Tutorship: How Your Child Can Be Protected by the Court.

child_stones_bank_out-scaledDivorce, though unpleasant in the short term, allows families to rearrange their relationship to better serve the interests of all parties. One primary consideration in any divorce is the children. The children’s health, safety, and well-being becomes a key concern for both the families and the courts when a family enters into a divorce. When parents get divorced, the court determines who assumes the tutorship of the child. The parent who is awarded this tutorship assumes all of the rights and responsibilities of raising the child, including the right to file a lawsuit in the child’s name. 

A person entrusted with the tutorship of a child can bring lawsuits in that child’s name that best serve the child’s interests. For an example, look to the case of Felisha Myers, mother of Brittany, who brought a lawsuit in Brittany’s name against the father of Brittany, Ricky Klump. Myers and Brittany alleged that Klump had injured Brittany on a road trip by repeatedly punching Brittany. The Fifteenth Judicial District Court entered a default judgment against Klump, awarding Brittany financial compensation for her pain and suffering and past and future medical bills. 

Klump appealed the default judgment to the Third Circuit Court of Appeals, alleging that Myer did not have the right to file the suit in Brittany’s name. Klump argued the record of the trial court did not have the necessary documentation to prove that Myer has the tutorship of Brittany, therefore, Myer could not file the lawsuit in Brittany’s name.

Tutorship of a minor child is a legal arrangement in which an adult assumes responsibility for the care, custody, and control of a minor child who is not their own. When parents get divorced, the tutorship usually goes to the parent who cares for the child. LA Civ Code 250. A critical right of tutorship is the ability for the tutor to file lawsuits in the child’s name. LA Code Civ Pro 4061.1. A person entrusted with the tutorship of a child will usually have written documentation of that position, such as a court order. 

In this case, the district court entered a default judgment on Myer, which most likely means that Klump failed to appear at the hearing. By failing to appear, the district court entered the default judgment without obtaining proof of Myer’s tutorship of Brittany other than Myer’s testimony. The court of appeals does not usually hear new facts in a case, so they sent the case back to the trial court to allow Myer to present proof of her tutorship of Brittany. 

The person entrusted with the tutorship of a child is afforded the ability to administer the legal life of that child. Children cannot bring cases before the court on their own, but they still need the court’s protection. Therefore, one of the critical rights of tutorship is the ability to file lawsuits in the child’s name to serve their best interests. 

The case of Felisha Myers and Brittany exemplifies the importance of having proper documentation to prove tutorship. However, obtaining tutorship of a child is a fact-specific and procedurally complex matter that requires the expertise of a skilled lawyer. The right lawyer can help you secure that child’s future. 


Written By Berniard Law Firm Writer: Ethan W. Seitz

Additional Berniard Law Stories on Default Judgment Standards:  What are the Standards for Default Judgments in Louisiana?

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