Presumption Junction: Honey, You Weren't Part of the Function - A Louisiana Mother's New Right to Contest Her Husband's Paternity

AuthorLucie R. Kantrow
Pages633-669

Presumption Junction: Honey, You Weren't Part of the Function1-A Louisiana Mother's New Right to Contest Her Husband's Paternity

Page 633

I Introduction

In the midst of a divorce, Kassie Cravens sought to prove that Chad, her soon-to-be ex-husband, was not the father of Jon Michael Cravens, her three-year-old son, born during the first few months of their marriage. Aware that the child's biological father desired no relationship with Jon Michael, she had refrained from filing any previous paternity action. Now though, as Mr. Cravens sued her for a divorce, seeking interim alimony and permanent legal custody of Jon Michael, she counterclaimed for custody, challenging his paternity. The trial court granted her motion for a DNA test and Mr. Cravens obliged with a sample. As Mrs. Cravens expected, the DNA results admitted into evidence did in fact exclude him as the child's biological father. But in seeking custody, Mr. Cravens maintained his status as Jon Michael's legal father. Mrs. Cravens conceded not only that Mr. Cravens was a good father, but also that it would not be in Jon Michael's best interests to sever their relationship. Entering a final divorce judgment and awarding the Cravens joint legal and physical custody, the trial court declined to hold that the DNA evidence rebutted the presumption under Alabama statutory law2 that Mr. Cravens, Mrs. Cravens's husband at the time of Jon Michael's birth, was the child's father.

The appellate court rejected Mrs. Cravens's arguments that she had standing to challenge Mr. Cravens's paternity and that the trial court erred in holding the marital presumption of paternity irrebuttable despite DNA evidence to the contrary. Because Mr.Page 634 Cravens "persisted in asserting his paternity," the court said Mrs. Cravens lacked standing to challenge such paternity.3

Such were the facts of a recent Alabama case.4 The Alabama Court of Civil Appeals affirmed the holding that a presumption of paternity, persistently asserted by the presumed father, outweighed scientific evidence demonstrating a high probability that Mr. Cravens was not Jon Michael's biological father.5 Considering the outcome in light of its social and legal ramifications, an illogical consequence of the decision is apparent. While the decision protects the child from being deprived of a legal father, the court held that a mother lacked standing to challenge the presumption of paternity, despite scientific evidence disproving it. A husband can render the presumption irrebuttable simply by his act of will, i.e., by persisting in asserting it. What makes the decision of the Alabama court significant is that it prohibits a wife, the mother of a child born during marriage, from severing the child's legal relationship with her husband.

The effect of such a decision in a Louisiana court would mean that Mr. Cravens will pay child support until Jon Michael reaches eighteen,6 with corresponding custody and visitation rights,7 which are entitled to constitutional protection.8 His authority as father will be subject, of course, to the limitations of the custody order, but he can continually, as the mother may, have the order modified.9 If Mrs. Cravens remarries, her new husband will need Mr. Cravens's consent to adopt.10 Additionally, the obligation that Mr. Cravens has as the father to support Jon Michael beyond the age of eighteen, although diminished, would continue until hisPage 635 death; Jon Michael, too, has such an obligation to his father.11

Furthermore, in Louisiana, Jon Michael would not only be an intestate heir12 of his father, but also a forced heir,13 entitled to a reserved portion of Mr. Cravens's estate until his twenty-third birthday,14 despite any will or testament of Mr. Cravens to the contrary. The decision demonstrates that one's inability to contest paternity, as well as any judgment concerning it, is an issue of enormous importance, with lifelong ramifications for Mr. and Mrs. Cravens and Jon Michael.15

Indeed, had the Cravens' divorce proceedings instead unfolded in a Louisiana court, the court would have reached a similar result, for until the summer of 2005, a mother had no legal right to challenge the marital presumption. However, as a part of the comprehensive revision of the laws on filiation passed in 2005,16 a revision significant in itself, the Louisiana Legislature created a mother's right to contest and establish the paternity of her child.17

It has thus provided a mother with a means, albeit limited, of rebutting the marital presumption.18 This in turn affects the legal rights and obligations of both the wife's former husband and the child. In the official comments to the new articles, the legislature asserts that the purpose of the new right is to align the child biologically within a married, intact family.19 But, given the requirements of the new contestation action, Mrs. Cravens'sPage 636 fortune in a Louisiana court would ultimately be the same, though not for the same lack of standing as in Alabama.

With the facts and fate of the Alabama case in mind, this comment focuses on Louisiana's new legislation affording a mother the right to contest and establish the paternity of her child. It strives to explicate the laws in a manner sufficient to reveal their origin, meaning, and impact on a similar situation. Part II of this comment provides an historical background on the marital presumption found in Louisiana's pre-existing filiation law and the heretofore limited, but incrementally expanding, means of rebutting that presumption. This exegesis will highlight the novelty of the mother's right. Part III explores the purpose of the new law by comparing foreign and domestic sources containing a similar right, some of which are more permissive and others more restrictive than Louisiana's. Part IV examines new Louisiana Civil Code articles 191 through 194, looking in detail at the statutory requirements of a mother's contestation action. It also anticipates that the interpretation of some requirements of the new articles-the burden of proof, authentic act, and evidentiary standard-may undermine the intended rigidity of their application, but will still serve the purpose of aligning the child within an intact family. Part V assesses how the new law, a right provided to the mother, accomplishes its inherent objective of serving the best interests of the child. Finally, Part VI concludes by reiterating that, although article 191 is pioneering and positive in the legal capability it affords a mother, her ability to act is intended to be a limited one for the sake of the child.

II Background: Rebutting the Marital Presumption Prior to 2005

Legal filiation is the fact of biological parentage.20 To establish filiation, or paternity, as it is called from the father'sPage 637 perspective, is to demonstrate a biological connection.21 As noted, the significance of determining filiation lies in accompanying rights and obligations.22 Before undergoing a revision in the summer of 2005,23 Louisiana's law on filiation consisted of Civil Code articles 178 through 211.24 Of relevance in this comment are the articles providing for the presumption of paternity25 and the restricted means by which a husband or his heirs or legatees could rebut the presumption and disavow26 a child, in effect severing any legal recognition of a biological tie, as well as all related rights and obligations between a father and child.27

Historically, a child born out of wedlock had few, if any, rights and obligations with respect to his mother and father.28 If legitimate-born of the marriage-the child enjoyed complete protection afforded by the rights and obligations confined to the marital family.29 Thus, the pre-existing filiation articles andPage 638 related provisions were principally geared towards privileging the family unit anchored in marriage. One of the means of privileging marriage over other intimate relationships was to favor the husband as father of the child through a presumption of paternity. The law reflected confidence that because only spouses owe each other the legal obligation of fidelity-to refrain from sexual intercourse with another and to satisfy the reasonable sexual desires of the other spouse30-they did in fact honor these obligations. As a consequence, the presumption of the husband's paternity represented a reasonable assumption about the biological paternity of a child conceived or born during marriage.31

Jurisprudence attests that legislative and judicial concern in formulating and applying the filiation articles has long centered on the interests of the child. Rigorous application of the marital presumption in Louisiana demonstrated a judicial intent to avoid burdening children with the social and legal stigmas that accompany illegitimacy.32 Interpreting the legislation, courts have cited public policy concerns of "protect[ing] innocent children against attacks upon their paternity,"33 and "against bastardizing the innocent child,"34 as well as, historically, of maintaining and protecting the "legitimate" family unit.35Page 639

But rigorous application of the presumption, considered so strong that it was difficult, if not virtually impossible, to rebut, often resulted in absurd judicial decisions. In an effort to protect children legally and socially from stigma, courts deemed them legitimate despite strong, compelling evidence to the contrary. For instance, Succession of Saloy36...

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