Karen Cohen Kinnett Versus Jarred Brandon Kinnett

KAREN COHEN KINNETT NO. 17-CA-625

VERSUS FIFTH CIRCUIT

JARRED BRANDON KINNETT COURT OF APPEAL

STATE OF LOUISIANA

ON REMAND FROM LOUISIANA SUPREME COURT PARISH OF JEFFERSON,
STATE OF LOUISIANA NO. 768-195, DIVISION "E"
HONORABLE WILLIAM H. CREDO, JUDGE PRO TEMPORE PRESIDING

December 28, 2022

FREDERICKA HOMBERGWICKER

JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Jude G. Gravois, and Robert A. Chaisson

REVERSED;REMANDED
FHW
JGG
RAC

COUNSEL FOR PLAINTIFF/APPELLEE,
KAREN COHEN KINNETT
Allison K. Nestor
Leonard L. Levenson

COUNSEL FOR DEFENDANT/APPELLEE,
JARRED BRANDON KINNETT
Jacqueline F. Maloney
Tracy G. Sheppard

COUNSEL FOR INTERVENOR/APPELLANT,
KEITH EDWARD ANDREWS
Thomas A. Robichaux
Stephanie A. Fratello
Sharon L. Andrews
Desiree M. Valenti

COUNSEL FOR MINOR/APPELLEE,
G. J. K., MINOR CHILD
Ramona G. Fernandez
and Tobie L. Tranchina, Supervising Attorneys
Loyola University New Orleans, College of Law
Victoria Barczyk, Student Practitioner
Sarah Skidmore, Student Practitioner
Olivia Holm, Student Practitioner
Cynthia Traina, Student Practitioner

COUNSEL FOR AMICUS CURIAE,
STATE OF LOUISIANA, DEPARTMENT OF JUSTICE
Honorable Jeffrey M. Landry
David J. Smith, Jr.
Jeffrey M. Wale
Chimene St. Amant

WICKER, J.

This matter is before this Court following a remand from the Louisiana

Supreme Court. The sole issue presented to this Court is the constitutionality of

Louisiana Civil Code Article 198, which controls a biological father’s avowal

action to his biological child and limits that biological father’s action to a one-year

peremptive period when that child is born during a marriage between the biological

mother and the presumed legal father. Upon review, we first find that the

biological father in this case has a vested right or liberty interest to parent his

biological child, established through his biological link in addition to evidence

presented to prove that he “grasped the opportunity” to parent and established a

relationship with the minor child when given the opportunity. We further find that

Article 198 as applied in this case unconstitutionally limits the biological father’s

vested right to parent his child and deprives the biological father of his due process

rights under the Louisiana Constitution. For these reasons, we hold that Article

198 is unconstitutional as applied to the biological father in this case. We therefore

reverse the January 10, 2019 judgment appealed from and remand this matter for

further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND:

The underlying facts and procedural history in this matter have been

previously set forth by this Court:

Ms. Kinnett commenced the instant litigation by filing for
divorce on January 14, 2017. She sought joint custody with Mr. Kinnett
of their daughter, B.A.K., but sole custody of her son, G.J.K. On
January 27, 2017, Mr. Kinnett filed his Answer and Reconventional
Demand disputing Ms. Kinnett’s contention that awarding her sole
custody of G.J.K. would be in the child’s best interest, urging instead
that joint custody be granted.

On February 10, 2017, Mr. Andrews filed a Petition in
Intervention to Establish Paternity and to Obtain Custody of G.J.K. In
his petition, Mr. Andrews alleged that Ms. Kinnett had concealed his
possible paternity until December 9, 2016, and sought an order
establishing paternity and an action to obtain custody.

17-CA-625 1

On February 21, 2017, Mr. Kinnett answered Mr. Andrews’
intervention with Exceptions of No Cause and/or No Right of Action,
Prescription, and Peremption, arguing that Mr. Andrews’ avowal action
was perempted under Louisiana Civil Code art. 198 because he failed
to file an action within one year of G.J.K.’s birth. On February 24, 2017,
the court appointed the Loyola Law Clinic to represent the interests of
the minor child. Ms. Kinnett first filed a memorandum opposing the
exceptions on April 10, 2017, however, on May 31, 2017, she filed a
second memorandum supporting the exceptions. On appeal, Ms.
Kinnett adopted the arguments in Mr. Kinnett’s appellee briefs.

At the initial April 12, 2017 hearing, the Domestic
Commissioner denied the exceptions of no right of action and no cause
of action as to paternity, and granted the exception of no cause of action
as to custody. He also granted the exception of peremption, finding that
Mr. Andrews should have known G.J.K. was his child given that he had
“intimate contact” with Ms. Kinnett nine months prior to the child’s
birth. Mr. Andrews objected to the Commissioner’s ruling, contending
in pertinent part that the “time limitations in Civil Code article 198 are
constitutionally invalid.”

The parties tried the exceptions de novo before the district court
on June 2, 2017. The district court judge ruled from the bench denying
the exceptions of no cause of action and no right of action as to
paternity, but granting the exceptions of no cause of action and no right
of action as to custody and visitation.1 The judge further held that Mr.
Andrews’ avowal action was preempted [sic] under Article 198 based
on his finding that (a) Mr. Andrews had not proven “that the mother
was actually in bad faith and intended to deceive,” and (b) he had filed
his avowal action more than a year from the time the judge determined
he knew or should have known that he was G.J.K.’s father. 2 The trial
court declined to rule on the constitutionality of the statute and denied
Mr. Andrews’ motion for additional time to notify the attorney general
and further plead the constitutionality issue. Mr. Andrews appealed the
June 2, 2017 judgment to this Court.

On March 23, 2018, this Court stayed this appeal and remanded
the case to the trial court to allow Mr. Andrews the opportunity to
amend his petition and appropriately challenge the constitutionality
1
We point out, in this opinion, that no party sought supervisory or appellate review of the granting of the
exception as to visitation, which is an interlocutory judgment. Visitation matters are “always open to
change when the conditions warrant it.” See Becnel v. Becnel, 98-593 (La. App. 5 Cir. 3/25/99), 732
So.2d 589, 592, writ denied, 99-1165 (La. 6/4/99), 744 So.2d 630; Gaskin v. Henry, 36,714 (La. App. 2
Cir. 10/23/02), 830 So.2d 471, 476.
2
We point out, in this opinion, that the language of Article 198 does not call for any factual finding
considering whether the biological father “knew or should have known” of his paternity until there is first
a finding that the mother in “bad faith deceived” the biological father. The language in Article 198
provides that “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.”
A simple statutory construction analysis of the “if…, then” language structure set forth in Article 198
demonstrates that consideration of the biological father’s knowledge is not relevant for consideration or
analysis by the courts until there is first a finding that the mother in bad faith deceived the biological
father. Thus, any factual finding by the trial court concerning possible constructive knowledge of
paternity is irrelevant to our analysis in this case when considering the fundamental constitutional right to
parent as it applies to the constitutionality of Article 198.

17-CA-625 2

of Article 198. Kinnett v. Kinnett, 17-CA-625, per curiam, p. 4. On
April 6, 2018, Mr. Andrews filed his First Supplemental and Amending
Petition, formally challenging Article 198’s constitutionality, thereafter
notifying the Louisiana Attorney General as required by law. The Law
Clinic filed a memorandum in support of Mr. Andrews’ Supplemental
and Amending Petition on June 4, 2018.

Kinnett v. Kinnett, 17-625 (La. App. 5 Cir. 8/6/20), 302 So.3d 157, 165, writ
granted, 20-01134 (La. 2/9/21), 309 So.3d 735, reh’g denied, 20-01134 (La.
1/28/22) ––– So.3d ––––, 2022 WL 262973, and writ granted, 20-01143 (La.
2/9/21), 309 So.3d 735, reh’g denied, 20-01143 (La. 1/28/22) ––– So.3d –––
–, 2022 WL 262971, and writ granted, 20-01156 (La. 2/9/21), 309 So.3d
738, reh’g denied, 20-01156 (La. 1/28/22) ––– So.3d ––––, 2022 WL 263066,
and rev’d in part, 20-01134 (La. 12/10/21), 332 So.3d 1149.

On remand, in his supplemental petition, Mr. Andrews set forth factual

allegations to demonstrate that he had “immediately assumed the role of G.J.K.’s

biological father and began taking steps to support...and become involved in

G.J.K.’s life.” Subsequently:

On May 15, 2018, Mr. Kinnett moved to strike the portions of
Mr. Andrews’ supplemental petition in which he alleged that he had
provided financial support and started spending time with G.J.K., on
the grounds that whether the biological father had established a
relationship with the child was not relevant to the question of
constitutionality.

* * *

On June 13, 2018, the trial court, Hon. John Molaison presiding,
conducted a hearing on the motions in limine and motions to strike. At
the June 13, 2018 hearing, Judge Molaison correctly pointed out that
the constitutionality challenge presented in Mr. Andrews’ supplemental
petition is in fact an ordinary proceeding. Judge Molaison thus found
discovery was proper and stated, “it’s an ordinary proceeding and I
cannot bar someone from attempting to introduce evidence to support
that constitutional challenge to a statute” and “I believe the law allows
the introduction of evidence to support a challenge to the
constitutionality of the statute.” On July 18, 2018, Judge
Molaison issued a written judgment denying Mr. Kinnett’s motion to
strike the allegations stated in the amended petition as well as the
motion to strike any fact witnesses. He also denied the motions to strike
discovery and fact witnesses, having found that “fact discovery” was
appropriate and stated “I think I have to reset this hearing, allow you
folks to conduct your discovery, determine if you need any additional
witnesses on your own, and then we set it for trial.”

* * *

17-CA-625 3

On October 1, 2018, after a new trial judge had been appointed
to preside over the case, Ms. Kinnett filed a “Motion In Limine to
Exclude Testimony and Evidence of Any Fact Witness,” seeking “an
order prohibiting Intervenor from calling any fact witnesses at trial” on
the constitutionality issue. This motion was nearly identical in
substance to the motion in limine previously filed by Mr. Kinnett and
denied by Judge Molaison. In her motion, Ms. Kinnett asserted that
“testimony as to what relationship Intervenor may or may not have had
with the minor and what action he may or may not have taken with
respect to parenting the minor, does not make the constitutionality
of Art. 198, more or less likely.”

* * *

Prior to the hearing on the second motion in limine, the third
judge to preside over this case was appointed pro tempore, the Hon.
William Credo, III.

* * *

By judgment dated October 23, 2018, Judge Credo granted the
“Motion in Limine to Exclude Testimony and Evidence of Any Fact
Witnesses,” precluding any factual evidence from being introduced at
the trial on the issue of constitutionality. Further, while Judge Credo
recognized the possibility that “constitutional scholars, legislators, or
those who possess highly specialized knowledge of the legislative
history of the law in question” might serve as witnesses, the court found
that neither the opinion of Mr. Andrews’ expert, Dr. Sonnier, nor the
testimony of Mr. Andrews or any other fact witness was related to
“whether the statute serves a legitimate government purpose of
protecting the status of a child vis-á-vis his mother and father, his
family, his classmates, and the world.”

On November 5 and December 18, 2018, Judge Credo presiding,
the trial court heard and considered only oral arguments as to Mr.
Andrews’ constitutionality challenge raised in his supplemental
petition. On January 10, 2019, the court issued its written judgment,
holding “that La. Civ. Code art. 198 is constitutional. Keith Edward
Andrews has failed to submit evidence that Article 198 violates either
substantive or procedural rights to due process or that it fails to protect
a fundamental liberty interest, as alleged in his First Supplemental and
Amending Petition.”

Mr. Andrews filed a devolutive appeal. On appeal, Mr. Andrews
complained of three trial court rulings: the trial court's June 2, 2017
judgment holding that his avowal action was perempted; the October
23, 2018 interlocutory judgment granting the motion in limine to
exclude “any fact witness” in connection with the trial of his
constitutionality challenge raised in his supplemental petition; and the
January 10, 2019 judgment holding that La. C.C. art. 198 is
constitutional.

17-CA-625 4

* * *

This Court issued an opinion, reversing the trial court judgment
on the issue of peremption. Finding legal error that interdicted the fact-
finding process, this Court conducted a de novo review and found that
Ms. Kinnett in bad faith deceived Mr. Andrews regarding his paternity,
observing: “there is no set of circumstances wherein a woman–who has
had sexual relations with more than one man during the period of
possible conception–may have an ‘honest belief’ that one man, and not
the other, is the father.” Kinnett v. Kinnett, 332 So.3d at 1152,
citing Kinnett v. Kinnett, 302 So.3d at 177.

Kinnett v. Kinnett, 17-625 (La. App. 5 Cir. 7/7/22), 345 So.3d 1122,
1125, writ granted, judgment vacated and set aside, 22-01246 (La. 9/20/22),
345 So.3d 1020, and writ granted, judgment vacated and set aside, 22-01199
(La. 9/20/22), 345 So.3d 1021.

The Louisiana Supreme Court subsequently granted writs, and reversed this

Court’s opinion, finding that “the trial court’s findings were not manifestly in error

or clearly wrong.” Kinnett, 332 So.3d 1149, 1157. In reversing this Court’s

opinion, the Louisiana Supreme Court found that “a mother who knows another

man is possibly the father of her child” is not in bad faith in failing to disclose that

knowledge of possible paternity to a biological father after the child’s birth if a

trial judge finds credible the mother’s belief that one man, rather than the other—

both of whom she had sexual relations within a single (typically one-week)

conception period— is the father. Thus, the Louisiana Supreme Court found that a

woman does not have a duty at any time after the birth of a child to either

investigate and conduct testing to determine the child’s paternity or to provide the

other man, with whom she had sexual relations during the conception period, an

opportunity through her disclosure to discover his possible paternity.

Having reversed this Court on the peremption of Mr. Andrews’ avowal

claim, the Louisiana Supreme Court remanded the matter to this Court for

“consideration of Mr. Andrews’ constitutional challenge.” Kinnett, 332 So.3d at

1157. In its decision, the Louisiana Supreme Court clearly instructed that the minor

child “G.J.K. lacks standing to challenge the constitutionality of Article 198” and

17-CA-625 5

further instructed that, in considering a constitutional analysis, “a party must

complain of a constitutional defect in the application of the statute to him or

herself, not of a defect in its application to third parties in hypothetical situations.”

Kinnett v. Kinnett, 20-01134 (La. 10/10/21), 332 So.3d 1149, 1157.

After remand—and in reviewing the interlocutory judgment on the motion in

limine set forth previously as an assignment of error in connection with the appeal

but not previously considered by this Court as unnecessary in light of our finding

that Mr. Andrews’ claim was not perempted—this Court found that the trial court

erred in granting the motion in limine to exclude any fact witness and to prohibit

any fact discovery relating to the constitutional issue. This Court found that any

party challenging the constitutionality of a statute “has the burden of introducing

evidence of his entitlement to bring a declaratory judgment action, i.e., his standing

to bring suit.” Kinnett v. Kinnett, 17-625 (La. App. 5 Cir. 7/7/22), 345 So.3d 1122,

1130, writ granted, judgment vacated and set aside, 22-01246 (La. 9/20/22), 345

So.3d 1020, and writ granted, judgment vacated and set aside, 22-01199 (La.

9/20/22), 345 So.3d 1021, citing In re Melancon, 05-1702 (La. 7/10/06), 935 So.2d

661, 667. We further found that the trial judge’s rulings “affected the presentation

of evidence, or lack thereof, permitted at trial” and we vacated the judgments

appealed and remanded the matter to the trial court to allow the parties to conduct

proper discovery relating to Mr. Andrews’ supplemental petition raising the issue

of Article 198’s constitutionality. Id.

The Louisiana Supreme Court again granted writs in this matter and vacated

this Court’s judgment, remanding the matter to this Court for consideration of the

constitutionality of La. C.C. art. 198. In a per curiam opinion, the Court stated,

“[i]t is well settled that the determination of whether a statute is constitutional

presents a question of law, which is reviewed on a de novo basis. Westlawn

Cemeteries, L.L.C. v. Louisiana Cemetery Bd., 2021-01414 (La. 3/25/22), 339

17-CA-625 6

So.3d 548, 559; City of New Orleans v. Clark, 2017-1453 (La. 9/7/18), 251 So. 3d

1047, 1051; State v. Webb, 2013-1681 (La. 5/7/14), 144 So.3d 971, 975. There is

sufficient evidence in the record, including the proffered evidence, for the court of

appeal to review the district court’s judgment finding La. Civ. Code art. 198 to be

constitutional.” Kinnett, supra.

On remand, we now consider, as instructed, only Mr. Andrew’s challenge on

appeal to the constitutionality of Article 198. For the reasons set forth below, we

find Article 198 to be unconstitutional as applied to Mr. Andrews in this case and

we remand this matter to the trial court for further proceedings on Mr. Andrews’

Petition of Intervention.

DISCUSSION

On appeal, both Mr. Andrews and the minor child, G.J.K, complain of the

trial court’s January 10, 2019 judgment upholding the constitutionality of Article

198. G.J.K. argues that the article is unconstitutional under the due process clause

because it violates G.J.K.’s constitutional right to prevent the erroneous

termination of the natural relationship between G.J.K. and his biological father

without adequate notice or other safeguards in place. Further, G.J.K. contends that

the article violates the equal protection clause because it discriminates on the basis

of birth. Mr. Andrews contends that the article violates the due process clause of

the federal and state constitutions because it effectively terminates a biological

parent’s fundamental and constitutional right to parent without notice or a

meaningful opportunity to be heard. He further asserts that it violates the equal

protection clause because it results in a disparity in the standards of knowledge and

duty between a biological father and a biological mother.

We begin our analysis by reviewing the language of the article itself.

La. C.C. art. 198 provides:

17-CA-625 7

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.

For the reasons discussed below, we find that Article 198 is unconstitutional

as applied to the facts of this case because it effectively terminates a biological

parent’s fundamental right to parent without due process as required under the

Louisiana state constitution. Accordingly, for the reasons discussed below, we

reverse the trial court’s January 10, 2019 judgment upholding the constitutionality

of Article 198, and we remand the matter to the trial court for further proceedings.

Preliminary Issue of G.J.K.’s Standing

The Louisiana Supreme Court clearly instructed that G.J.K. does not have

standing to challenge the constitutionality of La. C.C. art. 198, and we are

constrained by that holding. The Louisiana Supreme Court instructed:

To have standing, a party must complain of a constitutional defect in
the application of the statute to him or herself, not of a defect in its
application to third parties in hypothetical situations.” Id.; Greater New
Orleans Expressway Comm’n, 892 So.2d at 573-574. Article 198
focuses on the rights of the biological father to establish paternity. In
contrast, the rights of a child to establish filiation are addressed by La.
Civ. Code art. 197, which provides in part, “[a] child may institute an
action to prove paternity even though he is presumed to be the child of
another man.” A child’s action is not subject to any peremptive period,
except with regard to succession rights, where it must be brought within
one year of the alleged father’s death. Id. Thus, G.J.K. may institute an
action to establish filiation to Mr. Andrews, even though Mr. Andrews’
avowal action is perempted. Article 198 affects Mr. Andrews’ rights.
G.J.K’s rights are controlled by Article 197. Under these
circumstances, we find G.J.K. lacks standing to challenge the
constitutionality of Article 198.

17-CA-625 8

Kinnett, 332 So.3d at 1157.

Accordingly, considering the Louisiana Supreme Court’s direct instructions

to this Court, we are limited in our constitutional analysis to those arguments

raised on behalf of Mr. Andrews. The Louisiana Supreme Court, however, did

instruct that G.J.K. has standing to institute a filiation action under La. C.C. art.

197.3 However, that issue is not before this Court at this time.

Mr. Andrews’ Constitutionality Challenge

At the trial on Mr. Andrew’s supplemental petition challenging the

constitutionality of Article 198, Mr. Andrews proffered his own testimony as well

as the testimony of a child psychologist, Dr. Loretta Sonnier, to support his

position that he, as G.J.K.’s biological father, grasped the opportunity to establish

a relationship with G.J.K. and to prove that he has a fundamental constitutional

right to parent G.J.K.4

At trial, Mr. Andrews offered testimony to support his position that, once he

had actual knowledge of his paternity, he grasped the opportunity to have a

meaningful role in the child’s life and to exercise his parental rights. Between

December 9, 2016—the date Ms. Kinnett contacted him to inform him that she

“had sibling DNA tests on her two children and her husband was not G.J.K’s

biological father5”—and April 5, 2017—the date on which Ms. Kinnett cut off any

3
G.J.K. asserts in brief to this Court that, as a minor child with no procedural capacity to sue under La
C.C.P. art. 683, he cannot in fact institute an action under La. C.C. art. 197. The Louisiana Supreme
Court in its opinion stated that G.J.K. has a right to institute a filiation action under La. C.C. art. 197.
Although such an action, potentially filed by his court-appointed counsel on his behalf in connection with
this litigation involving the issue of paternity, would likely be immediately met with an exception of lack
of procedural capacity or similar procedural vehicle, at that point the validity and possible
constitutionality of La. C.C. art. 197, and its application constrained by the limitation of La. C.C.P. art.
683, would be squarely before the Court for consideration.
4
In its opinion instructing this Court to consider the constitutionality issue on remand, the Louisiana
Supreme Court instructed that “[t]here is sufficient evidence in the record, including the proffered
evidence, for the court of appeal to review the district court’s judgment finding La. Civ. Code art. 198 to
be constitutional.” Kinnett v. Kinnett, 20-01134 (La. 10/10/21), 332 So.3d 1149, 1157 (emphasis added).
Accordingly, for purposes of considering the constitutionality of La. C.C.P. art. 198 in this case, we
consider in our analysis, as instructed, the testimony proffered by Mr. Andrews at trial.
5
Kinnett, 332 So.3d at 1151.

17-CA-625 9

visitation or contact between Mr. Andrews and G.J.K.—he spent time with G.J.K.

as he described in his testimony:

Mr. Andrews testified that on December 10, 2016—the day following the

telephone call from Ms. Kinnett informing him that she learned with certainty that

her husband was not G.J.K.’s biological father and, therefore, Mr. Andrews was

G.J.K.’s biological father—he underwent an initial informational paternity test.

On that date, he met Ms. Kinnett and G.J.K. at a medical testing facility for DNA

testing and interacted with G.J.K. On December 20, 2016, Ms. Kinnett and Mr.

Andrews met at a coffee shop for approximately one hour, during which he

interacted with G.J.K. He testified that, initially, it was difficult to see G.J.K.

because Ms. Kinnett had not informed Mr. Kinnett of G.J.K.’s paternity or that she

had an affair with Mr. Andrews during the marriage.

On January 7, 2017, Mr. Andrews met Ms. Kinnett with G.J.K. and her

daughter B.A.K. at Audubon Park to interact with G.J.K while the children played

at the park. After that interaction, Ms. Kinnett additionally became concerned that

her older child, B.A.K., would report to her father, Mr. Kinnett, that Mr. Andrews

had met them at the park to interact with G.J.K.6 On another occasion in January,

Mr. Andrews met Ms. Kinnett at a coffee shop with G.J.K. On January 12 or 13,

2017, Mr. Andrews met Ms. Kinnett and G.J.K. at Ms. Kinnett’s sister’s home,

where Ms. Kinnett was housesitting, for approximately two hours to interact with

G.J.K. while and after Ms. Kinnett put B.A.K. to bed.

On January 22, 2017, days after Ms. Kinnett had filed for divorce from Mr.

Kinnett, Mr. Andrews went to Ms. Kinnett’s home with G.J.K. and B.A.K. present

for approximately two hours to spend time with G.J.K.7 On January 28, 2017, Mr.

6
Mr. Andrews proffered various text messages between Mr. Andrews and Ms. Kinnett to corroborate his
testimony and timeline of events.
7
Mr. Andrews testified that, by January 22, 2017, after Mr. and Ms. Kinnett had separated, it was more
comfortable for him to interact with G.J.K. while B.A.K. was present.

17-CA-625 10

Andrews met Ms. Kinnett and G.J.K. at Ms. Kinnett’s new apartment to help her

clean and prepare the new apartment she secured after she and Mr. Kinnett

separated. On that date, he interacted with G.J.K. for approximately two hours.

On January 29, 2017, Mr. Andrews went to Ms. Kinnett’s home and, while Ms.

Kinnett took B.A.K. and a friend to the movies, he stayed with G.J.K. alone. Mr.

Andrews testified that he interacted with the child for approximately four hours by

himself; he played with G.J.K.; he put G.J.K. down for a nap; and he played with

G.J.K. after he woke from his nap until Ms. Kinnett returned. On the following

day, January 30, 2017, Mr. Andrews picked up G.J.K. from Ms. Kinnett’s home

and drove G.J.K. himself to a medical facility for the purpose of conducting a

direct DNA test.8

On February 11, 2017, Mr. Andrews went to Ms. Kinnett’s home and

interacted with G.J.K.9 for approximately four hours that evening, and spent the

night in the home. He went on a morning walk and had breakfast with G.J.K. and

Ms. Kinnett and remained with G.J.K. at the home for a couple of hours that

morning. On February 19, 2017, he again visited G.J.K. at Ms. Kinnett’s home in

the afternoon into the evening while Ms. Kinnett prepared dinner and then put the

children to bed. On March 3, 2017, Mr. Andrews went to Ms. Kinnett’s home to

meet her and G.J.K., who was off of school that day, to spend the day visiting the

aquarium downtown with them. Mr. Andrews testified that thereafter he and Ms.

Kinnett agreed for him to visit G.J.K. at Ms. Kinnett’s home each Sunday

afternoon, when she had custody that week, to help with the kids while she

prepared dinner and did advanced meal-prep for the week. He testified that, on

8
Mr. Andrews explained that the December 9, 2016 sibling DNA test had a 95% rate of accuracy to show
that B.A.K. and G.J.K. were not full biological siblings. The DNA test taken December 10, 2016, was an
“information test” that could not be used in court proceedings. Thus, a direct DNA evidence test was
necessary to establish paternity legally and to prepare his avowal action.
9
Mr. Andrews explained that by this time, Ms. Kinnett and Mr. Kinnett shared custody of the minor
children and Ms. Kinnett did not have G.J.K. every weekend, so Mr. Andrews’ ability to visit with G.J.K.
became less frequent due to the custody arrangement between Mr. Kinnett and Ms. Kinnett.

17-CA-625 11

average, he would arrive at 2:30 p.m. and would stay and interact with G.J.K. until

approximately his 8:00 p.m. bedtime.10 He testified this routine lasted

approximately through March 17, 2017.

On March 24, 2017, Mr. Andrews reached out to Ms. Kinnett to visit with

G.J.K. that Sunday, and Ms. Kinnett stated that counsel had advised that he should

not visit with G.J.K. anymore and, further, that Mr. Kinnett did not want Mr.

Andrews interacting with the child. However, thereafter, Mr. Andrews and Ms.

Kinnett made plans for him to visit for dinner on April 5, 2017, from

approximately 5:00 p.m. until G.J.K.’s bedtime. Mr. Andrews testified that was

the last interaction he had with the minor G.J.K., and that Ms. Kinnett refused to

allow him to interact with G.J.K. thereafter.

Mr. Andrews testified to his belief that Ms. Kinnett cut off communication

after she received discovery in the beginning of April from Mr. Andrews’ counsel

reflecting that he intended to introduce at trial text messages or communications

between himself and Ms. Kinnett that demonstrated Ms. Kinnett took the sibling

DNA test and had a suspicion that Mr. Andrews could be the father before

disclosing that information to Mr. Kinnett or his family. Mr. Andrews testified

that his intent to use those text messages in litigation caused a “rift” between him

and Ms. Kinnett because she was concerned as to how it would make her appear to

Mr. Kinnett’s family and, further, because it would demonstrate that she was not

truthful, even after disclosure, to Mr. Kinnett about the extent or duration of the

relationship between Mr. Andrews and Ms. Kinnett. Following an April 15, 2017

hearing wherein Mr. Andrews testified concerning the extent and duration of their

relationship, Ms. Kinnett’s counsel advised that Ms. Kinnett would no longer allow

Mr. Andrews to play a role in G.J.K.’s life.

10
He also testified that on one occasion he purchased materials to hang an outdoor baby swing at Ms.
Kinnett’s home for G.J.K. and spent time pushing G.J.K. on the swing in Ms. Kinnett’s backyard.

17-CA-625 12

Concerning financial support, Mr. Andrews testified that he provided

financial assistance to Ms. Kinnett in the amount of $3,495.00 toward the security

deposit and first month’s rent to move into a new apartment after she and Mr.

Kinnett separated. The following month, he provided Ms. Kinnett $1,000.00,

toward expenses.11 Concerning actions Mr. Andrews took to prepare for visitation

or custody with G.J.K., he testified that he converted the spare bedroom in his

apartment into a nursery in preparation to have G.J.K. in his home, including

purchasing a crib, bedding, decorations, and dresser set for the nursery. He also

testified that he purchased a car seat and baby-proofed his apartment with electric

outlet covers to make the apartment suitable for G.J.K.12

When questioned as to why he waited until February 2017 to file his avowal

action after learning of the DNA results in December 2016, Mr. Andrews

responded that Mrs. Kinnett and her counsel asked him to “hold off” on filing his

avowal action until after the holidays so as to not ruin the children’s Christmas.

He testified he learned that on or about January 7, 2017, Ms. Kinnett and Mr.

Kinnett got into an argument, during which Ms. Kinnett “blurted out” that Mr.

Kinnett was not the biological father to G.J.K., and that thereafter, Ms. Kinnett and

her counsel asked Mr. Andrews to hold off on filing his avowal action to “give

everyone a chance to catch their breath.”

Mr. Andrews also proffered the testimony of Dr. Loretta Sonnier, a board

certified psychiatrist with added qualifications in forensic psychiatry and child and

adolescent psychiatry.13 Dr. Sonnier did not interview or evaluate any of the parties

11
Mr. Andrews proffered two checks into evidence to corroborate his testimony, one check made payable
to Ms. Kinnett for $1,000.00 and a second check in the amount of $3,495.00 to cover expenses for the
apartment’s security deposit and first month’s rent. Mr. Andrews also proffered text message exchanges
between himself and Ms. Kinnett concerning him financially helping her with the initial expenses of
finding an apartment.
12
Mr. Andrews proffered photographs of the nursery in his home.
13
The qualifications of Dr. Sonnier were set forth at the proffer and demonstrate that Dr. Sonnier is a
board certified psychiatrist with added qualifications in forensic psychiatry and child and adolescent
psychiatry. She is an assistant professor at Tulane University, teaching law and psychiatry. She
completed a triple board residency at Cincinnati Children’s Hospital in pediatric, child and adolescent
psychiatry, and forensic psychiatry, and served as triple-board Chief Resident. She has testified before the

17-CA-625 13

involved in this litigation. Rather, she testified that she reviewed the evidence in

the case and the relevant law, Article 198. As applied to this case, Dr. Sonnier

considered the benefits and the harms that could come to G.J.K. if he were to be

raised not knowing his biological father and further considered any harm that could

come to G.J.K. from the avowal of Mr. Andrews as his biological father.

Dr. Sonnier testified that an “unplanned disclosure,” or a child finding out about

his or her origins at a point in time not planned, is the most traumatic manner in

which to learn that you have an undisclosed biological parent. She testified that a

child most likely would “experience a sense of betrayal and confusion in their legal

parents and a sense of abandonment by their biological parents.”

When questioned concerning the language of Article198 restricting the time

frame in which a biological father could initiate an avowal action when the mother

is married at the time of the child’s birth, she testified that while the purpose of the

one-year time limitation would be to preserve the “intact family,” she stated “that

did not apply in this case because it was not an intact family, so G.J.K.’s already

impacted by the conflict of divorce.”

Dr. Sonnier discussed her understanding of the term “intact family” to mean

that both parents live in the home. She further stated that divorce inherently allows

for the possibility of the introduction of other adults into the child’s life, such as

each parents’ significant others and/or the introduction of stepparents.14

Dr. Sonnier opined that the imposition of a one-year preemptive period as

presented in Article 198 is not “developmentally informed,” meaning that is it not

based on any science in the field of child psychology. She further stated that the

intended purpose of La. C.C. art. 198, to protect children, is not furthered by the

Louisiana House of Representatives in May of 2017, and also before the Louisiana Senate Justice
Reinvestment Initiative subcommittee in January 2017, relating to adolescent brain development in
connection with a bill being considered by the Senate at that time. As we have been instructed by the
Louisiana Supreme Court, we consider Dr. Sonnier’s proffered testimony in our constitutional analysis.
14
A second divorce for one or both parents would result in the possibility of a second (or third) set of
stepparents or yet another set of adults being introduced into the child’s life.

17-CA-625 14

one-year time limitation and “de facto, does not protect children,” is not “rationally

related” to that purpose, and is not in a child’s best interest. Dr. Sonnier testified

that such a determination requires an individualized evaluation of each set of

circumstances presented, which the Article does not allow for.

Concerning the psychological impact of the one-year peremptive period set

forth in Article 198, Dr. Sonnier opined: “I agree that compelling someone to act

quickly, would be in the child’s best interest; however, foreclosing on any

possibility for the remainder of the child -- of a child’s lifetime after a time frame

has elapsed, I -- I don’t believe that’s in the child’s best interest.” Stated another

way, she testified, “it seems rather arbitrary to me to acknowledge that it’s in a

child’s best interest to act quickly and to have a relationship and then to say time’s

up, never mind, and to not allow it anymore,” for the remainder of the child’s life.

Law and Analysis

We now consider only Mr. Andrew’s challenge to Article 198’s

constitutionality.

As a general rule, statutes are presumed to be constitutional. W. Feliciana

Par. Gov’t v. State, 19-00878 (La. 10/11/19), 286 So.3d 987, 993-94. Because the

provisions of the Louisiana Constitution are not grants of power, but instead are

limitations on the otherwise plenary power of the people, exercised through the

legislature, the legislature may enact any legislation that the constitution does not

prohibit. Id. Because a state statute is presumed constitutional, the party

challenging the statute bears the burden of proving its unconstitutionality. Id.; see

also State v. Brenner, 486 So.2d 101 (La. 1986). However, this presumption does

not apply when a statute infringes upon a fundamental right. State v. Spell, 21-

00876 (La. 5/13/22), 339 So.3d 1125, 1131.

When constitutional challenges are made under both the federal and state

constitutions, we must first consider whether the case may be resolved on state

17-CA-625 15

constitutional grounds. See State v. Perry, 610 So.2d 746, 751 (La. 1992). The

Louisiana Constitution of 1974 provides that no person shall be deprived of life,

liberty or property, except by due process of law. La. Const. Art. 1, § 2. Due

process of law is guaranteed by both the Fourteenth Amendment to the United

States Constitution and Art. 1, § 2 of the 1974 Louisiana Constitution. Due process

“is not a technical conception with a fixed content unrelated to time, place and

circumstances.” Fairbanks v. Beninate, 20-206 (La. App. 5 Cir. 12/23/20), 308

So.3d 1222, 1232, quoting Garcia v. Hernandez, 21-338 (La. App. 5 Cir. 4/11/22),

339 So.3d 61, 65-66. Persons whose rights may be affected by state action

are entitled to be heard, and, in order that they may enjoy that right, they must first

be notified. Id.

It is equally fundamental that the right to notice and an opportunity to be

heard must be granted at a meaningful time and in a meaningful manner. In re

A.J.F., 00-0948 (La. 6/30/00), 764 So.2d 47, 55 (emphasis added); Fuentes v.

Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Armstrong v.

Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); Wilson v. City of New

Orleans, 479 So.2d 891 (La.1985); State v. Woodard, 387 So.2d 1066 (La. 1980).

When the due process clauses are invoked in a novel context, the established

practice is to begin the inquiry with a determination of the precise nature of the

private interest that is threatened. See Lehr v. Robertson, 463 U.S. 248, 103 S.Ct.

2985, 77 L.Ed.2d 614 (1983); Cafeteria Workers v. McElroy, 367 U.S. 886, 81

S.Ct. 1743, 6 L.Ed.2d 1230 (1961). The protections of due process come into play

only if the private interest asserted is constitutionally cognizable. Where

fundamental rights are at stake, due process is satisfied only when the government

has a compelling interest that justifies infringing upon the right, and the law

employs the least restrictive means to achieve the government’s objective. State v.

17-CA-625 16

Draughter, 13-0914 (La. 12/10/13), 130 So.3d 855, 863; Hondroulis v.

Schuhmacher, 553 So.2d 398, 415 (La. 1988).

To determine whether due process has been satisfied, courts consider first

the private interest that will be affected; second, the risk of erroneous deprivation

of such interest through the procedures used; and, finally, the government’s

interest, including the function involved and the fiscal and administrative burdens

that the additional or substitute procedural requirement would entail. State in Int. of

A.C., 643 So.2d 719, 724 (La. 1994), on reh’g, 93-1125 (La. 10/17/94), 643 So.2d

743, citing In re Adoption of B.G.S., supra, at 552. The balancing of these factors

and the determination of whether or not due process has been satisfied is

administered under the three-factor test as espoused by the United States Supreme

Court in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976),

and adopted by the Louisiana Supreme Court (when interpreting the Louisiana

state constitution) in Wilson v. City of New Orleans, 479 So.2d 891 (La. 1985) and

In re Adoption of B.G.S., 556 So.2d 545 (La. 1990); see also State in Int. of A.C.,

643 So.2d 719, 726 (La. 1994), on reh’g, 93-1125 (La. 10/17/94), 643 So.2d 743.

The United States Supreme Court has declared it “plain beyond the need for

multiple citation” that a biological parent’s right to “the companionship, care,

custody, and management” of his children is a liberty interest far more important

than any property right. Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388,

1397, 71 L.Ed.2d 599 (1982). The Louisiana Supreme Court has stated, albeit in an

adoption proceeding context, that “the interest of a biological parent in having an

opportunity to establish a relationship with his child is one of those liberties of

which no person may be deprived without due process of law under our state

constitution.” In re Adoption of B.G.S., 556 So.2d 545, 550 (La. 1990). See

also Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)

(“[I]t cannot now be doubted that the Due Process Clause of the Fourteenth

17-CA-625 17

Amendment protects the fundamental right of parents to make decisions

concerning the care, custody, and control of their children.”); State of Louisiana in

the Interest of J.A., 99-2905 (La. 1/12/00), 752 So.2d 806 (“The parents have a

natural, fundamental liberty interest to the continuing companionship, care,

custody and management of their children warranting great deference and vigilant

protection under the law ... and due process requires that a fundamentally fair

procedure be followed when the state seeks to terminate the parent-child legal

relationship.”).

A biological father’s cause of action to avow his child has its basis in

constitutional rights. See Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31

L.Ed.2d 551 (1972) (“The rights to conceive and to raise one’s children have been

deemed ‘essential,’ ... ‘basic civil rights of man.’ ”). As such, an avowal action is

based on rights which flow from the Constitution. W.R.M. v. H.C.V., 06-0702 (La.

3/9/07), 951 So.2d 172, 180 (Weimer, J. concurring) (quotations omitted).

However, as the United States Supreme Court has repeatedly stated, a

parent’s constitutional right to parent his child does not arise by the mere

circumstance of his child’s birth. Rather, his liberty interest to parent his child

arises with his demonstration of a full commitment to the responsibilities of

parenthood by coming forward to participate in rearing his child. Troxel, supra, at

197. The right of avowal is not absolute; it is the relationship with the child that is

determinative, not mere biological connection. W.R.M. v. H.C.V., 951 So.2d at 181.

If he grasps that opportunity and accepts some measure of responsibility for the

child’s future, a biological parent may enjoy the blessings of the parent-child

relationship and make uniquely valuable contributions to the child’s development.

In re Adoption of B.G.S., 556 So.2d 545, 550 (La. 1990).

In the context of a circumstance where a child is conceived and born during

a marriage between the biological mother and her husband as a result of an

17-CA-625 18

extramarital affair between the mother and a biological father, the United States

Supreme Court has stated that, “the natural father’s unique opportunity conflicts

with the similarly unique opportunity of the husband of the marriage; and it is not

unconstitutional for the State to give categorical preference to the latter.” Michael

H. v. Gerald D., 491 U.S. 110, 129, 109 S.Ct. 2333, 2345, 105 L.Ed.2d 91 (1989).

In Michael H. v. Gerald D., Gerald D.’s wife had an affair with Michael H., and a

daughter was born of that relationship. Blood tests confirmed Michael’s paternity

within the first several months after the birth, and for the first three years of the

child’s life, Michael had a relationship with the child. When the mother kept

Michael from seeing his daughter, he filed a paternity action. However, California

law established a conclusive presumption that the husband of the mother was the

father of any children born into the marriage, and Michael was denied standing to

rebut the presumption. The United States Supreme Court granted certiorari to

address Michael’s due process claims.

Justice Scalia, writing for the plurality, emphasized the requirement that the

“asserted liberty interest be rooted in history and tradition,” and found no evidence

that an “adulterous natural father’s” right to assert “parental rights over a child

born into a woman’s existing marriage with another man” had ever received

special protection. Michael H., 491 U.S. at 122-25, 109 S.Ct. at 2342-2343.

Instead, he declared that the “presumption of legitimacy was a fundamental

principle of the common law.” Id. at 124, 109 S.Ct. at 2343 (citing H. Nicholas,

Adulturine Bastardy 1 (1836)). The historical policy behind the conclusive

presumption was predominately “an aversion to declaring children illegitimate,

thereby depriving them of rights of inheritance and succession, and likely making

them wards of the state.” Id. (internal citations omitted).

However, the United States Supreme Court contemporaneously emphasized

in the Michael opinion that, “[w]hat counts is whether the States in fact award

17-CA-625 19

substantial parental rights to the natural father of a child conceived within, and

born into, an extant marital union that wishes to embrace the child.” Id at 127.

Since the 1989 Michael decision by the United States Supreme Court, issued more

than thirty years ago, Louisiana has, jurisprudentially and legislatively, acted to “in

fact award substantial parental rights to the natural father of a child conceived

within, and born into, an extant marital union.” Id. Louisiana recognizes “dual

paternity” with a long line of jurisprudence recognizing a scenario where a child

might have a biological father as well as a legal presumptive father with

substantive parental rights. Gallo v. Gallo, 03-0794 (La. 12/3/03), 861 So.2d 168,

178; State, Dep’t of Child. & Fam. Servs. ex rel. A.L. v. Lowrie, 14-1025 (La.

5/5/15), 167 So.3d 573, 580; see also State ex rel. Wilson v. Wilson, 37,674 (La.

App. 2 Cir. 9/24/03), 855 So.2d 913, 914, writ denied sub nom. State ex rel. C.W.

v. Wilson, 03-2970 (La. 1/16/04), 864 So.2d 633.

Louisiana has adopted a unique dual paternity scheme and has granted a

biological father substantive parental rights, even where the child is born into an

intact family. See State, Dep’t of Child. & Fam. Servs. ex rel. A.L, 167 So.3d at

580. We find that this unique dual paternity scheme, granting a biological father

the right to parent his biological child with the biological mother and a presumed

legal father, signifies that the biological father, who steps forward and grasps the

opportunity to parent his child when presented with the opportunity, has a

fundamental vested liberty interest under Louisiana law in the parenting of his

biological child. That liberty interest is subject to due process under our Louisiana

state constitution.

Upon review of the record before us, as well as Mr. Andrew’s testimony

proffered at trial as set forth above, we find, without question, that Mr. Andrews

took every opportunity available to him to quickly develop a relationship with

G.J.K. Mr. Andrews testified that the day after Ms. Kinnett informed him that her

17-CA-625 20

two children were not full biological siblings, he underwent a paternity test to

determine paternity. He then made an effort to interact with G.J.K. on a consistent

basis and financially contributed to support Ms. Kinnett and G.J.K. while she

navigated establishing a new residence after she and Mr. Kinnett separated. The

record before us fully supports a finding that Mr. Andrews has demonstrated that

he has grasped the opportunity to parent his biological child, G.J.K., and that he

has established a vested liberty interest in the constitutional right to parent his

biological child, G.J.K.

We next consider the risk of erroneous deprivation of a biological father’s

right to parent under the procedures or safeguards provided in Article 198. The

language of the article, which sets forth a one-year peremptive period, not subject

to interruption or suspension, provides no notice requirement to a biological father

and no duty on behalf of the biological mother to inform the biological father of his

possible paternity. The very narrow exception under Article 198 applies when a

trial judge makes a factual finding that the biological mother acted in bad faith—

which requires either a finding of ill or malicious intent or evidence to demonstrate

that the biological mother directly, clearly, and intentionally misled the biological

father to believe that her husband was in fact the biological father.

The Louisiana Supreme Court’s recent interpretation of the language “bad

faith” as set forth in its most recent opinion in this matter instructs that “‘a mother

who knows another man is possibly the father of her child’ is not in bad faith in

failing to disclose that knowledge of possible paternity after the child’s birth if a

trial judge finds credible the mother’s belief that one man, rather than the other—

whom she had sexual relations within a single conception period— is the father.”

Kinnett, supra, 345 So.3d at 1129-30, quoting Kinnett, supra, 332 So.3d at 1156.

In other words, the mere belief that one of the two or three or possibly more

partners with whom a woman has sexual relations in a likely one-week conception

17-CA-625 21

period could be the biological father of the child, under the Court’s interpretation,

does not require the mother to notify or inform any partner even after the birth of a

child before a biological father’s rights may become perempted. She is under no

duty to take legal action or to investigate or undergo DNA testing. The biological

father, however, is forced to interject himself into a marriage by filing a public suit,

most likely causing upheaval or divorce, even if the child ultimately is determined

to not biologically be his child, in order to preserve his parental rights. This seems

to be in direct conflict with the purpose of the Article—to maintain intact families

and prevent the upheaval of litigation. In some scenarios, a biological father may

have no knowledge that a child has been born, yet may be deprived of the

opportunity to establish his constitutional right to parent his child.15

We further point out that “‘an impartial decision maker is essential’ to due

process.” In re Adoption of B.G.S., supra. Under the language of Article 198 in

conjunction with the Louisiana Supreme Court’s narrow interpretation of the term

“bad faith” as set forth in its opinion, Kinnett v. Kinnett, supra, the biological

mother alone in many circumstances will control whether the biological father is

notified of her pregnancy or the child’s birth. “[T]he placement of decision in the

hands of a potentially adverse decision maker, violates the most basic principles of

due process under both our state and federal constitutions.” Adoption of B.G.S. at

556.

Finally, we consider the government interest at stake and whether such

interest is a compelling one sufficient to justify infringing upon Mr. Andrews’

fundamental right to parent his biological child. The comments to Article 198 state

that the Article’s “time period of one year from the child’s birth imposed upon the

15
As stated earlier, because there was no finding of bad faith in this case, any factual finding concerning
constructive knowledge of possible paternity is irrelevant. Nevertheless, we point out that such a
fundamental right as the right to parent a biological child should not rest on a trial judge’s determination
that an individual likely had a fleeting suspicion of possible paternity in a case where contraceptives were
physically in place during intercourse and, after the birth of a child, the biological mother informed the
biological father that she had subsequently reunited with her husband and gotten pregnant.

17-CA-625 22

alleged father if the child is presumed to be the child of another man” is “intended

to protect the child from the upheaval of such litigation and its consequences in

circumstances where the child may actually live in an existing intact family with

his mother and presumed father or may have become attached over many years to

the man presumed to be his father.”

Without this Court opining on the issue, the Louisiana Supreme Court has

consistently pointed out that a divorced household is not, in the legal sense,

considered an “intact family” as the language has historically been utilized or

contemplated by the Louisiana legislature. See State, Dep't of Child. & Fam.

Servs. ex rel. A.L. v. Lowrie, 14-1025 (La. 5/5/15), 167 So. 3d 573, 585, citing La.

R.S. 9:315 (“While the legislature acknowledges that the expenditures of two-

household divorced, separated, or non-formed families are different from intact

family households, it is very important that the children of this state not be forced

to live in poverty because of family disruption and that they be afforded the same

opportunities available to children in intact families… .) (emphasis added);

approvingly cited by Estapa v. Lorenz, 11-852 (La. App. 5 Cir. 3/27/12), 91 So.3d

1103, 1106; see also La. C.C. art. 194, Rev. Cmt. (defining “child as a member of

an intact family [is a child] resulting from the marriage of the mother and alleged

father.”); See also State, Dep’t of Child. & Fam. Servs. ex rel. A.L. v. Lowrie, 14-

1025 (La. 5/5/15), 167 So.3d 573, 581, citing Pociask v. Moseley, 13-0262 (La.

6/28/13), 122 So.3d 533, 538; Gallo v. Gallo, 03-0794 (La. 12/3/03), 861 So.2d

168, 174; T.D. v. M.M.M., 98-0167 (La. 3/2/99), 730 So.2d 873, 878 (concurring

opinion), abrogated on other grounds by Fishbein v. State ex rel. Louisiana State

Univ. Health Scis. Ctr., 04-2482 (La. 4/12/05), 898 So.2d 1260 (“Where a marital

unit is intact, the State’s interest in preserving the integrity of the marital family

may also silence a biological father’s competing interests.... However, once the

bonds of matrimony are dissolved a vinculo matrimonii, the State’s interest in

17-CA-625 23

preserving the marital family disappears.... Today’s realities are that illegitimacy

and ‘broken homes’ have neither the rarity nor the stigma as in the past. When

parenthood can be objectively determined by scientific evidence, and where

illegitimacy is no longer stigmatized, presumptions regarding paternity are ‘out of

place.’ ”).

Moreover, the Louisiana marital presumption’s evolving path illustrates that

history and tradition must sometimes give way to truth gained from experience,

science, and technology. When the social and legal consequences associated with

illegitimacy were dire, and the only actual proof of paternity was long absence, the

State’s interest in providing protection for innocent children was compelling,

whether or not the method of providing protection was wholly effective. Today,

when the evolution of the law and society has rendered the protection of the child

from negative social and legal consequences unnecessary, and scientific advances

make proof of paternity a simple scientific reality, the State’s interest in protecting

children no longer justifies the maintenance of legal fiction in the face of biological

fact. The marital presumption and its purposes no longer justify denying the

existence of a biological father’s constitutional right to parent. Kinnett, 302 So.3d

at 196 (Wicker, J., concurring) (quotations omitted).

While the State’s interest in protecting the child is important, Article 198’s

peremptory period is not so sufficiently related to achieving that interest that it

outweighs the risk of erroneous deprivation of the biological

father’s constitutionally protected interest in an opportunity to develop a

relationship with his child. Id.

We find that, under the specific facts of this case where Mr. Andrews

intervened into a divorce proceeding before the child attained the age of 18 months

old (and, thus, had not become attached over many years to the presumed father)

and where Mr. Andrews had consistent interaction with G.J.K. when permitted by

17-CA-625 24

Ms. Kinnett to establish a relationship with him, the government interest at stake—

maintaining the intact family unit or protecting the child after he or she has become

attached to the presumed father over the course of many years—is not compelling

under the facts of this case and cannot justify deprivation of Mr. Andrews’ vested

constitutional right to parent G.J.K.

DECREE

Accordingly, for the reasons explained herein, we find first that Mr.

Andrews has established a vested liberty interest in the constitutional right to

parent his biological child, G.J.K. We further find that Article 198 as applied to

the facts of this case is unconstitutional and violates Mr. Andrew’s right to due

process under the Louisiana state constitution. We therefore reverse the trial

court’s January 10, 2019 judgment upholding the Article’s constitutionality in this

case, and we remand this matter to the trial court for further proceedings consistent

with this opinion.

REVERSED; REMANDED

17-CA-625 25

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
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STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
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17-CA-625
E-NOTIFIED
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HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE)
ALLISON K. NESTOR (APPELLEE) LEONARD L. LEVENSON (APPELLEE) JACQUELINE F. MALONEY (APPELLEE)
DESIREE M. VALENTI (APPELLANT) SHARON L. ANDREWS (APPELLANT) STEPHANIE A. FRATELLO (APPELLANT)
THOMAS A. ROBICHAUX (APPELLANT) RAMONA G. FERNANDEZ (APPELLEE)

MAILED
HONORABLE JEFFREY M. LANDRY TRACY G. SHEPPARD (APPELLEE) CHRISTIAN W. HELMKE (APPELLEE)
(APPELLEE) ATTORNEY AT LAW DONNA R. BARRIOS (APPELLEE)
ATTORNEY GENERAL 412 DOLHONDE STREET ATTORNEYS AT LAW
LOUISIANA DEPARTMENT OF JUSTICE GRETNA, LA 70053 424 GRAVIER STREET
1885 NORTH 3RD STREET NEW ORLEANS, LA 70130
6TH FLOOR, LIVINGSTON BUILDING DAVID J. SMITH, JR. (APPELLEE)
BATON ROUGE, LA 70802 JEFFREY M. WALE (APPELLEE)
ASSISTANT ATTORNEY GENERALS
ASHLEY FISHER (APPELLEE) LOUISIANA DEPARTMENT OF JUSTICE
ELIZABETH FOX (APPELLEE) POST OFFICE BOX 94005
LINDSAY DEAN (APPELLEE) BATON ROUGE, LA 70804-9005
STUDENT PRACTITIONER
STUART H. SMITH LAW CLINIC &
CENTER FOR SOCIAL JUSTICE
7214 ST. CHARLES AVENUE
NEW ORLEANS, LA 70118