46 La. Ann. 347 | La. | 1894
The opinion of the court was delivered by
The father and tutor of two minor children, one eight and the other six years of age, is defendant in a rule issued at the instance of their maternal grandmother to compel him to send his
She alleges that he arbitrarily, wantonly, maliciously and cruelly denies her the privilege of seeing her grandchildren, thus abusing "parental authority, controllable by the courts.
The defendant denies that he has refused to mover in rule the privilege of visiting- his children, and avers that he is willing that she shall visit his children. 1
The.judgment of the court a qua makes the rule absolute and orders the father to send the children to visit their grandmother, and further orders that the grandmother shall visit the children at their father’s home in alternate weeks on such days as the parties may agree, provided the visits do not in any manner interfere with the schooling of the children.
Before this court the appellant asks that her rule be made absolute, commanding the defendant to send the children to visit her without reference to any visit by her.
The appellee, in his answer to the appeal, prays for a,dismissal of the rule.
The mother of these children has been dead about six years.
They live with the father.
The relations between the son-in-law and mother-in-law are not only strained but acrimonious.
More than three years have elapsed since he has sent his children to visit their grandmother.
She has requested him, she testifies, to send them, but he failed to comply with the request.
The defendant’s household consists of his father and other members of his family. They and these children live at the same residence.
The relations of plaintiff with the members of the son-in-law’s family are not, it seems, of the most pleasant character.
The plaintiff by her testimony creates the impression that the coolness and feeling existing would render the visit anything but pleasant.
Moments with her grandchildren while on such visits which, under other'circumstances, would be highly enjoyed, at this time would possibly only cause irritation and bad blood.
■ Their differences are, we are led to believe, of an entirely personal
The plaintiff states as a witness that she does not entertain any objection on that score.
The witness testifies:
Q. “Have-you visited those children at the house of their father?”
A. “No sir.”
Q. “Why not?”-
A. “Why not! Because I thought that they should be sent,to see me, and not to go there and see them.”
Q. “ Why not call upon these children at the home of their father to see them? ”
A. “ Because I thought it was proper to send them to me.”
Q,. “Is that the only reason? ”
A. “ That is my reason that I wish to give.”
Q. “ Do I understand you, then, as refusing to visit those children at the home of their, father? ” - ■ •
A. “No sir; I don’t refuse, but I have other reasons. I may be wrong, but at the same time I have never visited the Bolling family, and I didn’t think it was my place to go to see those children there, as I think their place was to come to see me.”
When examinad as a witness the son-in-law, in answer to the question:
Q. “ Don’t you think that there is a law of nature-that children should visit their grandparents? ”
Answer. “ I think that’s right.”
Manifestly the difference between these parties is inconsiderable, and would not be sufficient to arrest attention, were it not that it affects the good relation and intimacy that -should prevail between these little children and their grandmother.
While we .appreciate the affection that moves her to seek the occasional company of the offspring of -her daughter, this court’s jurisdiction does not include the cause pleaded.
The issue is not incidental to any other cause. :
However disinclined we are .to discountenance causes of action such as the one under consideration — for they are inspired by a true and commendable impulse — we find no authority in law to entertain jurisdiction of the issue presented. The question involved -is res nova in this State.
They construe, under the articles of the Code, that the obligation involved in the case at bar, legal in so far as relates to the father and mother, is legal also in so far as relates to the grandfather and the grandmother, and that the court can intervene for its enforcement without regard to the will of the father or mother.
Other courts hold and other commentators emphatically state that, under the law of nature, the child is under the authority of the father or mother, after the death of either.
We translate from Laurent, Vol. 4, p. 362, who propounds the question:
Oan the ascendant demand that the authority of the father and mother be limited?
In truth, the ascendants have certain rights that the law, in accord with nature, gives them, but only when the father and mother are dead or are incapable of manifesting their will; during the existence of the father and mother the law, properly, accords them no authority over the children.
To permit them to intervene would occasion embarrassment and annoyance; even more; it would injuriously hinder proper paternal authority by dividing it.
The authority sought is said to be in the interest of the children.
Are the children interested in anything in the nature of a conflict of authority? Without doubt it is desirable that the ties of affection that nature creates between the ascendants and their grandchildren be strengthened and not unceasing, but, if there ;is a conflict, the father alone or the mother should be the judge.
The law gives no right of action to the grandparents.
The father may have good reasons to avoid all contact between his children and their grandparents, either that he fears that they may inculcate bad principles or that they will unsettle the respect and affection due him.
He owes no account to any one of his motives; they may be so intimate that the honor of the family requires that they shall remain a secret.
The court of Bordeaux replies that the intervention of the tribunals would, as a consequence, render the discussions of the family more pronounced by delivering them to the public.
Other views than those above expressed, says the commentator would be proper on the part of the legislator — we do not understand them when emanating from interpreters of the present laws.
We refer approvingly to the French authorities only in so far as •they lay down the-principles that there is not a vinculum juris. That the obligation ordinarily to visit grandparents is moral and not legal.
There may be cases of downright wrong and inhumanity demanding judicial intervention, even to the extent of dismissing the father •and tutor from his trust.
The case at bar does not disclose so grave an issue.
Ill feeling and bad blood separate the father and grandmother.
The former admits the respect due to the latter by his children.
The ties of nature will prove more efficacious in restoring kindly family relations than the coercive measures which must follow judicial intervention.
It is, therefore, ordered, adjudged and decreed that the judgment of the court a qua be annulled and avoided, and that the rule be ■dismissed at plaintiff’s costs in both courts.
Rehearing refused.
