Griffith v. Roy
| Decision Date | 06 November 1972 |
| Docket Number | No. 52241,52241 |
| Citation | 263 La. 712,269 So.2d 217 |
| Parties | Eileen Reed GRIFFITH v. Joseph Folse ROY, Sr. J. Folse ROY v. Eileen REED, wife of Joseph Folse Roy, Jr. |
| Court | Louisiana Supreme Court |
Reed, Reed & Reed, Floyd J. Reed, New Orleans, for plaintiff-applicant.
Sydney J. Parlongue, Philip R. Riegel, Jr., New Orleans, for defendant-respondent.
We are required to determine whether a district court or a juvenile court has jurisdiction to adjudicate the status and custody of two children under seven years of age when a neglect complaint is made by a grandparent and there has been no prior judicial determination of custody between the divorced parents.
These very young children are the issue of a marriage between Eileen Reed and Joseph Folse Roy, Jr. The mother instituted a separation suit in July, 1969, in Orleans Parish where she and the children were domiciled, and she was awarded provisional custody. The children remained with their mother until February 5, 1971, when they were taken by their paternal grandfather, Joseph Folse Roy, Sr., from the domicile of the mother in Jefferson Parish. On February 9, 1971, the paternal grandfather filed suit in the District court for the Parish of Jefferson alleging that the children were neglected and that their mother was morally unfit to keep them, and praying for the permanent custody of the children. Personal service was had on the mother, but she failed to answer and never appeared in the proceedings. Meanwhile, the father of the children had obtained a default divorce judgment on his petition in Orleans Parish. The judgment was silent as to the children of the marriage. On March 10, 1971, by judgment of default in the Jefferson Parish district court the grandfather was given the permanent custody of the children.
On May 8, 1971, the mother, having remarried, filed a petition for writ of habeas corpus in the district court of Jefferson Parish seeking the custody of her children. The father of the children filed an intervention asking that he be given their custody if they were taken from the grandfather. At the suggestion of the district judge the mother also filed a rule for change of custody in the suit in which the grandfather had obtained custody, and these proceedings were consolidated for trial. The district court dismissed the writ of habeas corpus and awarded the grandfather custody of the children in conformity with its earlier decree. The Court of Appeal affirmed, 256 So.2d 705, and we granted certiorari.
The development of court jurisdiction over juveniles is pertinent to our determination of this case. Act 79 of 1894 created a new function for District courts of this state. It charged the judges of those courts, upon presentation by affidavit that parents or parent, tutor or other person having custody of a child endangered the physical or moral welfare of the child by neglect or abuse, to remove the child from that person and provide him with a home or other place for safekeeping for his best interest. Juvenile courts in Louisiana had their origin in 1908, when by a constitutional amendment such courts were established and given the power to declare children neglected and to commit them to institutions or to some citizen of good moral character. The Constitution of 1913, Article 118, retained the establishment of juvenile courts, but Act 201 of 1918, amending Article 118, declared that the provisions relating to their jurisdiction and powers Shall not be exclusive.
The Constitution of 1921, Article 7, Section 52, in its original form and as last amended, provides: 'There shall be a Juvenile Court for every parish of the State.' The judges of the district courts are made ex officio judges of the juvenile courts for the parishes where separate juvenile courts have not been established, and the juvenile courts are given jurisdiction '* * * of cases of the State of Louisiana in the interest of children under seventeen years of age, as may be provided by the Legislature, brought before said Courts as delinquent or neglected children * * *' and of '* * * all cases of desertion or nonsupport of children * * *'.
Under Act 79 of 1894 (former R.S. 9:551--553) the district courts and the juvenile courts had concurrent jurisdiction over the 'trial' of neglected children. That act, however, was repealed by Act 111 of 1956, so that after 1956 the district courts of Louisiana were divested of jurisdiction over 'neglected' children, and in matters concerning children were left with jurisdiction of only civil proceedings. Conversely, of course, a special juvenile court or a district court in session as a juvenile court could exercise the jurisdiction in matters affecting children specially accorded them by the Constitution and by legislative enactment.
As regards jurisdiction of the district courts in matters of child custody, Code of Civil Procedure Article 10 provides:
'(5) A proceeding to obtain the legal custody of a minor if he is domiciled in, or is in, this state;
'(7) An action of divorce, or of separation from bed and board, if one or both of the spouses are domiciled in this state and, except as otherwise provided by law, the grounds therefor were committed or occurred in this state, or while the matrimonial domicile was in this state.'
The two basic provisions of the Civil Code which set out the substantive law for custody matters in the district courts are Articles 146 and 157. 1 Their sources are Articles 267 and 302 of the Code Napoleon, respectively. However, our articles depart from their source provisions by deleting the right of the court to place the children with a third party upon petition by the mother, a relative, or the proper government official. 2 Thus it may be seen that in France it was specifically provided that third parties and the government had an interest in a proceeding for the custody of children upon the dissolution of marriage by divorce, and that the care and custody of such children could be placed in a third person. In Louisiana, however, under a literal reading of our Code, during the pendency of litigation for separation from bed and board or divorce or upon judgment of separation or of divorce, the court is empowered, perhaps mandated, to determine the custody of the minor children As between the parties, the parents.
Our law specifically recognizes the strong ties and the reciprocal obligations and rights of parents and children. Civil Code Article 227 states this principle very succinctly: 'Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children.' Following the Roman, the French, and the Spanish, our law recognizes paternal or parental authority and power as the bedrock of the relationship of parents and their children. La.Civ.Code Arts. 215--245. See 1 Domat, Civil Law in Its Natural Order (Strahan's tr. Cushing's ed.), Chapter III, § 3, pp. 13--15; 8 Dupin, Oeuvres de Pothier, Traite des Personnes et des Choses, Tit. VI, Sec. II; 1 Pt. 2 Planiol, Treatise on the Civil Law (La.State Law Inst. tr. 1959); §§ 1636, 1651, 1657, 1701; Las Siete Partidas (Scott's tr. 1931), Part IV, Titles 13, 17, 18, 19. The paternal authority terminates only upon the child's reaching majority or being emancipated (La.Civ.Code Art. 216), upon parental incapacity (La.Civ.Code Art. 221, C.C.P. Arts. 4501--02), upon death (La.Civ.Code Art. 250), upon the modification or cancellation of the marital contract (La.Civ.Code Arts. 146, 157, 250), or upon the deposition of a parent or both parents for neglect or abuse (R.S. 13:1570, 1580).
It is necessary to be constantly aware of the distinctions of paternal authority, custody, and tutorship. 3 There is a dissolution of paternal authority in all its aspects upon separation or divorce, just as upon the death of one of the parents. The primary interest on these occasions is to provide the minor children of the marriage with personal care and custody. The need for the immediacy of that determination can be contrasted with the less urgent need for determination of where to vest all of the attributes of paternal authority, where to vest the attributes of tutorship other than those involving the care of the minor's person. Determination of custody and care, especially in the case of the very young, is the decision affecting personal welfare, physical and mental wellbeing, and even life and death.
The original custody of a child who has not been adjudicated neglected or delinquent can be determined only in a civil proceeding between parents when both are living, in connection with an attack upon the marital contract or after dissolution of that contract. Since custody and care of children born of the marriage is such a vital part of the marital contract and since the marital contract is held inviolate from attack by anyone other than the parties to it (husband and wife), no other person can institute a civil proceeding for child custody while that contract exists. To allow such an attack would allow third parties to perhaps induce one of the parties to initiate a legal attack upon the marriage itself. Moreover, it would call upon a court to exercise paternal authority which then exists only in the parents. Until one of the parties attacks the marital contract, the State, through the judicial function, can interfere with that paternal authority only under the special laws defining neglect and delinquency; and then that function is assigned exclusively to the juvenile courts upon petition by the State in the interest of the child and not by petition of a third party in his own interest.
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