Frequently Asked Questions About Paternity (FAQs)
Authored By: Louisiana Family Law Task Force
What is paternity? +
Paternity is the relationship establishing the father of a child. It is both a biological and legal relationship. Biological paternity is established at the time a child is conceived and can be proven by blood or tissue testing (DNA testing). Legal paternity can be established at the time a child is born, depending on the marital status of the parents at the time of the child's birth. Depending on the facts of a case, legal paternity can be established after a child's birth.
Children Born of Married Parents or Within 300 Days from Judgment of Divorce
For children born of married parents, or within 300 days after a judgment of divorce, the husband of the mother is the "presumed" father of the child. He is the legal father under this "presumption of paternity". The husband of the mother is considered the biological father unless a different biological paternity is established as provided by law.
In some cases, the legally presumed father is not the biological father.
- When a blood or tissue test shows that a child's biological father is not the husband of the mother or the former husband presumed to be the father of the child, a "three-party acknowledgment" can declare the true paternity.
- If she has remarried, a mother may ask a Court to establish that her former husband is not the biological father and that her present husband is the father. She can only do this if the present husband has acknowledged the child by authentic act. This is called a "contestation and establishment of paternity" and the mother must prove by clear and convincing evidence that the present husband is the father of the child. A mother must file this kind of case within 180 days after her marriage to the present husband and also within 2 years after the child's birth.
- A husband legally presumed to be the father may disavow paternity by showing a court clear and convincing evidence that he is not the father, unless the parents used assisted conception. The father only has one year from the birth of the child (or one year from the day he knew or should have known that he was not the biological father, whichever occurs later) to file a disavowal case with the court. But, if the husband lived separate and apart for the 300 days before the date of the child's birth, the one year time to file a disavowal case starts when he is notified in writing that a person with an interest has asserted he is the father of the child.
Children Born Outside of Marriage
For children born outside of marriage, there is no presumption of paternity. Under Louisiana law, when a child is born to an unmarried woman, she is the only legally recognized parent. This is true even if the mother and father are living together, or are in a committed relationship. Paternity has to be established. Legal paternity can be established by acknowledgment and biological paternity can be established by blood or tissue (DNA) testing.
Why is paternity important for my child’s future? +
- Inheritance. Proving paternity lets a child born outside of marriage inherit from the father. If you didn't marry your child's father first, and paternity has not been proven, your child has no legal rights to the father's property.
- Government Benefits. Proving paternity helps your child collect on the father's Social Security account.
- Child support. You may not need money now, but your situation may change. You may need help from the father to raise your child.
- Medical reasons. Many diseases are passed from parents to children. If a child knows the genetic history of his parents, he may be able to detect early hereditary diseases or avoid a lifestyle that will bring on diseases such as strokes, heart attacks, and diabetes.
How can paternity be established? +
The easiest way is when the biological father signs a "Declaration of Acknowledgement of Paternity". In the declaration, he formally admits that he is the father of the child. A declaration of paternity must be signed in front of a notary public and two witnesses.
The website of the Louisiana Department of Health and Hospitals hosts the forms.
Note: A man who has signed a declaration may annul it within 60 days of signing it. If he can prove that his signature was obtained by fraudulent means, a court can annul the declaration.
A court can decide paternity. The mother may ask a court to decide paternity if a father refuses to acknowledge a child. A father being asked to pay child support or who wants custody or visitation of his child may also ask a court to decide paternity. The state can ask a court to decide paternity when certain benefits are being sought on behalf of the child. A child can ask a court to decide paternity. A court can even decide paternity after the father has died.
I signed a declaration of acknowledgment of paternity. Do I still have the right to prove I’m not the father of a child? +
Yes. You still have the right to ask for a blood or tissue (also known as DNA) test to prove if you are not the father of the child. You may seek custody and/or visitation with the child. You may annul the declaration of acknowledgment of paternity without any reason within 60 days after you sign it. You have to do that in court. After the 60 days, you may still get the acknowledgment annulled in court. You would have to prove that you were tricked or forced to sign it, or that you are not the biological father of the child.
How does the court establish paternity? +
The court will hold a hearing and take evidence. This may include proof of a sexual relationship near the time of conception. It may include witnesses who swear that the alleged (accused) father admitted he was the child's father. The court may also order the mother, the alleged father, and the child to submit to DNA testing. If the alleged father refuses, the court may declare the alleged father as the legal father.
Who pays for DNA testing? +
The court fixes the cost of DNA testing. The person asking for the test or the person asking the court to decide paternity must pay for it. If the DNA test proves the accused father is the real father, he has to repay the costs. If he is not the father, the mother must repay the costs.
Can you prove paternity when the parent is dead? +
You can try. If the alleged father dies before paternity is ordered, a child, or a person on the child's behalf, may ask the court to decide paternity. The child has nineteen (19) years from her birth or within one year of death of the alleged parent, whatever happens first.
How do I fight a paternity suit? +
Fighting a Paternity Suit Despite a Presumption of Paternity
If the child was born or conceived during your marriage to the child's mother, you are presumed to be the father. This means no proof of paternity is needed. However, you can still fight paternity by filing a suit in court to disavow paternity.
To fight paternity, you must first file the lawsuit within one year after you learn, or should have learned, of the birth of the child. At trial, you must show proof you are not the father of the child. This proof may include:
negative blood (DNA) tests,
sterility (unable to produce children),
physical impossibility because of location at the time of conception, and
any other evidence the court allows.
Fighting a Paternity Suit With No Presumption of Paternity
You can ask the court to order you, the mother, and the child to take a DNA test.
Or you can ask the court for a trial or hearing and show other evidence (than a DNA test) that you are not the father. Evidence may include proof that:
you are sterile (unable to produce children),
the mother had sex with other men at the time of conception, or
conception was physically impossible because you were nowhere near the mother at the time of conception.
Note: you may want to get a lawyer to help you compile this type of evidence.