If a child has been born in wedlock but the father is not the mother’s husband, how can the child be recognised by the biological father?
A child born within a formally valid marriage of the mother to her husband cannot be recognised by his/her biological/natural father unless the husband’s paternity is first contested and a final and irrevocable judgment is issued upholding that contestation.
What are the available means of recognising paternity of a child?
Recognition of a child may take place in two ways: a) either voluntarily, by drawing up a relevant notarial deed or will, b) or judicially, by filing an action for recognition of paternity.
What is voluntary recognition of a child?
The father may voluntarily recognise as his own a child born out of wedlock, provided that the mother also consents to it. If the mother has died or lacks legal capacity, recognition is effected by the father’s declaration alone. If the father has died or lacks legal capacity, recognition may be effected by the paternal grandfather or grandmother.
The form required for recognition to take place is by notarial deed or by will. Recognition is therefore made by declaration before a notary public or by will. The mother’s consent is likewise given by declaration before a notary public, which is usually included in the same notarial document in which the father’s declaration of recognition was made. Revocation of either declaration is not permitted. These declarations are made only in person, without condition or time-limit (since the right of recognition of a child’s paternity is a strictly personal right) and the declarants cannot be represented by other persons.
The effect of voluntary recognition of a child is that the latter acquires in all respects the legal status of a child born within marriage. In practice, this entails the creation of a kinship bond between the child and his/her father and the father’s relatives, the creation of an intestate inheritance right of the child vis-à-vis the father and his relatives and a corresponding right of forced heirship, and the creation of a right of maintenance from his/her ascendants. As regards the father, the latter acquires parental care over the child with all the rights and obligations that this entails.
The contestation of voluntary recognition may take place either by the child himself/herself, on the ground that the person declared as father is not in fact the father, or by the parents of his/her mother, provided that the latter did not consent to the recognition (potentially due to death or lack of legal capacity), or by the parents of the father who had not himself proceeded to recognition (potentially due to death or lack of legal capacity).
The time-limit for contestation of paternity by the child himself/herself is two years after reaching the age of majority. More generally, for the other persons entitled to contest the recognition, the time-limit for contestation is three (3) months after they became aware of the recognition or, in any event, if two (2) years pass from the recognition.
What is the Action for Recognition of Paternity of a Child?
The persons entitled to file an action for recognition of paternity are: i) the child himself/herself, ii) the mother, iii) the biological father of the minor child (provided that the mother refuses to give her consent to voluntary recognition), iv) the parents of the biological father (provided that he has died or lacks legal capacity).
The action for recognition filed by the mother is directed against the biological father or his heirs and is brought by her in her own personal capacity and not on behalf of the minor child. The latter has an independent right to bring the action. Where the mother is a minor and unmarried, the action is brought by her legal representative, unless her age is between 10 and 18 years, in which case she may bring it in person. The time-limit for bringing the action is a limitation period and lasts five (5) years from the date of birth.
Correspondingly, the action for recognition brought by the child in person after reaching the age of majority is directed against his/her biological father who has not recognised him/her, or against his heirs. The time-limit for filing an action for recognition by the child, who has now reached the age of majority, is one (1) year from reaching the age of majority.
Subsequently, the father of the minor child or his ascendants may, in the event that the mother refuses to consent to the voluntary recognition of the child, proceed to file an action for recognition, which is directed against the mother. The time-limit for bringing the action is two (2) years from the date on which the mother refused recognition and is a limitation period. Where the mother has given birth to the child within marriage with her husband, the above time-limit begins to run from the issuance of the final and irrevocable judgment upholding the contestation of paternity.
What will be the Surname of the Child after recognition of paternity?
The parents are required to determine the surname of their children by a joint, irrevocable declaration. The declaration is made before the marriage, either before a notary public or before the official before whom the marriage will be celebrated. The official is obliged to request the relevant declaration. The designated surname, common to all children, may be either the surname of one of the two parents or a combination of their surnames, which, however, in no case may include more than two surnames. If the parents fail to declare the surname of their children as set out above, the children take as their surname the surname of their father.
A child born without marriage of the parents takes the surname of the mother. The mother’s husband may, by notarial document, give the child his surname in place of the child’s existing surname or, in addition, if the mother and the child consent in the same form, alongside it. If recognition takes place, voluntary or judicial, the adult child or, if the child is a minor, the parents or one of them or the child’s guardian are entitled, within a period of one year from the completion of the recognition, to add, by declaration to the registrar of births, the paternal surname to the child’s surname.
If the declaration is made by both parents jointly, they may determine the new surname of the child in accordance with what has already been stated above.
- See also article Revocation of Decision on Interim Measures
- See also article Divorce
- See also article Relocation of the Family Home
- See also article Joint Custody of the Child
- See also article Child Maintenance — Methods of Collection
- See also article Child Custody and Abduction
- See also article Change of City for Minor Children
- See also article Surrogate Mother — Court Authorisation
FREQUENTLY ASKED QUESTIONS ON RECOGNITION OF PATERNITY OF A CHILD
1. What does recognition of paternity of a child born out of wedlock mean?
When a child is born without the parents being married, the law does not automatically link the child to the biological father. Such a link presupposes a recognition procedure, which may take place either voluntarily before a notary public, with the mother’s consent, or judicially through an action for recognition of paternity. Once recognition is completed, the child acquires the same legal status as a child born within marriage, namely inheritance rights, the right of maintenance, forced heirship and a kinship bond with the paternal line. Where the child has been born in a marriage of the mother to another man, contestation of the husband’s paternity by a final and irrevocable judgment is first required, followed by recognition by the biological father.
2. What can I do if recognition is being refused?
Where the mother refuses to consent to voluntary recognition, the biological father files an action for recognition of paternity before the Single-Member Court of First Instance, within a time-limit of two years from the refusal. Conversely, where the biological father refuses to recognise the child, the mother files an action in her own personal capacity within five years from the date of birth, while the child himself/herself retains an independent right up to one year after reaching the age of majority. At trial, paternity is proved primarily by DNA testing, which is ordered by the court. In the event of refusal to participate in the test, the court draws an inference against the refusing party.
3. How long does the recognition procedure take?
Voluntary recognition is generally completed within a few days, since it suffices to draw up a notarial deed containing the declarations of the father and the mother, followed by registration with the registrar of births. Judicial recognition is significantly more time-consuming and generally lasts from one to two years until the issuance of a first-instance judgment, depending on the court’s caseload, the need for DNA expert evidence and the conduct of the defendant. If legal remedies are exercised, the time is extended. Where contestation of the paternity of the presumed husband must take place first, the duration of that proceeding is also added, so that overall completion may exceed three years.
4. What documents and evidence are required?
For voluntary recognition, identity cards of both parents, a birth certificate of the child and a family status certificate of the mother are required. For the judicial procedure, additional evidence is required to substantiate the parents’ relationship at the time of conception, such as messages, photographs, witness testimony, medical certificates of the birth and any item evidencing cohabitation or a romantic relationship. The medical DNA test, usually ordered by the court, is decisive. Where contestation of paternity owing to the mother’s marriage must precede the action, the final and irrevocable judgment of that proceeding is also required. The firm collects and assesses the evidence prior to filing the pleading.
5. What are the prospects of success of my action?
The action for recognition of paternity has high rates of success when the substantive conditions are met and DNA testing confirms the biological link. The decisive factors are compliance with the limitation periods (five years for the mother from the date of birth, one year for the adult child from reaching the age of majority, two years for the father from the mother’s refusal), the proper standing of the claimant and adequate substantiation of the parents’ relationship during the critical period of conception. Where the child has been born in wedlock, success depends on prior successful contestation of the husband’s paternity. Each case is assessed individually by the lawyer.
6. What is the lawyer’s role in the case?
The lawyer undertakes a full legal assessment of the case, examines whether the child was born within or out of wedlock, calculates the time-limits, determines the standing of the parties and selects the appropriate procedural avenue. He drafts the action for recognition or the action contesting paternity, represents the client before the Single-Member Court of First Instance, handles the DNA expert evidence and coordinates with a notary public for voluntary recognition where there is agreement. In parallel, he carries out the registry entries, regulates the issues concerning the child’s surname and provides advice on the consequent implications for parental care, maintenance and inheritance rights. The firm’s experience in family law cases ensures effective handling.