To Kill a Cuckoo Bird: Louisiana's Dual Paternity Problem

• Author: Henry S. Rauschenberger
• Position: J.D./D.C.L., 2017, Paul M. Hebert Law Center, Louisiana State University.
• Pages: 1177-1208

To Kill a Cuckoo Bird: Louisiana’s Dual Paternity

Problem

INTRODUCTION

In addition to being the favorite bird of European clockmakers,1 the

cuckoo is also what is known as a “brood parasite.”2 Cuckoos, rather than

building their own nests, seize control of the nests of other birds.3 The

cuckoo finds another bird’s nest and then, while the other bird is away,

lays its eggs in the nest.4 If the other bird fails to notice the deception, the

cuckoo’s egg will hatch and the cuckoo hatchling will take over the nest,

hoisting the victim bird’s eggs on its back and dropping them out of the

nest to their destruction.5 The unknowing victim bird will continue to care

for the cuckoo hatchling as though it were its own, nourishing the offspring

of the cuckoo who has harmed it so greatly.6 Even if the victim bird

discovers the deception, it is often compelled to continue to support and

nourish the young cuckoo under threat of attack by the parent cuckoo who

perches nearby.7

Much like the cuckoo’s victim, men in Louisiana are also deceived

into raising and supporting the biological children of other men and, even

if they discover the deception, are often compelled by the force of law to

continue to do so. In Louisiana, if a man is married to a woman who has

an affair with another man resulting in the birth of a child, the husband,

who is not the biological father of the child, will be presumed to be the

legal father of the child.8 If the husband does not take legal action to

disavow his paternity within one year of the child’s birth, even if he has

no reason yet to question his paternity, he will be considered the child’s

Copyright 2017, by HENRY S. RAUSCHENBERGER.

1. For a history of the cuckoo clock see Jimmy Stamp, The P ast, Pr esent

and Future of the Cuckoo Clock, SMITHSONIAN (May 17, 2013), http://www.smith

sonianmag.com/arts-culture/the-past-present-and-future-of-the-cuckoo-clock-65

073025/?no-ist [https://perma.cc/AL2F-4GNF].

2. Karl Schulze-Hagen, Bard G. Stokke & Tim R. Birkhead, Reproductive

Biology of the Europea n Cuckoo Cuculus Ca norus: Early In sights, Persistent

Error s and the Acquisition of Knowledge, J. ORNITHOLOGY, Jan. 2009, at 1, 1–2.

3. Id.

4. Id.

5. Id.

6. Rachael Winfree, Cuckoos, Cowbirds a nd the Persistence of Brood

Par asitism, 14 TREE 338, 338 (1999).

7. Id. at 340.

8. LA. CIV. CODE art. 185 (2017).

1178 LOUISIANA LAW REVIEW [Vol. 77

legal father and will be responsible for the child’s financial support.9 Even

if the biological father of the child is identified and made legally

responsible for the child, the legal father will remain legally responsible

as well because, unique amongst the states, Louisiana allows for a child to

have two legally recognized fathers through the doctrine of “dual

paternity.”10 Both the legal father and the biological father will be equally

recognized as the child’s father and dually responsible for the child’s

financial support.11

Dual paternity has been the subject of fierce debate in Louisiana12 and

across the United States,13 particularly when, as in the majority of

instances in Louisiana, it is forced upon the legal father due to the marital

presumption of paternity.14 The primary argument against the doctrine is

that it creates a “trifecta of insult and injury”15 to the wife’s husband, who

must now “suffer the betrayal by his wife, the shock of learning that his

child is not biologically his, and now, the indignity of being forced to

financially support a child born of his wife’s adultery.”16 In addition to this

inherent unfairness, the courts of Louisiana have been inconsistent in

dealing with the doctrine, particularly when it comes to the manner in

which they have allocated child support obligations between dual fathers.17

9. Id. art. 189 (2015).

10. Sandi Varnado, Who’s You r Daddy?: A Legitimate Question Given

Louisiana’s Lack of Legislation Governing Assisted Reproductive Technology, 66

LA. L. REV. 609, 628 (2006).

11. Melanie B. Jacobs, More P arents, More Money: Reflections on the

Finan cial Implications of Multiple Parenta ge, 16 CARDOZO J.L. & GENDER 217,

228 (2010).

12. Katherine Shaw Spaht, Who’s Your Momma, Who Are Your Daddies?

Louisiana’s New Law of Filiation, 67 LA. L. REV. 307, 321 (2007) [hereinafter

Who’s Your Momma?].

13. See Laura Nicole Althouse, Three’s Company? How American Law Can

Recognize a Third Social Par ent in Same-Sex Headed Families, 19 HASTINGS

WOMEN L.J. 171 (2008) (advocating the adoption of dual paternity and maternity

schemes nationwide).

14. See, e.g., Jacinta M. Testa, F inishing Off For ced Fa therhood: Does It

Really Matter If Blood or DNA Evidence Ca n Rebut the P resumption of

Pater nity?, 108 PENN. ST. L. REV. 1295, 1295 (2004); Melanie B. Jacobs, My Two

Dads: Disa ggregating Biological and Social Pater nity, 38 ARIZ. ST. L.J. 809, 810

(2006).

15. Rachel L. Kovac h, Sorry Daddy—Your Time Is Up: Rebutting the

Presumption of Pa ternity in Louisiana, 56 LOY. L. REV. 651, 653 (2010).

16. Id.

17. See, e.g., Dep’t of Soc. Servs. v. Williams, 605 So. 2d 7 (La. Ct. App.

1992); Dep’t of Soc. Servs. ex rel. Munson v. Washington, 747 So. 2d 1245 (La.

2017] COMMENT 1179

The Louisiana Supreme Court has clearly established the principle that a

biological father owes a duty of support to his biological child, even if

another man is the legal father of that child due to the presumption of

paternity.18 The Court has, however, specifically declined to answer the

question of whether the presumed legal father of the child also shares in

this obligation of support,19 leading to wildly varying decisions by lower

courts.20

Recently, in Department of Children and F amily Services ex rel. A.L.

v. Lowrie, the Louisiana Supreme Court answered a portion of the question

regarding the allocation of the support obligation between legal and

biological fathers in dual paternity situations.21 In Lowrie, the Louisiana

Supreme Court affirmatively held that a legal father is entitled to have the

court consider the income of a child’s biological father when calculating

the legal father’s child support obligation in dual paternity situations.22

Although this decision injects a small measure of fairness into the doctrine

of dual paternity by requiring the consideration of a biological father’s

income in the legal father’s child support determination, it does not go far

enough.

Lowrie leaves the doctrine of dual paternity intact, meaning former

husbands are still financially responsible for, and legally bound to,

children who are products of their wives’ adultery, against their will.

Furthermore, although the decision requires consideration of the

biological father’s income, it provides no framework or methodology for

lower courts to utilize in doing so, creating fertile ground for continued

judicial confusion. The only way to solve the problem and the unfairness

and confusion that result from it is legislative action aimed at eliminating

the occurrence of forced dual paternity altogether.

Part I of this Comment provides an overview of Louisiana’s law of

filiation and how it has given rise to the doctrinal problem of dual

paternity. Part II describes the Louisiana Supreme Court’s attempt to

Ct. App. 1999); Louisiana ex rel. Wilson v. Wilson, 855 So. 2d 913 (La. Ct. App.

1992); Fontenot v. Thierry, 422 So. 2d 586 (La. Ct. App. 1982); J.M.Y. v. R.R.,

1 So. 3d 725 (La. Ct. App. 2008); Starks v. Powell, 552 So. 2d 609 (La. Ct. App.

1989); Jones v. Rodrigue, 771 So. 2d 275 (La. Ct. App. 2000).

18. Gallo v. Gallo, 861 So. 2d 168, 180 (La. 2003).

19. Smith v. Cole, 553 So. 2d 847, 854–55 (La. 1989). See infra Part I .B.

20. See, e.g., Williams, 605 So. 2d 7; Washington, 747 So. 2d 1245; Wilson,

855 So. 2d 913; Fontenot, 422 So. 2d 586; J .M.Y., 1 So. 3d 725; Star ks, 552 So.

2d 609; Jones, 771 So. 2d 275.

21. Dep’t of Children & Family Servs. ex rel. A.L. v. Lowrie, 167 So. 3d 573,

585 (La. 2015).

22. Id.