Comment by Gianluca S. Cocito-Monoc
This Comment posits that Louisiana's use of peremptory periods, a concept unique to its civil law system, as a means of extinguishing the avowal action allowable under a scheme of dual paternity is an unconstitutional violation of the substantive due process doctrine.
First, Louisiana has long recognized the right of a biological father to establish a relationship with their child as a fundamental right worthy of heightened constitutional protection. This Comment details the ways in which Louisiana jurisprudence has not only accepted that a biological father's right is fundamental in the wake of decisions from the U.S. Supreme Court on the issue but has also expanded that right through the state's system of dual paternity.
Further, the use of peremptive periods to extinguish the judicially recognized expansion of the right runs the risk of undermining the protections that dual paternity may otherwise serve to provide to a biological father. Where there is a fundamental right, any limitation of that right must withstand a strict scrutiny analysis. To pass constitutional muster, the extinguishment of the right must be narrowly tailored to achieve the compelling state interest in the limitation.
Even in the limited instances where Louisiana has a compelling state interest in extinguishing the biological father's fundamental right, Louisiana's unique limitation—peremptory periods—are not narrowly tailored because prescriptive periods are a less restrictive alternative. In light of the Louisiana Supreme Court’s December 2021 decision, it is likely only a matter of time until a Louisiana court expressly finds the use of a peremptory to limit a biological father's ability to bring an avowal action unconstitutional.
This Comment concludes with a call to action. If the Legislature would like to stay in the business of temporally limiting individuals' fundamental right to establish a relationship with their child, it should employ prescriptive periods and not peremptive ones.
About the Authors
Gianluca S. Cocito-Monoc, J.D. candidate 2022, Tulane University Law School; B.S. 2020, Tulane University
Citation
96 Tul. L. Rev. 347 (2021)