Divorce Lawyer Discusses Louisiana Paternity

In the modern era of talk shows and reality television, the general public has become inquisitive and often times eager to know the paternity of a child.  The phrase "who's my baby daddy?" has become an understood phrase.  While the general public may be engaged in such observation out of pure entertainment, the issue of paternity is a very serious matter for all the parties that are involved. In Louisiana, one must know the legal definition of filiation before proceeding to a full understanding of paternity, and a divorce lawyer should be able to help you with this.

Filiation is defined as the legal relationship between a child and his parent. For obvious reasons, proof of maternity is really not that difficult to establish nor is it a hotly contested issue. Nonetheless, Louisiana has codified provisions to establish maternity should that need arise. Louisiana Civil Code Article 184 states that "maternity may be established by proof that the child was born of a particular woman. The mother must prove maternity by a preponderance of the evidence, which should not be difficult to do with the help of a divorce lawyer.

Now we move on to the discussion of paternity. Louisiana Civil Code Article 185 states, "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." So what does this mean? Let's use a hypo. For example, Big Henry and Big Burtha get married at the local buffet. Big Burtha has been having an affair with Timid Tim. Big Burtha gives birth to Timid Tim's child, Little Lee, during her marriage with Big Henry. Because Big Burtha is married to Big Henry at the time of the birth of Little Lee, Big Henry is presumed Little Lee's father.

So one may ask how in the world is Big Henry suppose to prove he is not the father.  Good question. The husband of the wife may file a disavowal action. This action can only be filed when the man and the mother are married. Louisiana Civil Code Article 187 states that the husband may disavow paternity of the child by clear and convincing evidence that he is not the father. The testimony of the husband must be corroborated by other evidence. For example, husband can't simply say to his divorce lawyer "that ain't my kid" and produce nothing more. The husband is not required to testify but if he so chooses, his testimony must be corroborated with other types of evidence such as scientific or medical evidence. Examples of this include DNA tests, blood tests, or even the physical impossibility of the kid resembling the husband.

The husband must act fairly prompt in order to file a disavowal action. Louisiana Civil Code Article 189 states that the husband presumed to be the father must file suit to disavow within one year after he learned or should have learned of the birth of the child. If the husband dies, the time limitations apply to the heirs of the husband.

The time limitation is very important because the presumption becomes non-rebuttable even if another man is later proved to be the father. A contestation action is a new action which can only be brought by the mother of the child to prove his or her filiation. The mother can file an action to prove that the former husband is not the father and that her present husband is the father only if the present father has acknowledged the child by authentic act or has signed the birth certificate. The mother has the burden of proof by clear and convincing evidence, and, for this, a divorce lawyer should be quite helpful. The action must be instituted by the mother within 180 days from the marriage to her present husband and within two years from the birth of the child. See Louisiana Civil Code Article 193.

The above article is informational.  It is not professional legal advice, so please do not view it as such.  Will Beaumont is an attorney and is only licensed in Louisiana.  He has an office in New Orleans and has an office in Metairie.