LEGAL CORNER: Are balloon releases legal in Louisiana?

LEGAL CORNER: Are balloon releases legal in Louisiana?
(Source: KPLC)

(KPLC) - Submit your questions to Civil matters only, please.

QUESTION: I have partial custody of my son. The biological dad was granted weekly visitations but has since moved states away and hasn't seen my son in over three years. I'm worried that he would one day try to come back and the school will release my son because of the court order.

I was also wondering if it's possible for my husband to adopt my son without the biological dad's consent? He wants the same last name as my husband.

ANSWER: You have grounds to be concerned because until the court order is changed, he retains some custody rights. So, you should either file for a modification of custody or move to have your husband adopt him.

The first consideration is whether or not the absent parent will consent to the adoption. If consent is granted, the adoption can go forward. If the absent parent objects, the Children's Code Art. 1245 lists two grounds in which a contested adoption can be granted: (1) the parent has refused or failed to comply with a court order of support without just cause for a period of at least six months, or (2) the parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months.

It should be noted that since this is referred to "intrafamily adoption," the adopting parent has to be married to the natural parent, not just in a relationship with that parent, so your husband should qualify.

QUESTION: My neighbor recently passed away, and I have been passing over his property for 17 years. I am not sure if the heirs will allow me to continue to do this. Have I earned any rights to this?

ANSWER: Question to you: was the initial right by verbal agreement? Normally, verbal agreements regarding immovable property are not binding. So, any verbal permission can be withdrawn. But there may be other legal grounds for exercising that right of passage. Additional information would be helpful: (1) is the right of passage in the deed? (2) are you completely landlocked (no access to your property except over other's property)?

If the right of passage is in the deed to the property, then that right is considered "by title" and permission to cross is not necessary.

If it is not in the deed, but the viewer has no access to the property, they are entitled to access: Civil Code Article 689. Enclosed estate; right of passage

"The owner of an estate that has no access to a public road or utility may claim a right of passage over neighboring property to the nearest public road or utility."

Note, it is not free, the owner of the neighboring property is entitled to compensation as well as payment for any damages caused by the use of the right of passage.

So, it is not entirely clear if the road mentioned is the shortest route to the nearest public road, but in considering the location of a servitude, courts have often granted a path that has been in use, rather than granted a servitude establishing a new path.

Some rights of passage can be acquired over time, but with no written recognition of the right (not recorded in the title), the time period of passage before that right is acquired is 30 years, see Civil Code Article 742. However, in the recently decided Boudreaux v. Cummings, 2014-C-1499, the Louisiana Supreme Court declared that the possession with permission does not count toward acquisitive prescription.

QUESTION: I saw an article about the dangers of balloon releases to animals. Since we have so much wildlife here, are there any laws that regulate these releases?

ANSWER:  Actually, laws banning mass balloon release are becoming fairly common. You can currently find balloon release laws in the following states: California, Connecticut, Florida, Tennessee, and Virginia. Several cities have also enacted bans, the notably larger ones being Louisville, Kentucky, San Francisco and Baltimore, Maryland.

There are different approaches to the bans – some cities forbid the release of balloons made from a material that conducts electricity; some cities require balloons be made from biodegradable material. Florida law states, just as the viewer noted "Legislation finds the release … poses a danger to the environment, particularly to wildlife and marine animals." Nantucket, Massachusetts bans the "sale of any type of balloon"!

So, you can contact the city, parish or your state elected officials and ask them to consider drafting some legislation against balloon releases.

Disclaimer: The information furnished in this answer is general and may not apply to some situations. All legal situations are unique. No one should rely to their detriment on these answers. Anyone with a potential legal problem should seek the advice of a licensed attorney before taking any action or inaction. The answers provided are not intended to be specific legal advice and no attorney-client relationship is created between the SWLA Law Center and the viewers of KPLC-TV.

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