What is the exception to a live birth requirement?

aka when would a child not-born alive

Existing Marriage – no sister wives, previously married

Same-sex marriage – not recongized in LA even if valid elsewhere.

Incest – can’t marry relatives within the 4th degree

What does mutual consent expressed at ceremony?

(DAM you gettin' married)

1. No Duress - actual/threaten violence, BOLO: accuse of a crime, if the fact state he could be actually charged with the crime --> not duress

2. No Mental impediment - “Not capable of discernment” - drunk/high/retarded

3. Age - over 18 =ok.

Under 18 approval of both parents/custodial parent/tutor.

Under 16 - juve court aproval

i. Fidelity

1. Negative

2. Positive

ii. Support

iii. Asisstance

                                            iv.     Divorce

Seperation after service

No fault divorce

Community ppty regime ends the day you file it. 

180 days living seperate and apart continuously

• no minor children
• spouse phys or secually abused spouse or child

365 days --> if there are minor children

How long do you have to wait if you're pregnant for a 102 divorce

1. verified petition
2. rule to show cause 
• allege proper service within 90 days of filing
• proper time period
• allege seperation

What is a 103(1) Divorce?

Seperation then filing

Must meet time period for seperationg before filing 

Time periods are the same as 102

No-fault divorce

1. Answer required within 15 days
2. Preliminary default possible on the 16th day following service of peition and can be confirmed 2 buisness days after prelim default entered 

Immediate Adultery Divorce

• Must  lead fairly and necessarily to the conclusion that adultery has been committed, but sexual intercoure is not necessary for a finding that adultery has occured. 
• Divorce is immediate

• Regular delays for pleading apply but can be waived
• answer required within 15 days
• preliminary default on 16th day after service of petition, can confirm after 2 business days

Felony conviction 

AND

has to be setnenced to death and imprisoned at hard labor (parish pokey doesn't count)

1. Procedural
2. Reconcilation

• resumption of life together with mutual intent to resume the marriage
• hit and quit it doesn't count
• reconcile after adultery/felony convictio

  3. Mental condition

1. No wasting comm ppty
2. no abuse
3. No harassment, violence, on contact with spouse or children. 

matrimonial domcile whether seperate or community

Spouse must have Custody court will consider the best interest of the family. 

Until partion of the community or until 180 days following termination of marriage, whichever occurs first.

Comm. residence can be used until further court order. 

Remarriage of person getting money

Death

Cohabitation - judicial determination that the obligee has cohabitated with antoehr perosn in the manner of married persons

When 1 spouse has:

1. need

and the other spouse has:

1. means to pay 
2. based on the standard of living the parties enjoyed during the marriage

How do you consider claimant's income and needs for interim support?

the claimant-spouse's income in the primary consideration

claimant's assets are generally not considered in assessing her income and needs 

Earning capcacity is not considered when determining interim support, but court has discretion

the entire financial situation

ALL assets 

If there is a pending claim for final spousal support when the divorce jugment is rendered, the the interim support will continue until final supportis awarded or denied 

or

180 days from the rendition of the jdgmt of divorce unless the obligee shows good cause

When there is a material change of either party

Subsequent remarriage of the payor is NOT a material change. 

If party is free from fault prior to the filing of a proceeding to terminate the marriage. The award must be based on the needs of the claimant oand the ability of the other party to pay.

2.     Luxury items excluded.

Considerations for final spousal support

TAF CRIED

T: ax consequences

A: ge and health

F: inancial obligation

C: hild custody arragments

R: ehabilitaion

I: ncomes and Means

E: arning capacity

D: uration of amrriage

The claimant spouse has to be free of pre-petition fault and it must be Misconduct of a serious nature but must also be an independent contributory proximate cause of the separation. Nagging and aggravating are not enough for fault to prevent spousal support.

Burden shifts because a divorce was granted on the spouse's adultery.

Here, the claimant spouse doe NOT have to prove freedom from fault

*same for conviction related divorces 

Income assignment

Collecting Arrearages - no self executing, have to take them to court. Can get atty fees

5 year prescription

1.  Can be modified outside court or by a court.
2.  Can be changed through authentic act of act under private signature acknowledge by the obligee.
3. Judgment by court if show material change.
4. Final spousal support can be waived. 

3 year peremptive period and starts:

• divorce - day its signed
• judgment terminating pervious award
• last payment 

 Spouse who made financial contribution to the the other’s training or education during marriage that increased other spouse’ earning power.

Claimant does not benefit during the marriage.

• Start making big bucks then immediately get divorced, spouse does not get to benefit from the big bucks.
• Court will subtract benefits the spouse recieved as a result of the enhaced earning capacity

custody orders are alwasy modifiable and are alwasy based on the best interest of the child

Best Interest of

the Child Factors

PA HELPS CHAMP

P: reference of the child - if old enought

A:  ability to nuture - go to the grocery store and put food on the table

H: ealth - mental and physical

E: motional ties

L: ocation

P: rior Relationship

S: tability

C: Cooperation with other party

H: istory

A: bility to provide

M: oral fitness - as it affect the child 

P: ast caregiver

What is the "Bergeon Standard" and when does it apply?

Applies to "considered decrees" of custody or domicillary parent

The proponent of the change must show that a change in circumstances has occured such that the continuation of the present custudy is so deleterious to the child as to justifify a modiciation of the custody 

OR

that the harm likely to be caused by a change in environment is substantaially outweighed by its advantages to the child

A party seeking the change must prove:

1. that there bas been a material change in the circumstances 

AND

2. that the proposed modification is in the BIOC

1. In accordance with the agreement of the Parents
2. In no agreement then joint custody
3. Sole custody if clear and convincinng edience to serve the BIOC

Joint custody implemantion order will contain details and

• allocate physical custody to ensure frequent and contiuning contact with both parents

• prefernce for equal physical custody

• Allocation authority and responsiblity
• designate the domicillary parent
• Exchange of information

Test: if joint or sole custudy to either parent would result in substantial harm to the child, custudy is then awarded to another person whith whom the child has been living in a wholesome and stable enviroment 

OR

otherwise to any person able to provide an adquate and stable environment

If a child has not been legitimated of formally acknowledged?

Tutoship rules apply 

Mother is of right the tutor of her illegit kid when the child (a) has not been acknowledged 

OR

(b) has been acknowledged by him alone, without the mother's concurrence

BUT 

if the mom dies, first consideration of tutor is her parents, siblings then second is the father with BIOC in mind. 

vistation 

unless, after a hearing, ct decides visitation would not be in the BIOC 

or

felony rape resulted in the conception of the child

A grandparent not granted custody may be granted reasonable visitation if in the best 

interest of the child. The court must hold a contradictory hearing to determine 

whether it should appoint an attorney for the child. 

Test: Immediate or irrepatable injury is imminet

Order can only last 30-45 days

clear and convincing evidence

For good cause shown

If you fail to exercise or comply with visitation or custody

Other party can get counseling, actual expenses, any addittion visitation and any addtional fees and costs. 

The relocation statute applies in two situations:

(1) when the child will be relocated outside of the state or

(2) if the relocation takes place in the state, when 

the child will be relocated 75 miles from the principal residence of the child under a custody order, of if there is no principal residence or the parents have equal  physical custody, from the domicile of the person entitled to object. 

1) a sole custodian 

2) a designated domiciliary parent 

3) a person who shares equal physical custody of a child 

4) a parent sharing equal parental authority 

or 

5) a tutor of a child born outside of marriage 

Notice must be made by registered or certified 

mail, return receipt requested or actual delivery by commercial courier, 60 days 

before the proposed move, or within 10 days after knowing of the proposed 

relocation, if there is insufficient time to comply with the 60 day notice.

Except for a person with equal physical custody under a court order, a parent 

entitled to notice must object within 30 days after receipt of the notice.

Nonparents may only object if they have custody; non-parents who have visitation 

may institute a proceeding to revise the visitation schedule

Parents with 50-50 custody does not have to object, reloacting parent has to get a court order

The state in which the child lived with the parent for at least 6 months before the proceeding

or

was the child's home state within the past 6 months and the child is absent form the state and a parent still lives in the state

look for 

1. the child and at least one parent have a significant conection with the state 
    AND
2. substantial evidence is avaialbael with the state concerning the child's care

1. the needs of the child

and

2. the ability of the parents to provide support

Majority or emancipation 

Exception: if unmarried/depedent/in high school then child support can continue until the child is 19 or graudates high school 

developmentally disabled --> ends at 22

necesatious circumstances --> inability to obtain govt benefits 

Test: an adjustment for physical custudy for more than 73 days and the non-domcillary parent has an increased financial burden

AND

the dom. parent has a decreased financial burden

*at the discretion of the court, after calculation based on worksheet

Grounds for modication of child support

Have to show good cause

biologically 

or 

adoption

who gives birth

If the parents are married provide sperm and egg, to a 

surrogate is who is related by blood or affinity are considered the biological parents of the child.

*only exception under LA law.  

1. Presumption of husband

2. presumption of paternity by a marriage and acknowledgment

3. formal acknowledgment

4. action institued by the child

5. action instituted by the father 

one of the strongest presumption of the law

Husband of the mother is presumed to be the father of all children born of the marriage or 300 days after termination (death or divorce)

1. disavowal 
2. contestation

clear and convincing

husband presumed to be the father has to file suit within 1 year of year from when he learned or should have learned of the birth of the child. 

*exception if the father live seperate and apart from the mother contiously during the 300 days predeceding the birth of the child, so he can seek to disavow years later. 

Within 2 years from the birth of the child

AND 

within 180 days of the marriage to the present husband

Man who marries the mother is presumed be the father if...

if not filiated to another man

AND 

the mother must concur ing form of juridical act

THEN 

A man who married the mother of  child who is presumed to be the father if acknowledges the child by authenthic act or signs the birth certificate

6 months from date of the marriage (premptive) 

OR

the acknowledgment

Authentic act 

OR

signing the birth certificate 

Custody 

Support 

Visitation

No, but it can be revoek after 60 days of signing thea ct of acknowledgment by submitting a sworn statement or in a judicial hearing

OR

2 years from signing the act and was induced by fraud, duress, or mistake or proof you are not the father. 

it is null

Succession of Robinson

Child can sue to be prove paternity even if filiated to another man

If the father is living --> preponderance 

if the father is dead --> clear and convincing

Only a time limit for succession purposes, and that is one year.

No time limit otherwise. 

if born within 3 years 

AND 

the donor spouse authorized in writing the right to use the gametes 

BOLO: writing doesn't specify after death

Gives full reciprocal rights between father and child

preponderance of the evidence

If presumed the child of another man, then 1 year. If not he will lose the right. 

Exception: if the mother in bad faith decieves the father in BF regarding the paternity, from when he knew or should have known or 10 years from the birth of the child whichever occurs first. 

*Must be filed 1 year from child's deaht*

adopted child is legitimate for all purposes including inheritance rights

Exceptions:

If the adoptive parent, then the biological parents right are not termianted

adopted child can inherited from biological and adoptive persons

No judicial authorization is needed. 

Just sign an authentic act

the consent of the spouse of both the adoptive parent

AND

the person to be adopted 

in 

authentic act

parent's get a usufruct over minor childrens property except over:

1. Child's labor

2. specifically excluded inheirtance

3. inter vivos donation unless its specifically included

Responsiblity over a child, until it reaches the age of majority

When parents are:

decesed 

divorced

illegits

Tutorship by:

1. Nature- when 1 parent dies or divorce
2. Will - spouse dying last
3. Effect of Law
4. Appointment

Tutorship by effect of law

1. the child's qualified ascendants

2. the child's gualified collateral by lood with the third degree

3. the child's stepparent

*Always keeping in my the BIOC*

How long does a tutee have to bring an action against the tutor?

1. lawsuits - bring a suit on behlaf of the tutee or defend a suit
2. property mgmt - buy or sell
3. donations - to accept donations on behalf of the unemanicpiated minor 

Majority 

OR

Emancipation

In every tutorship,

Performs any acts that the tutor fails to perform 

1. juddical 
2. marriage
3. limited by authentic act

for good cause

for minor 16 yo or older

full emancipation = major

Limited = certain acts

Minor's parents need to be protected from liaiblity for the acts of the minor as in the case of runaway

or

when the minor needs capactiy to enter juridicial acts

or

when the parents treat the minor poorly

Done jointly by parents/tutor of the minor 

Must be at least 16

Gives minor ability to make juridicial acts as stated in the act of limited emancipation and all other effects of minority continue

*Not done in court*

*Filed to affect TPs*

"due to an infirmity, is unable consistently to make reasoned decisions regarding the care of their person AND property

OR

to communitcate those decisions and whose interest cannot be protected by less restrictive means"

*considered a civil death*

• Continuing tutorship
• Interdiction

The defendant must be incapable of caring for his own person 

OR  

Property

*Full inter. is AND, here its OR*

1. Duty of care 
2. Duty of loyalty
3. Act in the best interest of the interdict

No, cannot be held personally liable. 

BUT

Can be laible for their own acts or omissions

spouse/relative/or uninterested can peition for removal of the curator or under curator are adequately performing of the duties

Standard is best interest of the child for good cause

The court shall consider the following factors:

misapply/embezzle/removes the interdicts ppty

does not an acct required by law

failure to obey an order of the court

misconduct/mis-mgmt of duties

incapacity of curator

abuse

What is an absent person

• no reperesentative in the state

AND

• Cannot be located with diligent effort

Yes, the appt of a curator does NOT deprive the absent person of capacity to make juridicial acts

BUT

the disposal of immovables by the absentee is still subject to the public records doctrine. 

A person presumed dead or declared dead at a time when the succession would have opened in his favor cannot be a successor 

*treated as it predeceased*

Yes, can recover in the condition found from his successors or their tranferees by gratitous title

BUT 

if they show up within 2 YEARS of the date of final judgment of possesion, he can demand immov ppty from transferees by onerous title