1. Code I: Persons Flashcards
(144 cards)
1
Q
Natural Person
A
= general legal capacity to have rights and duties
Ends at DEATH
Begins at CONCEPTION after BORN ALIVE
can have wrongful death of fetus
2
Q
Juridical Person
A
entity to which law attributes a personality
fertilized ovum until implanted
3
Q
Valid Marriage
A
legal relationship between two people created by civil contract
4
Q
Elements of Valid Marriage
A
(1) absence of legal impediments
(2) a marriage ceremony and
(3) mutual consent of both parties
5
Q
Legal Impediments to Marriage
A
(1) an existing marriage
(2) too closely related by blood (4th degree)
(3) minors under 16 (16-17 ok if no 3+ gap)
6
Q
Absolutely Null Marriage
A
- legel impediments
- invalid marriage ceremony
7
Q
Relatively Null Marriage
A
- mutual consent
valid and produces civil effects until officially declared null by the court
must be declared in a judicial proceeding by the party whose consent was not free
8
Q
Marriage Ceremony
A
- qualified celebrant
- attendance by both parties
- formalities (won’t make invalid) (license/witnesses/signed certificate/summary of laws)
9
Q
Mutual Consent for Marriage ELEMENTS
A
(1) verbal express consent that is free from duress
(2) no mental impediment
10
Q
Covenant Marriage
A
marriage with umph
a little extra to get in and a lot extra to get out
11
Q
Putative Marriage Requirements
A
applies when a marriage is: (1) absolutely null; AND
(2) at least one of the spouses was in good faith in contracting the marriage
12
Q
Good Faith for Putative Marriage
A
honest and reasonable belief that there exists no legal impediment to the marriage
13
Q
Effect of Putative Marriage
A
civil effects SAME as normal marriage
14
Q
Marital Duties
A
- fidelity
- $upport
- assistance (care)
unenforceable but amount to FAULT sufficient to bar final spousal support
15
Q
Termination of Marriage
A
- death
- judicial declaration of nullity (if RELATIVELY null)
- authorization to remarry for military spouses
- divorce
16
Q
Divorce Types
A
- No Fault
- 102
- 103 (1)
- Fault
- Adultery
- Felony
- Abuse
17
Q
102 No Fault Divorce
A
file FIRST then separate and apart CONTINUOUSLY
retroactive to date of filing
Under a 102 divorce, a spouse can file a petition for divorce, allege jurisdiction and venue, and request a judgment of divorce after the parties have lived separate and apart from service of the petition or written waiver of service. After the requisite period, either spouse can file a rule to show cause to set the matter for a hearing. At the hearing, the other spouse can raise any defenses to divorce – if none, the divorce will be granted. 102 divorces shield the spouses from further liability because it terminates the community property regime immediately.
18
Q
103(1) No Fault Divorce
A
separate and apart continuously, then file
physical separation must be voluntary – at least one party must intend to end the marital association through express or implied intent
date of filing is AFTER separation
simpler alternative to 102
19
Q
Separate and Apart CONTINUOUSLY Time Requirement
A
- 180 days if NO KIDS OF THE MARRIAGE
- 365 days if KIDS OF THE MARRIAGE
20
Q
Adultery: Fault Divorce
A
- immediate when adultery is proved at trial by corroborated testimony
- circumstantial evidence may be used but must lead to the necessary conclusion that adultery has been committed
21
Q
Drawbacks to Fault Divorce
A
- time-consuming
- emotionally taxing
- difficult for all parties
22
Q
Felony: Fault Divorce
A
immediate when the spouse is convicted of a felony and must be sentenced to death or imprisonment at hard labor
23
Q
Abuse: Fault Divorce
A
- Two Modes of Divorce – Immediate Divorce Granted upon Showing Either:
- Proof of Abuse (103(4)) –> proof that spouse has physically or sexually abused the other spouse or child of either spouses – (regardless of whether there was a prosecution for the abuse)
- Protective Order or Injunction (103(5)) –> (granted w/o having to prove up abuse)
a. protective order is issued during marriage seeking protection of spouse or child of either spouse from abuse; &
b. which must be the result of a contradictory hearing or consent decree
- If the spouse proves abuse = ENTITLED to final spousal support + able to recover costs and fees
24
Q
Divorce Defenses
A
- Procedural (for 102)
- Reconciliation
- Mental Illness CAUSED the Faulty Conduct
25
Effects of Fault Divorce
if a spouse commits a martial fault, he is barred from receiving support.
The claimant must prove freedom from fault that led to the break-up of the marriage, except for domestic abuse.
26
Spousal Support
INTERIM or FINAL
For party in NEED when other spouse can PAY
27
When Final Spousal Support ENDS
- **remarriage**
- **death** of either party
- judicial determination that obligee has **co-habitated**
28
Interim Spousal Support
*CANNOT WAIVE*
= to maintain **financial status quo** until judgement of divorce
fault is IRRELEVANT
29
When Award of Interim Spousal Support is Permitted
(1) one spouse has a **need**
(2) the other spouse has the **ability to pay**
(3) considering any interim or final **child support** obligation AND
(4) based on the **standard of living** the parties enjoyed DURING the marriage
30
In considering the award of interim spousal support, the court will assess the CLAIMANT SPOUSE'S _______ and will generally **not** consider his/her _______ or _______ ________.
In considering the award of interim spousal support, the court will assess the **claimant-spouse’s** INCOME and will generally not consider his/her ASSETS or EARNING CAPACITY.
31
Termination of Interim Spousal Support
180 days from _judgment of divorce_
32
Elements of when Final Spousal Support is Awarded
*CAN WAIVE/ CANNOT REQUIRE*
Based on:
(1) the **needs** of the claimant spouse
(2) the **ability of the other party to pay**; and
(3) only when the claimant spouse is **FREE FROM FAULT** _prior_ the filing of a proceeding to terminate the marriage
33
In considering the award of final spousal support, the court will assess the inability of a CLAIMANT to meet her __________ ________, including the _________ ___ _______ during the marriage.
The court will assess the _____ _______ _______ of the PAYOR spouse.
In considering the award of final spousal support, the court will assess the inability of a CLAIMANT to meet her NECESSARY EXPENSES, including the STANDARD OF LIVING during the marriage.
The court will assess the ENTIRE FINANCIAL PICTURE of the PAYOR spouse.
34
Fault Defenses
1. Reconciliation
2. Provocation
3. Mental Illness/ Physical Infirmity
35
Factors for AMOUNT and DURATION of Final Spousal Support
TAF–CRIEDD:
(1) Tax consequences to either or both parties
(2) Age and health of the parties
(3) Financial obligations of the parties, including child support
(4) Child custody arrangement and its effect on a party’s earning capacity
(5) Rehabilitation – the time necessary for the claimant to acquire appropriate education, training, or employment
(6) Income and means to the parties
(7) Earning capacity of the parties
(8) Duration of the marriage
(9) Domestic abuse
36
Limit on Final Spousal Support
cannot exceed 1/3 of obligor's net income
*UNLESS DOMESTIC VIOLENCE = no cap + as lump sum*
37
Contribution to Education and Training of Spouse
A spouse or former spouse has a claim against the other spouse for:
(1) financial **contributions to the other spouse’s training or education** _during the marriage_
(2) that **increased the other spouse’s earning power**
(3) to the extent that the **claimant did not benefit** during the marriage
38
Factors for Contribution to Education and Training Award
(1) the contributing spouse’s EXPECTATION of shared benefit
(2) the degree of DETRIMENT suffered by the contributing spouse in making contributions
(3) the magnitude of the BENEFIT RECEIVED by the recipient spouse
39
Child Custody
The court must award custody of a child in accordance with the best interest of the child.
The court shall weigh each factor and is afforded discretion in deciding custody of the child.
40
Best Interest of the Child Factors
PAPA-HELPS-CHAMP
(1) Potential for Abuse
(2) Abusive History of a Party (substance abuse, violence, criminal activity)
(3) Prior Relationships (length of time the child has lived in a stable and adequate environment; desirability of continuing that environment)
(4) Ability to Nurture (capacity and disposition of a party to give love and guidance, and to continue child’s education and rearing)
(5) Health (parties’ mental and physical health)
(6) Emotional ties
(7) Location
(8) Preference of the child (reasonable preference of the child if the court deems the child to be of a sufficient age [usually 12] to express a preference)
(9) Stability
(10) Cooperation with Other Party (willingness and ability of each party to foster the child’s relationship with the other party)
(11) History (home, school, and community history)
(12) Ability to Provide
(13) Moral Fitness
(14) Past Caregiver
41
BIOC: PAPA
(1) Potential for Abuse
(2) Abusive History of a Party (substance abuse, violence, criminal activity)
(3) Prior Relationships (length of time the child has lived in a stable and adequate environment; desirability of continuing that environment)
(4) Ability to Nurture (capacity and disposition of a party to give love and guidance, and to continue child’s education and rearing)
42
BIOC: HELPS
(5) Health (parties’ mental and physical health)
(6) Emotional ties
(7) Location
(8) Preference of the child (reasonable preference of the child if the court deems the child to be of a sufficient age [usually 12] to express a preference)
(9) Stability
43
BIOC: CHAMP
(10) Cooperation with Other Party (willingness and ability of each party to foster the child’s relationship with the other party)
(11) History (home, school, and community history)
(12) Ability to Provide
(13) Moral Fitness
(14) Past Caregiver
44
Standards for Modifying Custody
- considered decree
- consent custody arrangement
45
Relocation of a Child (timing and what qualifies)
= change in the principal residence of a child for a period of **60 days or more and is not a temporary absence**
- outside of the state or 75 miles from the principal residence of the child
46
Relocation When Equal Custody
parents with Equal Physical Custody do NOT need to object
the party seeking to relocate must **obtain court authorization** to relocate, after a contradictory hearing
OR must obtain written consent of the other party
47
Considered Decree
awarded after a hearing when the **court considers evidence of parental fitness** to exercise care, custody, and control of the child
48
Consent Custody Arrangement
awarded based on the parties’ agreement
*NO evidence of parental fitness considered*
49
Joint Custody
Where there is NO AGREEMENT between the parents OR the agreement is not in the best interest of the child, custody is awarded to the parents jointly.
Louisiana law strongly prefers joint custody but can be inappropriate if the parties are engaged in continuous acrimony.
*IMPLEMENTATION ORDER REQUIRED*
50
Sole Custody
If custody in one parent is shown by **clear and convincing evidence to serve the best interest of the child**, the court will award sole custody to that parent.
51
When Non-Parent Custodian is awarded custody
If joint or sole custody to either parent would result in **substantial harm** to the child
custody is then awarded to another person with whom the child has been living in a **wholesome and stable environment**, or otherwise to any person **able to provide and adequate and stable environment**.
52
Implementation Order for Joint Custody Includes…
- must include allocation of PHYSICAL CUSTODY for **"frequent and continuing contact with both parents"**
- must allocate legal authority and responsibility of parents
- designate DOMICILIARY PARENT
53
Visitation Factors
- ★ parent's fundamental CONSTITUTIONAL right to make decisions re: their child
- prior relationship
- child in need of guidance or not
- preference of child
- mental/ physical health of child and relative
54
Domestic Violence Custody/ Visitation
history of family violence = apply *Post Separation Family Violence Act*
presumes parent should not be awarded custody and permits only supervised visitation
*proof of **sexual abuse** = PROHIBITION of custody/ visitation*
55
Ex Parte Interim Custody Standard
immediate and irrepable harm
- only lasts 30 days (can be extended no more than 15 days for good cause) + other parent gets visitation unless harm will result
56
Hearing for Ex Parte Interim Custody
should be set for hearing within 30 days of ex parte order of temporary custody
57
Custody Hearing
- closed to public
- BOP = **clear and convincing evidence**
58
Custody Evaluations
may be ordered for GOOD CAUSE
59
Relocation Statute
Requires:
(1) NOTICE
(2) OPPORTUNITY TO BE HEARD if:
- relocated out of state
- inside state >75 mi from principal residence
*failure to give notice may be **change of circumstance** warranting modification of custody*
60
Venue to Change Custody
where person awarded custody is domiciled or where custody decree was ordered
if joint custody = parish of domiciliary parent
61
Child Support
In a divorce proceeding or thereafter, the court may order either or both parents to provide an interim allowance or final support for a child based on the **NEEDS** of the child and the **ability of the parents to PAY**
62
Length of Child Support
until **majority** or **emancipation** UNLESS:
1. 18 in HS = until 19 or graduation
2. _developmentally_ disabled = until 22 if in full time secondary school
3. disability = as long as required if requires substantial care
4. necessitous circumstances
63
Filiation
- the legal relationship between a child and his parent
- established by biology or adoption
64
Biological Filiation: Proof of Maternity
- established by proof that the child was **born of a particular woman**
- BOP = **preponderance**
- evidence: testimony of witnesses, documentary evidence, and scientific evidence
65
Proof of Maternity: Surrogacy
- K where gametes are provided = null
- K for gestational carriers OK in LIMITED circumstances
- if IVF parent RENOUNCE = ovum available to MARRIED couple (recognized as parents in adoption of OVUM and after birth)
66
Proof of Paternity- 5 Ways
(1) presumption of paternity of the husband
(2) presumption by subsequent marriage and acknowledgement
(3) formal acknowledgement
(4) paternity suit
(5) avowal action
67
Presumption of Paternity by Husband
husband of the mother is presumed to be father of child born **during marriage** or **within 300 days from date of termination of marriage**
68
Child Born within 300 Days of Termination of Marriage and Mother is Remarried
- first H is *presumed* to be father (absent disavowal/ contestation, second H has NO RIGHT to child)
- if first H disavows, second H is presumed to be father
69
Presumption of Paternity by Husband can be REBUTTED BY:
1. Disavowal Action
2. Contestation and Establishment Action
3. Three-Party Acknowledgment
70
Disavowal Action
- disavow by **clear and convincing evidence**
- testimony of father must be **corroborated**
*can't disavow assisted conception consented to*
71
Prescription of Disavowal Action
PEREMPTIVE: file within later of **1 year from birth of child or day husband knew or should have known** not the bio father
*if untimely, presumption becomes irrebuttable even if proof otherwise*
72
Contestation and Establishment Action
- filed by MOTHER: 2 marriages and 2d H acknowledges Child
- present H needs to acknowledge child by authentic act
- proven by **clear and convincing evidence**, mother’s testimony must be corroborated
73
Prescription for Contestation and Establishment Action
PEREMPTIVE: must be instituted within 180 days from marriage to present H and within 2 years from birth of child
74
Three-Party Acknowledgement
DNA test shows 99.99% chance bio father is father and he is not H or former H
mother/ bio father/ presumed father sign authentic act of acknowledgment that bio father is father and presumed father is not
PEREMPTIVE: before child turns 10/ within 1 year of child's death
75
Presumption of Paternity by Subsequent Marriage and Acknowledgement
man marries mother of child and acknowledges child as his own by authentic act
- child must NOT be filiated to another man
- mother MUST concur via juridical act
- H may disavow subject to a 180 day peremptive period from the later of day of marriage or acknowledgement
76
Formal Acknowledgment by Father
man may acknowledge by **authentic act** a child not filiated to another man (INFORMAL ACKNOWLEDGEMENT IS NOT ENOUGH)
- child born < 2016 = signing birth certificate ok
- presumption only in favor of the child
- if man is not bio father = absolutely null
- anyone can bring action to rebut at any time
77
Annulment of Formal Acknowledgment
- act may be annulled without cause within 60 days of signing
- after 60 days, can be annulled with **clear and convincing evidence** that act induced by fraud, duress, mistake, or that man is not the bio father
78
Paternity Action
child may file suit to establish paternity even if presumed to be child of another man
BOP:
- if father is _living_ = **preponderance**
- if father is _dead_ = **clear and convincing**
79
Paternity Action Time Limits
- if father is _living_ = no prescriptive or peremptive period,
- if father is _dead_ = for succession purposes ONLY, **must file within 1 year of death** PEREMPTIVE
80
Avowal Action
man files suit to establish paternity of a child (because acknowledgment does not confer FILIAL RIGHTS)
(necessary if child is filiated to another man)
BOP = **preponderance**
81
Time Limits for Avowal Action
PEREMPTIVE
- child presumed to be child of another man = within 1 year from birth of the child *(except if mother in BF deceived father, action filed within 1 year from day father knew or should have known of paternity, or within 10 years from birth)*
- if child has died, must be brought within 1 year
- if child not presumed – action filed any time, but no later than 1 year from child’s death
82
Adoption
adopted person is the legitimate child of his parents for all purposes, including inheritance rights
after adoption, legal rights and duties between adopted person and bio parents terminate
child can inherit from both adopted and bio parents
83
Adult Step-Parent Adoption
no judicial authorization needed, can consent in authentic act
84
Other Adult Adoptions
adoptive parent and person to be adopted must file **joint petition**, and
court will grant adoption if in the **best interest of both parties**
85
Adoption Misc. Requirements
- consent of spouse of both the adoptive parent and the person to be adopted must be obtained in authentic act of adoption
- adult adoption effective when act or judgment *recorded*
- person cannot adopt spouse
86
Rights of Parents
1. to have physical care
2. to represent the child
3. to appoint tutors and delegate authority
4. to administer child’s estate
87
Obligations of Parents
1. to support, maintain, and educate
2. to provide moral, social, and material direction for the child
3. to assume vicarious liability
4. children have no right to sue parents prior to emancipation or majority
88
Obligations of Children
2. to assist and stay home
2. to obey
89
Tutorship
- whenever child is not under parental authority, he must be under tutorship
- necessary when one or both parents are deceased or when parents are divorced
90
Venue for Tutorship
(1) where child resides
(2) where surviving parent is domiciled
(3) where person awarded custody is domiciled
91
Types of Tutorship
1. tutorship by nature
2. tutorship by will
3. tutorship by effect of law
4. by appointment
92
Tutorship by Nature
parents are natural tutors of their legitimate children
if one parent dies, other parent is automatically child’s tutor
93
Tutorship by Nature in Divorce
tutor is parent with custody
joint custody = parents are co-tutors with equal authority
94
Tutorship by Nature for Children Born Outside Marriage
- father NOT acknowledged = mother is tutrix of right/ after death of mother = court first considers mother’s parents or siblings and secondly the father
- both parent acknowledge = court appoints one as tutor after considering BIOC
95
Tutorship by Will
right belongs to the spouse dying LAST
- either in testament or authentic act
- acceptance not required but he loses any legacies testator made believing he would accept
- if several names, FIRST listed = tutor
96
Tutorship by Effect of Law
when tutor has **not been appointed by parent dying last or new tutor is necessary**, court selects tutor from:
(i) child’s qualified direct ascendants
(ii) child’s qualified collaterals by blood within 3d degree, and
(iii) child’s stepparent
97
Tutorship by Appointment (Dative Tutorship)
when minor’s parents appointed no tutor and child has no relations to be tutors by effect of law, the court will appoint a tutor
98
Qualifications of Tutor
- 18 or older
- not interdicted or incompetent
- not a felon
- not indebted to the minor
- not an adverse party to a lawsuit to which minor is a party
- not infirm
- not of bad moral character
*must take oath and furnish security in amount equal to minor's movable property (no security if natural)*
99
Duties of Tutor
*has custody and care of child and must see he is properly reared and educated/ right and obligation to administer child's estate*
**fiduciary duty to tutee**
1. bring/ defend suit
2. property management
3. accept donations
4. annual accounting of minor's property
100
Termination of Tutorship
majority or emancipated
*exception – **mentally incapacitated children** – child over 15 with less than 2/3 intellectual functioning, can be placed under continued or permanent tutorship*
101
Undertutor
performs any acts that the tutor fails to perform
required in every tutorship
102
Emancipation Types
- judicial
- by marriage
- limited emancipation by authentic act
103
Interdict
person incapable of caring for themselves or administering their estates, due to an infirmity
104
Full Interdiction
- natural person who, due to an infirmity, is **unable to consistently make reasoned decisions regarding the care of his person _AND_ property**
= civil death and the interdict loses all rights *(less restrictive means is limited interdiction or power of attorney)*
105
Limited Interdiction
natural person who, due to an infirmity, is **unable to consistently make reasoned decisions regarding the care of his person _OR_ property**
106
Absentee
person who has no representative in the state and cannot be located with diligent effort
107
Curatorship
court appoints curator when NECESSARY to **PROTECT absentee's interest/ petitioner's interest/ 3P interest**
appointment does NOT deprive absentee capacity to make juridical acts
108
Powers of Curator
1. administer/ dispose absentee's property
2. administer SEPARATE property
109
Duties of Curator
1. accounting (must account for management and restore when curatorship terminates)
2. notice of termination (on acquiring knowledge of termination of curatorship, curator must file notice in curatorship proceeding)
3. death of absentee (if absent person has no known heirs and is presumed dead, curator has duty to initiate proceedings for declaration of death)
CANNOT MAKE DONATION OF ABSENT PERSON'S PROPERTY
110
Termination of Curatorship
1. absentee appoints representative
2. absentee is located or reappears
3. absentee dies or declaration of death rendered
111
Presumption of Death
if absentee is absent for 5 years, an interested person may petition the court for a **declaration of death** and for a determination of the date of death
112
Reappearance of Absentee- Recovery of Property
he can recover his property that still exists in the condition found from his successors or their transferees by gratuitous title
- **alienated** = recover net proceeds
- **encumbered** = recover for diminution in value
*NOT ENTITLED TO FRUITS FROM HIS SUCCESSORS – successors can keep improvements on his immovable prop (treated like GF POSSESSORS)*
113
Reappearance of Absentee- Recovery of Inheritance
can recover in the condition found from successors or their transferees by gratuitous title
- **alienated** = recover net proceeds
- **encumbered** = recover for diminution in value
if absent person reappears within 2 years from date of final judgment of possession, can demand immovable property from transferees by onerous title if acquired property from judgment
*NOT ENTITLED TO FRUITS FROM HIS SUCCESSORS – successors can keep improvements on his immovable prop (treated like GF POSSESSORS)*
114
__________ will bear the burden of proof of adultery by presenting facts and circumstances that lead ________________________________________.
**The spouse alleging adultery** will bear the burden of proof of adultery by presenting facts and circumstances that lead **fairly and necessarily to the conclusion that adultery has been committed.**
115
fault of one spouse prior to a reconciliation ________ be the basis for denying that spouse final periodic support
fault of one spouse prior to a reconciliation **CANNOT** be the basis for denying that spouse final periodic support
116
If the Parents cannot agree regarding custody of the child, the court will award the parties _________ custody.
The Louisiana Civil Code sets up a hierarchy to assist courts when awarding custody. If the parents can ________ who is to have custody, the court must award custody in accordance with the agreement of the parents unless ___________ requires a different award.
If the parents are _____________ , the court must award custody to the parties __________, unless one parent can show, by __________________, that _________ custody to one parent is in the best interest of the child.
To determine the child’s best interest, courts will apply a host of factors set forth in the Code, which include any fact that will affect the child’s well-being.
If the Parents cannot agree regarding custody of the child, the court will award the parties **JOINT** custody.
The Louisiana Civil Code sets up a hierarchy to assist courts when awarding custody. If the parents can **AGREE** who is to have custody, the court must award custody in accordance with the agreement of the parents unless **BIOC** requires a different award.
If the parents are **UNABLE TO AGREE** , the court must award custody to the parties **JOINTLY**, unless one parent can show, by **CLEAR AND CONVINCING EVIDENCE**, that **SOLE** custody to one parent is in the best interest of the child.
To determine the child’s best interest, courts will apply a host of factors set forth in the Code, which include any fact that will affect the child’s well-being.
117
An absolutely null marriage can produce civil effects in favor of a party who contracted the marriage in good faith for as long as that party remains in good faith, with one exception.
If the marriage is null due to the **prior undissolved marriage of one spouse**, then the other spouse can enjoy the civil effects _even after learning of the impediment_ until the innocent spouse remarries or a court issues a judicial declaration of nullity of the marriage.
118
Civil Effects of Marriage
- interim/ final spousal support
- legitimacy of children
119
You _____ Disavow a Child Proven to Be Yours
You CANNNOT Disavow a Child Proven to Be Yours
120
Evidence for Establishing Adultery
Circumstantial evidence can be used to meet the burden, AND the admission of the adulterous spouse alone is not sufficient
121
Avowal Action Timing
a man may institute an action to establish his paternity of a child (avowal action) at any time, but if the child is presumed to be the child of another man, then the action must be instituted under strict time requirements:
the earlier of: 1 year of the birth of the child, but if the mother in bad faith deceived the father regarding his paternity, then one year from the date the father knew or should have known of his paternity, OR within 10 years from the birth of the child
122
Disavowal Action- After Marriage and Acknowledgment
As presumed father, he would have 180 days to disavow, which runs from the date of the marriage or the date of the acknowledgment, whichever occurs later.
This time period is peremptive.
123
A paternal presumption applies when a man marries the mother of a child who is not filiated to another man and acknowledges the child by authentic act, with the concurrence of the mother.
The article was amended in 2016 to eliminate signing a birth certificate as a method of formal acknowledgment, but the comments make clear that the amendment has prospective application only.
Therefore, signing the birth certificate before 2016 will be given effect as a formal acknowledgment.
Man has 180 days to disavow from date of acknowledgment or marriage, whichever is later
124
Requirement of consent to marry, the parties must express free consent at the ceremony to take each other as husband and wife.
Consent is not free when given under duress or by a person incapable of discernment.
A person incapable of discernment may include a person under the influence of alcohol.
no consent, so relatively null marriage
but if they live together and ratify then they lose the right to challenge and it becomes a valid marriage
125
One Strike to Spouse
The Code does not provide a definition of “abuse” so whether a judge would find the one act of hitting her to be enough is unknown.
In both the Post Separation Family Violence Relief Act and the Domestic Abuse Assistance Act, abuse includes any offense against the person as defined in the Criminal Code when it is committed by one parent against the other parent.
If one act of violence resulted in serious bodily injury, the provisions of the acts are triggered.
126
Successful Abuse Divorce Decision Effects
entitled to final spousal support (UNLESS VALIDLY WAIVED) plus costs and fees
127
Disavowal Action- Child Born During Marriage
A husband may sue to disavow a child within one year from the birth of the child, or the day the husband knew or should have known that he may not be the biological father of the child, whichever occurs later.
The husband must prove that he is not the father by **clear and convincing evidence.**
128
Avowal Action Timing
A man may institute an action to establish his paternity of a child (called the father’s avowal action), but if the child is presumed to be the child of another man, the action must be instituted within one year from the birth of the child.
EXCEPTION IF BAD FAITH
129
Bad Faith Exception to Avowal Action Timing
If bad faith deception exists, then the man has one year from the day he knew or should have known of his paternity, or within ten years from the day of the birth of the child, whichever first occurs.
130
Good Faith _Presumption_ in Putative Marriage
Good faith is presumed and the burden of proof generally rests on the party who challenges its existence.
However, for a spouse who is a party to a prior undissolved marriage, that spouse will not enjoy the presumption of good faith and will have to affirmatively prove its existence.
131
Civil effects of an absolutely null marriage continue in favor of a good faith party as long as the party remains in good faith.
However, when the cause for nullity is one party’s prior undissolved marriage, the civil effects continue in favor of the other, innocent party, regardless of whether that party remains in good faith, until the marriage is declared null or the innocent party contracts a valid marriage.
In any event, a marriage contracted by a party in good faith produces civil effects in favor of a child of the parties
civil effects continue until their marriage is declared null by a court or until she contracts a valid marriage.
In other words, even though spouse is no longer in good faith, she still enjoys the civil effects of her absolutely null marriage and the civil effects flow to the child born of the invalid marriage
132
Venue to Obtain Custody
where a party is domiciled or parish of last matrimonial domicile
133
Significant Connection Substantial Evidence Test
a court can exercise jurisdiction if:
(1) the child and at least 1 parent have SIGNIFICANT CONNECTION with the state AND
(2) SUBSTANTIAL EVIDENCE is available within the state concerning child's care/ protection/ training/ personal relationships
134
Home State Jurisdiction Test
A state may be a child's home state if:
a. it is the state child lived with parent for **at least 6 months before proceeding** OR
b. was child home state within last 6 months AND child is absent from the state and parent still lived in state OR
c. state that was child's home state within last YEAR and child is absent because of emergency/ disaster and unable to return for period of time
*does not apply if other state has home state jurisdiction OR court of home state has declined jurisdiction*
135
Jurisdiction in Child Custody Cases TESTS
Uniform Child Custody Jurisdiction and Enforcement Act
1. Home State Jurisdiction Test
then...
2. Significant Connection Substantial Evidence Test
136
Time to Object to Relocation
30 days
137
Who does NOT have to comply with Relocation Statute?
1. non-domiciliary parent who does not have equal physical custody
2. parents with only visitation
138
Visitation by Non-Custodians: Non-Parent Visitation
- grandparents = reasonable visitation if in BIOC
- other relatives = by blood or affinity in EXTRAORDINARY CIRCUMSTANCES
139
Visitation by Non-Custodians: Parent without Custody
ENTITLED to reasonable visitation unless AFTER HEARING not in BIOC
140
Custody Preferences (Hierarchy)
1. In accordance with parent's agreement
2. joint custody
3. sole custody
4. non-parent custodian
141
Changing Custody after Considered Degree
additional jurisprudential requirement is imposed per the rules of *Bergeron*:
party seeking a change must prove:
(1) the continuation of the present custody is so **deleterious** to the child to justify modifying the decree
OR
(2) prove through **clear and convincing evidence** that the harm likely to be caused by the change of environment is SUBSTANTIALLY OUTWEIGHED by its advantages to the child
142
Changing Custody after Consent Custody Arrangement
party seeking modification must prove there has been
(1) a **material change of circumstances since the original custody decree was entered**, and
(2) the proposed modification is in the **best interest of the child**
*applies to joint custody of parent/nonparent*
143
Reconciliation
*defense to divorce - EXTINGUISHES the action*
= resumption of life together with mutual intent to resume the marriage
circumstantial evidence to prove **mutual intent by the spouses to resume the marital relationship AFTER _knowledge and forgiveness_ of the offense**
144
Fault Requirement for Fault Divorce (type of things considered fault)
Fault must be **serious in nature and contribute or be the proximate cause of separation**, including:
(1) adultery
(2) conviction of a felony and sentence to death or hard labor
(3) physical or sexual abuse of the spouse of the child of the spouse;
(4) intemperance or cruelty
(5) abandonment
(6) defamation
(7) attempted murder
(8) fugitive
