Divorce and Paternity: Rights from the Biological Father’s Perspective in Louisiana

When thinking about establishing paternity of a child in the context of family law and divorce, the issue that most often comes up is for the non-biological father to disavow the child in order that he does not have to pay child support until eighteen (and sometimes even later, if the award was deemed in globo).  But, this presents only have of the picture because it can be very frustrating for a biological father who wishes to assert his rights as the father of the child if the law presumes otherwise.  If the proper procedures are not followed, a biological parent’s rights may suffer in favor of the legal father’s rights. We will begin our analysis with the U.S. Constitution and then turn to what Louisiana law says regarding the rights a biological father who has not filiated to his child has.

In the law, and sometimes in the context of divorce, when all else fails, you may have to turn to the U.S. Constitution to see what fundamental rights you have.  Unfortunately for biological fathers who are being deprived of their rights by state laws that are in favor of the legal father, there is court precedent by the U.S. Supreme Court stating that there are no constitutional protections limiting a state from having laws giving more rights to legal fathers as opposed to biological fathers.  This means that it is important to turn to state law to understand the rights that the biological father has versus the legal father.

While there is a lot of information regarding states leaning heavier on a biological connection versus who the legal parents are to determine the child’s parents, Louisiana is not always one of these states.  The most common way to be a legal father in Louisiana is not to disavow paternity of a child born within one year of the child’s birth or within one year in which the husband of the mother knew or should have known of the child’s birth.  (This is one of the reasons to get a divorce, instead of simply living separate from each other.)  In Louisiana, a biological father may lose some or all of his rights, if he does not make an attempt to establish his biological and legal relationship to the child within specified amounts of time. So, this means that if no action is done by either the biological father or the legal father and mother within the times established in Louisiana, there may be little to nothing that can be done to undo the loss of rights by the biological father in favor of the legal father.

However unfair this might be to the biological father and the legal father, the rationale for this rule is likely based upon the desire to support the marriage (and maybe, too, the family in the event of divorce).  In fact, in a 1972 ruling by the Louisiana Supreme Court, it noted that a husband had never been successful in disavowing paternity.  Obviously, the laws in Louisiana have relaxed some since 1972, but they are still restrictive.

Will Beaumont is a divorce lawyer in New Orleans. This article is informational, not legal advice.