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CODE TITLE VII PARENT AND CHILD

CHAPTER 1. CHILDREN

PART I. LEGITIMATION

9:391. Legitimation of illegitimate children

A father or mother shall have the power to legitimate his or her illegitimate children, without regard to the race or color of either parent or of the children, by an act declaratory of his or her intention passed before a notary and two witnesses; provided no legal impediments to the marriage of the father and mother existed at the time of the conception of such children.

PART I-A. BLOOD OR TISSUE SAMPLING FOR DETERMINATION OF PATERNITY

9:396. Authority for test; ex parte orders; use of results

A. 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, upon its own initiative or upon request made by or on behalf of any person whose blood or tissue is involved, may or, upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child, and alleged father 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. 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, 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, 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.

9:397. Selection of expert

The tests shall be conducted by a court appointed expert or experts qualified as examiners of blood or tissue samples for inherited characteristics, including but not limited to blood and tissue type. The number and qualifications of such expert or experts shall be determined by the court.

9:397.1. Compensation of expert witnesses and recovery of testing costs

A. The costs of the blood or tissue tests conducted by the expert witness appointed by the court shall be fixed at a reasonable amount. The costs shall be advanced by the party who requested that such tests be conducted. If the court orders the blood or tissue tests on its own motion, the petitioner shall advance the costs of the tests. In either case, the court shall tax the costs to the party against whom judgment is rendered. The compensation of each expert witness appointed by the court and called by a party shall be fixed at a reasonable amount. It shall be paid by the party against whom judgment is rendered, which shall be taxed as costs of court.

B. If the state, a political subdivision of the state, or the petitioner pays the initial costs of testing under this Part in a paternity action, the state, political subdivision, or petitioner may recover those costs from an individual only if he is found to be the father of the child in the action. The court shall determine the manner in which the reimbursement for the costs shall be made.

9:397.2. Chain of custody of blood or tissue samples

The chain of custody of blood or tissue samples taken under this Part may be established by affidavit if verified documentation of the chain of custody is submitted with the expert's report and if such documentation was made at or near the time of the chain of custody and was made in the course of regularly conducted business activity.

9:397.3. Admissibility and effect of test results

A. A written report of the results of the initial testing, certified by a sworn affidavit by the expert who supervised the tests, shall be filed in the suit record. A notice that the report has been filed shall be mailed by certified mail to all parties by the clerk of court or shall be served in accordance with Code of Civil Procedure Article 1314. A party may challenge the testing procedure within thirty days of the date of receipt or service of the notice.

B. (1) If the court finds there has been a procedural error in the administration of the tests, the court shall order an additional test made by the same laboratory or expert.

(2)(a) If there is no timely challenge to the testing procedure or if the court finds there has been no procedural error in the testing procedure, the certified report shall be admitted in evidence at trial as prima facie proof of its contents, provided that the party against whom the report is sought to be used may summon and examine those making the original of the report as witnesses under cross-examination.

(b) A certified report of blood or tissue sampling which indicates by a ninety-nine and nine-tenths percentage point threshold probability that the alleged father is the father of the child creates a rebuttable presumption of paternity.

C. Any additional testing ordered by the court pursuant of this Part shall be proved by the testimony of the expert.

D. If the court finds that the conclusions of all the experts as disclosed by the reports, based upon the tests, are that the alleged father is not the father of the child, the question of paternity shall be resolved accordingly. If the experts disagree in their findings or conclusions, the question shall be submitted upon all the evidence.

9:398. Applicability to criminal actions

This part shall apply to criminal cases subject to the following limitations and provisions: (1) An order for the tests shall be made only upon application of a party or on the court's initiative; (2) the compensation of the experts shall be paid by the parish of the party's domicile under order of court; (3) the court may direct a verdict of acquittal upon the conclusions of all the experts under the provisions of R.S. 9:397.2, otherwise the case shall be submitted for determination upon all the evidence.

PART I-B. CHILD SUPPORT FOLLOWING JUDGMENT OF PATERNITY

9:398.1. Award of attorney's fees in actions to establish paternity

When the court renders judgment in favor of a party seeking to establish paternity, it shall except for good cause shown, award attorney's fees costs to the prevailing party. However the provisions of this Section shall not apply to compensation of expert witnesses and recovery of blood or tissue testing costs in accordance with R.S. 9:397.1.

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.

(2) Notwithstanding any other provision of law to the contrary, the alleged biological father of a child not entitled to legitimate filiation nor filiated in accordance with Civil Code Article 209 (A), 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 legitimate 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.

9:399. Child support following judgment of paternity

A judgment for 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 support of any kind provided by the judgment debtor from the date the petition for support is filed to the date the 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.

PART I-C. PUTATIVE FATHER REGISTRY

9:400. Putative father registry

A. The Department of Health and Hospitals, office of preventive and public health services, shall establish a putative father registry which shall record the names and addresses of the following:

(1) Any person adjudicated by a court of this state to be the father of the child.

(2) Any person who has filed with the registry before or after the birth of a child out of wedlock, a declaration on forms to be prepared by the Department of Health and Hospitals, office of preventive and public health services, to claim paternity of the child.

(3) Any person adjudicated by a court of another state or territory of the United States to be the father of an out of wedlock child, where a certified copy of the court order has been filed with the registry by such person or any other person.

(4) Any person who has filed with the registry an acknowledgment by authentic act executed pursuant to Civil Code Article 203 or R.S. 9:391.

(5) Any person who has filed with the registry a legitimation by authentic act executed pursuant to Civil Code Article 200.

(6) Any person who has filed with the registry a judgment of filiation rendered by a court which recognizes a father as having, either formally or informally, acknowledged an illegitimate child and in which the father is adjudged the parent of the child.

B. A person filing a declaration to claim paternity of a child or an acknowledgment of paternity shall include therein his current address and shall notify the registry of any change of address pursuant to procedures prescribed by rules and regulations of the Department of Health and Hospitals, office of preventive and public health services.

C. A declaration to claim paternity of a child may be introduced in evidence by any party, other than the person who filed such notice, in any proceeding in which such fact may be relevant.

D. The Department of Health and Hospitals, office of preventive and public health services, shall, upon request, provide the names and addresses of persons listed with the registry to any court or authorized agency, and such information shall not be divulged to any other person, except upon order of a court for good cause shown.

E. The Department of Health and Hospitals, office of preventive and public health services, shall promulgate all rules and regulations necessary to carry out the purposes of this Part.

9:400.1. Effect of filing with the registry

Any recordation or filing made in the putative father registry under the provisions of this Part shall create a rebuttable presumption that the person filing is the father of the child. Such recordation or filing shall not require that the Department of Health and Hospitals, the Department of Social Services, the corresponding department of any other state, and those private agencies and institutions licensed for the placement of children for adoption by the Department of Health and Hospitals, the Department of Social Services, or by the corresponding department of any other state obtain the consent of the putative father for the adoption of the child.

PART II. VOLUNTARY SURRENDER AND ABANDONMENT OF CHILDREN [REPEALED]

9:401 to 9:407. Repealed by Acts 1991, No. 235, � 17, eff. Jan. 1, 1992

PART III. ADOPTION

SUBPART A. MINORS UNDER SEVENTEEN [REPEALED]

9:421 to 9:441. Repealed by Acts 1991, No. 235, � 17, eff. Jan. 1992

SUBPART B. PERSONS OVER SEVENTEEN

9:461. Right of adoption; conditions, limitations, and procedure; court order

A. Any person eighteen years or older may adopt any person over the age of seventeen years, according to the following conditions, limitations, and procedure:

(1) The adoption shall be effected by the execution of a notarial act signed by:

(a) The adoptive parent or parents and the person to be adopted when the person to be adopted is a major or an emancipated minor.

(b) The adoptive parent or parents and the duly appointed curator when the person to be adopted is an interdicted major.

(c) The adoptive parent or parents and the living parent or parents or guardian or tutor, or a tutor ad hoc appointed for the purpose, of the person to be adopted when the person to be adopted is an unemancipated minor over the age of seventeen years.

(2) All proceedings in connection with the appointment of a tutor or tutors ad hoc shall be heard by the judge, in chambers. Records of the proceedings, except the act of adoption proper, shall not be opened for inspection except on authorization by the court, and there shall be no publication thereof. All pleadings and offerings filed under this Section since January 1, 1952, save the said act of adoption, shall be confidential, and indexed and filed by the clerk of court, as provided in R.S. 9:437.

(3) If the person to be adopted is older than the adoptive parent or parents and is not an interdicted major, a petition for decree of adoption shall be presented to a court of proper jurisdiction in the parish of domicile of the adoptive parent or parents. The proceedings in connection with the decree shall be held in chambers. The adoptive parent or parents must establish to the satisfaction of the court that the adoption is in the best interests of the person to be adopted and the adoptive parent or parents. The court may require evidence to be presented or may direct that an investigation be conducted as to the reasons for and appropriateness of the adoption. The records of the proceedings, except the judgment granting or denying the decree of adoption, shall be confidential and indexed and filed by the clerk of court, as provided in R.S. 9:437, and shall not be opened for inspection except under court order.

B. The notarial act executed in accordance with Paragraph A(1) of this Section shall be registered in the parish or parishes in which both the adoptive parent or parents and the person being adopted are domiciled, with the clerk of court or, in Orleans Parish, with the register of conveyances. The clerk of court or register of conveyances shall record all such notarial acts of adoption, except as otherwise provided in Subsection A hereof, in a separate book kept by him for the purpose and shall keep an index of the same under the names of the adoptive parents and the person adopted.

C. In cases in which the adopted person was born in a state other than Louisiana which requires a court order prior to issuing a new birth certificate and upon petition of the parent, parents, or the person to be adopted, a court of proper jurisdiction may grant a judgment of adoption based upon the notarial act of adoption without further proceedings or investigation. In such cases, the validity and civil effects of the notarial act of adoption are in no way affected by the court order and shall continue to be governed by the laws applicable thereto.

9:462. Change of name

The name of the adopted person may be changed in the act of adoption.

PART IV. NEGLECT OR ABUSE

9:551 through 9:553. [Repealed by Acts 1956, No. 111, Section 1.]

PART V. GENERAL PROVISIONS

9:571. General rule that child may not sue parent

The child who is not emancipated cannot sue:

(1) Either parent during the continuance of their marriage, when the parents are not judicially separated; or

(2) The parent who is entitled to his custody and control, when the marriage of the parents is dissolved, or the parents are judicially separated.

9:572 to 9:574. Repealed by Acts 1993, No. 261, � 9, eff. Jan. 1, 1994

9:575. Abused parent or grandparent; domestic abuse assistance

A parent or grandparent who is being abused by an adult child or adult grandchild may file a petition in the district court seeking protection pursuant to the laws governing domestic abuse assistance, R.S. 46:2131 et seq.