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Paternity in Louisiana
Men can face unique challenges when it comes to family law issues. For example, fathers may need to establish paternity in order to obtain custody or visitation rights. A mother may need to establish paternity in order to secure child support. In other cases, an ex-husband may need to disavow paternity after a child is born due to an extramarital affair. Legal fatherhood and biological fatherhood are not always synonymous. A man may be the biological father, but not yet deemed the legal father, and vice versa. If you are in need of establishing your rights as a father or need to avoid the obligations of another man, our father’s rights attorneys can help. Likewise, we also represent unwed mothers who need to establish paternity prior to pursuing child support.
Filiation is the link between the parents and the child. Paternal filiation is not as straight forward as maternal filiation. Paternal filiation is established by legal presumption through marriage, by formal acknowledgement, or by judicial proceeding. Per La. Civ. Code art. 185, the husband of the mother is presumed to be the father of a child born during the marriage or within three hundred days from the date of the termination of the marriage. This law assumes that most of the time a married woman’s husband is the father of the child. This is a presumption rooted in marriage.
Per La. Civ. Code art. 196, a man may formally acknowledge a child not filiated to another man. The acknowledgment creates a presumption that the man who acknowledges the child is the father. The acknowledgment must be by authentic act, but previously could also be done by signing the birth certificate. This is a presumption not rooted in marriage.
It is also possible to establish paternity by means of proof offered in a judicial proceeding. Proof can include testimony, but in most instances the testimony must be corroborated with physical evidence such as a DNA test. This can be done by a suit by the child or by the father to establish the father’s paternity. Because child support is owed to the child and not the mother, a mother might bring a suit on behalf of the child to establish paternity as a prerequisite to enforcing child support. A child may also bring the suit for succession purposes. A father might file a paternity suit as a prerequisite to obtaining custody rights.
Under La. Civ. Code art. 197, a child may institute an action to prove paternity even though he is presumed to be the child of another man. If the action is instituted after the death of the alleged father for succession purposes, a child shall prove paternity by clear and convincing evidence within one year from the date of death of the alleged father. For child support or other purposes, this action can be brought any time. Interestingly, under this article a child could have two legal fathers; Louisiana is the only state that allows this.
Under La. Civ. Code art. 198, a man may institute an action to establish his paternity. If the child isn’t already filiated to another man, it can be brought at any time. If the child is already filiated to another man, it must be brought within one year of the child’s birth unless the mother deceived the father in which case he has one year from learning of the possible paternity or ten years from birth, whichever occurs first.
Under La. Civ. Code art. 191, the mother of a child may institute an action to establish both that her former husband is not the father of the child and that her present husband is the father, but only if the present father has formally acknowledged the child. This situation would arise when a child is born less than 300 days after the divorce from the first husband but before the second marriage. In this instance, the child would be legally presumed to be the first husband’s child, and art. 191 provides a for the parents to correct that presumption.
The presumption of paternity may be rebutted by clear and convincing evidence in a disavowal action. Sadly, it is common for men who are legally presumed to be the father of a child either by marriage or formal acknowledgement, to learn later that they are in fact not the biological father. This can be heart-wrenching if a man spent years raising a child as his own, and in many instances a man may choose not to disavow. However, extramarital affairs happen and they often immediately lead to divorce, and if a man wants to avoid paying child support for a kid that isn’t biologically his then he must file a disavowal action. There are strict time limits to file such an action in most cases, so it’s crucial to retain a family law attorney as soon as you suspect you are not the father.
Under La. Civ. Code art. 187, the husband may disavow paternity of the child by clear and convincing evidence that he is not the father. The testimony of the husband shall be corroborated by other evidence, meaning a negative DNA test or proof of sterility is necessary. Per La. Civ. Code art. 189, the husband must bring this action within one year of the birth or one year of learning that he may not be the father, whichever occurs later.
It is less clear when a father wishes to disavow after formally acknowledging a child. The comments to art. 196 make mention of a rebuttal to the presumption, which implies a disavowal action may be brought. This comment also mentions there is no time limit. Further, a formal acknowledgement may be rescinded under La. R.S. 9:392(A)(7) within 60 days of the authentic act or before a judicial hearing related to the child, whichever occurs first.
The family law attorneys at Bowes, Petkovich & Palmer, LLC are highly experienced at handling paternity matters in the New Orleans and surrounding areas. Call us today for a free consultation.
Bowes, Petkovich & Palmer, LLC
2550 Belle Chasse Highway
Gretna, LA 70053
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