To Kill a Cuckoo Bird: Louisiana’s Dual Paternity
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
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
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.
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
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,
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
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
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).
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
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
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).