In Louisiana unemancipated minors lack the procedural capacity to sue. That authority falls to a “tutor.” For present purposes, we deal with the most commonly met scenario, where the tutor or tutrix is the minor’s father or mother, respectively. In Louisiana, this is generally called “tutorship by nature.” A tutor/tutrix is authorized to compromise an action or right of action, that is, to settle a claim, with court approval. This often requires that the father or mother formally qualify as tutor/tutrix which involves taking an oath and posting security, among other requirements. However, some of these requirements can be dispensed with if the minor’s property in Louisiana has a value of $50,000 or less, referred to as a “small tutorship.” Moreover, if the amount of the settlement is less than $10,000 actually received by the minor, notwithstanding court costs, attorney fees, and other expenses, formal qualification and court approval are not required.
As to who may compromise the claim, the father/tutor or mother/tutrix, Louisiana’s Civil Code sets forth several applicable circumstances. If the minor is born of the marriage and either parent is deceased, then the surviving parent may settle claims per La. C.C. art. 250. If the mother and father are divorced, and the minor was born of the marriage, then the parent under whose care the child is placed may settle the claim, unless there is a joint custody arrangement, in which case either parent has equal authority to settle unless modified by court order or agreement of the parties approved by court awarding joint custody.
Per La. C.C. art. 256, the mother can settle the claim by herself if the child is born outside of marriage and not acknowledged by the father or acknowledged by him alone without the mother’s concurrence. If the parents have joint custody of an acknowledged child born outside of marriage, then both parents have equal authority to settle, unless modified by the court order or agreement between the parents approved by the court awarding joint custody.
In light of the above, it is generally advisable to seek out information regarding any child custody arrangement and get a copy of the order settling custody between the parents, unless the father never acknowledged his child or the mother disputes parentage, and, in any event, court approval and formal qualification are generally necessary when settlements exceed $10,000 net to the minor.