Form No. 10.2 Petition for disavowal of paternity (action en desaveu)
PETITION FOR DISAVOWAL OF PATERNITY The petition of ________ , who is domiciled in ________ parish, respectfully represents: 1. The defendants in this suit are ________ , the divorced wife of the plaintiff, who is domiciled in ________ parish, and the minor child, ________ , who is domiciled in ________ parish, and who does not have a qualified tutor, and thus it is necessary for this court to appoint an attorney to represent the child. 2. The minor child, ________ , was born on ________ in ________ parish. His mother is ________ . 3. Plaintiff is not the father of this child, for the reasons detailed below, and he formally disavows and disowns the child. 4. Plaintiff is not the father of this child because it was physically impossible for him to have participated in the conception of this child since he was out of the state at the time of conception. 5. Petitioner believes that appropriate testing of the blood and tissue of the parties will reveal that he is not the father of this child. Petitioner, therefore, moves the court to appoint an expert qualified as an examiner of blood and tissue samples for inherited characteristics, including but not limited to blood and tissue type, and to order the mother, child, and the petitioner to submit to the collection of blood and tissue samples by the appointed expert. 6. Plaintiff could not be the father of this child because he suffered from sterility at the time of the conception of the child. WHEREFORE, petitioner prays: A. That an attorney be appointed to represent the child, and that service of process be made on that attorney; and proceedings conducted contradictorily against the attorney; B. That a rule to show cause issue ordering the parties to this suit to submit to the collection of blood and tissue samples and an expert be appointed to conduct tests on the samples; and C. For judgment decreeing that the petitioner is not the father of this child.
ORDER Considering the foregoing petition: IT IS ORDERED, that: A. ________ , attorney at law, is appointed to represent the minor child, ________ ; B. ________ , an expert qualified as an examiner of blood and tissue samples, is appointed to conduct tests for inherited characteristics, including but not limited to blood and tissue type, and to prepare a written report which shall be filed in the suit records; and C. A rule to show issue, directed to the defendants, ordering them to appear and show cause on the ________ day of ________ , 20__ , at ________ o'clock why they should not submit to the collection of blood and tissue samples by the appointed expert. Notes to Form No. 10.2 1. The action en desaveu is most often brought by independent petition, as a reconventional demand in a suit for child support, or in a succession proceeding to determine inheritance rights. See Bolton v. Bolton, 699 So. 2d 1130 (La. Ct. App. 1st Cir. 1997), where the court held that a petition for disavowal of paternity could be filed as a reconventional demand in a divorce case where the wife was seeking child support. This form contemplates the use of a petition, but the basic allegations may be used in the other situations with minor adaptations. The action en desaveu is brought when the petitioner is presumed to be the father of a minor child because the child was born or conceived during petitioner's marriage to the child's mother. LSA-C.C. arts. 185-186. If the person is not presumed to be the father, the action is not for disavowal but for declaratory relief. See O'Brien v. O'Brien, 653 So. 2d 1364 (La. Ct. App. 4th Cir. 1995). LSA-R.S. 9:398.2, enacted in 1995, authorizes the husband of the mother to petition the court for an order requiring the mother and child to submit to blood tests, prior to bringing an action for disavowal. The Court is directed not to make a finding of paternity based on the blood tests results but the tests are admissible in a subsequent action. One apparent purpose of the new action is to allow a legal father to discover if the child is his without publicly disavowing the child. Acts 2006, No. 344 recognized the prescription problems discussed in previous editions of this Handbook and enacted a suspension of the period for bringing a disavowal action for one year from the date of the filing of a petition under R.S. 9:398.2. 2. Name of the presumed father. 3. Parish of domicile. Jurisdiction over an action to disavow paternity is obtained if the child is domiciled in or is in this state and the child was born or acknowledged in Louisiana, or born out of state if the mother was domiciled in Louisiana. The action may also be brought in Louisiana if the presumed father was domiciled in this state at the time of conception and birth. LSA-C.C.P. art. 10(A)(8). See, however, Prine v. Prine, 687 So. 2d 637 (La. Ct. App. 2d Cir. 1997) where the court dismissed a father's petition to disavow paternity for lack of personal jurisdiction over the child, a non-resident, despite C.C.P. art. 10(A)(8). The court held that due process requires that the child or mother must have some contact with the state. 4. Name of the mother of the child. The allegation of divorce is made in this form. It may be useful to include the facts relating to the judgment of divorce. 5. Name of the child. An unemancipated minor has no procedural capacity to be sued. LSAC.C.P. art. 732. An attorney must be appointed to represent the child. LSA-C.C.P. art. 5091.1. 6. LSA-C.C.P. art. 5091.1 directs the judge to appoint an attorney to represent the minor child in all actions to disavow paternity, apparently even if the child has a previously appointed tutrix. The court appointed attorney may not represent any other party in the suit. 7. Date of birth of the child. As a general rule, the disavowal action must be filed within one year after the husband learned or should have learned of the birth of the child. The time period had been 180 days until the 1999 amendment lengthened the period to one year. Under an
exception to the rule, if he lived separate and apart from the mother continuously during the three hundred days immediately preceding the birth of the child, the time period for a disavowal action does not start to run until a claim in writing is made against the husband. C.C. Art. 189. An exception was found in former R.S. 9:305 (repealed by Acts 2006, No. 344). That exception gave the father 10 years to file a disavowal action for purposes of child support only if he erroneously believed he was the father because of the fraudulent actions of the mother. The 2005 revision changes prior law by removing the exception that provided for a suspension of the time period if the husband, for reasons beyond his control, was not able to file suit timely. Revised Article 198 does not retain this exception because the new time period was made prescriptive and is thus now subject to both suspension and interruption. See C.C. Arts. 3462 to 3472. 8. Parish where the child was born. This allegation establishes the venue of the action. The venue for an action to establish filiation is the parish where 1) the child was born, or 2) either parent resided at the time of birth. LSA-C.C.P. art. 74.1. 9. The father has the burden of proving that he is not the father of the child by clear and convincing evidence. One of the more important changes in the law made by the revisions involves the standard of proof required in a disavowal action. Former Article 187 set the burden of persuasion at a preponderance of the evidence, but required independent verification or corroboration by physical data or evidence, such as scientific tests and verifiable physical circumstance of remoteness. Revised Article 187 changes the burden of persuasion to clear and convincing evidence but requires only corroborating evidence to the testimony of the husband. Other corroborating evidence may include the results of blood tests or DNA prints, medical evidence of sterility, evidence of physical impossibility, or the testimony of other witnesses. See Comment (b) to Article 187. The court, of course, has authority to order blood and tissue tests for all parties involved in the suit. LSA-R.S. 9:396 et seq. Contrast Robertson v. Young, 433 So. 2d 421 (La. Ct. App. 4th Cir. 1983) (admission of paternity by wife's boyfriend). See Mock v. Mock, 411 So. 2d 1063 (La. 1982). The petition should allege all material facts that tend to show the plaintiff is not the father. 10. Insert additional facts to support this allegation. If the plaintiff intends to introduce evidence that he was physically remote from the mother at the time of conception, the material facts should be alleged in the petition. Gillies v. Gillies, 144 So. 2d 893 (La. Ct. App. 4th Cir. 1962). Dugas v. Henson, 307 So. 2d 650 (La. Ct. App. 3d Cir. 1975). One of the more important changes in the law involves the standard of proof. Former Article 187 set the burden of persuasion at a preponderance of the evidence, but required independent verification or corroboration by physical data or evidence, such as scientific tests and verifiable physical circumstance of remoteness. Revised Article 187 changes the burden of persuasion to clear and convincing evidence but requires only corroborating evidence to the testimony of the husband. Other corroborating evidence may include the results of blood tests or DNA prints, medical evidence of sterility, evidence of physical impossibility, or the testimony of other witnesses. See Comment (b) to Article 187. 11. Blood and tissue tests are a common method of proof to determine paternity and are governed by LSA-R.S. 9:396 et seq. See generally Blakesley, Louisiana Family Law, (Butterworth). The court may appoint an expert on its own motion or on motion of a party. This form includes a motion to appoint an expert. The appointment of an expert by the court does not prohibit the party from calling his own expert. LSA-R.S. 9:397.1, C.E. art. 706(C). This paragraph may be omitted if the father does not want to request the appointment of an expert. The party who requests the appointment may be liable for the costs. See LSA-R.S. 9:397.1(A). All lawyers handling a case involving blood testing should read Blakesley, Scientific Testing and Proof of Paternity: Some Controversy and Key Issues for Family Law Counsel, 57 La. L. Rev. 379 (1997). 12. Medical testimony may be offered to prove that the plaintiff was sterile at the time of conception to negate paternity. 13. Leave a blank for the court appointed attorney. The court may not accept suggestions as to the name of the attorney to represent the minor, unless manifestly in the interests of the minor. LSA-C.C.P. art. 5092. 14. Leave a blank for the name of the expert. The appointed expert is an officer of the court (LSA-C.C.P. art. 373), and may be punished with contempt for not performing his legal duties. LSA-C.C.P. art. 375. LSA-R.S. 9:396 et seq. governs the duties, payment of fees, and report of
the expert. 15. See In Interest of J.M., 590 So. 2d 565 (La. 1991), which held that LSA-R.S. 9:396 requires a rule to show cause before ordering blood tests.