Persons Flashcards
Proof of Maternity
Maternity may be established by proof that a child was born of a particular woman.
BOP: preponderance
Proof of Paternity
- Presumption of Paternity of the Husband
- Presumption of Paternity by Subsequent Marriage and Acknowledgement
- Presumption of Paternity by Formal Acknowledgement
- Child’s Paternity Action
- Father’s Avowal Action
Presumption of Paternity of the Husband
The husband of the mother is presumed to be the father of a child born during the marriage or within 300 days from date of termination of marriage. (Even if mother remarried at child’s birth)
Rebut through disavowal or contestation action, or third party acknowledgement
Disavowal Action
Husband presumed to be the father (or his heirs) may disavow child by clear and convincing evidence (blood test or DNA) that he is not the father
File within 1 year of birth, or day knew or should have known he may not be father.
If action is untimely, presumption becomes irrebuttable.
If mother is remarried at time of first husband’s disavowal, second husband is presumed to be the father (he has 1 year to disavow from day first husband’s disavowal judgment becomes final)
Contestation Action
Mother can file to establish that former husband is not the father and present husband is the father, but only if present husband acknowledges the child by authentic act.
Must prove both by CCE.
File within 180 days of marriage and within 2 years of birth.
Three Party Acknowledgement
If blood or tissue sampling shows by 99.9% chance that the biological father is the father and he is not the current or former husband, then the mother, biological father, and presumed father can sign authentic act of acknowledgment declaring the biological father is the father and that the presumed father isn’t
Must be executed before child turns 10 and within 1 year of child’s death
Presumption of Paternity by Subsequent Marriage & Acknowledgment
A man who marries the mother of a child is presumed to be the father of that child if he acknowledges the child by authentic act, AND the child is not filiated to another man.
Husband may disavow paternity within 180 days of marriage or acknowledgement (peremptive).
Presumption does not apply if child is filiated to another man, or in a contestation action
Formal Acknowledgement by Father
A man may acknowledge a child, who is not filiated to another man, as his own by signing an authentic act of acknowledgement.
This creates a presumption that the man is the father, & it can only be invoked obo the child. father may not invoke, except for child support, custody, and visitation.
If the man is not the biological father, the acknowledgement is absolutely null.
May be annulled without cause within 60 days of signing. After that, can only be annulled upon proof by CCE that act was induced by fraud, duress, mistake, or that man is not biological father.
Paternity Action
Child may file suit to prove paternity even though he is presumed to be the child of another man (dual paternity). If father is living, BOP is preponderance. If father is dead, BOP is CCE.
For succession purposes: 1-year peremptive period from father’s death.
All other purposes: no time limit.
Avowal Action
Man can file suit to establish paternity of child (strictly personal)
BOP: preponderance
If child presumed child of another man, must file within 1 year of birth
Exception: if mother in BF deceived father regarding paternity, file within 1 year of date he knew or should have known of paternity, or within 10 years of birth, whichever occurs first. OR 1 year from child’s death
If child is not presumed child of another man, can file at any time but no later than 1 year from child’s death
Absent Person
person who has no representative in Louisiana and cannot be located with diligent effort
Declaration of Death
If absent person is absent for 5 years, he is presumed to be dead.
Interested person may petition the court for declaration of death and for determination of date of death.
Person presumed dead is treated as if predeceased.
Reappearance of Absentee
If person declared dead reappears, he can recover his property/inheritance that still exists in the condition found from his successors or transferees by gratuitous title.
if property alienated, he can recover net proceeds. If encumbered, he can recover diminution in value.
Inheritance: treated as omitted heir in succession. If they appear within 2 years of final judgment of possession, can demand immovable from transferees by onerous title if that transferee acquired it from heir in judgment of possession
Successors may keep fruits and improvements
Requirements of Marriage
- Absence of legal impediment
- Marriage ceremony
- Mutual consent expressed by both parties at the ceremony
Legal impediments
- existing marriage
- too closely related (1st cousin or closer)
- age (under 16 or age difference of 3+ years if 16-17)
Relatively Null Marriage
marriage lacking consent
may be declared relatively null only by person whose consent was not free
valid and produces civil effects until officially declared null by the court
cannot be declared null if non consenting party later confirms after recovering liberty or discernment
