To Kill a Cuckoo Bird: Louisiana's Dual Paternity Problem

To Kill a Cuckoo Bird: Louisiana’s Dual Paternity Problem INTRODUCTION In addition to being the favorite bird of European clockmakers, 1 the cuckoo is also what is known as a “brood parasite.” 2 Cuckoos, rather than building their own nests, seize control of the nests of other birds. 3 The cuckoo finds another bird’s nest and then, while the other bird is away, lays its eggs in the nest. 4 If the other bird fails to notice the deception, the cuckoo’s egg will hatch and the cuckoo hatchling will take over the nest, hoisting the victim bird’s eggs on its back and dropping them out of the nest to their destruction. 5 The unknowing victim bird will continue to care for the cuckoo hatchling as though it were its own, nourishing the offspring of the cuckoo who has harmed it so greatly. 6 Even if the victim bird discovers the deception, it is often compelled to continue to support and nourish the young cuckoo under threat of attack by the parent cuckoo who perches nearby. 7 Much like the cuckoo’s victim, men in Louisiana are also deceived into raising and supporting the biological children of other men and, even if they discover the deception, are often compelled by the force of law to continue to do so. In Louisiana, if a man is married to a woman who has an affair with another man resulting in the birth of a child, the husband, who is not the biological father of the child, will be presumed to be the legal father of the child. 8 If the husband does not take legal action to disavow his paternity within one year of the child’s birth, even if he has no reason yet to question his paternity, he will be considered the child’s Copyright 2017, by HENRY S. RAUSCHENBERGER. 1. For a history of the cuckoo clock see Jimmy Stamp, The Past, Present and Future of the Cuckoo Clock, SMITHSONIAN (May 17, 2013), http://www.smith sonianmag.com/arts-culture/the-past-present-and-future-of-the-cuckoo-clock-65 073025/?no-ist [https://perma.cc/AL2F-4GNF]. 2. Karl Schulze-Hagen, Bard G. Stokke & Tim R. Birkhead, Reproductive Biology of the European Cuckoo Cuculus Canorus: Early Insights, Persistent Errors and the Acquisition of Knowledge, J. ORNITHOLOGY, Jan. 2009, at 1, 1–2. 3. Id. 4. Id. 5. Id. 6. Rachael Winfree, Cuckoos, Cowbirds and the Persistence of Brood Parasitism, 14 TREE 338, 338 (1999). 7. Id. at 340. 8. LA. CIV. CODE art. 185 (2017). 1178 LOUISIANA LAW REVIEW [Vol. 77 legal father and will be responsible for the child’s financial support. 9 Even if the biological father of the child is identified and made legally responsible for the child, the legal father will remain legally responsible as well because, unique amongst the states, Louisiana allows for a child to have two legally recognized fathers through the doctrine of “dual paternity.” 10 Both the legal father and the biological father will be equally recognized as the child’s father and dually responsible for the child’s financial support. 11 Dual paternity has been the subject of fierce debate in Louisiana 12 and across the United States, 13 particularly when, as in the majority of instances in Louisiana, it is forced upon the legal father due to the marital presumption of paternity. 14 The primary argument against the doctrine is that it creates a “trifecta of insult and injury” 15 to the wife’s husband, who must now “suffer the betrayal by his wife, the shock of learning that his child is not biologically his, and now, the indignity of being forced to financially support a child born of his wife’s adultery.” 16 In addition to this inherent unfairness, the courts of Louisiana have been inconsistent in dealing with the doctrine, particularly when it comes to the manner in which they have allocated child support obligations between dual fathers. 17 9. Id. art. 189 (2015). 10. Sandi Varnado, Who’s Your Daddy?: A Legitimate Question Given Louisiana’s Lack of Legislation Governing Assisted Reproductive Technology , 66 LA. L. REV. 609, 628 (2006). 11. Melanie B. Jacobs, More Parents, More Money: Reflections on the Financial Implications of Multiple Parentage, 16 CARDOZO J.L. & GENDER 217, 228 (2010). 12. Katherine Shaw Spaht, Who’s Your Momma, Who Are Your Daddies? Louisiana’s New Law of Filiation , 67 LA. L. REV. 307, 321 (2007) [hereinafter Who’s Your Momma? ]. 13. See Laura Nicole Althouse, Three’s Company? How American Law Can Recognize a Third Social Parent in Same-Sex Headed Families, 19 HASTINGS WOMEN L.J. 171 (2008) (advocating the adoption of dual paternity and maternity schemes nationwide). 14. See, e.g., Jacinta M. Testa, Finishing Off Forced Fatherhood: Does It Really Matter If Blood or DNA Evidence Can Rebut the Presumption of Paternity?, 108 PENN. ST. L. REV. 1295, 1295 (2004); Melanie B. Jacobs, My Two Dads: Disaggregating Biological and Social Paternity, 38 ARIZ. ST. L.J. 809, 810 (2006). 15. Rachel L. Kovach, Sorry Daddy — Your Time Is Up: Rebutting the Presumption of Paternity in Louisiana, 56 LOY. L. REV. 651, 653 (2010). 16. Id. 17. See, e.g., Dep’t of Soc. Servs. v. Williams, 605 So. 2d 7 (La. Ct. App. 1992); Dep’t of Soc. Servs. ex rel. Munson v. Washington, 747 So. 2d 1245 (La. 2017] COMMENT 1179 The Louisiana Supreme Court has clearly established the principle that a biological father owes a duty of support to his biological child, even if another man is the legal father of that child due to the presumption of paternity. 18 The Court has, however, specifically declined to answer the question of whether the presumed legal father of the child also shares in this obligation of support, 19 leading to wildly varying decisions by lower courts. 20 Recently, in Department of Children and Family Services ex rel. A.L. v. Lowrie, the Louisiana Supreme Court answered a portion of the question regarding the allocation of the support obligation between legal and biological fathers in dual paternity situations. 21 In Lowrie, the Louisiana Supreme Court affirmatively held that a legal father is entitled to have the court consider the income of a child’s biological father when calculating the legal father’s child support obligation in dual paternity situations. 22 Although this decision injects a small measure of fairness into the doctrine of dual paternity by requiring the consideration of a biological father’s income in the legal father’s child support determination, it does not go far enough. Lowrie leaves the doctrine of dual paternity intact, meaning former husbands are still financially responsible for, and legally bound to, children who are products of their wives’ adultery, against their will. Furthermore, although the decision requires consideration of the biological father’s income, it provides no framework or methodology for lower courts to utilize in doing so, creating fertile ground for continued judicial confusion. The only way to solve the problem and the unfairness and confusion that result from it is legislative action aimed at eliminating the occurrence of forced dual paternity altogether. Part I of this Comment provides an overview of Louisiana’s law of filiation and how it has given rise to the doctrinal problem of dual paternity. Part II describes the Louisiana Supreme Court’s attempt to Ct. App. 1999); Louisiana ex rel. Wilson v. Wilson, 855 So. 2d 913 (La. Ct. App. 1992); Fontenot v. Thierry, 422 So. 2d 586 (La. Ct. App. 1982); J.M.Y. v. R.R., 1 So. 3d 725 (La. Ct. App. 2008); Starks v. Powell, 552 So. 2d 609 (La. Ct. App. 1989); Jones v. Rodrigue, 771 So. 2d 275 (La. Ct. App. 2000). 18. Gallo v. Gallo, 861 So. 2d 168, 180 (La. 2003). 19. Smith v. Cole, 553 So. 2d 847, 854–55 (La. 1989). See infra Part I.B. 20. See, e.g., Williams, 605 So. 2d 7; Washington, 747 So. 2d 1245; Wilson, 855 So. 2d 913; Fontenot, 422 So. 2d 586; J.M.Y., 1 So. 3d 725; Starks, 552 So. 2d 609; Jones, 771 So. 2d 275. 21. Dep’t of Children & Family Servs. ex rel. A.L. v. Lowrie, 167 So. 3d 573, 585 (La. 2015). 22. Id. 1180 LOUISIANA LAW REVIEW [Vol. 77 mitigate the harm caused by the doctrine with its decision in Lowrie, by explaining the decision in full and discussing its effect. Part III details the problems that still remain with the doctrine of dual paternity post-Lowrie. Part IV suggests a solution for the problem of forced dual paternity through modification the legal provisions which give rise to it. Finally, the Addendum addresses changes made by the legislature to Louisiana’s law of filiation after this Comment was accepted for publication. I. DUAL PATERNITY HATCHES IN LOUISIANA In Louisiana, the law of filiation is the foundation of the doctrine of dual paternity. Filiation refers to the legal relationship between parent and child, and the “law of filiation” is the method by which these legal relations are determined and established. 23 Dual paternity was created by the Louisiana Supreme Court in an attempt to align Louisiana’s law of paternal filiation with changing legal and social reality. 24 The Court found it necessary to create the doctrine of dual paternity due to a conflict between the traditional manner in which the law of Louisiana determines paternity and modern science which can determine biological paternity with near certainty. 25 Later, the legislature chose to codify the doctrine. 26 Ultimately, the narrative of dual paternity begins with the legal creation of one father and ends with the judicial formation of a second. A. Fatherhood in Louisiana The Louisiana Civil Code defines filiation as “the legal relationship between a child and his parent.” 27 Filiation is established in three ways: by proof of maternity; by proof of paternity; or by adoption. 28 Proof of maternity is conceptually straightforward 29 and is “established by a 23. John R. Trahan, Glossae on the New Law of Filiation, 67 LA. L. REV. 387, 388 n.1 (2007) (“Filiation is defined as ‘the [juridical] line that unites a child to his father or to his mother: to his father, paternal filiation or paternity; to his mother, maternal filiation or maternity.’” (quoting GÉRARD CORNU, DROIT...