FILIATION Flashcards
How can you establish paternity if mother and father are not married?
Formal acknowledgment by father: authentic act (notary +2 witnesses) OR signing of birth certificate. However, if he is not the biological father, the acknowledgment is null (he can adopt but not filiate)
*May also be revoked by clear and convincing evidence act induced by fraud, duress, mistake within 2 years.
What is the legal effect of a signed affidavit of paternity, where there was no signing of birth certificate and affidavit only signed by notary. They are not married.
The affidavit will have no legal effect. To formally acnowledge paternity of child, father could have signed birth certificate, or executed authentic act. parents signed an affidavit, which requries only a signature by a notary, and therefore is not in proper form.
If two witnesses signed the affidavit as well, the document would constitute an authentic act and would create a presumption that the man executing the acnowledgment is the childs father. This favors the child only. It could still be deemed null if it is not child’s biological father.
Does a valid adoption entitle one to presumption of paternity?
It entitles to more than a presumption, he/she is recognized as the parent of child for all purposes. Even if affidavit of other party is acknowledging paternity, all rights between child and legal parent are terminated and adoptive parent is considered parent of child.
Under the code, can you adopt a child who is 25 and married?
Yes, but only if certain requirements are met. When child is of majoirty, and person seeking to adopt is spouse of his mother, he can be adopted without judicial authoirzation. Both adoptive parent and child must consent to adoption in authentic act of adoption. The spouses must both sign act of adoption for pusposes of concurrence in adoption only. If either fails to concur, act of adoption is null. Must be filed for registry with cler of court of any parish.
What are ways for child to be filiated to father?
Presumption of husband, Presumption by subsequent marriage, Child Action (paternity action); or Fathers action (avowal action)
Explain the presumption of husband in filiation
If a child is born within marriage or within 300 days of termination of marriage there is a presumption of paternity.
How may a presumption of paternity be rebutted?
by a disavowal action or contestation action
What is a disavowal action?
Man and mother must have been married in order to file. May disavow by clear and convincing evidence (like DNA) that he is not father. If first husband disavows, second husband can within one year from date of judgment of first husband file avowal.
What is the time limit on filing disavowal?
One year after actual or constructive knowledge of birth. Unless living separate and apart during 300 days preceding birth.
One year from date notified in writing, if prescription starts to run, then husband dies.. the successor has one year from death.
If time frame not honored, presumption is irrebuttable even if later another man is proved as father
What action can mother take to prevent presumption of paternity?
A contestation action, to establish both her former husband is not father AND present husband is the father IF present husband acknowledged the child by authentic act or has signed birth certificate. Clear and convincing evidence standard.
What is the presumption by subsequent marriage?
Presumed if man acknowledges the child by authentic act or signs birth certificate. Must NOT be filiated to another man and mother must concur in juridical act. May be overcome by disavowal within 180 days from marriage date or acknowledgment, whichever is later. Contestation by mother must show paternity of present husband by clearn and convincing evidence.
If child at issue is still alive when an action to establish paternity is filed, the action may be instituted:
a. by the child within on year after death of alleged father
b. by child within 19 years from day of childs birth, or within one year after death of father, whichever first
c. by the mother within one year form date of birth of child
d. by aman within one year from date he knew or should have known of his paternity, or 10 years from date of birth of child, whichever first
A. paternity action may be instituted BY THE CHILD within 1 year after death of father. This may be done even if presumed to be child of another man.
Can a child file suit to prove paternity even if filiated to another man?
Yes. If father is living, preponderance of evidence. If dead, clear and convincing evidence. If dead, file within a year of death.
When can a father file avowal action, and what must he show? What if filiated to another man already?
Must show preponderance of evidence. If child presumed as another mans, the action must be 1 year from birth, except in mothers bad faith, then its knew or should have known date. Must be within one year of death of child. If not presumed to be another mans, any time is okay but not later than 1 year from death.
True or False:
A husband may disavow paternity of a child born to his wife by showing a preponderance of the evidence that he is not the father.
False. The husband must show he is not the father by clear and convincing evidence.
