The Not-Father

A man and a woman walk into the consultation regarding their new baby. They live in Louisiana.

They chose not to get married for several reasons. They don’t mind justifying their particular reasons, which include tax consequences, home ownership implications, blended family issues, and preferring separate property laws over a prenuptial agreement in a community property state.

They chose to have a baby together for several reasons. Do you really care? If so, go take a human psych class. That’s not where we’re going with this.

They chose to live together while the woman was pregnant with this baby, and they plan to continue living together. Do you think it matters whether they’re renting or they bought their house? I’ll tell you a little secret: they own the house they live in together as co-owners. They were lucky enough to get 2 mortgages, separately, that’s not solidarity liability, so all the more reason not to get married, and all the better for their taxes!

Wait, because they’re not married, should they not have a baby together? I mean, maybe teenagers shouldn’t have babies. Early 20-somethings who aren’t established in their careers and can’t support a baby maybe shouldn’t have babies. That’s not this couple. Both the mother and father have had ample work experience and have their finances under control. They’re able to support a baby together.

Wait, it’s not all about the money! They need to commit to each other to show their stability! Sure, that’d be fine if marriage lasted until death or if it were appropriate for all couples to stay married. However, the woman who is having the new baby is divorced. She had two babies with her former husband and then their marriage ended. So she’s already been there, done that. Why would she go right back to a system that has already failed her? She doesn’t even get to see her older kids the majority of the time. She and her ex have a 50/50 custody schedule. She doesn’t want to risk mingling property with her new relationship. It’s like mixing business with pleasure, just not that smart.

Ok, so let’s talk about the father. Wait! In Louisiana, he’s not the father, yet.

Only the husband of the mother is presumed to be the father of the child. There are no other legal presumptions that allow for an unborn child to have a father in Louisiana. (This is true for the UPA also.)

This couple who is expecting a baby didn’t ever engage intimately, like that, while the woman was still married to her former husband, although they met during the waiting period for her to get her final divorce. So even the presumption that the ex husband would be the father of the baby born within 300 days of the final divorce decree won’t apply to this new baby. So the mother’s ex husband is for sure not the legal father.

Well, obviously, you say! No, not that obvious. This presumption of paternity for the father has absolutely 0% accountability for the DNA/biological father of the child. As long as that woman is married or was married 300 days prior to the birth of the baby, the husband is the father of the child. Period. End of story. At the moment of the child’s birth. And you know what? It’s the man’s burden to untangle himself from that child if he’s not the DNA father. And sometimes that’s not even possible in Louisiana bc they allow for dual paternity, meaning a child can have two fathers.

Silly, right? Yes, for sure, but that’s the point of this new baby’s parents. They don’t fall into these marriage or cuckold issues. The conception of their baby is clear-cut. They were for sure exclusive. (Ask the mom’s prior boyfriends, they’ll testify they missed her!)

Ok, so the father in the consultation room is the bio father and has rights to his child and his child has rights to him, right? Hopefully at this point you’re over whether the couple is married or not, because: how arbitrary! And because: statistically, 55% newborns are born to unwed mothers in Louisiana. So this isn’t about marriage at this point.

No, the father in the consultation room is not going to be this baby’s father at the moment the baby is born.

There is work that needs to happen for him to be the baby’s father. And that work falls on him if he’s in civil court with the mother. But that work falls on any guy the mom may name to be the father if it’s in DCFS court, because once mom names a father in DCFS court, the unwritten law is that the burden shifts to the alleged father to disprove his paternity. We’re not ready to talk about DCFS court more, but it’s worth mentioning the double standard now.

This isn’t fair! Why is a man, just by virtue of getting a woman to agree to marry him, the father of his child when it’s born, but a man, just by virtue of being a good guy and respecting the woman’s choice not to marry him but also enjoying her willingness to have a child with him, not the father of his child when it’s born?

Legal answer to this issue: as soon as possible, the father needs to take a DNA test and (for cya!) complete the affidavit of paternity and (for inheritance for him and child!) file the 198 father's action to establish paternity. Cheapest way to do this is to get mom on board and agree to everything so the court will put this paperwork through quickly!