Ackenhausen, In re
| Decision Date | 04 June 1963 |
| Docket Number | No. 46474,46474 |
| Citation | 244 La. 730,154 So.2d 380 |
| Parties | In re William B. ACKENHAUSEN Applying for Adoption of Children Under 17 years of age: Rick Edward Trascher and Toni Curtis Trascher. |
| Court | Louisiana Supreme Court |
George T. Oubre, Norco, for defendant-appellant.
Milton E. Brener, New Orleans, for respondent.
We granted certiorari in this case on application of Edward John Trascher, Jr., to review a judgment of the Court of Appeal which affirmed a judgment of the Juvenile Court for the Parish of Jefferson granting the petition of respondent William B. Ackenhausen for adoption of Rick Edward Trascher, born in October, 1953, and Toni Curtis Trascher, born in February, 1956. This adoption was granted over the objection of relator, the legitimate father of these children, his contention being that the adoption should not be permitted because he had not consented to it. See 146 So.2d 37.
The two minor children here involved were born of the marriage of Martha Elena Blake and Edward John Trascher, Jr., the relator. These parties were divorced in Clark County, Nevada, in 1957. In the divorce decree the mother was awarded the custody and control of the two children, and the father was ordered to pay $120.00 per month for the support of the children, or $60.00 per month for each child. Immediately after the divorce the mother returned to Louisiana to live with her parents. In March, 1959, she married William B. Ackenhausen, who is here petitioning for the adoption of his wife's children. The children have been living with their mother and stepfather ever since a short time after this marriage.
Respondent takes the position that the consent of the legitimate father in this case was not necessary under the provisions of LSA-R.S. 9:422.1 as amended by Act 268 of 1960, the act in force when this proceeding was instituted.
This legislation was prompted apparently by our decision in the case of Madere v. Long, 231 La. 498, 91 So.2d 771, in which an application for adoption made by the stepfather was denied on the ground that the consent of the legitimate father had not been obtained. The mother of the child, who had given her consent to the adoption, had obtained a divorce from the father of the child and in the decree of divorce had been given the care, custody, and control of the minor. She subsequently married the applicant for adoption, and the child was living with the mother and her second husband, the petitioner, who was providing for the child's care and support. The applicant for the adoption contended that the consent of the legitimate father was not necessary. In denying this contention the court stated that the dispensing with consent in such a case was a matter that addressed itself to the Legislature and not to the court. That case was decided in December, 1956, and the Legislature in 1958, apparently taking cognizance of the above statement, passed Act 501 providing that in such a case the consent of the legitimate father was not required under certain conditions. This act amended Title 9 of the Revised Statutes of 1950 by adding a section designated as 9:422.1. This section was amended by Act 268 of 1960, and as thus amended is the law with which we are here concerned. It reads:
'If the spouse of the petitioner is the legitimate parent of the child or if the petitioner is the grandparent or grandparents of the child, then the consent of the other legitimate parent is not necessary if the following conditions exist:
'1. The spouse of the petitioner or the grandparent or grandparents have been granted custody of the child by a court of competent jurisdiction and
'2. the other parent has refused or failed to comply with a court order of support for a period of one year or more.' 1
The act provides that two conditions must exist before the consent of the legitimate parent in such a case is dispensed with. One of these conditions is concerned with custody, the other with support.
As to the condition of custody, the Court of Appeal in its opinion in this case recounted all the facts in detail, and there is no need for us to discuss them here. That court concluded that the condition regarding custody existed in the instant case, and we think its conclusion and the reasoning upon which that conclusion is based are sound and correct. Moreover, in view of relator's argument in this court that the custody condition contemplates full custody so that the other parent is deprived even of visitation rights, we would like to add that if the custody provision contemplates Unfitness of the parent, it would mean that the custody decree must deprive the other parent of all visitation rights. We do not think, however, the custody provision was intended as relating to Unfitness of the parent, or having to do with his failing to comply with his parental responsibility. We think this provision was made a part of the exception to prevent a child from being uprooted from its surroundings, and to prevent the upset by adoption of a custody decree wherein it had been adjudged that the best interest of a child required it to be with one parent (or a grandparent) rather than the other parent. Tho spouse of the petitioner here had been granted custody within the meaning of this provision, therefore, notwithstanding the father had a right of visitation.
We granted the writ in this case primarily to review the Court of Appeal's finding that the second condition, dealing with support, also existed. This in our view is the condition relating to unfitness of the parent or to his failure to fulfill his parental responsibility.
The petition for adoption was filed in this case on October 4, 1961, and petitioner has proven to our complete satisfaction that from October 1, 1960, up to the time the suit was filed (a few days more than a year) relator had made only one payment of $50.00 under the order of the ...
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Hamrick v. Seward, 46898
...states have adopted this provision in their laws regulating the adoption of children. In addition to the cases cited, see In re Ackenhausen, 244 La. 730, 154 So.2d 380; In re Burton's Adoption, 147 Cal.App.2d 125, 305 P.2d 185, and see Oregon Rev.Stat. § 109.324. There is evidence supportin......
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