Insight

Modern Problems: Paternity in a New Age

Published on: August 4, 2013

Can a child have more than one father? Yes, according to Louisiana law which allows for "dual paternity."

Louisiana's "family law" has undergone many changes in an attempt to react to the challenges presented by new medical technology and a breakdown of the traditional family structure. The recent Supreme Court decision in Derek Alan Pociask v. Kera Mosely is the latest effort to address these "modern problems."

The Pociask Court explained that there is a public interest in "protect[ing] innocent children, born during marriage, against scandalous attacks upon their paternity by the husband of the mother, who may be seeking to avoid paternal obligations to the child ... Thus, the traditional and historical position of Louisiana jurisprudence was to zealously guard and enforce the presumption of paternity created by the Civil Code." This public policy was easier to promote in the past when a husband may have had no reason to question or ability to challenge his paternity. However, in a world of vasectomies and DNA testing, the husband now has an increased ability to factually prove that he is not the father.

With "dual paternity," the first "father" is the husband of the child's mother. The second "father" is the biological father of the child. This situation can occur because the husband is presumed to be the father of the child under Louisiana law. See, La. C.C. art. 185. This "presumption" becomes incontrovertible if the husband does not bring an action to disavow his paternity within one year from when he learns or should have learned of the child's birth unless the husband lived separate and apart continuously from the mother for three-hundred days immediately preceding the birth of the child. See, La. C.C. art. 189.　

If the husband lived separate and apart for three-hundred days immediately preceding the birth of the child, the husband can bring a disavowal action within one year from being notified in writing that a party in interest asserts that he is the father of the child. If he fails to bring the disavowal action, he will be considered the "father" for all legal purposes. The purpose behind the "separate and apart" exception is to bring legal and biological paternity into "closer association." See, Katherine Shaw Spaht, Who's Your Momma, Who are Your Daddies?: Louisiana's New Law of Filiation, 67 La. L. Rev. 307 at 314 (2007).

In Pociask, the Louisiana Supreme Court addressed what it means to "live separate and apart continuously" from the mother. The plaintiff in Pociask (the presumed father and ex-husband of the defendant mother) brought an action to disavowal his paternity. The disavowal action was brought well over a year after the child's birth.

Factually, the presumed father in Pociask underwent a vasectomy prior to the birth of the child, had not entered into sexual relations with the mother for over three-hundred days (over nine months) prior to the child's birth and had barely seen the mother in the three-hundred days prior to the birth of the child. Moreover, DNA testing proved that he was not the biological father. Nevertheless, the Louisiana Court of Appeals determined that the husband was the presumed father of the child because he did not bring his disavowal action within a year of the child's birth.

The Court of Appeals interpreted the phrase "lived separate and apart continuously" so strictly that the husband's one night stay at the marital domicile during the three-hundred day period preempted the disavowal action. The Appeals Court held that the phrase "lived separate and apart continuously" should not be interpreted in pari materia (in a like manner) with the divorce articles of the Civil Code. In the divorce setting, a spouse will be found to have lived "separate and apart" when the overall circumstances show that there was no mutual intention to resume the marital relationship.

The Pociask Court disagreed with the strict reading of the "separate and apart" language used by the appellate court. According to the Pociask Court, the phrase "lived separate and apart continuously" should be interpreted the same way in a disavowal action as it interpreted with a divorce. Therefore, the overnight visit in Pociask did not serve to interrupt the three-hundred day period and the disavowal action was timely.

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Louisiana Supreme Court Vacates Prior Decision and Finds Prescriptive Periods for Child Abuse Claims Can Be Revived

In 2021, the Louisiana Legislature amended La. R.S. 9:2800.9 to provide that a legal action against a person for sexual abuse of a minor, if barred by liberative prescription prior to the effective date of the amendment, is revived for a three-year period after the effective date of the amendment. In 2022, La. R.S. 9:2800.9 was amended again to specifically state the Legislature’s intent to revive any cause of action related to sexual abuse of a minor that previously prescribed under any Louisiana prescriptive period.

On March 22, 2024, the Louisiana Supreme Court issued its decision in Douglas Bienvenu, et al. v. Defendant 1 and Defendant 2, and found the statute was unconstitutional because it conflicted with due process protections set forth in the Louisiana Constitution. Specifically, the Court found that a defendant has a vested property right in accrued prescription and that revival of a prescribed cause of action violated due process.

However, the Louisiana Supreme Court granted the plaintiffs’ request for rehearing, and on June 12, 2024, the Court vacated its prior ruling and found that the amendments to La. R.S. 9:2800.9 were constitutional.

On rehearing, the court agreed that a defendant has a vested property right in accrued prescription but found another step in constitutional analysis was required— examination of whether the legislature’s revival of prescribed causes of action for sexual abuse of minors “comports with substantive due process.” The Court noted, “The essence of substantive due process is protection from arbitrary and capricious action.”

In Bienvenu, the defendants’ right to plead prescription was an economic interest that did not implicate fundamental rights. The statute at issue was social welfare legislation, enacted to address societal costs of child sexual abuse. Therefore, the Court found the applicable due process test was whether the legislation was reasonable in relation to the goal to be attained and was adopted in the interest of the community as a whole. The statute needed only to have a rational relationship to a legitimate governmental interest to survive due process scrutiny.

The Court found the amendments to La. R.S. 9:2800.9 passed this test because (1) the provision assists in identifying hidden child predators so children will not be abused in the future; (2) shifts the costs of the abuse from the victims and society to those who actually caused it; and (3) educates the public about the prevalence and harm from child sexual abuse to prevent future abuse. These interests were found legitimate and compelling. Thus, the statute was constitutional and could be applied retroactively “to revive, for the period stated, all causes of action related to sexual abuse of a minor that previously prescribed under any Louisiana prescriptive period.”

References:

Bienvenu v. Defendant 1, 2023-01194 (La. 3/22/24), 382 So. 3d 38, reh'g granted, 2023-01194 (La. 5/10/24), and opinion vacated on reh'g, 2023-01194 (La. 6/12/24).

Bienvenu v. Defendant 1, 2023-01194 (La. 6/12/24).

Insight

Louisiana Supreme Court Clarifies “Reasonably Anticipated Use” in Product Liability Claim

Plaintiff Brady Hardisty and a coworker attempted to use chains attached to a tractor to pull a Caterpillar bulldozer from the mud. A chain snapped and struck plaintiff in the head and face. Hardisty sued Caterpillar under allegations that its product was unreasonably dangerous. Caterpillar filed a Motion for Summary Judgment arguing Hardisty was not engaged in a “reasonably anticipated use” of its product. Both the trial court and the appellate court identified “material issues of fact” in denying Caterpillar’s motion. The Supreme Court reversed, and entered summary judgment for Caterpillar.^

Caterpillar cited its Operation Manual that warned against the use of chains and gave a safer alternative. Hardisty asserted that material issues of fact existed as to whether Caterpillar “knew or should have known” that users were not following product warnings. Hardisty offered opinions from its expert witness that: (1) Caterpillar knew of the danger because it warned against the use of chains and (2) experience showed that the use of chains was a common practice in the industry.

The Hardisty court reasoned that the expert’s own “experience” was insufficient to refute Caterpillar’s evidence that it received no report of prior similar accidents. However, the Court cited to earlier case law for the proposition that even actual knowledge would not defeat the motion, stating:

The jurisprudence has recognized that knowledge of the potential and actual intentional abuse of a product does not create a question of fact on the question of reasonably anticipated use when the manufacturer expressly warned against the danger of such misuse.

In a recent case handled by Keogh Cox, the federal Fifth Circuit affirmed summary judgment for defendants, citing Hardisty for the proposition that a manufacturer may reasonably expect that its users will follow “clear and direct” product warnings. See Friels v. Louisiana State Administrative Office of Rick Management, et al.

References:

^Hardisty v. Walker, 25-00239 (La. 6/3/25), 410 So,3d 774.

Louisiana State Administrative Office of Rick Management, et al., No. 24-30688, 8/15/25. Opinion not designated for publication. 5^th Cir. R. 47.5.

Insight

A Presumption of Constitutionality

The Louisiana Supreme Court recently upheld as constitutional two statutes requiring the registration of sex offenders even when applied to a person who was found not guilty by reason of insanity. See State of Louisiana v. Isaiah Overstreet, Jr., 12 - 1854 (La. 3/19/13). While an ultimate resolution of this issue would cause the Court to measure the asserted personal interests of the defendant against the public's interest in safety, the defendant's challenges were rejected because he failed to properly raise and brief the constitutional issues.

In Overstreet, it was factually established that the defendant attempted to force himself upon co-eds at two universities. After his arrest, he was diagnosed as schizophrenic and consistently denied any recollection of the crimes. Overstreet was found not guilty by reason of insanity and continued in state-run mental facilities for over a decade until filing a Motion to be Released in 2010. The motion was denied as a consequence of his refusal to participate in sex offender treatment.

When he inquired about the potential release to a group home, he was advised that he would have to register as a sex offender. He then moved to declare LSA-R.S. 15:541(7) and 15:542 (the sex offender registration statutes) unconstitutional.

The Trial Court struck down the statutes as an affront to the Louisiana Constitution, giving conflicting oral and written reasons in support of the ruling. The Trial Court later explained in a per curiam opinion that the primary concern is one of capacity and that it would be unjust to require registration from one lacking capacity to do so.

At the Supreme Court, the defense attorney argued that an application of the registration statutes to Overstreet would violate due process and equal protection because he had not been convicted as a sex offender. In response, the State argued that a finding of not guilty by reason of insanity is not equivalent to an acquittal and that the registration statutes are not punitive but instead are designed to protect the public. The State contended that the defendant was a "sex offender" irrespective of the not guilty by reason of insanity defense.

The Louisiana Supreme Court did not address the merits of these positions. Instead, the Court held that the defendant had not sufficiently particularized the grounds for a constitutional challenge. The Court reasoned that legislation is presumed constitutional. As a result, if a party desires to challenge the constitutionality of a statute, that party must raise the unconstitutionality and specifically plead the basis of the alleged unconstitutionality.

The Overstreet Court reversed the Trial Court because it is the challenger's duty to sufficiently raise the constitutional objections. In so doing, the Court disregarded the Trial Court's sua sponte ruling ("on its own motion") that the sex offender registration statutes were unconstitutional because the Trial Court did not have the authority to raise these challenges.

While Overstreet did not resolve the ultimate issues of the constitutionality of the sex offender statutes in this setting, it did define the issues which would likely guide its decision should the issue ever be properly raised before the Court.