Posts Tagged ‘Fathers’ Rights’

Paternity: Over the Counter DNA Paternity Tests

Paternity: Over the Counter DNA paternity tests

Author: Kevin Edler

It was brought to my attention this week that DNA testing kits specifically designed for determining paternity are sold over the counter in drug stores.  Maybe I am out of the loop, but I had no idea that over the counter DNA tests existed.  After reading a few online articles about these kits, I was quite impressed with the concept.  The kits require the user to swab the mouth of the child and potential father and send the specimens back to the lab in pre-addressed packages.  The results are returned via mail or at a secure online location.  Some manufacturers state that their tests can determine paternity with a greater than 99% accuracy rate.

Although I doubt that a court of law would ever allow these results into evidence, the concept is very intriguing.  I can easily see where a husband or alleged father who suspects that he is not the actual father of the child in question might find an over the counter DNA test useful because of its discreteness, non-invasive nature, and apparent ease of use.  The tests that I researched cost approximately $100-$150 and results can be returned in 3-5 business days.

Opponents of these tests point out that over the counter tests are not as accurate as the court ordered paternity tests and that the processing of the results is not monitored as closely by the FDA.

The purpose of this article is simply to inform the reader about the existence of this test, not to endorse or oppose the use of these products.

Disclaimer: The information contained in this article is for general information purposes only. Nothing in this article is or should be considered legal advice. The information in this article is not intended to create an attorney-client relationship, and viewing or receipt of information from this article does not create an attorney-client relationship.

Fathers’ Rights: Paternity Testing

Fathers’ Rights: Paternity Testing

Author: Kevin Edler

According to at least one genetic testing laboratory, a negative DNA paternity test from one of its labs conclusively determines that a man is not the father of a child (100%) and that the average positive test result indicates a greater than 99.99% likelihood that a man is the father of a child (Genelex Laboratories).  Sounds like pretty good evidence to me.

An alleged father can generally petition the court to order DNA paternity testing prior to a filiation action or during a civil action that involves paternity.  “[T]he husband of the mother, prior to filing an action of disavowal of a child born or conceived during his marriage to the mother and prior to the expiration of the time required to file an action of disavowal, may petition a court of proper jurisdiction and venue for an order directing the mother, child and petitioner to submit to the collection of blood or tissue samples, or both, for determination paternity for the purpose of exercising rights relating to the child.” LA-R.S. 9:398.2  “The alleged biological father of a child born outside of marriage, prior to filing any action to establish filiation of the child, may petition a court” to order DNA testing as well.  Id. Generally, once an action that involves paternity has begun, an alleged father still has the right to petition the court to order DNA testing to determine paternity.  LA-R.S. 9:396.

In light of the accuracy of the current DNA paternity testing, it only seems fair that someone who has doubts about paternity has the ability to demand paternity testing.  If you have questions about paternity, filiation or fathers’ rights, contact an attorney as soon as possible.

Disclaimer: The information contained in this article is for general information purposes only. Nothing in this article is or should be considered legal advice. The information in this article is not intended to create an attorney-client relationship, and viewing or receipt of information from this article does not create an attorney-client relationship.

Father’s Rights and Obligations: Formal Acknowledgement

Father’s Rights and Obligations: Formal Acknowledgement

Author: Kevin Edler

Louisiana Civil Code Article 196 states that “[a] man may, by authentic act or by signing the birth certificate, acknowledge a child not filiated to another man.  The acknowledgement creates a presumption that the man who acknowledges the child is the father.  The presumption can be invoked only on behalf of the child.  Except as otherwise provided in custody, visitation, and child support cases, the acknowledgement does not create a presumption in favor of the man who acknowledges the child.”

This article means that when a man signs the birth certificate of a child or certifies by authentic act that he is the father of a child, that man has formally acknowledged the child.  This “formal acknowledgment” creates a presumption that he is the father.  This presumption means that the child will not have to file a paternity action to establish that the man is his father because it is presumed by virtue of the formal acknowledgment.  It also means that the man will be presumed to be the father for purposes of child support.  Because the presumption only operates in favor of the child, however, the father would not be entitled to the presumption of fatherhood in the case of the child’s death and devolution of the child’s estate.

This situation commonly arises when a child is born out of wedlock to an unmarried woman.  Potential fathers should be aware of the presumption created by signing the birth certificate of a child in such a situation.  A DNA test that disproves the paternity of the individual would suffice to rebut the presumption of paternity.

Disclaimer: The information contained on this website is for general information purposes only. Nothing on this website is or should be considered legal advice. The information on this website is not intended to create an attorney-client relationship, and viewing or receipt of information from this website does not create an attorney-client relationship.

Paternity in Louisiana: The Husband’s Presumption of Fatherhood

Paternity in Louisiana: The Husband’s Presumption of Fatherhood

Author: Kevin Edler

The Louisiana Civil Code contains very detailed and intricate articles that outline Filiation. Filiation is the legal relationship between a child and his parent. Filiation can determine the obligations one owes to a child.

In Louisiana, “[t]he husband of the mother is presumed to be the father of a child born during the marriage or within three hundred days from the date of the termination of the marriage.” La. C.C. Art. 185. A marriage terminates when one of three events occurs: divorce, the death of either spouse, or a “judicial declaration of its nullity, when the marriage is relatively null.” If a child is born during a marriage or within three hundred days of the final divorce, death or declaration of relative nullity, then the husband/former husband is presumed to be the father of the child.

So, it is possible that a child can be conceived after the termination of a marriage and yet the former husband is still be presumed to be the father as long as the birth of the child occurs within 300 days of the termination of the marriage.

The Louisiana Civil Code allows a husband to “disavow paternity of the child by clear and convincing evidence that he is not the father.” La. C.C. Art. 187. This “disavowal action” must be filed within one year from the time that the husband learns of the birth of the child or should have learned of the birth of the child. However, if the husband and mother lived separate and apart for the 300 days preceding the birth of the child, then the one-year limit to file the action does not begin to run until the husband is notified in writing of the birth of the child. La. C.C. Art. 189.

If the marriage is terminated because of the death of the husband, and the time limit to file a disavowal action began to run before the death of the husband, the estate of the deceased husband has one year from the time of death to file a disavowal action on behalf of the estate or interested parties. If the time limit to file had not begun to run prior to the death of the husband, then the time to file will not commence until the successor is notified in writing of the birth of the child and that the mother has asserted that the deceased former husband is the father. The successor or estate will have one year from that notification to file a disavowal action. La. C.C. Art. 190.

Generally, if a disavowal action is not filed by the former husband or estate within the applicable periods the presumption of fatherhood becomes irrebuttable. This means that the former husband will maintain the obligations of fatherhood, including child support, even if another man is later proved to be the biological father of the child. See Modisette v. Phillips, 736 So.2d 983 (La.App. 2d Cir. 1999); Smith v. Dison, 662 So.2d 90 (La.App. 4th Cir. 1995). Clearly this presumption of fatherhood of the husband can lead to harsh results. Anyone who has questions or doubts about paternity should seek legal advice from an attorney as soon as possible.

Disclaimer: The information contained on this website is for general information purposes only. Nothing on this website is or should be considered legal advice. The information on this website is not intended to create an attorney-client relationship, and viewing or receipt of information from this website does not create an attorney-client relationship.



Disclaimer: The information contained on this website is for general information purposes only. Nothing on this website is or should be considered legal advice. The information on this website is not intended to create an attorney-client relationship, and viewing or receipt of information from this website does not create an attorney-client relationship.