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Code of Civil Procedure

Book VII. Special Proceedings

Title I. Provisional Remedies

Chapter 1. Attachment and Sequestration

Section 1. General Dispositions

Art. 3501. Petition;  affidavit;  security

A writ of attachment or of sequestration shall issue only when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts shown by the petition verified by, or by the separate affidavit of, the petitioner, his counsel or agent.

The applicant shall furnish security as required by law for the payment of the damages the defendant may sustain when the writ is obtained wrongfully.

Art. 3502. Issuance of writ before petition filed

A writ of attachment or of sequestration may issue before the petition is filed, if the plaintiff obtains leave of court and furnishes the affidavit and security provided in Article 3501.  In such a case the petition shall be filed on the first judicial day after the issuance of the writ of attachment or of sequestration, unless for good cause shown the court grants a longer delay.

Art. 3503. Garnishment under writs of attachment or of sequestration

Except as otherwise provided by law and in the second paragraph of this article, garnishment under a writ of attachment or of sequestration is governed by the rules applicable to garnishment under a writ of fieri facias.

In garnishment under a writ of sequestration the only property that can be seized is property the ownership or possession of which is claimed by the plaintiff or on which he claims a privilege.

Art. 3504. Return of sheriff;  inventory

The sheriff, after executing a writ of attachment or of sequestration, shall deliver to the clerk of the court from which the writ issued a written return stating the manner in which he executed the writ.  He shall annex to the return an inventory of the property seized.

Art. 3505. Reduction of excessive seizure

If the value of the property seized under a writ of attachment or of sequestration exceeds what is reasonably necessary to satisfy the plaintiff's claim, the defendant by contradictory motion may obtain the release of the excess.

Art. 3506. Dissolution of writ;  damages

The defendant by contradictory motion may obtain the dissolution of a writ of attachment or of sequestration, unless the plaintiff proves the grounds upon which the writ was issued.  If the writ of attachment or of sequestration is dissolved, the action shall then proceed as if no writ had been issued.

The court may allow damages for the wrongful issuance of a writ of attachment or of sequestration on a motion to dissolve, or on a reconventional demand.  Attorney's fees for the services rendered in connection with the dissolution of the writ may be included as an element of damages whether the writ is dissolved on motion or after trial on the merits.

Art. 3507. Release of property by defendant;  security

A defendant may obtain the release of the property seized under a writ of attachment or of sequestration by furnishing security for the satisfaction of any judgment which may be rendered against him.

Art. 3507.1. Release of property by plaintiff;  security

Property seized under a writ of attachment or of sequestration may be released to the plaintiff upon proof of his ownership and upon furnishing security as required by Article 3508.  All costs incurred as a result of the seizure shall be paid by the plaintiff prior to the release of the property.  A written agreement to hold the seizing authority harmless for wrongful seizure of property which is not seized to enforce a security interest, mortgage, lien or privilege may be substituted in lieu of security at the discretion of the sheriff.

Acts 1985, No. 593, §1; Acts 1989, No. 137, §18, eff. Sept.  1, 1989.

Art. 3508. Amount of security for release of attached or sequestered property

The security for the release of property seized under a writ of attachment or of sequestration shall exceed by one-fourth the value of the property as determined by the court, or shall exceed by one-fourth the amount of the claim, whichever is the lesser.

Art. 3509. Release of property by third person

When property seized under a writ of attachment or of sequestration is in the possession of one not a party to the action, he may intervene in the action and, upon prima facie showing that he is the owner, pledgee, or consignee of the property, have the property released by furnishing security in the manner and amount, within the same delay, and with the same effect as a defendant.

Art. 3510. Necessity for judgment and execution

Except as provided in Article 3513, a final judgment must be obtained in an action where a writ of attachment or of sequestration has issued before the property seized can be sold to satisfy the claim.

Art. 3511. Attachment and sequestration;  privilege

To the extent not otherwise provided under Chapter 9 of the Louisiana Commercial Laws (R.S. 10:9-101, et seq.), a creditor who seizes property under a writ of attachment or of sequestration acquires a privilege from the time of seizure if judgment is rendered maintaining the attachment or sequestration.

Acts 1989, No. 137, §18, eff. Sept.  1, 1989.

Art. 3512. Release of plaintiff's security

The security required of the plaintiff for the issuance of a writ of attachment or of sequestration shall be released when judgment is rendered in his favor and is affirmed on appeal or when no appeal has been taken and the delay for appeal has elapsed.

Art. 3513. Sale of perishable property

Perishable property seized under a writ of attachment or of sequestration may be sold as provided in Article 2333.  The proceeds of such a sale shall be held by the sheriff subject to the orders of the court.

Nothing contained herein shall be construed to prohibit the release of such property upon furnishing of security.

 

Art. 3514. Release not to affect right to damages

The release of property upon furnishing security under Articles 3507, 3509, or 3576 shall not preclude a party from asserting the invalidity of the seizure, or impair his right to damages because of a wrongful seizure.

Section 2. Attachment

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Section 3. Sequestration

Art. 3571. Grounds for sequestration

When one claims the ownership or right to possession of property, or a mortgage, security interest, lien, or privilege thereon, he may have the property seized under a writ of sequestration, if it is within the power of the defendant to conceal, dispose of, or waste the property or the revenues therefrom, or remove the property from the parish, during the pendency of the action.

Acts 1989, No. 137, §18, eff. Sept.  1, 1989.

Art. 3572. Sequestration before rent due

A sequestration based upon a lessor's privilege may be obtained before the rent is due, if the lessor has good reason to believe that the lessee will remove the property subject to the lessor's privilege.  If the rent is paid when it becomes due, the costs shall be paid by the plaintiff.

Art. 3573. Sequestration by court on its own motion

The court on its own motion may order the sequestration of property the ownership of which is in dispute without requiring security when one of the parties does not appear to have a better right to possession than the other.

Art. 3574. Plaintiff's security

An applicant for a writ of sequestration shall furnish security for an amount determined by the court to be sufficient to protect the defendant against any damage resulting from a wrongful issuance, unless security is dispensed with by law.

Art. 3575. Lessor's privilege

A writ of sequestration to enforce a lessor's privilege shall issue without the furnishing of security.

Art. 3576. Release of property under sequestration

If the defendant does not effect the release of property seized under a writ of sequestration, as permitted by Article 3507, within ten days of the seizure, the plaintiff may effect the release thereof by furnishing the security required by Article 3508.

Chapter 2. Injunction

Art. 3601. Injunction, grounds for issuance;  preliminary injunction;  temporary restraining order

            A. An injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law; provided, however, that no court shall have jurisdiction to issue, or cause to be issued, any temporary restraining order, preliminary injunction, or permanent injunction against any state department, board, or agency, or any officer, administrator, or head thereof, or any officer of the state of Louisiana in any suit involving the expenditure of public funds under any statute or law of this state to compel the expenditure of state funds when the director of such department, board, or agency or the governor shall certify that the expenditure of such funds would have the effect of creating a deficit in the funds of said agency or be in violation of the requirements placed upon the expenditure of such funds by the legislature.

            B. No court shall issue a temporary restraining order in cases where the issuance shall stay or enjoin the enforcement of a child support order when the Department of Children and Family Services is providing services, except for good cause shown by written reasons made a part of the record.

            C. During the pendency of an action for an injunction the court may issue a temporary restraining order, a preliminary injunction, or both, except in cases where prohibited, in accordance with the provisions of this Chapter.

            D. Except as otherwise provided by law, an application for injunctive relief shall be by petition.

            E. The irreparable injury, loss, or damage enumerated in Paragraph A of this Article may result from the isolation of an individual over the age of eighteen years by any other individual, curator, or mandatary, including but not limited to violations of Civil Code Article 2995 or Code of Civil Procedure Article 4566(J).

            Amended by Acts 1969, No. 34, §2; Acts 2004, No. 765, §1, eff. July 6, 2004; Acts 2016, No. 110, §2, eff. May 19, 2016.

Art. 3602. Preliminary injunction;  notice;  hearing

A preliminary injunction shall not issue unless notice is given to the adverse party and an opportunity had for a hearing.

An application for a preliminary injunction shall be assigned for hearing not less than two nor more than ten days after service of the notice.

Art. 3603. Temporary restraining order;  affidavit of irreparable injury and notification efforts

A.  A temporary restraining order shall be granted without notice when:

(1)  It clearly appears from specific facts shown by a verified petition or by supporting affidavit that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition, and

(2)  The applicant's attorney certifies to the court in writing the efforts which have been made to give the notice or the reasons supporting his claim that notice should not be required.

B.  The verification or the affidavit may be made by the plaintiff, or by his counsel, or by his agent.

C.  No court shall issue a temporary restraining order in cases where the issuance shall stay or enjoin the enforcement of a child support order when the Department of Children and Family Services is providing services, except for good cause shown by written reasons made a part of the record.

Acts 1997, No. 1156, §2; Acts 1999, No. 1200, §4, Acts 2001, No. 430, §1; Acts 2003, No. 750, §1; Acts 2004, No. 502, §1.

Art. 3603.1. Governing provisions for issuance of protective orders;  grounds;  notice;  court-appointed counsel

A.  Notwithstanding any provision of law to the contrary, and particularly the provisions of Domestic Abuse Assistance, Part II of Chapter 28 of Title 46, Post-Separation Family Violence Relief Act and Injunctions and Incidental Orders, Parts IV and V of Chapter 1 of Code Title V of Title 9, Domestic Abuse Assistance, Chapter 8 of Title XV of the Children's Code, and this Chapter, no temporary restraining order or preliminary injunction prohibiting a spouse or other person from harming or going near or in the proximity of another shall issue, unless the complainant has good and reasonable grounds to fear for his or her safety or that of the children, or the complainant has in the past been the victim of domestic abuse by the other spouse.

B.  Any person against whom such an order is issued shall be entitled to a court-appointed attorney if the applicant has likewise been afforded a court-appointed attorney, which right shall also be included in any order or notice.

C.(1)  A complainant seeking protection from domestic abuse, dating violence, stalking, or sexual assault shall not be required to prepay or be cast with court costs or costs of service of subpoena for the issuance or dissolution of a temporary restraining order, preliminary or permanent injunction, or protective order , or the dismissal of a petition for such, and the clerk of court shall immediately file and process the order issued regardless of the ability of the plaintiff to pay court costs.

(2)  When the complainant is seeking protection from domestic abuse, stalking, or sexual assault, the clerk of court shall make forms available for making application for protective orders, provide clerical assistance to the petitioner when necessary, provide the necessary forms, and provide the services of a notary, where available, for completion of the petition.

Added by Acts 1997, No. 1156, §2; Acts 1999, No. 1200, §4; Acts 2001, No. 430, §1; Acts 2003, No. 750, §1; Acts 2004, No. 502, §1; Acts 2014, No. 355, §1.

Art. 3604. Form, contents, and duration of restraining order

            A. A temporary restraining order shall be endorsed with the date and hour of issuance; shall be filed in the clerk's office and entered of record; shall state why the order was granted without notice and hearing; and shall expire by its terms within such time after entry, not to exceed ten days, as the court prescribes. A restraining order, for good cause shown, and at any time before its expiration, may be extended by the court for one or more periods not exceeding ten days each. The party against whom the order is directed may consent that it be extended for a longer period. The reasons for each extension shall be entered of record.

            B. Nevertheless, in a suit for divorce, a temporary restraining order issued in conjunction with a rule to show cause for a preliminary injunction shall remain in force until a hearing is held on the rule for the preliminary injunction prohibiting a spouse from:

            (1) Disposing of or encumbering community property;

            (2) Harming the other spouse or a child; or

            (3) Removing a child from the jurisdiction of the court.

            C.(1) A temporary restraining order issued in conjunction with a rule to show cause for a protective order filed in an action pursuant to the Protection from Family Violence Act, R.S. 46:2121 et seq., and pursuant to the Protection From Dating Violence Act, R.S. 46:2151, shall remain in force until a hearing is held on the rule for the protective order or for thirty days, whichever occurs first. If the initial rule to show cause is heard by a hearing officer, the temporary restraining order shall remain in force for fifteen days after the hearing or until the judge signs the protective order, whichever occurs last. At any time before the expiration of a temporary restraining order issued pursuant to this Paragraph, it may be extended by the court for a period not exceeding thirty days.

            (2) In the event that the hearing on the rule for the protective order is continued by the court because of a declared state of emergency made in accordance with R.S. 29:724, any temporary restraining order issued in the matter shall remain in force for five days after the date of conclusion of the state of emergency. When a temporary restraining order remains in force under this Paragraph, the court shall reassign the rule for a protective order for hearing at the earliest possible time, but no later than five days after the date of conclusion of the state of emergency. The reassignment of the rule shall take precedence over all matters except older matters of the same character.

            D. To be effective against a federally insured financial institution, a temporary restraining order or preliminary injunction issued in accordance with Subparagraph (B)(1) of this Article shall be served in accordance with the provisions of R.S. 6:285(C). A temporary restraining order or preliminary injunction granted pursuant to the provisions of this Article shall be effective only against accounts, safe deposit boxes, or other assets listed or held in the name of the following:

            (1) One or both of the spouses named in the injunction.

            (2) Another party or business entity specifically named in the injunction.

            E. A federally insured financial institution shall not be liable for loss or damages resulting from its actions to comply with a temporary restraining order or preliminary injunction provided that the requirements of this Article have been met.

            Acts 1983, No. 651, §1; Acts 1990, No. 361, §1, eff. Jan. 1, 1991; Acts 1999, No. 1336, §2; Acts 2003, No. 750, §1; Acts 2012, No. 582, §2; Acts 2014, No. 618, §1.

Art. 3605. Content and scope of injunction or restraining order

An order granting either a preliminary or a final injunction or a temporary restraining order shall describe in reasonable detail, and not by mere reference to the petition or other documents, the act or acts sought to be restrained.  The order shall be effective against the parties restrained, their officers, agents, employees, and counsel, and those persons in active concert or participation with them, from the time they receive actual knowledge of the order by personal service or otherwise.

Art. 3606. Temporary restraining order;  hearing on preliminary injunction

A.  When a temporary restraining order is granted, the application for a preliminary injunction shall be assigned for hearing at the earliest possible time, subject to Article 3602, and shall take precedence over all matters except older matters of the same character.  The party who obtains a temporary restraining order shall proceed with the application for a preliminary injunction when it comes on for hearing.  Upon his failure to do so, the court shall dissolve the temporary restraining order.

B.  In the event that the hearing on the issuance of a preliminary injunction is continued by the court because of a declared state of emergency made in accordance with R.S. 29:724, any temporary restraining order issued in the matter shall remain in force for five days after the conclusion of the state of emergency.  When a temporary restraining order remains in force under this Paragraph, the court shall reassign the application for a preliminary injunction for hearing at the earliest possible time, but no later than five days after the conclusion of the state of emergency.  The reassignment of the application shall take precedence over all matters except older matters of the same character.

Acts 2014, No. 618, §1.

Art. 3607. Dissolution or modification of temporary restraining order or preliminary injunction

An interested person may move for the dissolution or modification of a temporary restraining order or preliminary injunction, upon two days' notice to the adverse party, or such shorter notice as the court may prescribe.  The court shall proceed to hear and determine the motion as expeditiously as the ends of justice may require.

The court, on its own motion and upon notice to all parties and after hearing, may dissolve or modify a temporary restraining order or preliminary injunction.

Art. 3607.1. Registry of temporary restraining order, preliminary injunction, or permanent injunction

A.  Immediately upon rendering a decision granting the petitioner a temporary restraining order or a preliminary or permanent injunction prohibiting a person from harming a family or household member or dating partner, or directing a person accused of stalking to refrain from abusing, harassing, or interfering with the victim of the stalking when the parties are strangers or acquaintances, the judge shall cause to have prepared a Uniform Abuse Prevention Order, as provided in R.S. 46:2136.2(C), shall sign such order, and shall immediately forward it to the clerk of court for filing on the day that the order is issued.

B.  When a temporary restraining order, preliminary injunction, or permanent injunction relative to domestic abuse or dating violence or relative to stalking as provided for in Paragraph A of this Article, is issued, dissolved, or modified, the clerk of court shall transmit the Uniform Abuse Prevention Order to the Judicial Administrator's Office, Louisiana Supreme Court, for entry into the Louisiana Protective Order Registry, as provided in R.S. 46:2136.2(A), by facsimile transmission or direct electronic input as expeditiously as possible, but no later than the end of the next business day after the order is filed with the clerk of court.  The clerk of the issuing court shall also send a copy of the Uniform Abuse Prevention Order, as provided in R.S. 46:2136.2(C), or any modification thereof,  to the chief law enforcement officer of the parish where the person or persons protected by the order reside by facsimile transmission or direct electronic input as expeditiously as possible, but no later than the end of the next business day after the order is filed with the clerk of court.  A copy of the Uniform Abuse Prevention Order shall be retained on file in the office of the chief law enforcement officer until otherwise directed by the court.

Added by Acts 1997, No. 1156, §2; Acts 2003, No. 750, §1; Acts 2014, No. 317, §5; Acts 2014, No. 355, §1.

Art. 3608. Damages for wrongful issuance of temporary restraining order or preliminary injunction

The court may allow damages for the wrongful issuance of a temporary restraining order or preliminary injunction on a motion to dissolve or on a reconventional demand.  Attorney's fees for the services rendered in connection with the dissolution of a restraining order or preliminary injunction may be included as an element of damages whether the restraining order or preliminary injunction is dissolved on motion or after trial on the merits.

Art. 3609. Proof at hearings;  affidavits

The court may hear an application for a preliminary injunction or for the dissolution or modification of a temporary restraining order or a preliminary injunction upon the verified pleadings or supporting affidavits, or may take proof as in ordinary cases.  If the application is to be heard upon affidavits, the court shall so order in writing, and a copy of the order shall be served upon the defendant at the time the notice of hearing is served.

At least twenty-four hours before the hearing, or such shorter time as the court may order, the applicant shall deliver copies of his supporting affidavits to the adverse party, who shall deliver to the applicant prior to the hearing copies of affidavits intended to be used by such adverse party.  The court, in its discretion, and upon such conditions as it may prescribe, may permit additional affidavits to be filed at or after the hearing, and may further regulate the proceeding as justice may require.

Art. 3610. Security for temporary restraining order or preliminary injunction

A temporary restraining order or preliminary injunction shall not issue unless the applicant furnishes security in the amount fixed by the court, except where security is dispensed with by law.  The security shall indemnify the person wrongfully restrained or enjoined for the payment of costs incurred and damages sustained.  However, no security is required when the applicant for a temporary restraining order or preliminary or permanent injunction is seeking protection from domestic abuse, dating violence, stalking, or sexual assault.

Acts 2003, No. 750, §1.

Art. 3611. Penalty for disobedience;  damages

Disobedience of or resistance to a temporary restraining order or preliminary or final injunction is punishable as a contempt of court.  The court may cause to be undone or destroyed whatever may be done in violation of an injunction, and the person aggrieved thereby may recover the damages sustained as a result of the violation.

Art. 3612. Appeals

A.  There shall be no appeal from an order relating to a temporary restraining order.

B.  An appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction, but such an order or judgment shall not be suspended during the pendency of an appeal unless the court in its discretion so orders.

C.  An appeal from an order or judgment relating to a preliminary injunction must be taken, and any bond required must be furnished, within fifteen days from the date of the order or judgment.  The court in its discretion may stay further proceedings until the appeal has been decided.

D.  Except as provided in this Article, the procedure for an appeal from an order or judgment relating to a preliminary or final injunction shall be as provided in Book III.

Acts 2001, No. 512, §1.

 

Art. 3613. Jurisdiction not limited

The provisions of this Chapter do not limit the issuance by a court of any writ, process, or order in aid of its jurisdiction.

Title II. Real Actions

Chapter 1. Actions to Determine Ownership or Possession

Art. 3651. Petitory action

The petitory action is one brought by a person who claims the ownership, but who is not in possession, of immovable property or of a real right therein, against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiff's ownership.

Amended by Acts 1981, No. 256, §1.

Art. 3652. Same;  parties;  venue

A.  A petitory action may be brought by a person who claims the ownership of only an undivided interest in the immovable property or real right therein, or whose asserted ownership is limited to a certain period which has not yet expired, or which may be terminated by an event which has not yet occurred.

B.  A lessee or other person who occupies the immovable property or enjoys the real right therein under an agreement with the person who claims the ownership thereof adversely to the plaintiff may be joined in the action as a defendant.

C.  A petitory action shall be brought in the venue provided by Article 80(A)(1), even when the plaintiff prays for judgment for the fruits and revenues of the property, or for damages.

Amended by Acts 1981, No. 256, §1; Acts 2010, No. 185, §1.

Art. 3653. Same;  proof of title;  immovable

To obtain a judgment recognizing his ownership of immovable property or real right therein, the plaintiff in a petitory action shall:

(1)  Prove that he has acquired ownership from a previous owner or by acquisitive prescription, if the court finds that the defendant is in possession thereof; or

(2)  Prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof.

When the titles of the parties are traced to a common author, he is presumed to be the previous owner.

Amended by Acts 1981, No. 256, §1.

 

Art. 3654. Proof of title in action for declaratory judgment, concursus, expropriation, or similar proceeding

When the issue of ownership of immovable property or of a real right therein is presented in an action for a declaratory judgment, or in a concursus, expropriation, or similar proceeding, or the issue of the ownership of funds deposited in the registry of the court and which belong to the owner of the immovable property or of the real right therein is so presented, the court shall render judgment in favor of the party:

(1)  Who would be entitled to the possession of the immovable property or real right therein in a possessory action, unless the adverse party proves that he has acquired ownership from a previous owner or by acquisitive prescription; or

(2)  Who proves better title to the immovable property or real right therein, when neither party would be entitled to the possession of the immovable property or real right therein in a possessory action.

Amended by Acts 1981, No. 256, §1.

Art. 3655. Possessory action

The possessory action is one brought by the possessor of immovable property or of a real right therein to be maintained in his possession of the property or enjoyment of the right when he has been disturbed, or to be restored to the possession or enjoyment thereof when he has been evicted.

Amended by Acts 1981, No. 256, §1.

Art. 3656. Same;  parties;  venue

A.  A plaintiff in a possessory action shall be one who possesses for himself.  A person entitled to the use or usufruct of immovable property, and one who owns a real right therein, possesses for himself.  A predial lessee possesses for and in the name of his lessor, and not for himself.

B.  The possessory action shall be brought against the person who caused the disturbance, and in the venue provided by Article 80(A)(1), even when the plaintiff prays for a judgment for the fruits and revenues of the property, or for damages.

Acts 2010, No. 185, §1.

Art. 3657. Same;  cumulation with petitory action prohibited;  conversion into or separate petitory action by defendant

The plaintiff may not cumulate the petitory and the possessory actions in the same suit or plead them in the alternative, and when he does so he waives the possessory action.  If the plaintiff brings the possessory action, and without dismissing it and prior to judgment therein institutes the petitory action, the possessory action is abated.

When, except as provided in Article 3661(1)-(3), the defendant in a possessory action asserts title in himself, in the alternative or otherwise, he thereby converts the suit into a petitory action, and judicially confesses the possession of the plaintiff in the possessory action.

If, before executory judgment in a possessory action, the defendant therein institutes a petitory action in a separate suit against the plaintiff in the possessory action, the plaintiff in the petitory action judicially confesses the possession of the defendant therein.

 

Art. 3658. Same;  requisites

To maintain the possessory action the possessor must allege and prove that:

(1)  He had possession of the immovable property or real right therein at the time the disturbance occurred;

(2)  He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;

(3)  The disturbance was one in fact or in law, as defined in Article 3659; and

(4)  The possessory action was instituted within a year of the disturbance.

Amended by Acts 1981, No. 256, §1.

Art. 3659. Same;  disturbance in fact and in law defined

Disturbances of possession which give rise to the possessory action are of two kinds: disturbance in fact and disturbance in law.

A disturbance in fact is an eviction, or any other physical act which prevents the possessor of immovable property or of a real right therein from enjoying his possession quietly, or which throws any obstacle in the way of that enjoyment.

A disturbance in law is the execution, recordation, registry, or continuing existence of record of any instrument which asserts or implies a right of ownership or to the possession of immovable property or of a real right therein, or any claim or pretension of ownership or right to the possession thereof except in an action or proceeding, adversely to the possessor of such property or right.

Amended by Acts 1981, No. 256, §1.

Art. 3660. Same;  possession

A person is in possession of immovable property or of a real right therein, within the intendment of the articles of this Chapter, when he has the corporeal possession thereof, or civil possession thereof preceded by corporeal possession by him or his ancestors in title, and possesses for himself, whether in good or bad faith, or even as a usurper.

Subject to the provisions of Articles 3656 and 3664, a person who claims the ownership of immovable property or of a real right therein possesses through his lessee, through another who occupies the property or enjoys the right under an agreement with him or his lessee, or through a person who has the use or usufruct thereof to which his right of ownership is subject.

Amended by Acts 1981, No. 256, §1.

Art. 3661. Same;  title not at issue;  limited admissibility of evidence of title

In the possessory action, the ownership or title of the parties to the immovable property or real right therein is not at issue.

No evidence of ownership or title to the immovable property or real right therein shall be admitted except to prove:

(1)  The possession thereof by a party as owner;

(2)  The extent of the possession thereof by a party; or

(3)  The length of time in which a party and his ancestors in title have had possession thereof.

Amended by Acts 1981, No. 256, §1.

Art. 3662. Same;  relief which may be granted successful plaintiff in judgment;  appeal

A.  A judgment rendered for the plaintiff in a possessory action shall:

(1)  Recognize his right to the possession of the immovable property or real right therein, and restore him to possession thereof if he has been evicted, or maintain him in possession thereof if the disturbance has not been an eviction;

(2)  Order the defendant to assert his adverse claim of ownership of the immovable property or real right therein in a petitory action to be filed within a delay to be fixed by the court not to exceed sixty days after the date the judgment becomes executory, or be precluded thereafter from asserting the ownership thereof, if the plaintiff has prayed for such relief; and

(3)  Award him the damages to which he is entitled and which he has prayed for.

B.  A suspensive appeal from the judgment rendered in a possessory action may be taken within the delay provided in Article 2123, and a devolutive appeal may be taken from such judgment only within thirty days of the applicable date provided in Article 2087(A).

Amended by Acts 1981, No. 256, §1; Acts 2010, No. 185, §1.

Art. 3663. Sequestration;  injunctive relief

Sequestration of immovable property or of a real right therein involved in a possessory or petitory action during the pendency thereof is available under the applicable provisions of Chapter 1 of Title I of Book VII.

Injunctive relief, under the applicable provisions of Chapter 2 of Title I of Book VII, to protect or restore possession of immovable property or of a real right therein, is available to:

(1)  A plaintiff in a possessory action, during the pendency thereof; and

(2)  A person who is disturbed in the possession which he and his ancestors in title have had for more than a year of immovable property or of a real right therein of which he claims the ownership, the possession, or the enjoyment.

Amended by Acts 1981, No. 256, §1.

Art. 3664. Mineral rights asserted, protected and defended as other immovables

The owner of a mineral right may assert, protect, and defend his right in the same manner as the ownership or possession of other immovable property, and without the concurrence, joinder, or consent of the owner of the land or mineral rights.

Amended by Acts 1974, No. 547, §1, eff. Jan. 1, 1975.

Art. 3665. When mineral right owner may assert possessory action

If the owner of a mineral right possesses his right by use or exercise according to its nature, he becomes entitled one year and a day from the date of commencement of his possession to assert the possessory action.  Thereafter, if there has been no adverse possession sufficient to include mineral rights, his right to assert the possessory action continues for one year from the date on which his right to bring the action matured or from the last day on which he was in possession of his right by use or exercise thereof, whichever is later.

Added by Acts 1974, No. 547, §2, eff. Jan. 1, 1975.

Art. 3666. Loss of right to bring possessory action by owner of mineral right

If after the owner of a mineral right has ceased possessing it by use or exercise according to its nature there is adverse possession of the land including the mineral right, the adverse possessor becomes entitled to bring the possessory action when he has been in possession quietly and without interruption for more than one year after his possession began or was resumed.

Added by Acts 1974, No. 547, §2, eff. Jan. 1, 1975.

Art. 3667. When proof of nonuse required in possessory action against owner of mineral right

In a possessory action against the owner of a mineral right subject to the prescription of nonuse, one possessing land as owner under a title which on its face discloses the mineral right in question must allege and prove that he has possessed the surface of the land as owner quietly and without interruption for more than one year prior to the date the action is brought and that for a period of at least ten years before the year preceding the date on which the action is brought the mineral right was not used or exercised according to its nature.  The fact that prescription accruing against the mineral right in question may have been suspended or may have been interrupted for some cause other than use is irrelevant to the possessory action and can be utilized by the defendant only as a basis for claiming ownership of the disputed rights in a petitory action.

Added by Acts 1974, No. 547, §2, eff. Jan. 1, 1975.

Art. 3668. When proof of nonuse not required in possessory action against claimant of mineral right

In all cases other than those specified in Article 3667, one possessing land as owner need only allege and prove his quiet, uninterrupted possession for more than a year prior to assertion of a possessory action against one claiming a mineral right in the land.

Added by Acts 1974, No. 547, §2, eff. Jan. 1, 1975.

 

Art. 3669. Possessory action unavailable between owner of mineral servitude and owner of dependent mineral royalty

In the event of a dispute between the owner of a mineral servitude and the owner of a mineral royalty burdening or alleged to burden the servitude in question, the possessory action is unavailable to either party, and the only available real action is the petitory action.  The burden of proof on the plaintiff in such an action is that which must be borne by the plaintiff in a petitory action when neither party is in possession.

Added by Acts 1974, No. 547, §2, eff. Jan. 1, 1975.

Art. 3670. Real actions against mineral lessee unavailable to mineral lessor or possessor bound by lease

One who has granted a mineral lease, or who possesses under a title subject to a mineral lease, whether or not the lease is disclosed by his act of acquisition, cannot assert the real actions against the lessee on account of the termination of the lease by running of the term or occurrence of an express resolutory condition.

Added by Acts 1974, No. 547, §2, eff. Jan. 1, 1975.

Art. 3671. Real actions involving mineral rights subject to other provisions governing real actions generally

Real actions involving mineral rights are subject to all of the rules established for other real actions by Articles 3651 through 3653 except to the extent that those articles are inconsistent with the express or implied terms of Articles 3664 through 3670.

Added by Acts 1974, No. 547, §2, eff. Jan. 1, 1975.

Chapter 2. Boundary Action

Art. 3691. Boundary action

An action to fix the boundary is an ordinary proceeding.

Amended by Acts 1977, No. 169, §2, eff. Jan. 1, 1978.

Art. 3692. Appointment of surveyor by court;  duties of surveyor

The court may appoint a surveyor to inspect the lands and to make plans in accordance with the prevailing standards and practices of his profession indicating the respective contentions of the parties.

Amended by Acts 1977, No. 169, §2, eff. Jan. 1, 1978.

Art. 3693. Evidence;  judgment

After considering the evidence, including the testimony and exhibits of a surveyor or other expert appointed by the court or by a party, the court shall render judgment fixing the boundary between the contiguous lands in accordance with the ownership or possession of the parties.

Amended by Acts 1977, No. 169, §2, eff. Jan. 1, 1978.

Chapter 3. Hypothecary Action

Section 1. General Dispositions

Art. 3721. Methods of enforcing mortgage

A conventional mortgage is enforced by ordinary or executory proceedings.

Art. 3722. Enforcement by ordinary proceeding

When the mortgagee enforces a conventional mortgage by an ordinary proceeding, he must first obtain a judgment against the mortgagor and then execute the judgment.  If it is not possible to obtain a personal judgment against the mortgagor, then the judgment shall be in rem.

Acts 2003, No. 1072, §1.

Art. 3723. Enforcement by executory proceeding

When the mortgagee enforces a conventional mortgage by an executory proceeding, he must comply with Articles 2631 through 2724.

Section 2. Hypothecary Action Against Third Person

Art. 3741. Right of enforcement

A legal mortgage, after judgment on the original obligation has been obtained, a judicial mortgage, or a conventional mortgage may be enforced without reference to any alienation or transfer of the mortgaged property from the original debtor, and the creditor may cause the property to be seized and sold as though it were still owned by the original debtor and in his possession.

Art. 3742. Notice of seizure

When property subject to a legal or a judicial mortgage is no longer owned by the original debtor, the seizing creditor shall cause notices of the seizure to be served by the sheriff upon both the original debtor and the present owner.

Art. 3743. Rights of third possessor

When property subject to a legal or a judicial mortgage is seized to enforce the mortgage, or is about to be seized for this purpose, and the property is no longer owned by the original debtor, the third possessor has the following rights:

(1)  To arrest the seizure, or threatened seizure, and consequent judicial sale of the property by injunction on the grounds that the mortgage was not recorded, that the inscription of its recordation had perempted, or that the debt secured by the mortgage is prescribed or extinguished, or to plead discussion as provided in Articles 5154 and 5155; and

(2)  All of the rights granted a third possessor under Article 2703(1) and (3).

Chapter 4. Notice of Pendency of Action

Art. 3751. Notice to be recorded to affect third persons

The pendency of an action or proceeding in any court, state or federal, in this state affecting the title to, or asserting a mortgage or privilege on, immovable property does not constitute notice to a third person not a party thereto unless a notice of the pendency of the action or proceeding is made, and filed or recorded, as required by Article 3752.

Art. 3752. Requirements of notice;  recordation

A.  The notice referred to in Article 3751 shall be in writing, signed by the plaintiff, defendant, or other party to the action or proceeding who desires to have the notice recorded, or by a counsel of record for such party showing the name of the persons against whom it is to be effective, the name of the court in which the action or proceeding has been filed, the title, docket number, date of filing, and object thereof, and the description of the property sought to be affected thereby.

NOTE:  Paragraph B effective until August 15, 2007.  See Acts 2006, No. 267, §1.

B.  This notice shall be recorded in the mortgage office of the parish where the property to be affected is situated, and has effect from the time of the filing for recordation.

NOTE:  Paragraph B as amended by Acts 2006, No. 267, §1, eff. August 15, 2007:

B.  This notice shall be recorded in the mortgage office of the parish where the property to be affected is situated and has effect from the time of the filing for recordation.  The notice shall cease to have effect after ten years from the date of its filing for recordation.  Nevertheless, if the action or proceeding is still pending, the notice may be reinscribed by refiling the notice.  A reinscription of the notice that is filed before the effect of recordation ceases continues that effect for five years from the day the notice is reinscribed.

Acts 2005, No. 169, §3, eff. July 1, 2006; Acts 2005, 1st Ex. Sess., No. 13, §1, eff. Nov. 29, 2005; Acts 2006, No. 267, §1, eff. Aug. 15, 2007.

Art. 3753. Cancellation of notice of pendency

When judgment is rendered in the action or proceeding against the party who filed the notice of the pendency thereof, the judgment shall order the cancellation of the notice at the expense of the party who filed it, and as part of the costs of the action or proceeding.  Nevertheless, the notice of pendency filed in connection with the proceeding which gave rise to the judgment shall be canceled at the request of any interested party if the judgment has been canceled or if the action or proceeding has been dismissed.

Acts 1999, No. 870, §1.

Title III. Extraordinary Remedies

Chapter 1. General Dispositions

Art. 3781. Petition;  summary trial;  issuance of writs

A writ of habeas corpus, mandamus, or quo warranto may be ordered by the court only on petition.  The proceedings may be tried summarily and the writ when ordered may be signed by the clerk under the seal of the court, or it may be issued and signed by the judge without further formality.

Art. 3782. Return date

Except as otherwise provided by law, a petition for a writ of habeas corpus, mandamus, or quo warranto shall be assigned for hearing not less than two or more than ten days after the service of the writ; but, upon proper showing, the court may assign the matter for hearing less than two days after the service of the writ.

Amended by Acts 1964, No. 483, §1; Acts 1966, No. 36, §1.

Art. 3782. Return date

Except as otherwise provided by law, a petition for a writ of habeas corpus, mandamus, or quo warranto shall be assigned for hearing not less than two or more than ten days after the service of the writ; but, upon proper showing, the court may assign the matter for hearing less than two days after the service of the writ.

Amended by Acts 1964, No. 483, §1; Acts 1966, No. 36, §1.

Art. 3784. Hearing

The hearing may be held in open court or in chambers, in term or in vacation.

Art. 3785. Disobedience of writ or judgment;  contempt

A person who fails to comply with a writ of habeas corpus, or with a judgment rendered after a hearing on a petition for a writ of habeas corpus, mandamus, or quo warranto may be punished for contempt.  When a sentence of imprisonment is imposed for contempt, imprisonment may continue until the defendant obeys the writ or judgment.

Chapter 2. Habeas Corpus

Art. 3821. Definition

Habeas corpus is a writ commanding a person who has another in his custody to produce him before the court and to state the authority for the custody.

Custody, as used in this Chapter, includes detention and confinement.

A petition for a writ of habeas corpus may be filed by the person in custody or by any other person in his behalf.

Art. 3822. Venue

Habeas corpus proceedings may be brought in the parish in which the defendant is domiciled or the parish in which the person detained is in custody.

Art. 3823. Persons authorized to make service;  proof of service

A writ of habeas corpus may be served by any person over the age of twenty-one who is capable of testifying.

If the writ is served by someone other than a sheriff, the affidavit of the person who served it shall be prima facie proof of such service.

Art. 3824. Method of service

A writ of habeas corpus shall be served upon the party to whom it is addressed or who has the person in custody in the manner provided by Articles 1232 and 1233.  If personal service cannot be made, service may be made by attaching the writ to an entrance door of the residence of the party to be served or to a door of the place where the person is in custody.

Art. 3825. Answer;  production of person in custody

The person upon whom the writ has been served, whether it is directed to him or not, shall file an answer stating whether he has custody of the person named in the writ.  If the person is in his custody, he shall produce him and state in his answer by what authority he holds the person detained.

Art. 3826. Transfer of custody;  answer

If the person upon whom the writ of habeas corpus is served has transferred the custody of the person detained prior to service of the writ, he shall state in his answer the name and address of the person to whom custody was transferred, the time of and the authority for the transfer, and the place where the person detained is then in custody.

Art. 3827. Inability to produce person in custody

If the person in custody cannot be brought before the court, the reasons therefor shall be stated in the answer.  The hearing may proceed as if he had been produced.

Art. 3828. Custody pendente lite

If judgment cannot be rendered immediately, the court may award the custody to a proper person until rendition of the judgment.

Art. 3829. Notice of hearing

When a person is in custody by virtue of a prior court order, or at the request of any person, reasonable written notice of the hearing shall be given to the person who provoked the prior court order or requested the custody.

Art. 3830. Judgment

The judgment may order the person released or placed in the custody of a proper person.

Art. 3831. Appeal not to suspend execution of judgment;  delay

An appeal from a judgment ordering the release of a person from custody or placing him in the custody of another person shall not suspend the execution of the judgment.

Such an appeal shall be taken only within thirty days from the applicable dates provided in Article 2087(A).

Amended by Acts 1974, No. 132, §1.

Chapter 3. Mandamus

Art. 3861. Definition

            Mandamus is a writ directing a public officer, a corporation or an officer thereof, or a limited liability company or a member or manager thereof, to perform any of the duties set forth in Articles 3863 and 3864.

            Acts 2017, No. 419, §1.

Art. 3862. Mandamus;  issuance of

A writ of mandamus may be issued in all cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice; provided, however, that no court shall issue or cause to be issued a writ of mandamus to compel the expenditure of state funds by any state department, board or agency, or any officer, administrator or head thereof, or any officer of the state of Louisiana, in any suit or action involving the expenditure of public funds under any statute or law of this state, when the director of such department, board or agency, or the governor shall certify that the expenditure of such funds would have the effect of creating a deficit in the funds of said agency or be in violation of the requirements placed upon the expenditure of such funds by the legislature.

Amended by Acts 1969, No. 34, §3.

Art. 3863. Person against whom writ directed

A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law, or to a former officer or his heirs to compel the delivery of the papers and effects of the office to his successor.

Art. 3864. Mandamus against corporation or corporate officer;  limited liability company or member or manager

            A. A writ of mandamus may be directed to a corporation or an officer thereof to compel either of the following:

            (1) The holding of an election or the performance of other duties required by the corporation's articles of incorporation or bylaws, or as prescribed by law.

            (2) The recognition of the rights of the corporation's members or shareholders.

            B. A writ of mandamus may be directed to a limited liability company or a member or manager thereof to compel either of the following:

            (1) The holding of an election or the performance of other duties required by the limited liability company's articles of organization or operating agreement, or as prescribed by law.

            (2) The recognition of the rights of the limited liability company's members.

            Acts 2017, No. 419, §1.

Art. 3865. Alternative writ

Upon the filing of a petition for a writ of mandamus, the court shall order the issuance of an alternative writ directing the defendant to perform the act demanded or to show cause to the contrary.

Art. 3866. Judgment

After the hearing, the court may render judgment making the writ peremptory.

Chapter 4. Quo Warranto

Art. 3901. Definition

            Quo warranto is a writ directing an individual to show by what authority he claims or holds public office, or office in a corporation or limited liability company, or directing a corporation or limited liability company to show by what authority it exercises certain powers. Its purpose is to prevent usurpation of office or of powers.

            Acts 2017, No. 419, §1

Art. 3902. Judgment

            When the court finds that a person is holding or claiming office without authority, the judgment shall forbid him to do so. It may declare who is entitled to the office and may direct an election when necessary.

            When the court finds that a corporation or limited liability company is exceeding its powers, the judgment shall prohibit it from doing so.

            Acts 2017, No. 419, §1.

Title IV. Divorce and Annulment of Marriage

Chapter 1. Divorce and Annulment

Art. 3941. Court where action brought;  nullity of judgment of court of improper venue

A.  An action for an annulment of marriage or for a divorce shall be brought in a parish where either party is domiciled, or in the parish of the last matrimonial domicile.

B.  The venue provided in this Article may not be waived, and a judgment rendered in either of these actions by a court of improper venue is an absolute nullity.

Acts 1990, No. 1009, §4, eff. Jan. 1, 1991.

Art. 3942. Appeal from judgment granting or refusing annulment or divorce

A.  An appeal from a judgment granting or refusing an annulment of marriage or a divorce can be taken only within thirty days from the applicable date provided in Article 2087(A).

B.  Such an appeal shall suspend the execution of the judgment insofar as the judgment relates to the annulment, divorce, or any partition of community property or settlement of claims arising from the matrimonial regime.

Acts 1986, No. 225, §2; Acts 1990, No. 1009, §4, eff. Jan. 1, 1991.

Art. 3943. Appeal from judgment awarding custody, visitation, or support

An appeal from a judgment awarding custody, visitation, or support of a person can be taken only within the delay provided in Article 3942.  Such an appeal shall not suspend execution of the judgment insofar as the judgment relates to custody, visitation, or support.

Acts 1993, No. 261, §3, eff. Jan. 1, 1994.

Art. 3944. Injunctive relief in divorce actions;  bond not required in certain cases

Either party to an action for divorce may obtain injunctive relief as provided in Part V of Chapter 1 of Code Title V of Code Book I of Title 9 (R.S. 9:371 et seq.) of the Revised Statutes without bond.

Acts 1990, No. 1009, §4, eff. Jan. 1, 1991.

Art. 3945. Incidental order of temporary child custody;  injunctive relief;  exceptions

A.  The injunctive relief afforded either party to an action for divorce or other proceeding which includes a provision for the temporary custody of a minor child shall be governed by the additional provisions of this Article.

B.  An ex parte order of temporary custody of a minor child shall not be granted unless:

(1)  It clearly appears from specific facts shown by a verified petition or by supporting affidavit that immediate and irreparable injury will result to the child before the adverse party or his attorney can be heard in opposition.

(2)  The applicant's attorney certifies to the court, in writing, either:

(a)  The efforts which have been made to give the adverse party reasonable notice of the date and time such order is being presented to the court.

(b)  The reasons supporting his claim that notice should not be required.

C.  An ex parte order of temporary custody shall:

(1)  Expire by operation of law within thirty days of signing of the order; however, the order may be extended for good cause shown at any time before its expiration for one period not exceeding fifteen days.

(2)  Provide specific provisions for temporary visitation by the adverse party of not less than forty-eight hours during any fifteen-day period, unless the verified petition or supporting affidavit clearly demonstrates that immediate and irreparable injury will result to the child as a result of such visitation.

(3)  Be endorsed with the date on which the ex parte order is signed and the date and hour of the rule to show cause.

D.  The rule to show cause why the respondent should not be awarded the custody, joint custody, or visitation of the child shall be assigned for hearing not more than thirty days after signing of the ex parte order of temporary custody.

E.  Any ex parte order not in compliance with the provisions of this Article is not enforceable, and is null and void.

F.  In the event an ex parte order of temporary custody is denied, the court shall specifically allocate between the parents the time which the child shall spend with each parent at the hearing on the rule to show cause set pursuant to Paragraph D of this Article, unless immediate and irreparable injury will result to the child.

G.  The provisions of this Article do not apply to any order of custody of a child requested in a verified petition alleging the applicability of the Domestic Abuse Assistance Act, R.S. 46:2131 et seq., Children's Code Article 1564 et seq., or the Post-Separation Family Violence Relief Act, R.S. 9:361 et seq.

Acts 1990, No. 1008, §4, eff. Jan. 1, 1991; Acts 1995, No. 1204, §1; Acts 1997, No. 374, §1; Acts 2009, No. 379, §1; Acts 2014, No. 619, §1.

Art. 3946. Execution of support and claims for contributions awards in arrears

A.  When a payment of support under a judgment is in arrears, the party entitled thereto may proceed by contradictory motion to have the amount of past due support determined and made executory.  On the trial of the contradictory motion, the court shall render judgment for the amount of past due support.

B.  The same rules and procedures apply when an installment payment of an award for contributions made to a spouse's education or training is in arrears.

Acts 1995, No. 1204, §1.

Art. 3947. Name confirmation

A.  Marriage does not change the name of either spouse.  However, a married person may use the surname of either or both spouses as a surname.

B.  The court may enter an order confirming the name of a married woman in a divorce proceeding, whether she is the plaintiff or defendant, which confirmation shall be limited to the name which she was using at the time of the marriage, or the name of her minor children, or her maiden name, without complying with the provisions of R.S. 13:4751 through 4755.  This Article shall not be construed to allow her to amend her birth certificate with the Bureau of Vital Statistics.

Acts 1987, No. 836, §1.

Chapter 2. Divorce Under Civil Code Article 102

Art. 3951. Petition for divorce

A petition for divorce under Civil Code Article 102 shall contain allegations of jurisdiction and venue and shall be verified by the affidavit of the petitioner.

Acts 1990, No. 1009, §5, eff. Jan. 1, 1991.

Art. 3952. Rule to show cause and affidavit

            The rule to show cause provided in Civil Code Article 102 shall allege proper service of the initial petition for divorce, that the requisite period of time, in accordance with Civil Code Article 103.1, or more has elapsed since that service, and that the spouses have lived separate and apart continuously for the requisite period of time, in accordance with Civil Code Article 103.1. The rule to show cause shall be verified by the affidavit of the mover and shall be served on the defendant, the defendant's attorney of record, or the duly appointed attorney for the defendant prior to the granting of the divorce, unless service is waived by the defendant.

            Acts 1990, No. 1009, §5, eff. Jan. 1, 1991; Acts 1995, No. 386, §2; Acts 2006, No. 743, §2, eff. Jan. 1, 2007; Acts 2018, No. 195, §1.

Art. 3953. Nullity of judgment

A judgment rendered in accordance with Civil Code Article 102 shall be an absolute nullity when:

(1)  Less than the requisite period of time, in accordance with Article 103.1, has elapsed between service of the petition, or between execution of written waiver of service of the petition, and filing of the rule to show cause.

(2)  Less than the requisite period of time, in accordance with Article 103.1, has elapsed between the date the parties commenced living separate and apart and filing of the rule to show cause.

(3)  The requirements of this Title with respect to jurisdiction and venue have not been met.

Acts 1990, No. 1009, §5, eff. Jan. 1, 1991; Acts 1991, No. 367, §2; Acts 1995, No. 386, §2; Acts 2006, No. 743, §2, eff. Jan. 1, 2007.

Art. 3954. Abandonment of action

A.  A divorce action instituted under Civil Code Article 102 is abandoned if the rule to show cause provided by that Article is not filed within two years of the service of the original petition or execution of written waiver of service of the original petition.

B.  This provision shall be operative without formal order, but on ex parte motion of any party or other interested person, the trial court shall enter a formal order of dismissal as of the date of abandonment.

Acts 1990, No. 1009, §5, eff. Jan. 1, 1991; Acts 1991, No. 367, §2.

Art. 3955. Service of petition

            A. When a petition for divorce is filed in accordance with Civil Code Article 102, service of the petition shall be requested on the defendant within ninety days of the filing of the petition.

            B. If the defendant is an absentee, the request for appointment of an attorney to represent the absentee defendant within ninety days of commencement of the action constitutes compliance with the requirements of Paragraph A of this Article.

            C. The defendant may expressly waive the requirements of Paragraph A of this Article by any written waiver. The requirement provided by Paragraph A of this Article shall be expressly waived by a defendant unless the defendant files, in accordance with the provisions of Article 928, a declinatory exception of insufficiency of service of process specifically alleging the failure to timely request service of the petition, in which case, after due proceedings, the action shall be dismissed.

            D. If not waived, a request for service of citation upon the defendant shall be considered timely if requested on the defendant within the time period provided by this Article, notwithstanding insufficient or erroneous service.

            Acts 2010, No. 407, §1; Acts 2014, No. 379, §2, eff. May 30, 2014; Acts 2017, No. 419, §1.

Art. 3956. Evidence of facts in divorce action

The facts entitling a moving party to a divorce in accordance with Civil Code Article 102 may be established by:

(1)  The petition for divorce.

(2)(a)  The sheriff's return of service of the petition.

(b)  The sheriff's return of service of the petition showing personal service on the defendant if the parties were living together at the time of the filing of the petition.

(c)  The return receipt when service is effectuated pursuant to R.S. 13:3204.

(d)  Waiver of the service of petition.

(3)  The rule to show cause and the affidavit required by Code of Civil Procedure Article 3952.

(4)  The sheriff's return of service of the rule, or by a waiver of that service.

(5)  The affidavit of the mover, executed after the filing of the rule, that the parties have lived separate and apart continuously for at least the requisite period of time, in accordance with Civil Code Article 103.1, prior to the filing of the rule to show cause and are still living separate and apart and that the mover desires to be divorced.

Acts 1990, No. 1009, §5, eff. Jan. 1, 1991; Acts 1991, No. 367, §2; Acts 1995, No. 386, §2; Acts 1999, No. 95, §1; Acts 2006, No. 743, §2, eff. Jan. 1, 2007.

Art. 3957. Waiver of service of petition and rule to show cause and accompanying notices

A.  A party in a divorce action under Civil Code Article 102 may expressly waive service of the petition and accompanying notice by any written waiver executed after the filing of the petition and made part of the record.

B.  If there is such a waiver, the periods specified by Civil Code Article 102 and Code of Civil Procedure Articles 3953 and 3954 shall run from the date of execution of the waiver.

C.  A party in a divorce action under Civil Code Article 102 may expressly waive service of the rule to show cause why a divorce should not be granted and accompanying notice by any written waiver executed after the filing of the rule to show cause and made part of the record.

Acts 1991, No. 367, §2.

Art. 3958. Voluntary dismissal

A judgment dismissing a petition for divorce under Civil Code Article 102 shall be rendered upon joint application of the parties and upon payment of all costs, or upon contradictory motion of the plaintiff.  A judgment of dismissal rendered under this Article shall be without prejudice to any separation of property decree rendered under Civil Code Articles 2374 and 2375.

Acts 1993, No. 628, §1.

Title V. Judicial Emancipation

Art. 3991. Petition for judicial emancipation

A.  A minor age sixteen or older may petition for emancipation individually without the participation of his tutor or administrator.  The petition of the minor shall name as parties defendant and shall be served personally on the parents of the minor, if parental authority exists, or his tutor if parental authority does not exist.

B.  The parents of a minor age sixteen or older, if parental authority exists, or the tutor of the minor, if parental authority does not exist, may petition for the emancipation of the minor.  A petition filed by the parents or tutor of a minor shall name the minor as defendant and shall be served personally on the minor and on an attorney appointed by the court, who shall represent the minor.

C.  A joint petition for judicial emancipation may be filed by a minor age sixteen or older and the parents of the minor, if parental authority exists, or the tutor of the minor, if parental authority does not exist.  A joint petition need not be served on any party.

Acts 2008, No. 786, §2, eff. Jan. 1, 2009.

Art. 3992. Petition requirements

The petition shall be verified by all petitioners and shall set forth the following with particularity:

(1)  The name, domicile, age, and, if known, the current address of the minor.

(2)  The names and current addresses of the parents and any tutors of the minor, if known.

(3)  The reasons why good cause exists for emancipation.

(4)  If limited judicial emancipation is requested, the effects of majority sought to be conferred upon the minor.

(5)  A descriptive list of the property of the minor, including the location of such property, if known.

Acts 2008, No. 786, §2, eff. Jan. 1, 2009.

Art. 3993. Venue for judicial emancipation

Venue for a judicial emancipation proceeding is the parish where a party is domiciled.

Amended by Acts 1972, No. 347, §2; Acts 2008, No. 786, §2, eff. Jan. 1, 2009.

Art. 3994. Emancipation hearing

A.  An emancipation hearing shall be a summary proceeding.

B.  Except for good cause shown, the minor shall be present at the hearing and may be called as a witness by the court.

C.  With the consent of all parties and the court, judicial emancipation may be granted without a hearing upon a joint petition for emancipation.

Acts 2008, No. 786, §2, eff. Jan. 1, 2009.

Art. 3995. Judgment of limited emancipation

A judgment of limited emancipation shall specify the effects of majority conferred and shall state that the minor retains all other effects of minority.

Acts 2008, No. 786, §2, eff. Jan. 1, 2009.

Art. 3996. Appeal

A judgment granting, modifying, or terminating emancipation is not suspended during the pendency of an appeal.  The validity of an act of the minor shall not be affected by the subsequent modification or termination of the judgment.

Acts 2008, No. 786, §2, eff. Jan. 1, 2009.

Art. 3997. Modification or termination of emancipation

On motion of the court or any person, the court for good cause shown may modify or terminate its judgment of emancipation or an act of limited emancipation by authentic act.

Acts 2008, No. 786, §2, eff. Jan. 1, 2009.

Art. 3998. Recordation

A.  The clerk of court shall record every judgment granting, modifying, or terminating emancipation in the conveyance records of the parish in which the judgment was rendered.

B.  Within fifteen days of the signing of a judgment granting, modifying, or terminating emancipation, the petitioner shall cause it to be recorded in the conveyance records of every other parish in which the minor owns immovable property.

Acts 2008, No. 786, §2, eff. Jan. 1, 2009.

Title VI. Tutorship

Chapter 1. Court Where Proceedings Are Brought

Art. 4031. Minor domiciled in the state

A.  Except as provided in Paragraph B, a petition for the appointment of a tutor of a minor domiciled in the state shall be filed in the district court of the parish where:

(1)  The surviving parent is domiciled, if one parent is dead; or

(2)  The parent or other person awarded custody of the minor is domiciled, if the parents are divorced or judicially separated; or

(3)  The minor resides.

B.  If the parents who are divorced or judicially separated are awarded joint custody of a minor:

(1)  They shall petition jointly for appointment as cotutors in the district court of the parish in which the proceedings for divorce or judicial separation were instituted, or if the award of joint custody has specified the legal domicile of the minor, in the district court of the parish of the legal domicile of the minor, or in the district court of the parish where the child resides.

(2)  With the permission of the judge, either parent may file a petition in the same court as provided in Subparagraph (1) for appointment as tutor for the limited purpose of enforcing a particular right or compromising a particular claim of an unemancipated minor if the other parent fails or refuses to do so.

Amended by Acts 1981, No. 283, §2; Acts 1990, No. 764, §1; Acts 1995, No. 268, §1, eff. June 14, 1995.

Art. 4032. Minor not domiciled in the state

If the minor is not domiciled in the state, a petition for the appointment of a tutor may be filed in any parish where:

(1)  Immovable property of the minor is situated; or

(2)  Movable property of the minor is situated, if he owns no immovable property in the state.

Art. 4033. Petitions filed in two or more courts;  stay of proceedings in second and subsequent courts;  adoption of proceedings by first court

If petitions for the appointment of a tutor are filed in two or more competent courts, the court in which a petition was first filed shall proceed to a determination of the issues and the proceedings in the other courts shall be stayed.  However, the first court may adopt as its own any of the proceedings taken in the other courts.

Art. 4034. Proceedings subsequent to appointment of tutor

Proceedings relative to a tutorship subsequent to the confirmation or appointment of a tutor who is domiciled in the state shall be brought in the parish of his domicile if he is living at the time or, if he is dead, in the parish where he was last domiciled.  If the proceedings are brought in a court other than the one which confirmed or appointed the tutor, the court may require the filing of certified copies of all or any part of the proceedings in the other court.

Proceedings relative to a tutorship subsequent to the confirmation or appointment of a tutor who is not domiciled in this state, or who has left the state permanently, shall be brought in the court which confirmed or appointed him.

Amended by Acts 1964, No. 4, §1.

Chapter 2. Appointment of Particular Tutors

Art. 4061. Natural tutor;  general obligations

Before a natural tutor enters upon the performance of his official duties, he must take an oath to discharge faithfully the duties of his office, cause an inventory to be taken or a detailed descriptive list to be prepared, and cause a legal mortgage in favor of the minor to be inscribed, or furnish security, in the manner provided by law.

Acts. 1983, No. 344, §1.

Art. 4061.1. Natural tutor;  action for damages on behalf of child

A.  Notwithstanding Article 4061, the natural tutor of a minor child may file an action for damages based on a delictual obligation without the necessity of qualifying as tutor pursuant to Article 4061 and without the necessity of filing a petition pursuant to Article 4031, if the natural tutor is any of the following:

(1)  The surviving parent of the minor child.

(2)  The parent under whose sole care the minor child has been placed when the parents are divorced or judicially separated from bed and board.

(3)  The mother of her child born outside of marriage not acknowledged by the father, or acknowledged by him alone without her concurrence.

B.  The petitioner in an action for damages based on a delictual obligation shall allege in the petition that he qualifies under Paragraph A of this Article to act of right as tutor, and the petitioner shall set forth the facts, including the relationship to the minor child, entitling the petitioner to act as tutor.

C.  This Article shall not apply to parents who share joint custody of the minor child or to parents who have both acknowledged their child born outside of marriage pursuant to the Civil Code.

Acts 2003, No. 155, §1; Acts 2004, No. 26, §2.

Art. 4062. Tutorship by will

The court shall appoint as tutor the person nominated as such in a testament or an authentic act, upon his furnishing security and taking an oath, as provided in Articles 4131 and 4171, unless he is disqualified or unless for some other reason the court determines that the appointment would not be for the best interest of the minor.

Art. 4063. Legal tutor

The court shall appoint a legal tutor under the circumstances and according to the rules for priority provided by law, and in the manner provided in Articles 4065 through 4068.

Art. 4064. Dative tutor

The court shall appoint a dative tutor under the circumstances provided by law and in the manner provided in Articles 4065 through 4068.

Art. 4065. Legal or dative tutor;  petition for appointment;  publication of notice

When a petition for appointment as legal or dative tutor is filed, the applicant shall annex an affidavit listing to the best of his knowledge the minor's ascendants and collaterals by blood within the third degree and the surviving spouse of the minor's mother or father dying last who reside in the state.  A copy of the petition for appointment shall be mailed by registered or certified mail to each person listed in the affidavit.

Notice of the application shall be published once in the parish where the petition was filed, in the manner provided by law.

Amended by Acts 1976, No. 429, §3.

Art. 4066. Opposition to application of legal or dative tutor

An opposition to an application for appointment as legal or dative tutor may be filed at any time prior to the appointment, as provided in Article 4067.  The opposition shall comply with Article 2972 and shall allege the grounds upon which it is claimed that the applicant is disqualified or that it would be in the best interest of the minor for the opponent to be appointed tutor instead of the applicant.

Amended by Acts 1976, No. 429, §3.

Art. 4067. Appointment of legal or dative tutor

At any time after the expiration of ten days from date of publication or date of mailing of the notice as provided in Article 4065, whichever period is longer, if no opposition has been filed, the court shall appoint the applicant, unless he is disqualified under Article 4231.

If an opposition has been filed, it shall be tried in a summary manner.

Amended by Acts 1976, No. 429, §3.

Art. 4068. Appeal from judgment confirming, appointing, or removing tutor or undertutor;  effect

An appeal from a judgment confirming, appointing, or removing a tutor or an undertutor can only be taken within thirty days from the applicable date provided in Article 2087(A).

Such judgment shall not be suspended during the pendency of an appeal.  The acts of a tutor or of an undertutor shall not be invalidated by the annulment of his appointment on appeal.

Art. 4069. Separate tutor of property

A.  In exceptional cases and for good cause shown, the court may appoint a bank or another person as administrator or tutor of the property of the minor.  This appointment may be made upon the court's own motion or upon the motion of the tutor or other person entitled to the tutorship if no tutor has been previously appointed, or upon motion of any interested person after a contradictory hearing with the tutor, administrator, or person entitled to the tutorship or the administration.

B.  If a person is appointed as tutor or administrator of the minor's property, pursuant to this Article or Civil Code Article 258, that person shall furnish security as provided in Article 4131.

Acts 1992, No. 680, §2.

Art. 4070. Provisional tutor

On the application of an interested person or on its own motion, pending the appointment of a tutor, the court may appoint a qualified person as provisional tutor of a minor, if such appointment is necessary for the welfare of the minor or for the preservation of his property.

Art. 4071. Security, oath, and tenure of provisional tutor

A provisional tutor shall take an oath to discharge faithfully the duties of his office and shall furnish security as provided in Article 4132 for the faithful performance of his duties, in an amount determined by the court as adequate for the protection of the minor.

A provisional tutor shall continue in office until his appointment is terminated by the court or until a tutor has been qualified.

Art. 4072. Inventory or detailed descriptive list on appointment of provisional tutor

When the court appoints a provisional tutor, it shall order the taking of an inventory or the preparation of a detailed descriptive list of the minor's property as provided in Articles 4101 and 4102.

Acts 1983, No. 344, §1.

Art. 4073. Functions, duties, and authority of provisional tutor

The functions of a provisional tutor are limited to the care of the person of the minor and the preservation of his rights and property.  In the performance of his functions, a provisional tutor has the same authority, and is subject to the same duties and obligations, as a tutor.

Under specific authority of the court which appointed him, a provisional tutor may:

(1)  Institute and prosecute an action to enforce judicially a right of the minor; and

(2)  Operate a business belonging to the minor.

A provisional tutor shall file an account upon the termination of his authority.

Chapter 3. Inventory of Minor's Property

Art. 4101. Inventory and appraisement or descriptive list

A.  When any person applies to be appointed as tutor, the court shall order either the taking of an inventory and an appraisal of the minor's property or the preparation of a detailed descriptive list of his property in accordance with Article 4462.

B.  If an inventory is ordered, it shall be begun not later than ten days after the order is signed.  The court shall appoint a notary of each parish in which property of the minor has a situs to take the inventory of such property in that parish.

Acts 1983, No. 344, §1.

Art. 4102. Procedure for inventory;  procès verbal;  return

In so far as applicable, Articles 3131 through 3134 shall govern the procedure for the taking of the inventory, proces verbal, and the return and effect of the proces verbal.

Chapter 4. Security of Tutor

Art. 4131. Amount

A.  The person appointed tutor, except the natural tutor, shall furnish security for the faithful performance of his duties in an amount equal to the total value of the minor's movable property as shown by the inventory or detailed descriptive list, plus such additional sum as the court may consider sufficient to cover any loss or damage which may be caused by the bad administration of the tutor.

B.  Upon proper showing that the security required is substantially in excess of that needed for the protection of the minor, the court may fix the security at any amount which it considers sufficient for the protection of the minor.

C.  The court may order the security to be increased or diminished at any time as the movable property may increase or diminish in value, or for other circumstances which the court may consider proper.

D.  When the only asset of the minor is a contested claim for damages, the court may postpone the furnishing of security until the claim is recovered, at which time the tutor shall provide security as required by this Article.

Acts 1983, No. 344, §1; Acts 1985, No. 146, §1.

Art. 4132. Nature of security

A.  The security required by Article 4131 shall be in the form of a bond, to be approved by the court, and secured by:

(1)  A surety company authorized to do business in this state;

(2)  Bonds of this state or of any political subdivision or any municipality thereof, or of the United States, or certificates of deposit in any bank, savings bank, or trust company chartered under the laws of Louisiana or National Banking Association domiciled in this state and insured by the Federal Deposit Insurance Corporation, or shares of any building or loan or homestead association domiciled in this state and insured by an agency of the United States, in an amount at par value equal at least to the amount of the security required; or

(3)  No less than two personal sureties signing in solido who are residents of this state and who each have unencumbered property located in this state in an amount amply sufficient to secure the amount of the bonds notwithstanding the provisions of Civil Code Article 3042 or any other law to the contrary.

B.  Bonds or homestead shares or certificates of deposit of a bank posted as security shall be deposited for safekeeping with the clerk of court or in a bank or other recognized depository as directed by the court, and may not be withdrawn without an order of court.  The form of the act under which such bonds or shares are given in security shall be substantially that of a bond, in which the principal binds himself and declares that instead of furnishing sureties, he deposits, as directed by the court, such bonds or shares to be subject to any claim the minor may have.

C.  Insured homestead shares or certificates of deposit of a bank may not be furnished as security in excess of the amount insured.

D.  The bond shall not be recorded in the mortgage records nor operate as a mortgage.

Amended by Acts 1977, No. 192, §1, eff. July 5, 1977; Acts 1985, No. 136, §1.

Art. 4132. Nature of security

A.  The security required by Article 4131 shall be in the form of a bond, to be approved by the court, and secured by:

(1)  A surety company authorized to do business in this state;

(2)  Bonds of this state or of any political subdivision or any municipality thereof, or of the United States, or certificates of deposit in any bank, savings bank, or trust company chartered under the laws of Louisiana or National Banking Association domiciled in this state and insured by the Federal Deposit Insurance Corporation, or shares of any building or loan or homestead association domiciled in this state and insured by an agency of the United States, in an amount at par value equal at least to the amount of the security required; or

(3)  No less than two personal sureties signing in solido who are residents of this state and who each have unencumbered property located in this state in an amount amply sufficient to secure the amount of the bonds notwithstanding the provisions of Civil Code Article 3042 or any other law to the contrary.

B.  Bonds or homestead shares or certificates of deposit of a bank posted as security shall be deposited for safekeeping with the clerk of court or in a bank or other recognized depository as directed by the court, and may not be withdrawn without an order of court.  The form of the act under which such bonds or shares are given in security shall be substantially that of a bond, in which the principal binds himself and declares that instead of furnishing sureties, he deposits, as directed by the court, such bonds or shares to be subject to any claim the minor may have.

C.  Insured homestead shares or certificates of deposit of a bank may not be furnished as security in excess of the amount insured.

D.  The bond shall not be recorded in the mortgage records nor operate as a mortgage.

Amended by Acts 1977, No. 192, §1, eff. July 5, 1977; Acts 1985, No. 136, §1.

Art. 4134. Natural tutor;  bond;  recordation of certificate of inventory or detailed descriptive list

A.  Except as provided in Article 4135, a natural tutor shall not be required to furnish bond, but shall record in the mortgage records of the parish of his domicile a certificate of the clerk setting forth the date of birth of the minor, the last four digits of the social security number of the tutor and the total value of the minor's property according to the inventory or detailed descriptive list filed in the tutorship proceeding.  If the minor has no assets, then no certificate need be filed until he acquires assets.  If the only asset is a contested claim, then no certificate need be filed until the claim is recovered, as provided in Article 4131(D).  A certificate of the recorder of mortgages setting forth the recordation of the clerk's certificate shall be filed in the tutorship proceedings before the tutor is appointed or letters of tutorship are issued.

B.  Within thirty days after his appointment, the natural tutor shall cause the clerk's certificate to be recorded in the mortgage records of every other parish in the state in which he owns immovable property.

C.  The recordation operates as a legal mortgage for the amount of the certificate in favor of the minor on all the immovable property of the tutor situated within any parish where recorded.  A certificate recorded in the amount of zero dollars shall not create a legal mortgage.  If the certificate does not contain the information required by Paragraph A of this Article, it will not be effective against third parties.

D.  The legal mortgage shall prescribe four years after the minor reaches majority and shall be canceled from the mortgage record upon the request of any interested party.

Acts 1983, No. 344, §1; Acts 2003, No. 728, §1; Acts 2004, No. 322, §1; Acts 2014, No. 189, §1.

Art. 4135. Security instead of legal mortgage

Instead of the legal mortgage provided in Article 4134, a natural tutor may furnish bond in the amount provided by Article 4131 and of the nature provided by Article 4132, or a special mortgage as provided in Article 4133.

If the court determines that the legal mortgage will not be sufficient protection for the minor, and that substantial loss to the minor may result unless a bond is furnished, the court may order that the natural tutor furnish a bond or a special mortgage instead of the legal mortgage.

Art. 4136. Substitution of one kind of security for another

Any tutor who desires to give bond or security and thus release from an existing general or special mortgage the whole or a portion of the property covered thereby may do so with the approval of the court as provided in Article 4271, provided the bond or security tendered fully protects the minor.

Any of the securities enumerated in Articles 4132 and 4133 may be substituted at any time either in whole or in part for any other kind, at the option of the tutor, and with the approval of the court as provided in Article 4271, which shall enter the necessary orders to render the substitutions effective.  If other security has been furnished instead of a general mortgage, the tutor may not revert to a general mortgage.

When a bond or security is substituted only in part for the general or special mortgage, the amount thereof may be proportionately smaller based on the value of the property to be released from mortgage.

Art. 4137. Subordination of legal mortgage to conventional mortgage

The legal mortgage provided in Article 4134 may be subordinated to a conventional mortgage or other security to be given on the property of the tutor, provided such subordination is authorized by the court after proof that such would be to the best interest of the minor and provided the concurrence of the undertutor is first obtained.

Added by Acts 1980, No. 389, §1.

Chapter 5. Oath and Letters of Tutorship

Art. 4171. Oath

Before the person appointed as tutor enters upon the performance of his official duties, he must take an oath to discharge faithfully the duties of his office.  A natural tutor shall include in his oath a list of the parishes in which he owns immovable property.

Art. 4172. Issuance of letters

After the person appointed as tutor has qualified by furnishing the security required of him by law, and by taking his oath of office, the clerk shall issue to him letters of tutorship.

These letters, issued in the name and under the seal of the court, evidence the appointment of the tutor, his qualification, and his compliance with all requirements of law relating thereto.

Chapter 6. Undertutor

Art. 4201. Appointment;  oath

At the time judgment is rendered appointing a tutor, the court shall also appoint a responsible person as undertutor.

Before entering upon the performance of his official duties, the undertutor must take an oath to discharge faithfully the duties of his office.

Art. 4202. General duties of undertutor

The undertutor shall express his concurrence or nonconcurrence in action suggested by the tutor to the court, as set forth in Article 4271, and shall act for the minor whenever the minor's interest is opposed to that of the tutor.

Art. 4203. Compelling tutor to account

The undertutor shall apply to the court for an order compelling the tutor to file an account whenever the tutor has failed to file his annual account or at any other time when the circumstances indicate that an account should be filed.

Art. 4204. Security of tutor, undertutor's duty regarding sufficiency

The undertutor shall:

(1)  Cause the natural tutor to record the legal mortgage in favor of the minor as provided in Article 4134;

(2)  Require the tutor to furnish evidence that he has a valid and merchantable title to property offered as security under a special mortgage instead of bond and that the value of the property is at least equal to the amount of security required; otherwise the undertutor shall oppose the tutor's application to furnish a special mortgage; and

(3)  Apply to the court for an order compelling the tutor to furnish additional security whenever the security has become insufficient for any reason.

Art. 4205. Vacancy in tutorship, duty of undertutor

The tutorship does not devolve upon the undertutor when it is vacant.  If a vacancy occurs, the undertutor shall apply to the court for the appointment of a new tutor.

Art. 4206. Termination of duties

The undertutor is relieved of further duty and authority as undertutor when the minor reaches majority or is fully emancipated.  However, his liability for acts prior thereto shall not be affected.

Chapter 7. Disqualification, Revocation of Appointment, Resignation, and Removal

Art. 4231. Disqualification of tutor

A.  No person may be appointed tutor who is:

(1)  Under eighteen years of age;

(2)  Interdicted, or who, on contradictory hearing, is proved to be mentally incompetent;

(3)  A convicted felon, under the laws of the United States or of any state or territory thereof;

(4)  Indebted to the minor, unless he discharges the debt prior to the appointment;

(5)  An adverse party to a suit to which the minor is a party; or

(6)  A person who, on contradictory hearing, is proved to be incapable of performing the duties of the office, or to be otherwise unfit for appointment because of his physical or mental condition or bad moral character.

B.  Except as provided in Paragraph C of this Article, the provisions of Subparagraphs (1), (3), (4), and (5) of Paragraph A do not apply to the parent of the minor.

C.  The provisions of Paragraph B of this Article shall not apply to a natural parent of the minor who is convicted of a felony involving theft of funds or misappropriation of funds, a crime of violence as defined in R.S. 14:2(B), a sex offense as defined in R.S. 15:542 or R.S. 46:1844, or any other crime against an individual under the age of eighteen years.

Amended by Acts 1974, No. 573, §1; Acts 2001, No. 741, §1.

Art. 4232. Revocation of appointment;  extension of time to qualify

If a person who is not a parent of the minor is appointed tutor and fails to qualify for the office within ten days from his appointment, on its own motion or on motion of any interested person, the court may revoke the appointment and appoint another qualified person to the office forthwith.

The delay allowed in this article for qualification may be extended by the court for good cause shown.

Art. 4233. Resignation of tutor

A tutor other than a parent of the minor may resign when authorized by the court under Article 4271:

(1)  If subsequent to his appointment as tutor he has been invested with an office or engaged in a service or occupation which excuses him from the obligation of serving as tutor;

(2)  If he has reached the age of seventy years;

(3)  If because of infirmity he has become incapable of discharging the duties of his office; or

(4)  For any other reason which the court in its discretion may deem sufficient.

The resignation by a tutor shall become effective when a successor is appointed, as provided in Article 4237, and when his final account has been filed and homologated.

Amended by Acts 1974, No. 163, §1.

Art. 4234. Removal of tutor

The court may remove any tutor who is or has become disqualified; is a nonresident who has not appointed, or has left the state permanently without appointing, an agent to represent him as required by Article 4273; has become incapable of discharging the duties of his office; has mismanaged the minor's property; has failed to perform any duty imposed by law or by order of court; or if such removal would be in the best interests of the minor.

The court on its own motion may order, and on motion of any interested party shall order the tutor to show cause why he should not be removed from office.  If service of this order cannot be made on the tutor for any reason, the court shall appoint an attorney at law to represent him, on whom service shall be made and against whom the proceeding shall be conducted contradictorily.

The removal of a tutor from office does not invalidate any of his official acts performed prior to his removal.

Amended by Acts 1964, No. 4, §1; Acts 1976, No. 429, §3.

Art. 4235. Authority and liability of tutor after resignation or removal

A tutor who has resigned or has been removed shall have no further authority as such, and no further duty except as provided by Article 4392.  However, his liability for acts prior to his resignation or removal shall not be affected thereby.

Art. 4236. Undertutor, grounds for disqualification, revocation, or removal

The grounds for disqualification, revocation, and removal provided in Articles 4231, 4232, and 4234, other than indebtedness to the minor, apply also to an undertutor.

An undertutor may resign at any time with the approval of the court, but the resignation shall not be effective until a successor has been appointed and qualified.

Art. 4237. Appointment of successor tutor or undertutor

When a tutor or undertutor dies, is removed, or resigns, another tutor or undertutor shall be appointed in his place in the manner provided for an original appointment.

Art. 4238. Heirs of tutor;  responsibility

Tutorship is a personal trust, which does not descend to the heirs of the tutor upon his death.  However, the representative of the tutor's succession or the major heirs who have accepted his succession are responsible for the administration of the minor's property until another tutor has been appointed.