My Current Practice

When I get a potential client in my office, I like to determine if they are in a situation where paternity has been established.

Here are the questions I ask:

QUESTIONS TO DETERMINE WHO TO INCLUDE

• Was the mother married at the time the child was born? Was the child born within 300 days of the mom's divorce from the first husband (whether she is married again or not is irrelevant)?

  • The husband of the mother is presumed to be the father of the child.

  • Look no further, all the court needs is mom and dad to say on the record that they were married when the child was born. The court usually has access to the divorce documents to confirm the divorce date if there is the 300 day issue.

    
    

• Is there a “father” listed on the child’s birth certificate?

  • If so, the birth certificate needs to be attached in the court record.

  • The listing of the child's father on the birth certificate does not make a presumption of paternity in October 2026 (today).

  • However, the listing of the child's father on the birth certificate makes the named father ("alleged father") an indispensable party.

  • If the listed father is not listed, La. C.C.P. Art. 645 would apply, which states: "The failure to join a party to an action may be pleaded in the peremptory exception, or may be noticed by the trial or appellate court on its own motion."

  • A peremptory exception! La. C.C.P. Art. 923 states: "The function of the peremptory exception is to have the plaintiff's action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action."

  • I suppose some lawyering work could be done using La. C.C.P. Art. 641, 642, and 645. However, the goal is simply to establish a father of a child, something every human walking the earth biologically has.

  • If no father is on the birth certificate, continue down the list.

  • If there is a father on the birth certificate who is not the husband of the mother at the time of the birth of the child and/or who is not the DNA biological father of the child by virtue of a printed DNA test listing both the child's name and the father's name, continue down the list.

    
    

• Is there an affidavit of paternity completed with the child's name and the father's name?

  • You're welcome to take a look at the affidavit of paternity that DCFS supplies on their website.

  • In my office, I'm totally ok with just the dad filling out his portion and the child's portion. I don't think it's a big deal if mom doesn't fill out her portion.

  • In my personal life, I made sure that both my daughter's father and I fully filled out her/his affidavit of paternity.

  • If a dad has more than one child, he needs to fill out an affidavit of paternity for each child.

  • In the legal industry, using the word "affidavit" means a notary has signed it.

  • This way La. C.C. Art. 196 will apply. La. C.C. Art. 196 starts off: "A man may, by authentic act, acknowledge a child not filiated to another man. The acknowledgment creates a presumption that the man who acknowledges the child is the father."

  • Take a closer look at Art. 196, though: "The presumption can be invoked only on behalf of the child. Except as otherwise provided in custody, visitation, and child support cases, the acknowledgment does not create a presumption in favor of the man who acknowledges the child." It is because of these later sentences that I recommend for all fathers to not just have the affidavit of paternity. They should also have an article 197 or 198 judgment of paternity. Article 197 (child's action brought by mom) or 198 (father's action) will for sure give the child inheritance rights from the father and the father inheritance rights from the child. These judgments of paternity are the closest thing a child born to un-wed parents will have that those kids are born with.

  • While 196 is the Civil Code article on affidavits of paternity, there is also a detailed statute on affidavits of paternity, and it can be found in the Revised Statutes 9:392.

    
    

• Do you have, in your had, a paper copy or PDF copy of a DNA test completed with the father's name and the child's name on it?

  • Before we get into the legalities of a DNA test, let's talk about the practicalities of completing a DNA test.

    • For a mom and dad who both want biological father to be the child's legal father, getting the DNA test is in the ballpark of $400. It's quick, though, we went this year, and it's just paperwork and a mouth swab for daddy and baby. Really only dad needs to fill out paperwork. The DNA people needed dad's drivers license but nothing from me. Yeah, it's a little "icky" for a few reasons- the hardest emotional burden we had was dad not being able to understand these laws on an intuitive level. He knew he was the father. I knew he was the father. But I'm a lawyer, so I kept remining him he's not the legal father, not for inheritance rights to flow to and from him and baby, until we get that judgemnt of paternity. And at the time we got the DNA test done, we didn't have a completed affidavit of paternity. Not everyone has a notary and two witnesses handy. So we got the DNA, then we did affidavit of paternity, then we filed for judgment of paternity and now baby girl has a daddy. In the scenario where both mom and dad want dad to be the dad, he is available for DNA testing and so is the child.

    • For a mom who wants alleged biological father to be the child's legal father, it can be hard if the man does not want to take a DNA test. This plays out in DCFS court- whether it's CINC (child in need of care) or non-support (child support). It's not appropriate legally for the state (the state is the plaintiff in both of these kinds of cases, not the mom) to move forward to handle CINC/TPR on a man who is not the legal father of a child, and it's not going to happen to get child support on a man who is not legally the father of a child. This can occur in civil court also, if mom sues for paternity under197. In this scenario, only mom has the child with her. She cannot find dad to complete his end of the DNA testing.

    • For a man who thinks he is the biological father of a child and wants to be the child's legal father, it can be hard if the mom won't let the child take a DNA test. This plays out in "civil court," where dad sues mom for custody of the child and he is unable to get custody until he establishes he is the legal father. To be honest, it is exactly this situation that drives my work. I don't think having this extra step is ok for kids, who are constantly growing. The court needs to be able to shut down a man who is not a legal father, in my opinion, and the child needs closure. The man needs to know what the boundaries are and be able to follow them.

  • Legally, a DNA test is not required for a judgment of paternity. Legally, only that affidavit of paternity is required. Legally, only a parent being married or taking legal action under CC 187 (yes, he uses DNA as evidence, but, yes, he is still the father until he files in court and gets a judgment of disavowal). This offends my sense of sanity, because people lie all the time. Especially in domestic situations. The docmuments I've seen! I'll share examples as this work continues.

    • Legally, a DNA test filed into open court record as part of a paternity judgment is an excellent use of "evidence."

  • I fell into the trap! Remember when I said I didn't want to focus on cuckold? I went down that rabbit hole trying to give DNA examples. I'm going to try harder to keep out the cuckold. Honestly, though, I think the sense of cuckold is changing socially. Wait, it's 2026. There is not one social cultural fabric in our society. So the cuckold must still be a thing in conservative cultures. So, again, my focus is the child. What good is it for a child to have a parent who is labeled a "cheater"? Let's have the child's parents have no labels! Maybe married men would benefit from a DNA test when their child is born?

• On a day to day basis, for the past 6 months, who has been taking care of the child? Where has the child been sleeping?

  • This is not a question about a specific legal standard. It's the common sense question(s) I ask people sitting in my office about how they handle the child in their life.

  • If I get an answer such as "for the past 6 months, the father has been taking care of the child, and the child has been sleeping at dad's house every single night and there are no court documents at all in effect," then I don't think I even really need to look into paternity. I think I can make an alternative request for La. C.C. Art. 133 custody, for non-parent sole custody. The man will be awarded custody as long as the "real" parents aren't stepping forward to fight him on this.

  • If this is part of a litigious case or man/dad hasn't been part of the child's life, I need him to take some time in my office to reflect, usually with me, on why this might be. I spend the answer to this question considering what roadblocks are inhibiting his time with the child that are perceied by the court as in his control. Does he prioritize work over child time? Does he not have his own home with a room for the child? Is there something else going on here?

  • If I need to go forard on a constitutional paternity claim, I want it to be organic, from the client. I want the client to tell me, in their own words, not in some mechanical legal sounding rhetoric, what the child's life is like and how the man is involved with the child.

    
    

• Over the past six months, has the dad/man reached out to mom to see the chid and/or to send money?

  • This question is actually rooted in Termination of Parental Rights law (La. Ch. C. Art. 1015) that leads to adoption of a child.

  • It is also a great question to allow the dad/man to reflect on what roadblocks may be inhibiting him spending time with the child that are out of his control.

    
    

• Have you adopted this child?

  • Yes, if there is a Judgement of Adoption, he's the legal father.

    
    

QUESTIONS TO DETERMINE WHO TO EXCLUDE

• Was a dad's name included on the birth certificate and there is an additional documentation to consider?

  
  

  • If there is a Termination of Parental Rights that has occurred via Judgment, the man's name on the original birth certificate is not the legal father of the child.

    • If a client or potential client ever utters the acronyms "DCFS" or "CPS" or "them people" or anything that indicates they've had any contact with the juvenile court system via CINC, this question must be asked.

    • If a client has never heard of the buzz terms "DCFS," "CPS," "them people," "juvenile court," or "CINC," don't worry about it, their rights most likely have not been terminated by Judgment.

    • There are a few cases where a parent's rights are terminated and the parent has not had contact with the State. This occurs when, for example, a dad is out of the child's life and the mom's new husband terminates the prior dad's rights and adopts the child.

      
      

  • Same for Adoption. If there is an adoption that has occurred, the man's name on the original birth certificate is not the legal father of the child.

    
    

  • If the father who is listed on the original birth certificate has completed a disavowal, this person is not the father.

    • Disavowal refers to La. C.C. Art. 187, "The husband may disavow paternity of the child by clear and convincing evidence that he is not the father.  The testimony of the husband shall be corroborated by other evidence." DNA testing is excellent "clear and convincing evidence."

    • A sheet of paper showing a Judge signed a Judgment of Disavowal is best.

      
      

  • If the father who is listed on the original birth certificate has completed a revocation, this person is not the father.

    • Revocation refers to La. R.S. 9:406, "A person who executed an authentic act of acknowledgment may, without cause, revoke it within sixty days of the execution of the authentic act of acknowledgment." This quote just skims the surface. Be sure the revocation is properly done by sworn statement or judicial hearing in accordance with the entirety of the law.

    • A sheet of paper showing a Judge signed a Judgment of Revocation is best.

      
      

  • Generally, I'm referring to the child's original birth certificate. As a matter of practice, I find it very difficult to update a birth certificate, so if you're looking at a birth certificate that's already been updated, you're good. Put another way, if there is a secondary birth certificate (usually issued a few years after the child is born) that shows a different father, use that man's name and go back to the top of this article to determine parentage.