How to Establish Your Rights as a Father in Louisiana
When determining whether you have rights as a father, you must first prove that you are the father of the child. There must be a filiation. Filiation is the juridical bond between the parents and the child. There are four main ways to provide proof of paternity that we will discuss here.
Proof of Paternity
(1) The Presumption of Paternity of the Husband,
(2) Disavowal of Paternity,
(3) Contestation, and
(4) Establishment of Paternity.
1. The Presumption of Paternity of the Husband
The husband of the mother is presumed to be the father of a child born during the marriage or within 300 days from the date of the termination of the marriage. If a child is born within 300 days from the day of the termination of a marriage and his mother has married again before his birth, the first husband is presumed to be the father. If the first husband, obtains a judgment of disavowal of paternity of the child, the second husband is presumed to be the father. The second husband may disavow paternity if he institutes a disavowal action within a peremptive period of 1 year from the day that the judgment of disavowal obtained by the first husband is final and definitive.
2. Disavowal of Paternity
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. The husband of the mother may not disavow a child born to his wife as a result of an assisted conception to which he consented. The action for disavowal of paternity is subject to a liberative prescription of one year. This prescription commences to run from the day the husband learns or should have learned of the birth of the child. If the husband lived separate and apart from the mother continuously during the 300 days immediately preceding the birth of the child, this prescription does not commence to run until the husband is notified in writing that a party in interest has asserted that the husband is the father of the child.
The mother shall prove by clear and convincing evidence both that her former husband is not the father and that her present husband is the father. The testimony of the mother shall be corroborated by other evidence. The action by the mother shall be instituted within a peremptive period of 180 days from the marriage to her present husband and also within 2 years from the day of the birth of the child. A judgment shall not be rendered decreeing that the former husband is not the father of the child unless the judgment also decrees that the present husband is the father of the child. The child will never be without a father.
4. Establishment of Paternity
A man may, by authentic act or by signing the birth certificate, acknowledge a child not filiated to another man. The acknowledgment creates a presumption that the man who acknowledges the child is the father. The presumption can be invoked only on behalf of the child. Except as otherwise provided in custody, visitation, and child support cases, the acknowledgment does not create a presumption in favor of the man who acknowledges the child. 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, a child shall prove paternity by clear and convincing evidence. For purposes of succession only, this action is subject to a peremptive period of one year. This peremptive period commences to run from the day of the death of the alleged father.
Written By: O’Neal Scott, Southern University Law Center, 3L