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
Absolutely Null Marriage
- In violation of any impediment, or
- No valid marriage ceremony
Devoid of all legal effect from moment of inception
Putative Marriage
Applies when marriage is absolutely null but at least one spouse married in good faith (honest and reasonable belief that there was no legal impediment)
Civil effects continue as long as that spouse remains in good faith
Exception: for bigamy impediment, civil effects continue in favor of the innocent spouse even after they learn of the impediment, until either (1) official declaration of nullity, or (2) innocent spouse remarries
Termination of Marriage
- Death
- Judicial declaration of relative nullity
- Authorization to remarry
- Divorce
Interim Spousal Support
- Needs of claimant spouse
- Ability of other spouse to pay
- Standard of living during the marriage
- Any interim or final child support obligation
Terminates 180 days from divorce, may be extended for good cause
CANNOT BE WAIVED IN PRENUP
Final Spousal Support
- Needs of claimant spouse
- Ability of other spouse to pay
- Claimant spouse free from fault prior to filing proceeding to terminate marriage
- TAFCRIEDD factors
Cap: 1/3 of obligor’s net income (exception: no cap for domestic abuse)
May waive at any time before or during marriage
TAFCRIEDD factors for FPS
T - Tax consequences A - Age and health F - Financial obligations C - Child custody arrangement & effect on earning capacity R - Rehabilitation I - Income E - Earning Capacity D - Duration of marriage D - Domestic Abuse
Modification of Spousal Support
Award may be modified if circumstances of either arty materially change
Peremption of Spousal Support
3 years from:
- date judgment of divorce is signed;
- date judgment terminating previous award is signed; or
- date the last payment was made
Fault for FPS
Courts must find misconduct that is both of a serious nature & independent contributory or proximate cause of separation
Grounds:
(1) adultery;
(2) felony conviction + life imprisonment or death;
(3) physical/sexual abuse;
(4) intemperance or cruelty that renders living together unsupportable;
(5) abandonment w/o lawful cause & refusal to return;
(6) defamation;
(7) attempted murder
Contributions to Education or Training of Spouse
- Financial contributions to other spouse’s training or education during marriage
- That increased other spouse’s earning power
- To the extent that claimant did not benefit during marriage
Factors:
- Contributing spouse’s expectation of shared benefit
- Degree of detriment suffered by contributing spouse
- Magnitude of benefit received by recipient spouse
Rx: 3 years from date of signing judgment of divorce
Child Custody
Award in accordance with Best Interest of the Child factors
Best Interest of the Child Factors
PAPA HELPS CHAMP: P - potential for abuse A - abusive history P - prior relationships A - ability to provide H - health of parties E - emotional ties L - location of parties P - preference of child S - stability of current home C - cooperation of parties H - history (home, school, & community) A - ability to nurture M - moral fitness P - past caregiver
Change of Custody - Considered Decree
Bergeron standard: Must show change in circumstances has occurred such that: (1) continuation of present custody is so deleterious to the child as to justify modification; or (2) by clear and convincing evidence, the harm likely to be caused by a change in environment is substantially outweighed by the advantages to the child.
Change of Custody - Consent Decree
Proponent must prove (1) material change in circumstances; and (2) proposed modification is in best interest of the child.
Change of Custody venue
domicile of person awarded custody, or where custody decree was entered
Custody Preferences
- Parental Agreement (BIOC)
- Joint Custody - (if no agreement or agreement not in BIOC)
- Sole Custody - if shown by CCE to serve BIOC
- If JC or SC would result in substantial harm, custody awarded to person with whom the child has been living in a stable environment
Grandparent Visitation
If parents are not married or living together, or have filed for divorce, grandparent may get visitation if in BIOC.
If parents are married or unmarried but living together, parents of deceased, interdicted, or incarcerated parent may get visitation if in BIOC.
If parents of minor child have lived apart for 6 months, in extraordinary circumstances the grandparent may get visitation if in BIOC.
Sibling Visitation
ONLY: if parents are married or unmarried but living together - BIOC
If parents of minor child have lived apart for 6 months, in extraordinary circumstances the siblings may get visitation if in BIOC
Prescription for Past Due Child Support
10 years
Modification of Child Support Award
May be modified if circumstances of child or either parent materially change
Child Support
Based on (1) needs of child and (2) ability of parents to provide support
Duration: until child reaches 18 or is fully emancipated
Adultery
Must be proved at trial by corroborating evidence
Must fairly and necessarily lead to the conclusion that adultery has been committed
Article 102 Divorce
File petition then live separate and apart continuously for requisite period of time. After time period passes, file RTSC to set matter for a hearing.
RTSC shall allege service, time period since service, separation, & verified by mover’s affidavit.
Article 103(1) Divorce
Quicker & simpler than 102 divorce.
Parties live separate and apart then file petition. Regular pleading delays apply but can be waived. Answer is required after service but can be waived.
Default judgment possible if defendant doesn’t answer or waives all delays.
No affidavit required.
Immediate Fault-Based Divorce
- Adultery
- Felony Conviction + Life Imprisonment or Death
- Physical or Sexual Abuse
- Abuse + Protective Order
