Severing the Issues

I didn't expect to get to talk about this in the paternity series, but it's relevant to a Legislative Resolution, so I get to incorporate it into my paternity concerns. You'll see from the prior post about the "Not-Father," that marriage and babies aren't always taken together. There are certainly circumstances when marriage is not necessary for having children.

The Legislative Resolution states: "WHEREAS, it may be in the bet interest of Louisiana families to not have a presumption of paternity." I'm shook. Yes, please! It seems the "why" for this text to appear here is the prior sentence, which states: "WHEREAS, many families cannot afford court costs to establish paternity and suing to establish paternity could be an undue burden." I have thoughts.

(1) COSTS OF ESTABLISHING NON-MARRIAGE PATERNITY

1. Cheaper than a wedding (duh?!)

2. DNA test is approx $400

3. Court costs are approx $400

4. Most courts have enacted Local Rule 24.14 which would allows an uncontested petition for paternity to become a paternity judgment granted by affidavit under La. R.S. Art. 9:407

5. For courts that do not have 24.14, it's ok to just have mom file an answer and sign on the judgment so the Judge can agree. If trial is necessary, yes, this seems to be burdensome.

6. Proposal: all hospitals require DNA testing for a dad's (even a married dad's) name to be put on birth certificate. Then birth certificate can be presumption of paternity again, and the only time it won't have dad's name is when mom refuses, when dad is absent, etc., then they can use 198.

(2) NO PRESUMPTION OF PATERNITY

1. I almost filed this into the court record, on my own behalf: "Mover faces the horrific decision of choosing her child’s guaranteed, smooth sailing paternity or suffering from economic consequences of tying herself to the child’s father financially through marriage.  Mover has no intention of leaving Mr. Warner, therefore, Mover is unable to get divorced shortly after the birth of Baby Warner.  There is no domestic abuse between Mover and Mr. Warner, and neither have committed crimes or adultery, so there is truly no possible divorce mechanism to release Mover from the presumption of community property.  Of course a prenuptial agreement is a reasonable option, but that must be proven, and 3^rd parties, especially under a federal regime, may use the community presumption against Mover which shifts the burden to Mover to prove she is in fact in a separate property regime if there is a prenuptial agreement in place.  Further, there is no opportunity to waive Interim Spousal Support in a prenuptial agreement, but that can be waived by not getting married.  The parties will also suffer pressure from tax professionals to file “married filing jointly,” which Mover is not interested in fighting every single year of tax filing after having finally filed without a spouse.  There are additional issues concerning properly naming beneficiaries for retirement accounts and insurance accounts that arise for married couples that single persons do not face."

2. No presumption of paternity for married dads is great because it shows moms and dads what to expect when they go through a divorce: everything will be severed. Child custody influences child support but each of custody and child support is its own cause of action, it's not bundled as it was while married. Community property is surely severed from custody/child support. It's not bundled as it was while married. For example, if a dad doesn't give a mom her tax cut for claiming the kids, it's ok bc it's for the family, but once the child support order is in effect, the parent who claims the child gets the tax cut.

3. Logically speaking, the divorce laws define how parties are to live as a married unit. Logically speaking, if one spouse does not pay their taxes and the other spouse realizes they don't have enough income to pay their higher earning spouse's taxes, the lower earner must realize the divorce will not save her from his unpaid taxes, the lower earner must realize that she is accruing "debts" in the marriage and divorce will not change that.

4. For paternity to be tied to marriage, logically speaking, is a deterrent to women who earn more than their partner to have a baby. The women will end up paying spousal support, child support, and paying out assets that their income accrued. This is a deterrent to women in a way that was never a deterrent to men because women are the ones who take off work to recover from child birth; women are the ones who have ugly comments circulate in their industry about them every time they get pregnant; women are the ones who have gender pay gap. If a woman is married to a colleague in her field, her husband will necessarily make more money than her. There is no need for that higher earner to balk at a little $800 or so in establishing paternity if paternity is severed from marriage.

(3) IT IS IN THE BEST INTERST OF LOUISIANA PARENTS TO NOT HAVE A PERSUMPTION OF PATERNITY

1. We don't need to make the word "family" work. Stop it.

2. We need to focus on what "parents," those humans who take care of small humans day in and day out need for stability for their small humans.

   1. They need a clear definition of "parent" so they can get the correct "custody" remedy, including the La. C.C. 133 parents- they deserve to know whether they have to include an absent father from their filings, and including the DCFS moms and the state- they deserve to know whether an "alleged father" who has never established legal paternity can in fact have a termination of parental rights judgment ordered against him.

   2. They need a clear definition of "parent" so the adults who are their DNA parents know what they can and cannot do educationally and medically- does the State of Louisiana want the dad who lives with the mom and loves the child as though he were the husband but he doesn't have paperwork yet although all DNA testing will prove he is the biological father to be kept away from signing up the kid for school and doctor appointments? Sure, just let us know what you want. Us parents will respond.

3. If the state is ready to address the distinction between civil code parents and children's code parents, I'm ready for that discussion. I think the state will realize that children's code parents are rooted in slavery and the presumption that the child, if even the child of the mother, is first the property of the landowner. I think the state will realize that the civil code parents are rooted in marriage and old English land laws where only land passes to the son and the presumption that the bastard child has no father, at all. So what policy does Louisiana want to move forward on? And does Louisiana want to make it cohesive for all parents? Or does Louisiana want to continue the racial divide?