote relatives)
v. Oath and Security – must take oath prior to tutorship and furnish security in amount equaling total of minor’s movable property, then gets letter of tutorship from clerk
1. Natural tutor may perform or discharge any act involving less than $10k without qualifying for office or post security

Question 52

Tutorship Duties

Answer 52

Duties – tutor shall have custody of and shall care for person of minor, properly rear and educate in accordance with station. Right and obligation to administer minor’s estate. Has fiduciary duty to tutee.

i. Tutee’s action against tutor prescribes 4 years after majority.
ii. Right of tutor includes bringing lawsuit in name of minor, buy or sell property in name of minor, and accept donations to minor
iii. Required to file annual accounting of all minor’s property

Question 53

Termination of Tutorship

Answer 53

i. Expires on majority or emancipation of tutee
ii. Mentally Incapacitated Children
1. If person has less than 2/3 mental ability of normal person of same age, then person entitled to be tutor can get continuing tutorship that won’t be revoked at age of majority
2. Can make all decisions regarding health, education, other matters

Under-Tutors – in every tutorship there is an under-tutor who performs any acts that tutor fails to perform. Doesn’t step in if tutor dies or resigns

Question 54

Emancipation

Answer 54

Emancipation relieves child of all or part of his minority in one of 3 ways.

Judicial Emancipation

i. for good cause, court can order full or limited emancipation of minor over 16 years of age
ii. Good cause may exist when minor’s parents need to protected from liability for acts of minor, when minor needs power for juridical acts, or when parents treat minor poorly
iii. Minor or parents can file individually or jointly for judicial emancipation
iv. Modification or termination on good cause, returns minor to state of minority
v. Effective against 3rd parties when filed for registry in parish where an immovable is located or where minor is domiciled for movables

Emancipation by Marriage

i. A minor is fully emancipated when married. Termination of marriage does not affect emancipation.

Limited Emancipation by Authentic Act

i. Minor and parents or tutor of minor can execute authentic act of limited emancipation at age of 16 or older. Act can give minor capacity to make juridical acts as stated in act, but all other effects of minority continue
1. Will never be full emancipation if by authentic act
ii. Can modify or terminate by subsequent authentic act, can also be modified by court on good cause. Must be filed to be effective against 3rd parties.
iii. Cannot relieve parents of liability for acts of minor child.

Question 55

Interdiction

Answer 55

Interdiction articles cover persons incapable of caring for themselves or administering their estates due to an infirmity

Full Interdiction – court can order full interdiction of natural person of the age of authority or an emancipated minor who, due to infirmity, is unable consistently to make reasoned decisions regarding care of his person and property, or communicate those decisions, and whose interests can’t be protected by less restrictive means

i. Old age does not qualify as an infirmity alone.

Limited Interdiction – Same test, but unable to care for either person or property.

i. Curator has only powers necessary to meet demonstrated needs, and judgment must specifically delineate powers and responsibilities

Temporary and Preliminary Interdiction – full or temporary can be ordered where substantial likelihood grounds for interdiction exist and substantial harm to health, safety, or property of person is imminent

Preliminary interdiction terminates 30 days after signing.

Temporary interdiction granted ex parte terminates 10 days after signing. Can be extended on extraordinary motion for another 10 days.

Wrongful Filing of Interdiction Petition – can be liable for resulting damages if petitioner knew or should have known that material factual allegation of ability of defendant to make reasoned decisions or communicate decisions was false

Question 56

Curators and Undercurators of Interdicts

Answer 56

Curator – court shall appoint curator to represent interdict. Must exercise reasonable care, diligence, and prudence and shall act in best interests of interdict.

Undercurator – court must appoint undercurator

Neither curator or undercurator is personally responsible to third person for acts of interdict by reason of office, but can be responsible for damages for failure to act

1. If performing acts without compensation, no personal liability unless caused by negligence of curator/undercurator

Question 57

Effects of Interdiction

Answer 57

A full interdict lacks capacity to make a juridical act.

A limited interdict lacks capacity to make juridical act to property or aspects of personal care under authority of curator

1. Can make a MC will, cannot make a disposition inter vivos

Interdiction doesn’t affect pre-interdiction acts, but post-petition-for-interdiction acts are null if petition is eventually granted

Question 58

Modification and Termination of Interdiction

Answer 58

Can modify or terminate on good cause, and terminates upon death of interdict or by judgment of court

Removal of Curator or Undercurator

1. Spouse, relative, or interested person can petition for removal of the curator/undercurator upon clear showing that neither curator or undercurator are adequately performing duties. Another curator will be appointed.
   a. Court will remove curator if in best interest of interdict. Factors: embezzlement, failure to account, failure to obey order of court, gross misconduct, mismanagement of duties, curator’s incapacity, abuse of interdict, failure to educate interdict, failure to provide interdict with as much independence as possible

Question 59

Absentees

Answer 59

An absentee is a person who has no representative in the state and cannot be located with diligent effort. (owns property)

must show it was futile to try to find them

Question 60

Curatorship of Absentee

Answer 60

Curatorship – if absentee owns property in LA, upon petition of any interested party and showing of necessity, court may appoint curator

i. Must show effort to locate or that it would be futile to try.
ii. Can grant divorce to one spouse where other is absent, but not necessary where long-arm statute permits service.
iii. Effect – does not deprive absentee ability to make juridical acts, but absentee’s own disposal of immovables is subject to public records doctrine (must be filed or not effective against third persons)
iv. Powers of Curator – can administer and dispose of absentee’s property, but if absentee is a spouse in community, curator only has authority over spouse’s separate property
1. Must account for management and restore property when curatorship terminates
2. If absentee has no known heirs is presumed dead (after 5 years), curator has duty to initiate proceeding for declaration of death.
v. Termination: When absentee appoints a representative, reappears (in any state),

Question 61

Declaration of Death

Answer 61

If absentee absent for five years, he is presumed dead. Interested persons may then petition court for declaration of death and determination of the date of death.

1. Katrina Provision – If absence started between 8/26/05 and 9/30/05, absence related to Katrina or Rita, and person not charged with felony, presumed dead after 2 years
2. Can be amended if there is clear and convincing evidence that date fixed was wrong. After amendment, estate devolves in accordance with new date.

Succession opens as of date of death established by court.

A person presumed dead or declared dead at a time when succession opened in his favor cannot be a successor – act as if he predeceased

Question 62

Reappearance of Absentee

Answer 62

If absentee reappears, even if declared dead, he can recover property and inheritance in condition found at that time from successors and transferees by gratuitous title.

1. If property alienated, he can recover net proceeds. If encumbered, he can recover for diminution of value.

Limitation – if absent reappears within 2 years from date of final judgment of possession, he can reacquire immovable property from transferees by onerous title if transferee acquired immovable from heir in the judgment of possession

Absentee not entitled to recover fruits from good-faith possessors.

Possessors of claimant’s immovable property may keep improvements.

Question 63

Test for Domicile

Change of Domicile

Loss of Domicile

Answer 63

1. Presence (actual residence in parish) and
2. Intent to Remain (intent to have as habitual residence)

Change of Domicile - Must meet both prongs of domicile test – act of actual residence changes and the intent has to change

1. Can have a sworn declaration in old and new parish to change domicile, but court will look to actual state of the facts

Loss of Domicile - Domicile is not forfeited when person holds a temporary position away from domicile unless and until intent is indicated

Question 64

Prerequisites for Valid Marriage

Answer 64

i. Absence of Legal Impediment
ii. Marriage Ceremony
iii. Mutual Consent of Both Parties Expressed At Ceremony

Question 65

Termination of Covenant Marriage

Answer 65

1. Divorce – only after marriage counseling, and only if one of the following grounds:
   a. Other spouse committed adultery (applies to all marriages)
   b. Other spouse committed felony and sentenced to death or imprisonment at hard labor (applies to all marriages)
   c. Other spouse has physically or sexually abused spouse or a child of one of the spouses
   d. Other spouse abandoned matrimonial domicile for a year and refuses to return
   e. Spouses have lived apart for two years
   f. Spouses lived apart for one year with judgment of separation if they are childless, 1.5 if child
2. Legal Separation - all of the above Plus if teh spouse is habitually intemperate or enages in other excesses treatment that renderes living together insupportable

Question 66

Absolutely Null Marriage

Answer 66

Absolute Nullity – impediment (bigamy, same sex, incest) or without a marriage ceremony attended by both parties

Null ab initio – devoid of all legal effect from moment of its inception. Judicial declaration not required.

2. Putative Marriage Doctrine (see other card) - Civil effects can arise andflow to one or both “spouse”
3. Provisional and Incidental Proceedings of Nullity (like divorce)
   a. Interim Relief – can get interim relief regardless of whether in good or bad faith
   b. Permanent Relief – good faith, putative spouse (absolutely null marriage)

Question 67

Civil effects of putative marriage

Answer 67

i. Spousal support
ii. Legitimacy of children
iii. Recovery of marital portion
iv. Wrongful Death
v. Community Property:

Duration of civil effects –> as long as spouse continues in good faith.Unless Bigamy –> continue after non-bigamous spouse learns of impediment until either declaration of nullity or innocent spouse remarries

Children of Putative Marriage get Civil Effects if contracted in good faith.

There are no putative same-sex marriages, no civil effects.

Question 68

Moving Residence of Child in Child Custody (Relocating)

Answer 68

Due process analysis

i. Relocation – when child will be moved outside of state or, if in state, 150 miles from primary custodian under custody order or other parent if no custody order
ii. Notice Requirement – relocating parent must notify by registered/certified mail 60 days before relocation
iii. Opportunity to Be Heard – either court authorization from contradictory hearing or written consent of other parent
iv. Contested Relocation – best interest, and maybe mental health expert

Military Parent and Child Custody Protection Act – for existing custody or visitation orders, court can temporarily modify order to reasonably accommodate deployment of parent. Court can also delegate some of deployed parent’s visitation to family member with substantial relationship to child. Temporary order terminates at end of deployment and prior order reinstated, no modifications to prior order for 90 days

Question 69

interim custody pending litigation

Answer 69

Courts are not to grant ex parte interim custody unless immediate and irreparable injury is imminent

requires Clear and Convincing evidence to deny a parent the right to visit a child

Question 70

compliance with custody or visition agreement

Answer 70

a parent must abide by a custody agreement unless good cause is shown

a contempt action can be brought against the parent who fails to exercise visitation or who fails to allow.

Question 71

Overcoming Presumption of Paternity of Husband

Answer 71

Disavowal Action by Husband or Heirs

1. Only use when people were married!
2. Proof – Husband has to prove by clear and convincing that he is not the father
   a. If testifying, must be corroborated
3. Time Limits for Disavowal – One year after actual or constructive knowledge of the birth. Time is prescriptive and can be interrupted and suspended.
   a. If presumed father lived separate and apart from mother continuously for 300 days preceding birth, suit must be filed 1 year from notice in writing
   b. This applies to heirs of husband, but successor can file within 1 year of death of husband
4. If father fails to bring a timely action for disavowal, presumption becomes irrebuttable (even if another is later proved to be father)
5. Permits dual paternity (legal and biological)

“Contestation and Establishment” Action by Mother

1. Action by mother in her name to determine the filiation of her child, has to be married to the second husband when filing
2. Mother can sue to establish both that former husband is not father and that present husband is father only if present husband has formally acknowledged child or signed birth certificate
3. Proof – must probe that former husband isn’t and current is by clear and convincing
4. No dual paternity, results in only one father
5. Time Limit for Contestation – 180 days from marriage to 2nd husband and within 2 years of birth of child. Limit is peremptive.

Question 72

Obligations of Parents

Answer 72

a. Support, maintain, and educate children under 19
b. Protect children (including in civil suits) and may defend children through justifiable force
c. Assume vicarious liability for acts of child
i. Child need not necessarily be negligent, child need not live with parent

Child has no right to sue parent or custodian prior to emancipation.