Transfer of parental authority to the surviving spouse after the death of the spouse to whom it was awarded

Facts

On 30 May 1972, the Civil Court of the District of Orbe pronounced the divorce of spouses R.G. and N. née P. and entrusted the three minor children to their father R.G. and awarded him parental authority. R.G. died on 24 June 1979. The Justice of the Peace of the Circle of Vallorbe, the guardianship authority, then appointed a guardian for the child A.G., the only one still a minor. On 16 November 1979, N.P. brought an action before the Civil Court of the District of Orbe to modify the divorce judgment, requesting the attribution of parental authority over her son A.G. The Justice of the Peace of the Circle of Vallorbe contested the jurisdiction of the Civil Court. The Cantonal Court of the Canton of Vaud finally denied the Civil Court of the District of Orbe the jurisdiction to hear N.P.'s request.

Considerations

The Federal Tribunal admitted N.P.'s appeal and annulled the judgment of the Cantonal Court. It considered that Art. 315a para. 3 CC, which empowers the guardianship authorities to modify the child protection measures ordered by the divorce judge, does not apply to the transfer of parental authority to the surviving spouse after the death of the spouse to whom it was awarded. This decision falls within the jurisdiction of the judge, pursuant to Art. 157 CC, which allows for the taking of measures required by new facts such as the death of one of the parents. The guardianship…