A. An unemancipated minor has no procedural capacity to sue.B. All persons having parental authority over an unemancipated minor must join as proper plaintiffs to sue to enforce a right of the minor, unless a joint custody implementation order otherwise applies. Nevertheless, with permission of the court, any person having parental authority may represent the minor whenever the other person having parental authority fails or refuses to do so.C. During tutorship, the tutor is the proper plaintiff to sue to enforce a right of the unemancipated minor.D. Notwithstanding the provisions of Paragraph A, B, or C of this Article, an attorney appointed by the court having jurisdiction over an unemancipated minor who is in the legal custody of the Department of Children and Family Services is the proper plaintiff to sue to enforce a right of an unemancipated minor. Upon application of the tutor or a person having parental authoritywho would otherwise be the proper plaintiff to sue pursuant to Paragraph B or C of this Article, the court shall appoint or substitute as the proper plaintiff the best qualified among the tutor, a person having parental authority, or theappointed attorney.
Revision Comments – 2015
(a) This Article changes the law in part. Under this Article, while the regime of parental authority is in existence, all persons having parental authority must join as plaintiffs to file suit to enforce the right of an unemancipated minor. Either parent during the marriage has parental authority of the child unless extraordinary circumstances exist, such as if one parent is mentally incompetent, committed, interdicted, imprisoned, or is an absent person. See C.C. Art. 232 (Rev. 2015). Additionally, an ascendant of the minor, other than the parent, who is awarded custody during the marriage of the parents, has parental authority. See C.C. Art. 234 (Rev. 2015). Therefore, under this revision, all persons having parental authority must be joined, but one person may act alone if extraordinary circumstances exist, see C.C. Art. 232, or with court approval when the other person fails or refuses to act. Under prior law, the father was the proper plaintiff to sue and only if the father was mentally incompetent, committed, interdicted, imprisoned, or an absent person was the mother the proper plaintiff to sue. See Article 683 (as amended prior to 2015).(b) The failure to join all persons having parental authority can be raised by the peremptory exception of nonjoinder of a party. See C.C.P. Art. 927.
