Can A Court in Louisiana Order Back Child Support for an Adult Child?
Full Question:
Answer:
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. LSA-R.S. 9:399 provides that when a judgment for child support is rendered against a defendant who has been adjudged in a paternity suit to be the parent of the child for whom support is ordered, the judgment shall be retroactive to the date the paternity suit was filed.
Louisiana Revised Statue 9:309(C)allows for child support to be paid for a child past the age of majority if the child is unmarried, a full time student in good standing in a secondary school, and dependent on either parent or if the child is a developmentally disabled support may be paid up to age 22 years of age.
The following are Louisiana statutes:
9:399. Establishment of child support; interim order during proceeding;
final order following judgment of paternity
A. In a proceeding for the determination of paternity and upon motion
of any party, the court presiding over the paternity issue shall issue an
order of interim child support if there is clear and convincing evidence
of paternity on the basis of genetic testing or other evidence
susceptible of independent verification or corroboration.
B. If no interim child support was ordered pursuant to Subsection A of
this Section, a judgment for final child support rendered against a
defendant who has acknowledged paternity after a paternity suit has been
filed or has been adjudged in a suit to establish paternity to be the
parent of the child for whom support is ordered shall be effective from
the date on which the paternity suit was filed. In the event the court
finds good cause for not making the award retroactive to the date of the
filing of the paternity suit, the court may make the award retroactive to
a date subsequent to the filing of the paternity suit, but in no event
shall the award be fixed later than the date of the rendition of the
paternity judgment. Any monetary support provided by the judgment debtor,
from the date the petition for support is filed to the date the final
support order is issued to or on behalf of the person for whom support is
ordered, may be credited to the judgment debtor against the amount of the
judgment.
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.
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.
9:396. Authority for test; ex parte orders; use of results
A.
(1) Notwithstanding any other provision of law to the contrary, in
any civil action in which paternity is a relevant fact, or in an action
en desaveu, the court may, on its own initiative, or shall, under either
of the following circumstances, order the mother, child, and alleged
father, or the mother's husband or former husband in an action en
desaveu, to submit to the collection of blood or tissue samples, or
both, and direct that inherited characteristics in the samples, including
but not limited to blood and tissue type, be determined by appropriate
testing procedures:
(a) Upon request made by or on behalf of any person whose blood or
tissue is involved, provided that such request is supported by a sworn
affidavit alleging specific facts which either tend to prove or deny
paternity.
(b) Upon motion of any party to the action made at a time so as not to
delay the proceedings unduly.
(2) If any party refuses to submit to such tests, the court may resolve
the question of paternity against such party or enforce its order if the
rights of others and the interests of justice so require.
B.
(1) The district attorney, in assisting the Department of Social
Services in establishing paternity as authorized by R.S. 46:236.1.1 et
seq., may file a motion with a court of proper jurisdiction and venue
prior to and without the necessity of filing any other legal proceeding.
Upon ex parte motion of the district attorney and sworn affidavit of the
party alleging specific facts tending to prove paternity and other facts
necessary to establish the jurisdiction and venue of the court, the court
shall issue an ex parte order directing the mother, her husband or former
husband, child, and alleged father to appear at a certain date and time
to submit to the collection of blood or tissue samples, or both, and
shall direct that inherited characteristics in the samples, including but
not limited to blood and tissue type, be determined by appropriate
testing procedures. The order shall be personally served upon the alleged
father. If any party refuses to submit to such tests, the court, in a
subsequent civil action in which paternity is a relevant fact, may
resolve the question of paternity against such party or enforce its order
if the rights of others and the interests of justice so require.
(2) If the written report of the results of the initial testing
absolves a party from the allegation of paternity, the district attorney
and the department shall be enjoined from initiating any subsequent civil
action against that party to establish paternity of the same child. If
the written report fails to absolve a party from the allegation of
paternity, such report may be used by the district attorney or the
department as evidence against the alleged father in any subsequent civil
action for the establishment of paternity or by the alleged father in any
subsequent proceeding in which filiation is an issue.
C.
(1) Prior to ordering the alleged father to submit to paternity
testing under the provisions of this Section, the court may, upon motion
of the alleged father and after a contradictory hearing, order a person
presumed to be the father of the child, pursuant to the provisions of the
Civil Code, to produce the results of prior blood or tissue testing or to
submit to the collection of blood or tissue samples, or both, and direct
that inherited characteristics in the samples, including but not limited
to blood and tissue type, be determined by appropriate testing
procedures. If the written report of the results of the testing negates
the presumption that this person is the father of the child, only then
may the court order the alleged father to submit to paternity testing.
(2) If a presumed father is unknown by the parties or unavailable to
submit to testing, then the court shall resolve the matter in the
interest of justice in chambers.
9:398.2. Petition for order to submit to blood or tissue tests prior to
bringing filiation action
A.
(1) Notwithstanding any other provision of law to the contrary, the
husband of the mother, prior to filing an action of disavowal of a child
born or conceived during his marriage to the mother and prior to the
expiration of the time required to file an action of disavowal, may
petition a court of proper jurisdiction and venue for an order directing
the mother, child, and petitioner to submit to the collection of blood or
tissue samples, or both, for determination of paternity for the purpose
of exercising rights relating to the child. The filing of the petition
suspends the period for bringing the disavowal action for a period of one
year from the date the petition is filed.
(2) Notwithstanding any other provision of law to the contrary, the
alleged biological father of a child born outside of marriage, prior to
filing any action to establish filiation of the child, may petition a
court of proper jurisdiction and venue for an order directing the
mother, child, and petitioner to submit to the collection of blood or
tissue samples, or both, for determination of paternity for the purpose
of exercising rights relating to the child.
B. The petition authorized in Paragraphs (1) and (2) of Subsection A of
this Section shall name the mother as defendant and shall allege specific
facts tending to prove the relationship or the circumstances of any
physical relationship with the mother, or facts tending to prove
paternity, and other facts necessary to establish the jurisdiction and
venue of the court.
C. The court, after contradictory hearing, may order the parties to
submit to blood or tissue samples, or both, and direct that inherited
characteristics in the samples, including but not limited to blood and
tissue type, be determined by appropriate testing procedures as provided
in this Part.
D. If the court issues an order directing blood or tissue tests, or
both, the provisions of R.S. 9:397 through 397.2 and 397.3(A) and (B)
shall be applicable to the selection and compensation of experts, payment
of testing costs, establishment of chain of custody, filing of test
results in the court record, and authority of the court to order
additional tests if it finds there has been a procedural error in the
administration of the tests.
E. The court shall not make a determination of paternity based on the
test results and conclusions of the experts filed in the record;
however, the test results shall be admissible in any subsequent action
filed by any of the parties relating to filiation of the child.
F. The provisions of this Section shall not in any manner affect the
status of a child whose legal father is the husband of the mother who
does not timely disavow paternity of the child nor affect any right that
a child may have to file an action of filiation as provided by law.
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.
40:46.1. Hospital-based paternity program
A. Any hospital in the state which provides birthing services shall
have a program that allows for the voluntary acknowledgment of paternity
during the period immediately before or after the birth of a child.
B. During the period immediately before or after the birth of a child
to an unmarried woman, a hospital-based program established in accordance
with this Section shall, at a minimum:
(1) Provide to both the mother and alleged father, if he is present in
the hospital:
(a) Written materials about paternity establishment.
(b) The forms necessary to voluntarily acknowledge paternity.
(c) A written description of the rights, responsibilities, and
alternatives as provided in R.S. 9:392 (A) which are involved in
acknowledging paternity.
(d) The opportunity to speak with hospital personnel, either by
telephone or in person, who are trained to clarify information and answer
questions about paternity establishment.
(2) Provide the mother and alleged father, if he is present, the
opportunity to voluntarily acknowledge paternity in the hospital in
accordance with the Civil Code and R.S. 9:392.
(3) Afford due process safeguards.
(4) Forward completed acknowledgments to the state registrar.
C. Hospital support personnel that provide birthing services shall
possess notarial powers to administer oaths to and authenticate signatures
of any persons in connection with execution of a formal acknowledgment of
paternity in accordance with this Section. Any oaths administered or
signatures authenticated pursuant to this Section shall have the same
force and effect as if taken or signed before a duly commissioned notary
public.
D. Hospital personnel shall forward an acknowledgment of paternity to
the state registrar who shall forward copies of same to the Department of
Social Services, office of family support, support enforcement services.
A statewide data base shall be maintained by the Department of Social
Services in accordance with federal regulations.
E. A voluntary acknowledgment executed in accordance with this Section
shall be signed by both parents and the parents' signatures shall be
authenticated by a person possessing notarial powers in accordance with
state laws.
F. The Department of Social Services, office of family support, support
enforcement services shall provide to all birthing hospitals in the
state:
(1) Written materials about paternity establishment.
(2) Forms necessary to voluntarily acknowledge paternity.
(3) Copies of a written description of the rights, responsibilities,
and alternatives as provided in R.S. 9:392 (A) which are involved in
acknowledging paternity.
(4) Training, guidance, and written instructions relative to voluntary
acknowledgment of paternity, as necessary to operate the hospital-based
program.
(5) An assessment of each birthing hospital's program on at least an
annual basis.
G. Except in the case of intentional misconduct, no hospital or any
agent or employee thereof shall be held civilly or criminally liable for
any action or omission arising out of the performance of, attempted
performance of, or failure or inability to perform the duties imposed
herein.
40:46.2. Paternity establishment services
The state registrar shall provide voluntary paternity establishment
services in accordance with regulations prescribed by the secretary of
the United States Department of Health and Human Services. The state
registrar may designate specific employees in the offices of the vital
records registry who shall possess notarial powers to administer an oath
to any person in connection with any document required in the course of
establishing paternity.
