The Problem of Legally Presumed Fatherhood...
Louisiana law provides certain presumption as to who is the father of a child. Any child born during a marriage to the child’s mother is presumed to be the child of the husband of the mother. However, our law goes a bit further to extend this presumption to any child born within 300 days from the termination of a marriage.
Here is a scenario: Jack and Jane physically separate on January 1, 2016. They have a child under the age of 18, so they are not eligible to finalize their divorce until at least January 1st of the following year. In September, Jane commences a dating relationship with Bob. In spite of all precautions, in late November, Jane conceives a child with Bob. Jack and Jane are divorced on January 18, 2017. On January 30, 2017, Jane discovers she is pregnant with Bob’s child. She and Bob go their separate ways. Jane and Bob’s baby is born on July 25, 2017. Thus, 189 days have elapsed from the time Jack and Jane were divorced and the birth of Jane’s baby. Under Louisiana law, Jack is legally presumed to be the father of Jane’s baby even though they have been separated since January 1, 2016.
To most people, this scenario seems terribly unfair to the former husband. However, he is not without remedies. A man who is affected by this type of scenario must file an action to disavow paternity. The proceeding will involve collecting DNA samples from the alleged father, mother, and child for testing. If the former husband is not the father of the child, the DNA testing will exclude him from being the father, and the court will render a judgment declaring he is not the father of the child, thus releasing him from any further legal liability associated with the child.
Disavowal actions do not just involve the scenario of a child conceived after the parties have separated and/or divorced. A husband whose wife conceives a child by an adulterous relationship during the marriage can disavow paternity of the child even if the adulterous relationship doesn’t result in the termination of the marriage.
Time is of the essence in filing a disavowal action. The husband or former husband must file a disavowal action within one year of the date of the birth of the child. If the husband and wife were living separate and apart for a period more than 300 days prior to the birth, then the alleged father must file the disavowal action within 1 year from the date he was notified in writing that someone has asserted he is the father of the child. Failure to file a disavowal action within these time periods will result in the presumed father being “on the hook” for the rest of his life.
If you or someone you know is affected by one of these scenarios, it is important that you consult with an attorney to protect your rights. We are here to help you through these types of problems.