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Regular Session, 2010
SENATE BILL NO. 322
BY SENATOR QUINN
CHILDREN. Provides requirements relative to an acknowledgment of paternity. (8/15/10)
AN ACT1
To amend and reenact R.S. 9:392(A)(introductory paragraph), (7)(a) and (b), and (B) and2
399.1, relative to paternity; to provide for acknowledgments of paternity; to provide3
terminology to include both parents; to provide for the inclusion of certain4
information; to provide for the dismissal of a paternity judgment; to provide for the5
burden of proof; to provide exceptions; to provide for genetic testings; to provide for6
the filing of tests results; and to provide for related matters.7
Be it enacted by the Legislature of Louisiana:8
Section 1. R.S. 9:392(A)(introductory paragraph), (7)(a) and (b), and (B) and 9
399.1 are hereby amended and reenacted to read as follows:10
§392. Acknowledgment; requirements; content11
A. Prior to the execution of an acknowledgment of paternity, the notary shall12
provide apprise in writing, and orally, or by which may include directing them to13
video or audio presentations, the party or parties mother and alleged father making14
the acknowledgment of the following:15
* * *16
(7)(a) A party An alleged father who executed an authentic act of17 SB NO. 322
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acknowledgment may revoke the act, without cause, before the earlier of the1
following:2
(i) Sixty days after the signing of the act, in a judicial hearing for the limited3
purpose of revoking the acknowledgment.4
(ii) A judicial hearing relating to the child, including a child support5
proceeding, wherein the affiant to alleged father who executed the authentic act of6
acknowledgment is a party to the proceeding.7
(b) Thereafter, the acknowledgment of paternity may be voided only upon8
proof, by clear and convincing evidence, that such act was induced by fraud, duress,9
material mistake of fact, or error, or that the person alleged father who executed the10
authentic act of acknowledgment is not the biological father.11
* * *12
B. In addition to the general requirements of the Civil Code, an13
acknowledgment of a child born outside of marriage shall include the social security14
numbers of the father and mother, and, in accordance with the provisions of 4215
U.S.C. 652(a)(7) and 42 U.S.C. 666(a)(5)(D), shall include all minimum16
requirements specified by the secretary of the United States Department of Health17
and Human Services. Failure to recite a party's social security number as required18
herein shall not affect the validity of the declaration.19
* * *20
§399.1. Dismissal of final order following judgment of paternity; time periods;21
procedure; effects22
A. Notwithstanding any other provision of law, a judgment establishing23
paternity may be set aside or vacated by the adjudicated father of a child, the child,24
the mother of the child, or the legal representative of any of these persons if genetic25
testing conducted in accordance with the provisions of R.S. 9:397.2 and 397.326
indicates that the adjudicated father of a child is not the biological father of the child.27
The proceeding shall be instituted by ordinary process in a court of competent28
jurisdiction and service shall be made upon the office of family support, support29 SB NO. 322
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enforcement services of the Department of Social Services, if services are being1
provided by the department. The burden of proof shall be upon the party seeking2
to set aside or vacate the judgment of paternity. The proceeding shall be brought3
within one of the following time periods:4
(1) Within a two-year period commencing with the date on which the5
adjudicated father knew or should have known of a judgment that established him6
as the father of the child or commencing with the date the adjudicated father knew7
or should have known of the existence of an action to adjudicate the issue of8
paternity, whichever is first, except as provided in Paragraph (2) of this Subsection.9
(2) In the case of any adjudicated father who is the biological father as a10
result of a default judgment as of the effective date of this Section, within a two-year11
period commencing with the enactment of this Section.12
B. Subsection A of this Section does not apply if the child is presumed to be13
a child of a marriage between the mother and the legal father.14
C. If an order of support is dismissed on the basis of non-paternity of the15
adjudicated father, the court shall nullify the judgment of paternity. If the court16
finds there is a substantial likelihood that the adjudicated father is not the17
biological father, it shall order genetic tests pursuant to R.S. 9:396. Nothing18
herein shall preclude the introduction of other evidence if it is not possible to19
conduct genetic testing.20
D. The test results certified under oath by an authorized representative21
of an accredited laboratory shall be filed with the court and shall be admissible22
on the issue of paternity in accordance with R.S. 9:397.3. If the test results show23
a statistical probability of paternity of ninety-nine point nine percent or greater,24
a rebuttable presumption of paternity shall be established. If the adjudicated25
father is found to be excluded by the tests, the court shall nullify the judgment26
of paternity.27
E. Except for good cause shown, the court shall not suspend, during the28
pendency of this proceeding, any legal obligations including a support obligation29 SB NO. 322
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of the adjudicated father.1
D.F.(1) If a judgment of paternity is set aside, vacated, or dismissed, the2
court shall dismiss any obligation of child support.3
(1)(2) A judgment dismissing an established order of support does not affect4
any child support payment or arrearages paid, due, or owing prior to the date the5
action to set aside or vacate the judgment of paternity was filed.6
(2)(3) The judgment dismissing an established order of support shall be7
served upon the office of family support, support enforcement services of the8
Department of Social Services, if services are being provided by the department.9
(3)(4) Neither the state of Louisiana, its officers, employees, agents,10
contractors, nor the office of family support, support enforcement services of the11
Department of Social Services shall be liable in any case to compensate any person12
for child support paid or for any other costs as a result of the judgment setting aside13
or vacating the judgment of paternity or support entered in accordance with this14
Section.15
The original instrument was prepared by Jerry G. Jones. The following
digest, which does not constitute a part of the legislative instrument, was
prepared by Michelle Broussard-Johnson.
DIGEST
Quinn (SB 322)
Present law uses the terms "party or parties" and "affiant."
Proposed law changes the terms to "mother and alleged father" and "alleged father."
Present law required only the alleged father who executed the acknowledgment to be a party
to this action.
Proposed law changes present law to make it consistent with federal law which requires both
the mother and father to sign the acknowledgment.
Present law provides that a judgment establishing paternity may be set aside or vacated if
genetic testing indicated that the adjudicated father is not the biological father.
Proposed law provides that if the court finds there is a substantial likelihood that the
adjudicated father is not the biological father, it shall order genetic testing and if the results
show a 99.9% statistical probability of paternity, a rebuttable presumption of paternity shall
be established.
Proposed law provides that the burden of proof shall be upon the party seeking to set aside
or vacate the judgment and proceedings shall be brought within two years from judgment SB NO. 322
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or initiation of action.
Proposed law provides that the court shall not suspend any legal obligations during the
pendency of this proceeding, except for good cause shown.
Proposed law provides that if the judgment of paternity is set aside, vacated, or dismissed,
the court shall dismiss any obligation of child support.
Present law provides that present law does not apply to a child presumed to be a child of a
marriage.
Proposed law provides that present law does not apply to a child presumed to be a child of
a marriage between the mother and the legal father.
Effective August 15, 2010.
(Amends R.S. 9:392(A)(intro. para.), (7)(a) and (b), and (B) and 399.1(A)(intro.para.), (B),
(C), and (D); adds R.S. 9:399.1(E) and (F))
Summary of Amendments Adopted by Senate
Committee Amendments Proposed by Senate Committee on Judiciary A to the
original bill.
1. Changed from not applying to a child presumed to be a child of a marriage
between the mother and the adjudicated father to not applying to a child
presumed to be a child of a marriage between the mother and the legal father.
Senate Floor Amendments to engrossed bill.
1. Clarifies the two year prescriptive period that exist in which the adjudicated
father knew or should have known of a judgment establishing paternity.
2. Technical amendments with clarifying language.