Modern Problems: Paternity in a New Age

Can a child have more than one father? Yes, according to Louisiana law which allows for “dual paternity.”

Louisiana’s “family law” has undergone many changes in an attempt to react to the challenges presented by new medical technology and a breakdown of the traditional family structure. The recent Supreme Court decision in Derek Alan Pociask v. Kera Mosely is the latest effort to address these “modern problems.”

The Pociask Court explained that there is a public interest in “protect[ing] innocent children, born during marriage, against scandalous attacks upon their paternity by the husband of the mother, who may be seeking to avoid paternal obligations to the child … Thus, the traditional and historical position of Louisiana jurisprudence was to zealously guard and enforce the presumption of paternity created by the Civil Code.” This public policy was easier to promote in the past when a husband may have had no reason to question or ability to challenge his paternity. However, in a world of vasectomies and DNA testing, the husband now has an increased ability to factually prove that he is not the father.

With “dual paternity,” the first “father” is the husband of the child’s mother. The second “father” is the biological father of the child. This situation can occur because the husband is presumed to be the father of the child under Louisiana law. See, La. C.C. art. 185. This “presumption” becomes incontrovertible if the husband does not bring an action to disavow his paternity within one year from when he learns or should have learned of the child’s birth unless the husband lived separate and apart continuously from the mother for three-hundred days immediately preceding the birth of the child. See, La. C.C. art. 189.　

If the husband lived separate and apart for three-hundred days immediately preceding the birth of the child, the husband can bring a disavowal action within one year from being notified in writing that a party in interest asserts that he is the father of the child. If he fails to bring the disavowal action, he will be considered the “father” for all legal purposes. The purpose behind the “separate and apart” exception is to bring legal and biological paternity into “closer association.” See, Katherine Shaw Spaht, Who’s Your Momma, Who are Your Daddies?: Louisiana’s New Law of Filiation, 67 La. L. Rev. 307 at 314 (2007).

In Pociask, the Louisiana Supreme Court addressed what it means to “live separate and apart continuously” from the mother. The plaintiff in Pociask (the presumed father and ex-husband of the defendant mother) brought an action to disavowal his paternity. The disavowal action was brought well over a year after the child’s birth.

Factually, the presumed father in Pociask underwent a vasectomy prior to the birth of the child, had not entered into sexual relations with the mother for over three-hundred days (over nine months) prior to the child’s birth and had barely seen the mother in the three-hundred days prior to the birth of the child. Moreover, DNA testing proved that he was not the biological father. Nevertheless, the Louisiana Court of Appeals determined that the husband was the presumed father of the child because he did not bring his disavowal action within a year of the child’s birth.

The Court of Appeals interpreted the phrase “lived separate and apart continuously” so strictly that the husband’s one night stay at the marital domicile during the three-hundred day period preempted the disavowal action. The Appeals Court held that the phrase “lived separate and apart continuously” should not be interpreted in pari materia (in a like manner) with the divorce articles of the Civil Code. In the divorce setting, a spouse will be found to have lived “separate and apart” when the overall circumstances show that there was no mutual intention to resume the marital relationship.

The Pociask Court disagreed with the strict reading of the “separate and apart” language used by the appellate court. According to the Pociask Court, the phrase “lived separate and apart continuously” should be interpreted the same way in a disavowal action as it interpreted with a divorce. Therefore, the overnight visit in Pociask did not serve to interrupt the three-hundred day period and the disavowal action was timely.