ENROLLED
ACT No. 309
2016 Regular Session
HOUSE BILL NO. 388
BY REPRESENTATIVES JEFFERSON AND HUNTER
(On Recommendation of the Louisiana State Law Institute)
1 AN ACT
2 To amend and reenact Civil Code Articles 189, 191, 195, and 196 and R.S. 9:406(B), (C),
3 (D)(2), and (E)(2) and to enact R.S. 9:408, relative to the filiation of children; to
4 provide for the commencement of the prescriptive period; to provide for the
5 revocation of an act of acknowledgment; to provide for necessary parties; and to
6 provide for related matters.
7 Be it enacted by the Legislature of Louisiana:
8 Section 1. Civil Code Articles 189, 191, 195, and 196 are hereby amended and
9 reenacted to read as follows:
10 Art. 189. Time limit for disavowal by the husband
11 The action for disavowal of paternity is subject to a liberative prescription of
12 one year. This prescription commences to run from the day of the birth of the child,
13 or the day the husband learns or should have learned of the birth knew or should
14 have known that he may not be the biological father of the child, whichever occurs
15 later.
16 Nevertheless, if the husband lived separate and apart from the mother
17 continuously during the three hundred days immediately preceding the birth of the
18 child, this prescription does not commence to run until the husband is notified in
19 writing that a party in interest has asserted that the husband is the father of the child.
20 Revision Comments - 2016
21 This revision alters the time periods within which a presumed father must
22 bring an action for disavowal. Rather than the husband's actual or constructive
23 knowledge of the birth of the child marking the commencement of the period, this
24 revision changes the law to provide for commencement on the later of the birth of
25 the child, or the husband's actual or constructive knowledge that he may not be the
26 child's biological father. This change better addresses cases in which a husband has
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1 been deceived by the child's mother. See, e.g., State v. Drew, 70 So.3d 1011 (La.
2 App. 2d Cir. 2011); C.C. Art. 198. Knowledge of the mother's adultery, for instance,
3 may provide the requisite knowledge for commencement of the period under the first
4 Paragraph of this Article.
5 * * *
6 Art. 191. Contestation and establishment of paternity by mother
7 The mother of a child may institute an action to establish both that her former
8 husband is not the father of the child and that her present husband is the father. This
9 action may be instituted only if the present husband has acknowledged the child by
10 authentic act or by signing the birth certificate.
11 * * *
12 Art. 195. Presumption by marriage and acknowledgment; child not filiated to
13 another man; proof; time period
14 A man who marries the mother of a child not filiated to another man and
15 who, with the concurrence of the mother, acknowledges the child by authentic act
16 or by signing the birth certificate is presumed to be the father of that child.
17 The husband may disavow paternity of the child as provided in Article 187.
18 Revocation of the authentic act of acknowledgment alone is not sufficient to rebut
19 the presumption of paternity created by this Article.
20 The action for disavowal is subject to a peremptive period of one hundred
21 eighty days. This peremptive period commences to run from the day of the marriage
22 or the acknowledgment, whichever occurs later.
23 Revision Comment - 2016
24 (a) To rebut the presumption of paternity created by subsequent marriage and
25 formal acknowledgment of the child, a timely disavowal action must be brought.
26 Merely revoking the formal act of acknowledgment in accordance with R.S. 9:406
27 is not sufficient to rebut the presumption of paternity under this article.
28 (b) The elimination of signing the birth certificate as a means of
29 accomplishing a formal acknowledgment is intended to have prospective effect only.
30 Formal acknowledgments that were accomplished in this manner prior to the
31 effective date of the 2016 revision will therefore remain effective.
32 Art. 196. Formal acknowledgment; presumption
33 A man may, by authentic act or by signing the birth certificate, acknowledge
34 a child not filiated to another man. The acknowledgment creates a presumption that
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1 the man who acknowledges the child is the father. The presumption can be invoked
2 only on behalf of the child. Except as otherwise provided in custody, visitation, and
3 child support cases, the acknowledgment does not create a presumption in favor of
4 the man who acknowledges the child.
5 Revision Comment - 2016
6 (a) To rebut the presumption of paternity created by subsequent marriage and
7 formal acknowledgment of the child, a timely disavowal action must be brought.
8 Merely revoking the formal act of acknowledgment in accordance with R.S. 9:406
9 is not sufficient to rebut the presumption of paternity under this Article.
10 (b) The elimination of signing the birth certificate as a means of
11 accomplishing a formal acknowledgment is intended to have prospective effect only.
12 Formal acknowledgments that were accomplished in this manner prior to the
13 effective date of the 2016 revision will therefore remain effective.
14 * * *
15 Section 2. R.S. 9:406(B), (C), (D)(2), and (E)(2) are hereby amended and reenacted
16 and R.S. 9:408 is hereby enacted to read as follows:
17 §406. Revocation or annulment of authentic act; with and without cause; procedure
18 * * *
19 B.(1) If the notarial act of acknowledgment has not been revoked within
20 sixty days in accordance with the provisions of Subsection A of this Section, a
21 person who executed an authentic act of acknowledgment may petition the court to
22 revoke such annul the acknowledgment only upon proof, by clear and convincing
23 evidence, that such act was induced by fraud, duress, material mistake of fact or
24 error, or that the person is not the biological parent of the child.
25 (2) The mover petitioner shall institute the annulment proceeding by
26 ordinary process, within a two-year period commencing with the execution of the
27 authentic act of acknowledgment of paternity, in a court of competent jurisdiction
28 upon notice to the other party who executed the notarial act of acknowledgment and
29 other necessary parties including the office of children and family services, child
30 support enforcement section of the Department of Children and Family Services.
31 (3) If the court finds based upon the evidence presented at the hearing that
32 there is substantial likelihood that fraud, duress, material mistake of fact or error
33 existed in the execution of the act or that the person who executed the authentic act
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1 of acknowledgment is not the biological father, then, and only then, the court shall
2 order genetic tests pursuant to R.S. 9:396. Nothing herein shall preclude the mover
3 petitioner from presenting any other evidence as a substitute for the genetic tests if
4 it is not possible to conduct such tests.
5 (3)(4) The test results certified under oath by an authorized representative
6 of an accredited laboratory shall be filed with the court and shall be admissible on
7 the issue of paternity pursuant to R.S. 9:397.3. If the test results show a statistical
8 probability of ninety-nine point nine percent or greater, a rebuttable presumption of
9 paternity shall be established. If the acknowledged father is found to be excluded by
10 the tests, an action seeking support or an established order of support shall be
11 dismissed and the acknowledgment of paternity shall be revoked annulled. A
12 judgment dismissing an established order of support does not affect any child support
13 payment or arrearages paid, due or owing prior to the date the revocation action
14 annulment was filed.
15 (4)(5) The burden of proof in this proceeding shall be upon the party seeking
16 to revoke the authentic act of acknowledgment. The testimony of the petitioner shall
17 be corroborated by other evidence.
18 C.(1) Except for good cause shown, the court shall not suspend during the
19 pendency of this proceeding any legal obligations, including a support obligation, of
20 the person who petitions the court to revoke or rescind annul the authentic act of
21 acknowledgment under this Section.
22 (2) Neither the state of Louisiana, its officers, employees, agents,
23 contractors, nor the office of children and family services, child support enforcement
24 section of the Department of Children and Family Services shall be liable to
25 compensate any person for child support paid or any other costs as a result of the
26 revocation of any authentic act of acknowledgment or the revocation annulment of
27 any judgment of paternity or support in accordance with this Section.
28 D.
29 * * *
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1 (2) However, if the voluntary acknowledgment is revoked annulled by order
2 of the court based upon genetic tests conducted in accordance with Subsection B of
3 this Section which excluded a person as a parent and an order of support has not been
4 established, no further action may be initiated against the excluded person.
5 E.
6 * * *
7 (2) Upon receipt of the form revoking the authentic act of acknowledgment
8 which was executed and filed with the registrar within the sixty-day period or upon
9 receipt of the judgment which shows that the voluntary acknowledgment has been
10 revoked at the hearing which is held no later than the sixtieth day following the
11 execution of the voluntary acknowledgment, or upon receipt of a certified copy of
12 a judgment with a finding shown clearly in the judgment that the authentic act of
13 acknowledgment was revoked annulled due to fraud, duress, material mistake of fact
14 or error that existed in the execution of the act or that the person who executed the
15 authentic act of acknowledgment is not the biological father, the registrar shall make
16 the appropriate amendments to the birth record of the child who was the subject of
17 the order.
18 Revision Comment - 2016
19 The 2016 revision repeals the two-year prescriptive period previously
20 imposed for revocation of authentic acts of acknowledgment. That prescriptive
21 period was illogical where the acknowledgment was executed by a man who was not
22 the biological father of the child. The Louisiana Supreme Court has held the
23 execution of such an acknowledgment to be an absolute nullity absent the requisite
24 biological relationship supporting it. Succession of Robinson, 654 So. 2d 682 (La.
25 1995). To speak of prescription when a father seeks a declaration of absolute nullity
26 is inappropriate, as absolute nullities are imprescriptible by nature. C.C. Art. 2032.
27 * * *
28 §408. Filiation and paternity proceeding; parties
29 The child's mother, the husband of the mother, and the biological father, if
30 known, shall be joined in a filiation or paternity proceeding, except that joinder is not
31 required of a person whose parental rights have been terminated, or who is deceased,
32 or whose joinder is determined otherwise not to be feasible.
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1 Section 3. Civil Code Article 196 as amended in this Act shall have prospective
2 application only.
SPEAKER OF THE HOUSE OF REPRESENTATIVES
PRESIDENT OF THE SENATE
GOVERNOR OF THE STATE OF LOUISIANA
APPROVED:
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