Is there a form we can use for joint custody or should that be done through the courts?
Full Question:
Answer:
If the parents of a child were not married when the mother became pregnant or when the child was born, the child does not have a legal father until paternity is established. Children born out of wedlock are entitled to the same rights and protections as children born in wedlock. Unmarried fathers have rights and duties similar to those of married fathers. Couples who are living together but are not married should take steps to ensure that both are recognized as the legal parents. Both parents can be listed on the birth certificate. A parent who is not listed may be able to be added after the birth of a child if the parent contacts the state Bureau of Vital Statistics in which the birth took place. The father will be shown on the birth certificate if he acknowledges paternity when or close in time to the birth, or the court orders the birth certificate to be changed to reflect the father’s name. A father can acknowledge paternity by signing a written admission or voluntary acknowledgment of paternity or paternity may be established by filing a civil lawsuit. A court will not automatically order paternity tests simply because a paternity action has been filed. It will review the petition to determine if there is sufficient information contained therein to warrant or justify the compelling of such a test. If the court orders a paternity test, the mother, child, and alleged father will be tested at a court-designated facility.
In most states, when a child is born to an unmarried mother, if there is no adjudication or registration of paternity, the mother has custody. Even after paternity has been adjudicated or registered, as long as there is no court order on custody, many states presume that the mother has custody of the child. Unmarried parents without custody, however, are entitled to the same visitation rights as divorced parents, absent extraordinary factors such as abuse or domestic violence. Once paternity has been established, a father has the right to seek custody of or visitation with his child. In determining custody issues, the court will generally consider the best interest of the child and may consider such factors as parental unfitness or the potential harm to the child. If the parties cannot agree to visitation rights, the court may be petitioned to request visitation rights. If the parties cannot agree on paternity, custody and child support, they should seek the assistance of an attorney who routinely handles paternity matters.
Parents are legally obligated to provide their children with all the necessities of life. The failure of parents to marry does not affect their responsibility to support their children. If parents are unmarried and cannot agree upon how much each should contribute toward the support of their children, the courts may decide. A court can order one parent to make specified payments to the other for child support. State laws provide that biological parents make all the decisions involving their children, including education, health care, and religious upbringing. Parents are not required to secure the legal right to make these decisions if they are married and are listed on the child's birth certificate. However, if there is disagreement about who has the right to make these decisions courts can decide.
In Louisiana, the court will award custody in accordance with the parents' agreement, unless the best interests of the child require otherwise. If there is no agreement or if the agreement is not in the best interests of the child, the court shall award joint custody, unless custody by one parent is shown by clear and convincing evidence to serve the child's best interests. Factors for determining the child's best interests include a stable environment and the primary caretaker preference. The parent not awarded custody is entitled to reasonable visitation.
The following are Louisiana statutes:
9:392. Acknowledgment; requirements; content
A. Prior to the execution of an acknowledgment of paternity, the notary
shall provide in writing, and orally or by directing them to video or
audio presentations, the party or parties making the acknowledgment of
the following:
(1) Either party has the right to request a genetic test to determine
if the alleged father is the biological father of the child.
(2) The alleged father has the right to consult an attorney before
signing an acknowledgment of paternity.
(3) If the alleged father does not acknowledge the child, the mother
has the right to file a paternity suit to establish paternity.
(4) After the alleged father signs an acknowledgment of paternity, he
has the right to pursue visitation with the child and the right to
petition for custody.
(5) Once an acknowledgment of paternity is signed, the father may be
obligated to provide support for the child.
(6) Once an acknowledgment of paternity is signed, the child will have
inheritance rights and any rights afforded children born in wedlock.
(7)
(a) A party who executed an authentic act of acknowledgment may
revoke the act, without cause, before the earlier of the following:
(i) Sixty days after the signing of the act, in a judicial hearing for
the limited purpose of revoking the acknowledgment.
(ii) A judicial hearing relating to the child, including a child
support proceeding, wherein the affiant to the authentic act of
acknowledgment is a party to the proceeding.
(b) Thereafter, the acknowledgment of paternity may be voided only upon
proof, by clear and convincing evidence, that such act was induced by
fraud, duress, material mistake of fact, or error, or that the person who
executed the authentic act of acknowledgment is not the biological
father.
(c) Except for good cause shown, the court shall not suspend any legal
responsibilities or obligations, including a support obligation, of the
party or parties during the pendency of the proceeding authorized in this
Section.
(8) All parties to the action have any other rights and
responsibilities which may be afforded by law now or in the future.
B. In addition to the general requirements of the Civil Code, an
acknowledgment of a child born outside of marriage shall include the
social security numbers of the father and mother, and, in accordance with
the provisions of 42 U.S.C. 652 (a)(7), shall include all minimum
requirements specified by the secretary of the United States Department
of Health and Human Services. Failure to recite a party's social security
number as required herein shall not affect the validity of the
declaration.
9:392.1. Acknowledgment; obligation to support; visitation
In child support, custody, and visitation cases, the acknowledgment of
paternity by authentic act is deemed to be a legal finding of paternity
and is sufficient to establish an obligation to support the child and to
establish visitation without the necessity of obtaining a judgment of
paternity.
9:405. Legal effect of acknowledgment
In child support, custody, and visitation cases, the acknowledgment of
paternity by authentic act is deemed to be a legal finding of paternity
and is sufficient to establish an obligation to support the child and to
establish visitation without the necessity of obtaining a judgment of
paternity.
9:572. Uncontested paternity proceedings; proof by affidavit; adoption of
court rules
The court vested with jurisdiction may provide, by local rule,
that in uncontested proceedings to establish paternity, proof may
be submitted by affidavit.
Art. 196. Formal acknowledgment; presumption
A man may, by authentic Act or by signing the birth certificate,
acknowledge a child not filiated to another man. The acknowledgment
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 acknowledgment does not create a presumption in favor of
the man who acknowledges the child.
Art. 197. Child's action to establish paternity; proof; time period
A child may institute an action to prove paternity even though he is
presumed to be the child of another man. If the action is instituted after
the death of the alleged father, a child shall prove paternity by clear
and convincing evidence.
For purposes of succession only, this action is subject to a peremptive
period of one year. This peremptive period commences to run from the day
of the death of the alleged father.
Art. 198. Father's action to establish paternity; time period
A man may institute an action to establish his paternity of a child at
any time except as provided in this Article. The action is strictly
personal.
If the child is presumed to be the child of another man, the action
shall be instituted within one year from the day of the birth of the
child. Nevertheless, if the mother in bad faith deceived the father of
the child regarding his paternity, the action shall be instituted within
one year from the day the father knew or should have known of his
paternity, or within ten years from the day of the birth of the child,
whichever first occurs.
In all cases, the action shall be instituted no later than one year
from the day of the death of the child.
The time periods in this Article are peremptive.
Art. 245. Custody of illegitimate children acknowledged by both parents
In a proceeding in which custody of an illegitimate child formally
acknowledged by both parents is sought by both parents, and in
proceedings for change of custody after an original award, custody shall
be awarded in accordance with the provisions on custody incident to
divorce contained in Title V of this Book.