When two people have a child together, it’s understood that the couple will pay for all of their child’s needs until the child is an adult. This obligation will continue, even if the marriage or relationship does not. However, what happens if a father finds out later that the child he claimed responsibility for is not his after all? Does he have to continue supporting that child?
Here in Louisiana, the answer to that question is often and unfortunately “yes.” Louisiana has one of the highest rates of babies born to unmarried mothers, so allowing putative fathers a potential “easy way out” of paternity may result in more children growing up without a father. It is a lofty goal to work to ensure that children have two parents, but do the laws regarding disavowing paternity go too far?
Louisiana law holds that when a married couple has a baby, the husband is presumed to be the father. This presumption is called the “marital presumption of paternity.” When a couple is unmarried, however, the father must file an acknowledgment of paternity to become the legal father of the child. The law continues to differ in cases where the father has discovered he is not the birth father of the child.
There are many reasons a man may believe he is the legal father of a child, including being mistaken or being a victim of fraudulent representation by the mother. When a couple is married:
The action for disavowal of paternity is subject to a liberative prescription of one year. This prescription commences to run from the day of the birth of the child, or the day the husband knew or should have known that he may not be the biological father of the child, whichever occurs later.
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.
One year is a very short timeframe, although the clock doesn’t start ticking until the day the husband finds out (or should have found out) that he is not the biological father of the child.
For unmarried fathers, the period is even shorter. Men have only one year to dispute paternity, with no other allowances. This was recently illustrated in the case of Wetta vs Wetta. In this paternity case, when the couple met, Ms. Wetta was already pregnant and did not know who the father was. Mr. Wetta married her and signed a paternity acknowledgment when the baby was born.
However, Ms. Wetta filed for divorce a few years later, seeking child custody and child support. Mr. Wetta asked the court to revoke his acknowledgment of paternity, but the court decided to treat this as a disavowal action instead. In a disavowal action, the presumed father must overcome the presumption that he is not the father by clear and convincing evidence. However, Mr. Wetta argued there was no presumption to overcome because everyone already knew he was not the father.
The court ruled that Mr. Wetta was not trying to challenge the acknowledgment he signed, but rather was trying to get out of his paternal responsibilities. So yes, you CAN be forced to pay child support to a child that isn’t yours, as Mr. Wetta learned in his appeal. In the eyes of the law, when you take on the responsibility of a child, whether it’s yours or not, you are obligated to continue until the child is an adult.
How do I challenge paternity in New Orleans?
In Louisiana, a disavowal action is a legal action that can challenge or rebut the presumption of paternity. A man who is legally presumed to be the father of a child can disavow paternity if he can provide clear and convincing evidence that he is not the father. The husband’s testimony must be supported by other evidence.
A judgment of disavowal:
- Ends the obligation to pay child support
- Revokes any court order that enforces the obligation to pay child support
- Does not affect any child support payment or arrearages paid, due, or owed before the disavowal action was filed
The courts generally are unwilling to revoke a paternity acknowledgment if another man is not willing to step up and take responsibility. This is because Louisiana courts act only in the best interest of the child.
It is highly advisable to work with an attorney on any disavowal action, and the New Orleans family law attorneys at the Law Office of James A. Graham can help. Remember, you only have one year, so it is important to act quickly to protect your rights.
If you have a question regarding the paternity of your child, talk to the family law attorneys at the Law Office of James A. Graham today. We want to help you build your family properly and legally. Call our New Orleans offices or fill out our contact form to schedule a consultation.