In this writ application, the mother of two minor children and their adoptive father challenge the family court's denial of a peremptory exception raising the objection of no right of action as to the maternal grandparents' petition for visitation with the children. For the reasons that follow, we grant the writ application, reverse the judgment of the family court, and render judgment sustaining the objection of no right of action and dismissing the maternal grandparents' petition.
It is alleged in the pleadings of record that Lauren Marino Francis Kay and Jeffery Scott Francis were married in March 1999. During the marriage, Mr. Francis adopted Lauren's son from a prior relationship and the two had a daughter born of the marriage. The marriage ended in divorce by judgment signed March 30, 2009, with Lauren and Mr. Francis being awarded joint custody of the children. On May 9, 2009, Lauren married Shiraz K. Kay.
On August 11, 2010, Lauren's parents, Lawrence and Paulette Marino, filed a petition to establish grandparents' visitation rights in the ongoing custody proceeding between Lauren and Mr. Francis. After the Marinos' petition was filed, but before Lauren was served, Mr. Francis's parental rights were terminated by judgment of the Juvenile Court of East Baton Rouge Parish, and the children were adopted by Lauren's new husband, Shiraz. Thereafter, Lauren excepted to the petition for grandparent visitation on the bases of no cause of action and no right of action.
Lauren and Shiraz Kay ("the parents") filed the present application for supervisory writs, seeking review of the family court's denial of the peremptory exception raising the objection of no right of action. We granted a writ of certiorari and now exercise our supervisory jurisdiction to consider the correctness of the family court's decision.
Generally, an action can only be brought by a person having a real and actual interest that he asserts. La.Code Civ. Proc. Ann. art. 681. The function of a peremptory exception raising the objection of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Reese v. State, Dept. of Public Safety & Corrections, 03-1615 (La.2/20/04), 866 So.2d 244, 246. The exception assumes that the petition states a valid cause of action for some person and tests whether the plaintiff has an interest in judicially enforcing the right asserted. Louisiana State Bar Ass'n v. Carr and Associates, Inc., 08-2114 (La. App. 1 Cir. 5/8/09), 15 So.3d 158, 165, writ denied, 09-1627 (La.10/30/09), 21 So.3d 292.
In this case, the Marinos seek visitation rights under Louisiana Civil Code article 136. Article 136 provides that under extraordinary circumstances, relatives by blood or affinity not granted custody of the children may be granted reasonable visitation rights when the court determines it to be in the children's best interests. The parents contend, however, that because
Children's Code article 1256 addresses the effect of a final adoption decree, stating:
C. If the adoptive parent is married to a blood parent of the adopted child, the relationship of that blood parent and his blood relatives to the adopted child shall remain unaltered and unaffected by the adoption.
(Emphasis added.)
Here, the adoptive parent is married to the children's mother, a blood parent of the adopted children. Article 1256 specifically provides that the relationship of the blood relatives to the adopted children remains unaltered and unaffected by the adoption. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of legislative intent. In re Clegg, 10-0323 (La.7/6/10), 41 So.3d 1141, 1154. The family court correctly recognized that the clear and unambiguous language of Article 1256 does not foreclose any rights to visitation that grandparents may have pursuant to other authority, such as Civil Code article 136. Cf. McMillin v. McMillin, 08-502 (La.App. 3 Cir. 3/25/09), 6 So.3d 414, 418 (wherein the court was presented with a different factual situation than is evidenced here, but noted "[t]hough this court is well aware of the legal effects of an adoption, a subsequent adoption neither nullifies nor negates the provisions of [Civil Code article] 136(B), which is the last legislative pronouncement addressed to that issue"). Thus, the parents' argument that the Marinos' petition must be dismissed because they do not have a right of action under Article 1256 is without merit.
The parents further contend the trial court erred in its determination that the Marinos have a right of action under Article 136, which pertinently provides:
Article 136 appears in the section of the Civil Code on child custody.
It is presumed that every word, sentence, or provision in a law is intended to serve some useful purpose, that some effect is given to each such provision, and that no unnecessary words or provisions were employed. McGlothlin v. Christus St. Patrick Hospital, 10-2775 (La.7/1/11), 65 So.3d 1218, 1227-28. The judiciary is bound, if possible, to give effect to all parts of legislation and to construe no part thereof meaningless and surplusage if a construction giving force to and preserving all words can legitimately be found. Id.
The possible award of visitation rights afforded by Article 136B is limited to a nonparent person
In this case, the mother and adoptive father are the custodial parents. There has been no custody dispute in which the family court determined that the parents should not be awarded custody and custody was awarded to a nonparent pursuant to Article 133. Absent such, the Marinos do not meet the requirement of having not been granted custody of the children, and therefore do not belong to the class of persons to whom Article 136B grants the right of action for visitation. This construction is consistent with the United States Supreme Court's pronouncements regarding a fit parent's constitutionally protected fundamental right of privacy in child rearing, as well as the established legal principle that any rights of a nonparent are ancillary to that of a fit parent. See Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Wood v. Wood, 02-0860 (La.App. 1 Cir. 9/27/02), 835 So.2d 568, 574, writ denied, 02-2514 (La.3/28/03), 840 So.2d 565.
For the foregoing reasons, the application for supervisory writs is granted and the judgment of the family court denying the peremptory exception raising the objection of no right of action is reversed. Judgment is rendered sustaining the peremptory exception raising the objection of no right of action and dismissing the Marinos' petition to establish grandparents' visitation rights.
HIGGINBOTHAM, J., concurs.