Grandparents' Rights in Louisiana
Three statutes govern in Louisiana, making it one of the trickier systems to navigate. Upon closer study, however, the three statutes fulfill distinctly different purposes.
When Normal Avenues Are Closed
The first of Louisiana's statutes is known as R.S. 9.344. It is intended for grandparents who have lost the normal avenue of seeing a grandchild, which is through their child who is the grandchild's parent.
This statute provides for visitation if the parent who is the child of the grandparent is deceased, or has been "interdicted," meaning declared legally incompetent. In the case of death or incarceration, visitation may be granted even if the parents of the child lived "in concubinage," that is, are unmarried. These rights also extend to siblings of the children involved.
Visitation may also be possible if the parents of the child are legally separated or living apart for a period of six months.
This statute protects the to determine who can see their children. As always, the court "in its discretion" must consider the . See R.S. 9:344.
To Preserve Relationships
A separate statute, Article 136 of the Civil Code, also addresses the topic of visitation rights. These rights are available to relatives by blood or affinity, including but not limited to grandparents, when "extraordinary circumstances" exist.
The only "extraordinary circumstance" that is specified is if the court determines that "a parent is ."
Before granting visitation under Article 136, the court must consider the longevity and quality of the relationship; the relative's ability to provide needed guidance; the preference of the child, if the child is able to express a preference; the relative's willingness to promote the child's relationship with the parent; and the mental and physical health of both the child and the relative.
See Article 136.
If Statutes Conflict
The difference between these two statutes is readily discernible. R.S. 9:344 is clearly aimed at families in distress, with the unstated goal that the grandparent may be needed to see that the grandchild is cared for and provided for. Article 136 is designed to promote the continuity of relationships in a child's life. If the two statutes are in conflict, the provisions of R.S. 9:344 supersede Article 136, which makes sense as the first is geared toward protecting the child.
Visitation After Adoption
The final statute which is applicable has a narrower focus. Article 1264 of the Children's Code decrees that grandparents lose visitation rights in the case of adoption unless the grandparents are the parents of a deceased parent or a parent who has forfeited his or her right to object to adoption. See Article 1264.
Louisiana Case Law
In 2000 the U.S. Supreme Court handed down a landmark decision in . This decision states that there is a presumption that fit parents make decisions that are in the best interests of their children. In order to win visitation with grandchildren, grandparents must overcome that presumption.
Following the Troxel decision, many state laws were challenged as unconstitutional because they did not give special weight to the parents's decisions.
The Louisiana courts did not find that their statutes were unconstitutional, but they considered and cited Troxel in many post-2000 court cases, including the following:
- In (2001) the constitutionality of R.S. 9:344 was challenged, but the First Circuit Court of Appeals upheld the statute. It found that Louisiana's law was substantially different from the Washington State law that was dismantled in Troxel v. Granville.
- In (2002) the First Circuit Court of Appeals heard a case in which grandparents, who had already been awarded visitation, were given a extra week in the summer. The court reversed the award of summer visitation, saying that the burden of proof had wrongly been placed on the parent, to show that visitation would be detrimental. Troxel clearly states that the burden of proof is rightfully placed on the grandparents, to show that lack of visitation would be detrimental.
- In (2002), the Third Circuit Court of Appeals declined to consider the constitutionality of the Louisiana statutes. Because the parents in the case were still together, the court found that R.S. 9:344 did not apply. Additionally, the court found that there had been no evidence of "extraordinary circumstances" as required by Article 136. Since neither statute was applicable, the case did not trigger a constitutionality test.
- In (2002) the Third Circuit Court of Appeals preserved visitation awarded to grandparents whose son was incarcerated. As in Galjour v. Harris, the court found that R.S. 9:344 passed muster because it was more narrowly drawn than the Washington State statute considered in Troxel.
- In (2007) the First Circuit Court of Appeals stripped grandparents of their visitation time, saying that Article 136 was not intended to be a vehicle for grandparents to sue their own child. The court furthermore found that no "extraordinary circumstances" had been demonstrated. Most importantly, the justice writing the opinion writes that he found "this case to present the type of circumstances envisioned in Troxel when the Court again rejected state-court interference with parenting decisions."
The conclusion that can be drawn from the preceding cases is that R.S. 9:344 can be considered constitutionally sound because the "extraordinary circumstances" are mostly built in. The death, incarceration or interdiction of a parent can be considered "extraordinary." The constitutionality of Article 136 is much less certain, since it is broader and the "extraordinary circumstances" that might apply are not spelled out. It is possible that its constitutionality may be successfully challenged in the future.
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