Persons Flashcards
Establishing Maternity
preponderance of the evidence that a child was borne of a particular woman
by any evidence
at any time
Presumptions of Paternity
Husband of the mother
second husband of the mother (if first renounces)
Presumption of Paternity: Husband of the Mother
presumed to be father of child that either:
(a) born during marriage, or
(b) born within 300 days of the end of the marriage
Presumption of Paternity: Second Husband of the Mother
only if first husband renounces
Posthumous Conception
“deemed” to be child of decedent if:
(1) decedent specifically authorized in writing
(2) child was born to surviving spouse
(3) child born within 3 years of decedent’s death
Disavowal
rebuts presumption of paternity
standard: clear and convincing evidence
types of proof: testimony with corroboration, documentary, scientific
if second husband - first husband must join second to disavowal action
prescription: 1 year liberative prescription beginning on the later of:
(a) birth of child
(b) day he knew/should have known he might not be father
Exception: if couple lived separate and apart for 300 days preceding birth of child, prescriptive period begins when he is notified in writing
Disavowal: Successors
successors may bring disavowal action
1 year liberative prescription
if prescription began running before father died, starts on day of death
if prescription hadn’t begun running yet, starts on day successors are notified in writing that he might not be the father
Disavowal: Second Husband
same as regular disavowal, except timing
peremptive period: 1 year from date of judgment of disavowal
Mother’s Contestation Action
rebuts presumption of paternity
standard: must prove child biologically belongs to 2nd husband
Types of proof: testimony, documentary, scientific
Time period: dual peremptive period
(1) 180 days from marriage to present husband, and
(2) within 2 years from birth of child
Acknowledgment of Child Plus Marriage
Prereqs:
child not filiated to another man, even by presumption
father acknowledges child in proper form by signing authentic act with mother’s concurrence
father marries mother
effect: father and child are fully filiated
to disavow: must bring judicial action of disavowal 180 days from either marriage or acknowledgment
(father can’t rebut filiation by revoking the acknowledgment)
Acknowledgment of Child Without Marriage
Prerequisites:
child not filiated to another man
father acknowledges child in proper form (authentic act)
effect: limited filiation, operates in favor of child only
Child’s Judicial Action to Establish Paternity
child MAY be filiated to another man (can have dual paternity)
Standard:
before father’s death> preponderance
after father’s death> clear and convincing
Time: 1 year peremptive from date of father’s death
Father’s Judicial Action to Establish Paternity
child MAY be filiated to another man (can have dual paternity)
Standard: preponderance
Time:
if presumed kid of another man > within 1 year from birth of child
Exception: mother deceived (then 1 year from day father knew or should have known, or within 10 years of birth of child)
in all cases, no later than 1 year after child’s death
SUCCESSORS CANNOT BRING, strictly personal
Three Party Acknowledgment
used to rebut presumption of paternity and create filiation in favor of real father
time: no later than 10 years from the date of birth of the child, but never more than 1 year from the day of death of the child
Requirements for Marriage
Absence of Legal impediment
marriage ceremony
free consent of the parties expressed at the ceremony
