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Establishing or Disestablishing Paternity. How to Do It?

The mother of the child is of course the woman who gave birth to this child. There is no doubt about it. However, the situation is legally more complicated with fathers.

Baby with father holding hands
9 minutes of reading
11. 12. 2020

What is the process of establishing paternity both within and outside of marriage? How to apply for establishing paternity, and who and under what conditions can one, on the contrary, file a paternity lawsuit? We have summarized the answers to these questions for you in this article.

Sections:

Three Paternity Presumptions

Who is the father of the child may not be always certain. The Civil Code therefore states three so-called presumptions of paternity:

The first presumption of establishing paternity: the father is the mother´s husband.

If the child’s mother is married, the mother’s husband is automatically considered to be the father. But what is the situation in the case of a divorce? If the mother gives birth to a child within 300 days of the divorce, the ex-husband is also considered to be the father of the child. (The situation is different when the mother remarries within that time.)

And what happens if the child is conceived by artificial insemination? If a woman is married, her husband is again automatically considered to be the father. If she is not married, a man who has given the agreement to artificial insemination is considered to be the father.

The second presumption of establishing paternity: the father is a man with whom the mother makes a so-called Acknowledgement of Paternity.

If the child’s parents are not married, they both sign the Acknowledgement of Paternity at the Registry Office or in court.

The thirt presumption of establishing paternity can be applied only if the first and second have been excluded.

According to the third presumption, the father of the child is a man who had sex with the mother during the relevant time, and the paternity is established by the court in this case. The trial is initiated by filing a Complaint for Determination of Paternity.

We will go through the individual cases in this article step by step. We will also introduce you to the process of establishing paternity, what is the Denial of Paternity Action and who can file it, and how it works to establish paternity after many years.

How to Establish Paternity if the Child is Born During a Marriage?

In practical matters of life, marriage brings indisputable benefits. One of them is normally simple establishment of paternity. If the child’s parents are married, the husband of the wife is automatically considered to be the child’s father. In such a case, the parents do not even have to visit the Registry Office, as in the case with unmarried parents. If the child is born during a marriage, all the necessary documents are obtained by the Registry Office directly from the Maternity hospital, (which has all the necessary documents, including the marriage certificate from the parents).

But the situation is not always so straightforward. What are other options for establishing paternity?

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Unmarried Partners and Acknowledgement of Paternity at the Registry Office

If the partners are not married, it is ideal to solve everything necessary at the Registry Office before the birth of the child with the consonant declaration (consent) of both parents. Of course, this can also be done in the case of a child who has already been born. This declaration of the parents is generally referred to as the “Acknowledgement of Paternity” or “Paternity Declaration”.

By declaration of both parents, you can establish paternity only once, and it is not possible to take it back. At the same time, your signatures confirms that you have not already established paternity of the child in question by another Registry Office or court. If this would be the case, there would be a fine of up to 10.000 CZK.

To apply for a consonant declaration, it is enough for both parents to appear in person at the Registry Office. You do not need any form with you. But what should you definitely not forget, in order to make everything run smoothly?

Documents that must be submitted when declaring the consent for an unborn child:

  • birth certificates of the mother and father
  • their identity cards
  • mother’s pregnancy card
  • if the mother is divorced, a final court judgment of divorce
  • if the mother is a widow, the death certificate of the husband

And what documents should not be forgotten when declaring the consent for a newborn?

  • birth certificate of father and mother
  • their identity cards
  • birth certificate of the child (if it has already been issued)
  • if the mother is divorced, a final court judgment of divorce
  • if the mother is a widow, the death certificate of the husband

The partners will also state the child’s name and surname in the Acknowledgement of Paternity. If the child has not yet been born, it is necessary to state names for each, a boy and a girl.

You do not pay any fees when signing the Asknowledgement of Paternity. If you have submitted all the necessary documents, (you can find a list of them above), the consent will be processed immediately, so there is no waiting for the documents to be sent by mail.

If there is a situation where the unmarried partners do not agree, and the partner does not want to be registered in the child’s birth certificate, it is necessary for the child’s mother to go to court to establish paternity. This is also the case in the opposite situation: it can happen that the mother refuses to register the father in the birth certificate, even though he is interested in this registration. Then, of course, the child’s alleged father can go to court.

Establishing Paternity through the Court. How does the Paternity Lawsuit Proceed?

If the child’s parents are not married and the paternity has not been established by signing an Acknowledgement of Paternity, the court may decide on the establishment of paternity on the basis of a so-called paternity lawsuit.

Who can apply for such paternity establishment via a paternity lawsuit? It can be not only the mother, but also the child or the alleged father – a man who claims to be the father of the child.

How does it go in court?

The court first hears the mother and the alleged father of the child. In some cases, a judge can decide on paternity without genetic testing. More often however, an expert opinion is prepared, for which DNA tests are used; (in the Czech Republic, this is the only method by which paternity is tested). The test is performed on children already born. If the baby has not yet been born, it is possible to take amniotic fluid or fetal blood for testing, but this is a high risk and therefore not a recommended procedure.

It can take weeks or months to prepare an expert opinion. Once the expert opinion has been drawn up, a further court hearing follows at which the court either decides on the establishment of paternity based on the expert opinion, or dismisses the action. Any party can appeal against the court’s decision.

Parental responsibility is also discussed in this court proceeding – which of the parents will be entrusted with the care of the child, and what amount of child support will be determined for the other parent.

Have you found yourself in this difficult situation? We will be happy to help you with a paternity lawsuit.

How to File a Denial of Paternity Action?

How to deny paternity and change the name in the birth certificate? The denial of paternity can depend on the way how paternity was established.

As we have already stated, according to the Civil Code, the husband of the child’s mother is considered as the father on the basis of the first presumption. However, if the mother’s husband doubts his paternity, he can ask the court to deny paternity. This may be done within 6 months of the man becoming aware of the possibility that he is not the father of the child, and up to a maximum of 6 years of the child´s age. (This period may be cancelled by law only in exceptional cases, with the best interests of the child and public order).

The father can also be the mother’s partner, with whom she signed a parental statement consent. If the declaration was made before the birth, the period of 6 months is calculated from the date of birth of the child.

If the child was born from artificial insemination, according to the Civil Code, the father is the man who gave his consent to artificial insemination. However, he can deny his fatherhood only in one case: if it turns out that the woman actually got pregnant in another way.

Of course, not only the alleged father but also the mother of the child can deny paternity. She can file a Denial of Paternity Action within 6 months of the birth of the child, or when signing the parental statement consent.

And how to deny paternity if a woman has become pregnant with a new partner but is not yet divorced? The mother’s husband will be registered as the father (this will apply within 300 days of the divorce). If divorce proceedings are already in progress, it is possible to deny and establish paternity at the same time during in a separate proceeding. In court the mother, husband and new partner must all agree that the child’s father is the mother’s new partner.

Establishing Paternity After Many Years

The paternity test can be performed at virtually any time in life, at any age of the child or the alleged father. But how is it in the case that the alleged father is already deceased? Even in this case, it is possible to make a DNA test, it is just a little bit more complicated. One option is to collect DNA samples from living relatives of the alleged father. These cases are reserved for the courts. Exceptionally, the biological material of the deceased alleged father has been kept. Based on this, it is then possible to do a paternity test.

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Author of the article

Lucie Petránková

Mgr. Lucie Petránková

Lucie understands the legal profession like few others, and she defends the interests of her clients both inside and outside the courtroom. Lucie has won hundreds of disputes, and her role on our team is to ensure the smooth and effiecient transfer of real properties. She is also experienced in both civil law and family law.

Education

  • Postgraduate studies Charles University in Prague, Faculty of Law, field: medical law,
  • Universita Pantheon d ´Assas Paris II,
  • Law, Charles University in Prague, Faculty of Law

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