Glossae on the New Law of Filiation

AuthorJ. R. Trahan
PositionJames Carville Alumni Associate Professor of Law, Paul M. Hebert Law Center, Louisiana State University
Pages387-449

Page 387

Through the enactment of Act 192 of 2005 ("2005 Act 192"), effective June 29, 2005, and Act 344 of 2006 ("2006 Act 344"), effective June 13, 2006, the Louisiana Legislature comprehensively revised those parts of Louisiana's legislation that establish the law of "filiation by nature"1-Chapters 1, 2, and 3 of Title VII of Book I of the Civil Code as well as the correlative Civil Code Ancillaries. Like nearly all (indeed, all but one2) of the "comprehensive revisions" of the Civil Code that have been accomplished over the last three decades, this one ("Revision") grew out of the work of the Louisiana State Law Institute ("Institute"), more precisely, its Persons Committee ("Committee").3 Though the Committee had produced but a single projet ("Projet") for the Revision, the Projet, for reasons of legislative strategy, was later split into two parts, the first of which consisted of the proposed revisions to the Civil Code and the second of which consisted of the proposed revisions to the Civil Code Ancillaries. The former formed the basis for 2005 Act 192; the latter, the basis for 2006 Act 344.4

My aim in this article is to present to the reader the revised Civil Code articles and the most important of the revised Civil Code Ancillaries, with a view to assisting him in understanding how this new legislation does and does not "change the law." To this end, I shall follow a format for the presentation of revisions to the Civil Code that Dean Symeon Symeonides pioneered some years back and that I have since then followed,5 namely, that of (1) visually juxtaposing the texts of the new and old legislation, and (2) "glossing" (footnoting) the text of the old legislation or that of the new legislation, as might be appropriate, to signal what has been changed and what has not. In referring to the old and new legislation, I shall, following the practice first established by Dean Symeonides, use the abbreviations "OA" (old article) and "NA" (new article), respectively.Page 391

Tit. VII. Parent and Child Tit. VII. Parent and Child 6

Page 392

Chapter 1. Of Children in General 7
No corresponding chapter heading

Art. 178. Classification of children Children are either legitimate or illegitimate.
No corresponding article

Art. 179. Legitimate children Legitimate children are those who are either born or conceived during marriage or who have been legitimated as provided hereafter. No corresponding article

Page 393

Art. 180. Illegitimate children Illegitimate children are those who are conceived and born out of marriage. No corresponding article

Art. 181. Legitimation Illegitimate children may be legitimated in certain cases, in the manner prescribed by law. No corresponding article

Arts. 182, 183.8 Repealed by 1979 La. Acts No. 607 No corresponding articles

Page 394

No corresponding chapter Ch. 1. Proof of Maternity 9

No corresponding article Art. 184. Maternity10 Maternity may be established by a preponderance of the evidence that the child was born of a particular woman,11 except as otherwise provided by law.12

Page 399

No corresponding chapter Ch. 2. Proof of Paternity 13

Page 400

Art. 184. Presumed paternity of husband The husband of the mother is presumed to be the father of all children born or conceived during the marriage.
Art. 185. Presumption of paternity, date of birth A child born less than three hundred days after the dissolution of the marriage is presumed to have been conceived during the marriage. A child born three hundred days or more after the dissolution of the marriage is not presumed to be the child of the husband.
Art. 185. Presumption of paternity 14 of husband15 The husband of the mother is presumed to be the father of a child born during the marriage16 or within three hundred days from the date of the termination of the marriage.17, 18, 19

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Art. 185. Presumption of paternity, date of birth A child born less than three hundred days after the dissolution of the marriage is presumed to have been conceived during the marriage. A child born three hundred days or more after the dissolution of the marriage is not presumed to be the child of the husband.
Art. 186. Presumption of paternity, negation The husband of the mother is not presumed to be the father of the child if another man is presumed to be the father.
Art. 186. Presumption if child is born after divorce or after death of husband; effect of disavowal If a child is born within three hundred 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.20, 21If the first husband, or his successor, obtains a judgment of disavowal of paternity of the child,22 the second husband is presumed to be the father.23 The second husband, or his successor, may disavow paternity24 if he institutes a disavowal action within a peremptive period of one year from the day that the judgment of disavowal obtained by the first husband is final and definitive.25

Page 407

Art. 187. Action in disavowal, burden of proof The husband can disavow paternity of a child if he proves by a preponderance of the evidence facts which reasonably indicate that he is not the father. However, these facts must be susceptible of independent verification or of corroboration by physical data or evidence, such as scientific tests and verifiable physical circumstance of remoteness, including but not limited to any one of the following: (1) Negative blood tests. (2) Unmatched DNA prints. (3) Sterility. (4) Physical impossibility because of location during the time of conception. (5) Any other scientific or medical evidence which the court may deem relevant under the circumstances. Art. 187. Disavowal action; proof26 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.27

Page 409

Art. 188. Husband?s loss of right to disavowal A man who marries a pregnant woman and who knows that she is pregnant at the time of the marriage cannot disavow the paternity of such child born of such pregnancy. However, if the woman has acted in bad faith and has made a false claim of fatherhood to the marrying spouse, he may disavow paternity provided that he proves such bad faith on the part of the mother, and he proves by a preponderance of the evidence that the child is not his. If another man is presumed to be the father, however, then the provisions of Article 186 apply.28 The husband also cannot disavow paternity of a child born as the result of artificial insemination of the mother to which he consented. Art. 188. Disavowal precluded in case of assisted conception 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.29

Page 411

Art. 189. Time limit for disavowal by the husband A suit for disavowal of paternity must be filed within one year after the husband learned or should have learned of the birth of the child; but, if the husband for reasons beyond his control is not able to file suit timely, then the time for filing suit shall be suspended during the period of such inability. Nevertheless, the suit may be filed within one year from the date the husband is notified in writing that a party in interest has asserted that the husband is the father of the child, if the husband lived continuously separate and apart from the mother during the three hundred days immediately preceding the birth of the child. Art. 189. Time limit for disavowal by the husband30 The action for disavowal of paternity is subject to a liberative prescription31 of one year.32 This prescription commences to run from the day the husband learns or should have learned of the birth of the child.33 Nevertheless, if the husband lived separate and apart from the mother continuously during the three hundred 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.34

Page 413

Art. 190. Time limit for disavowal by heir or legatee If the husband dies within the delays for filing suit to disavow paternity without having instituted such action, an heir or legatee whose interest in the succession will be reduced shall have one year from the death or one year from the birth of the child, whichever is longer, within which to bring such an action. Nevertheless, the heir or legatee may file suit within one year from the date the heir or legatee is notified in writing that a party in interest has asserted that the husband is the father of the child, if the husband lived continuously separate and apart from the mother during the three hundred days immediately preceding the birth of the child. Art. 190. Time limit for disavowal by heir or legatee35 If the prescription has commenced to run and the husband dies36 before the prescription has accrued,37 his successor whose interest is adversely affected may institute an action for disavowal of paternity. The action of the successor is subject to a liberative prescription of one year. This prescription commences to run from the day of the death of the husband.38If the prescription has not yet commenced to run, the action of the successor is subject to a liberative prescription of one year. This prescription commences to run from the day the successor is notified in writing that a party in interest has asserted that the husband is the father of the child.39

Page 416

No corresponding subsection heading Subsection C. Contestation and Establishment of Paternity40

Page 418

No corresponding article Art. 191. Contestation
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