8.1 Children Born During Marriage

The request for services in this area of the law has increased greatly. It is important to have the necessary affidavits or information available for our clients and a working knowledge of the various statutes to know what options the client may have.1

It is important to remember your presumptions in dealing with paternity. Under Louisiana law, the husband of the mother is presumed to be the father of a child born during or within 300 days from termination of the marriage.2

However, if a child is presumed to be the child of the mother’s husband (the “legal father”) but is actually the child of another man (the “biological father”), then a situation of “dual paternity” arises. Louisiana is the only state that allows for “dual paternity.” This situation typically presents itself when the mother seeks child support from the legal father, but DNA testing determines that he is not the biological father. The legal father has several mechanisms by which he can “pull in” a biological father. 

The first is for the legal father to file a disavowal action under La. C.C. art. 187. If the legal father successfully proves that he is not the biological father by clear and convincing evidence,3  this action extinguishes his legal obligations to the child. However, if the legal father does not disavow timely (within 1 year of the child’s birth or of the point when he knew or should have known he was not the child’s father, whichever occurs later), the presumption of paternity is irrebuttable.4  In a disavowal action, the court must appoint an attorney to represent the child.5  If the presumed father is successful, existing child support orders are terminated, but he remains liable for any arrearages prior to the date of filing the disavowal action.6

Second, if the mother has married the biological father and he has acknowledged the child by authentic act, she may bring a contestation action to prove that her former husband is not the biological father and that her current husband is the father.7

The third mechanism alleviates the need for disavowal or contestation actions. Under La. C.C. art. 190.1, the mother, the legal father, and the biological father can execute a “three-party acknowledgment of paternity,” provided that the biological father’s paternity is shown 99.9% probable via a DNA test. There is a peremptive time period of 10 years from the child’s birth for execution of this acknowledgment.8  This acknowledgment can be revoked within 60 days under La. R.S. 9:392(A)(7)(2) or annulled under La. C.C.P. art. 2001 for vices of form or substance.

Finally, even if the legal father objects, the biological father may file an avowal action under La. C.C. art. 198. This action is subject to strict peremptory periods.

• 1A useful guide provided by the Department of Health and Hospitals can be found here.
• 2La. C.C. art. 185.
• 3Id.
• 4La. C.C. art. 189.
• 5La. C.C.P. art. 5091.1.
• 6La. R.S. 9:402.
• 7La. C.C. art. 191.
• 8La. C.C. art. 190.1.