Geen v. Geen

666 So. 2d 1192, 95 La.App. 3 Cir. 984
CourtLouisiana Court of Appeal
DecidedDecember 27, 1995
Docket95-984
StatusPublished
Cited by14 cases

This text of 666 So. 2d 1192 (Geen v. Geen) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Geen v. Geen, 666 So. 2d 1192, 95 La.App. 3 Cir. 984 (La. Ct. App. 1995).

Opinion

666 So.2d 1192 (1995)

Donna S. GEEN, Plaintiff-Appellee,
v.
Kevin Charles GEEN, Defendant-Appellant.

No. 95-984.

Court of Appeal of Louisiana, Third Circuit.

December 27, 1995.
Writ Denied March 22, 1996.

*1193 Raymond J. LeJeune, Mamou, for Donna S. Geen.

Ellis J. Daigle, Eunice, for Kevin Charles Geen.

Before DOUCET, C.J., and YELVERTON, THIBODEAUX, WOODARD and KNIGHT[*], Judges.

WOODARD, Judge.

This case involves a custody dispute between the appellees, plaintiff Donna Geen Robertson and intervenor Kevin Robertson (Robertson), who are the biological parents of the minor child, Ryan Geen, and the defendant-appellant Kevin Geen (Geen), who is the former husband of Donna and the legal father of Ryan. Geen appeals the judgment of the trial court, which overruled his exception of prescription regarding the paternity action filed by Robertson, and which also recognized Robertson as the biological father, and which further granted Donna and Robertson the primary custodial care of Ryan.

FACTS

Donna was pregnant when she married Geen on December 19, 1990. She had been involved with Robertson before her marriage to Geen, last having sexual intercourse with him around October 23, 1990. Before marrying Geen, she informed Robertson of her pregnancy, but when Robertson would ask her who the baby's father was, Donna would either ignore his queries or would respond equivocally. Ryan was born on July 23, 1991, nine months after Donna and Robertson had last had sex.

Donna and Geen separated on November 27, 1992. A petition for divorce was filed on December 1, 1992. After a custody hearing on December 10, 1992, Geen and Donna were awarded joint legal custody of Ryan, with Geen being designated the domiciliary parent *1194 and Donna being granted liberal visitation privileges. This award was a considered decree.

Since his birth, Ryan has lived with Geen and has been in his primary custodial care, but recently, with Geen's blessing and encouragement, Ryan has also spent a substantial amount of time with Donna and Robertson.

Donna began living with Robertson shortly after the custody hearing, and following her divorce from Geen on June 29, 1993, they married on July 3, 1993. After two separate DNA blood tests, one in January 1993 and the other in October 1994, revealed a 99.76% probability that Robertson was the biological father of Ryan, Robertson filed a petition to establish paternity and for custody of Ryan. Donna also filed a motion for a change of custody on April 26, 1995, in which she asked that she be granted sole custody of Ryan, or if Robertson were found to be Ryan's biological father, that custody be awarded to her and Robertson jointly.

After a trial on the merits, the trial court ruled in a judgment issued May 11, 1995, that Geen was Ryan's legal father and that Robertson was his biological father. In that same judgment, the court awarded the primary custodial care of Ryan to Donna and Robertson, granting Geen liberal visitation privileges.

Geen now appeals this judgment.

ISSUES

The issues presented for review by Geen are: (1) whether Robertson asserted his right to establish his biological paternity to Ryan within a reasonable time after Ryan's birth; and, (2) whether the trial court properly changed domiciliary custody from Geen, Ryan's legal father and Donna's former husband, to Donna and Robertson, Ryan's biological parents, who are married at this time.

As to issue number one, we affirm; as to issue number two, we reverse.

We also note that the trial court, in apparently an oversight, did not explicitly state that it was awarding joint legal custody to all three parties. This is, however, implicit in its judgment and reasons for judgment. We will, therefore, so amend the judgment to reflect that the parties were awarded joint legal custody.

LAW AND DISCUSSION

PRESCRIPTION/PEREMPTION

Geen contends that Robertson knew, or had reason to know and believe, that Ryan was his biological child before or soon after Ryan was born. Therefore, his avowal action, filed nineteen months after Ryan's birth, was unreasonably tardy, and Robertson should not have been allowed to assert that action.

In Putnam v. Mayeaux, 93-1251 (La.App. 1 Cir. 11/10/94); 645 So.2d 1223, the biological father brought an avowal action one year and three days after the child's birth. The first circuit held that biological fathers who meet certain prerequisites have a right of avowal, despite the presumption in La.Civ.Code art. 184 that the husband of the mother is presumed to be the father of all children born or conceived during the marriage. Putnam, 645 So.2d 1223. This court agrees. The court in Putnam held that a right of avowal is not absolute. It is the actual relationship with the child that is determinative, not the mere biological connection. Id. Moreover, the presumed father's failure to disavow paternity does not preclude the biological father from bringing an avowal action. Smith v. Cole, 553 So.2d 847 (La.1989). However, a biological father who knows or has reason to know of the existence of his biological child, and who fails to assert his rights for a significant period of time, cannot later come forward and assert paternity. Putnam, 645 So.2d 1223.

Geen argues that Robertson failed to assert his rights for a significant period of time after his knowledge of the existence of Ryan. However, the trial court ruled that a time lapse of fifteen to nineteen months was not an unreasonable period of time. Robertson testified that he always suspected that Ryan was his biological child. He further testified that he questioned Donna about Ryan's paternity on several occasions, but it *1195 was not until after Donna and Geen separated that she directly answered his questions. At that point, Donna straightforwardly confessed to Robertson that he could be Ryan's biological father. Robertson consequently filed suit to establish his paternity within a month of obtaining the DNA blood test results.

We agree with the trial court that given Donna's persistent equivocations regarding Robertson having fathered Ryan, her refusal to have contact with Robertson for an extended period, Geen's assumption that he was Ryan's father, and Robertson's immediate filing of a paternity lawsuit following his receipt of the DNA blood test results, a significant period of time did not elapse so as to preclude Robertson's avowal action.

The trial court was not clearly wrong in finding that Robertson's actions were reasonable under the circumstances of this case. We do not find that the trial court erred in overruling Geen's exception of prescription. Thus, we affirm the trial judge on this issue.

CHANGE OF CUSTODY BURDEN OF PROOF

However, we reverse the trial court's ruling as to whom should be the primary custodial parent. We find that the court erred as a matter of law, and even if it had not, it erred in that it abused its discretion.

The trial court in this case erred in considering the question of child custody as if the matter had never been ruled on before, ignoring that there was in effect a prior considered decree between Geen and Donna, and in misapplying an abbreviated "best interest of the child" test.

When a trial court has made a considered

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Cite This Page — Counsel Stack

Bluebook (online)
666 So. 2d 1192, 95 La.App. 3 Cir. 984, Counsel Stack Legal Research, https://law.counselstack.com/opinion/geen-v-geen-lactapp-1995.