The unfortunate truth is that children often put themselves in harms’ way due to their age. Any good parent has struggled with anxiety over this fact of life. When a minor child is involved in a personal injury case, they obviously lack the ability or authority to make decisions for themselves. As such, an adult will have to file suit on behalf the minor child in order hold the negligent party accountable. The adult who has authority to take action on the minor child’s behalf is considered the “tutor” in Louisiana.
TUTORSHIP BY NATURE
The most common scenario is when the mother or father are alive. This is typically referred to as “tutorship by nature”.
Louisiana Civil Code art. 250 lists the persons entitled to be deemed tutors “by nature”:
“Upon the death of either parent, the tutorship of minor children belongs of right to the other.”
“Upon divorce or judicial separation from bed and board of parents, the tutorship of each minor child belongs of right to the parent under whose care he or she has been placed or to whose care he or she has been entrusted; however, if the parents are awarded joint custody of a minor child, then the co-tutorship of the minor child shall belong to both parents, with equal authority, privileges, and responsibilities, unless modified by order of the court or by an agreement of the parents, approved by the court awarding joint custody.”
“In the event of the death of a parent to whom joint custody had been awarded, the tutorship of the minor children of the deceased belongs of right to the surviving parent.”
CHILDREN BORN OUTSIDE OF MARRIAGE
When a child is born outside of marriage, things can get trickier. Louisiana Civil Code art. 256 provides guidance:
Louisiana Civil Code art. 256 states that “the mother is of right the tutrix of her child born outside of marriage not acknowledged by the father, or acknowledged by him without her concurrence.“
SETTLING THE CASE
Even after the legal “tutor” has been determined, the parties involved will still have some hurdles to finalize a settlement. An enforceable settlement of a minor’s or incompetent’s claim requires court approval. La. Code. of Civil Pro. art. 4271. Specifically, a petition must be filed containing evidence of the settlement. La. Code. of Civil Pro. art. 4271 provides some guidance on how to accomplish and finalize the settlement. However, the average plaintiff in Louisiana should have competent legal counsel to assist in navigating through these requirements.