Posted on 05/17/2015 9:22:31 AM PDT by Pikachu_Dad
The renumbering and reshuffling of the law makes it very difficult to follow what SB134 is doing.
The new law seems much weaker than the old law. The rights are being limited to only married parents. Under the old law, they were enjoyed by all legitimate children.
Perhaps they were also enjoyed by all illegitimate children, but I did not read that section for this issue yet. The law for illegitimate children is completely deleted. Footnotes state to use the tutor laws for all children of single, and divorced parents. I have not found a similar section in the tutor rules allowing defense of child.
------------ Note: these parental rights are only retained by married persons under the proposed law. Divorced persons, single parents do no enjoy these rights and obligations...
Is this (existing law)
"Art. 236. Justification of parent's assault in defense of children
Fathers and mothers may justify themselves in an action begun against them for assault and battery, if they have acted in the defense of the persons of their children."
And this (Existing law)
"Art. 235. Parental protection and representation of children in litigation
Fathers and mothers owe protection to their children, and of course they may, as long as their children are under their authority, appear for them in court in every kind of civil suit, in which they may be interested, and they may likewise accept any donation made to them."
The same as this? (New law to replace those two in SB 134)
Art. 223. Rights and obligations of parental authority
Parental authority includes rights and obligations of physical care, supervision, protection, discipline, and instruction of the child."
The footnote states:
"(c) C.C. Art. 235 (1870) imposed an obligation upon the parents to protect their child but contained no language explicitly creating a right of protection. This revision incorporates both a parental right and obligation to protect the child."
-------------- The note also states: (weak beer. This right is retained only while married. Troxel v. Granville expressed a much stronger parental right)
"(a) This Article introduces the rights and obligations of parents over the person of their child. Principal among these rights and obligations is the physical care of the minor, this right and obligation that was implicit under C.C. Art. 218 (1870). The right to physical care of the child reflects the parents' paramount right to custody of their child, recognized in the jurisprudence. See Reinhardt v. Reinhardt, 720 So. 2d 78, 79 (La.App. 1 Cir. 1998), writs denied 745 So. 2d 22 (1999); Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Furthermore, this right makes possible in a practical way the rights and obligationsof supervision, protection, and instruction."
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From the digest on this portion of the bill.
Quote “Present law (C.C. Art. 235) provides that fathers and mothers owe protection to their children and may appear for them in court.
Proposed law (C.C. Arts. 223 and 222) retains present law.
Present law (C.C. Art. 236) provides that fathers and mothers may justify themselves in an action against them for assault and battery if they have acted in defense of their children.
Proposed law (C.C. Art. 223) provides that parents have the right and obligation to protect their child.”
Link to an appeals dase from 1971 citing the law.
Hal F. McCULLOUGH et al.
v.
Shelton B. McANNELLY.
No. 8297.
Court of Appeal of Louisiana, First Circuit.
Another casefrom 1977, overturned by 3rd circuit.
“Counsel for defendant cites LSA-C.C. art. 236, which reads as follows:
“Fathers and mothers may justify themselves in an action begun against them for assault and battery, if they have acted in the defense of the persons of their children.”
The defense is based primarily upon the argument of justification under the foregoing codal article in protecting his child. We find no fault with the principle of law upon which this defense is made, but our jurisprudence is abundantly clear that provocation or justification for a battery is a question of fact to be determined in the light of circumstances of each individual case, and the burden of proof is upon the defendant. Rivers v. Brown, 168 So.2d 480 (La.App. 3d Cir. 1964); Barrett v. Matthews, 138 So.2d 151 (La.App. 2d Cir. 1962); Theriot v. Gianelloni, 121 So.2d 275 (La.App. 1st Cir. 1960); Bethley v. Cochrane, 77 So.2d 228 (La.App.Orleans 1955).
If you intend to ping that list then you best put their names in the TO: line
of a post and not down in the comment section or they’ll never get the ping.
Oh
This story is just weird and we know we can never trust politicians
Louisiana was originally Napoleonic Code rather than English Common Law like most of the US. To what extent does that still influence the formation of recent and new laws in LA?
good question, there might be a thesis on that somewhere. lol
Good question:
The group drafting the law are ‘civilians’ - people who support and defend the civil code.
As such, they like our laws to be unique and different from the other 49 states. Including and to the point of refusing to use the same terms so that there is no confusion.
Perhaps that is the root issue in this particular bill?
Custody being the common law way of doing things.
Tutorship being the (mostly ignored) civil code way of doing things.
In other words, I know lots of people who have been in custody fights. I know of none who has engaged in a ‘tutorship’ battle.
Since the group drafting the laws are mostly lawyers, judges and academics, the proposed laws also have a very court centric view of the solution to the problem.
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