The mother of the child is the woman who gave birth to the child. There is no doubt about it. With fathers, however, the situation is more complicated. How is paternity established within and outside marriage? You will find out in the following lines.
Who is the father of the child may not be entirely certain. The Civil Code therefore speaks of three so-called presumptions of paternity:
In practical matters of life, marriage brings undeniable advantages. One of them is the simple recognition of paternity. If the child’s parents are also married, the mother’s husband is automatically presumed to be the child’s father. If the child is born into the marriage, all the necessary documents are obtained by the registry office directly from the maternity hospital (which has everything it needs, including a marriage certificate from the parents).
And what about in the case of divorce? If the mother gives birth to the child within 300 days of the divorce, the former husband is designated as the father (the situation would be different if the mother remarried before then).
What happens if the child is conceived by artificial insemination? If the woman is married, her husband is again automatically considered the father. If she is not married, the man who consented to the artificial insemination is legally considered the father.
Or are you the mother of a child and need to protect the child’s interest in a dispute over the denial of paternity? We can help you assert your rights. Contact us from anywhere and online.
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If the child’s parents are not married, they both sign a parental consent declaration at the registry office or in court.
If the partners are not married, it is ideal to arrange everything necessary at the registry office before the birth of the child by means of a declaration of consent from both parents. Of course, this can also be done in the case of a child who has already been born. The parents’ declaration of consent is known in layman’s terms as ‘acknowledgement of paternity’.
You can only establish paternity once by a consent declaration and it cannot be revoked. By signing, you also certify that you have not already established paternity for the same child by another registry office or court. If you do, you may be fined up to CZK 10,000.
To make a consent declaration, both parents must appear in person at the registry office. You do not need to bring any form with you. But what should you be sure not to forget to make sure everything goes smoothly?
The documents you need to submit when making a consent declaration for your unborn child:
The partners shall also include the name and surname of the child in the declaration of consent. If the child has not yet been born, both the boy’s and the girl’s name must be given.
There is no fee for signing the declaration of consent. If you have submitted all the necessary documents, the declaration will be made on the spot, so there are no processing times.
In the case of artificial insemination, the man who gave consent to the artificial insemination is legally considered the father, i.e. not the sperm donor but the woman’s partner. This consent must be documented and in writing and is usually recorded directly in the medical records during the artificial insemination process.
If the woman is not married and paternity cannot be established according to the above rule (for example, if the woman does not have a partner), the sperm donor is not considered the father of the child. The donor is protected by anonymity and has no legal obligations or rights towards the child.
Tip: The father who is considered the father under the law and who is registered in the civil registry always has the obligation of maintenance of the child, even if, for example, at the age of 10, the child is found not to be the biological father. The same applies in the case of inheritance.
This presumption can only be invoked if the two previous presumptions do not apply. The court proceedings are initiated by a petition to establish paternity. Not only the mother but also the father or the child may file the application.
Tip: Establishing paternity is also important if you want alimony from your father. How much child support is your child entitled to and how to calculate it? Read our article.
How is the trial to establish paternity conducted? If the child’s parents are not married and the paternity has not been established by signing a declaration of consent, the court may decide on the establishment of paternity by means of a so-called paternity action.
Who can apply for such a paternity determination? It can be not only the mother, but also the child or the alleged father – the man who claims to be the father of the child.
What happens in court? The court first hears the mother and the alleged father of the child. In some cases, the judge may decide paternity without genetic testing. More often, however, an expert opinion is drawn up, for which DNA tests are used (in the Czech Republic, this is the only method by which paternity is tested). The test is carried out on children who have already been born. If the child has not yet been born, it is possible to collect amniotic fluid or fetal blood for testing, but this is a highly risky and therefore not recommended procedure.
It can take weeks or even months to obtain an expert opinion. Once it has been prepared, there is another court hearing, where the court either decides on the paternity or dismisses the action on the basis of the report. Either party can appeal the court’s decision.
Parental responsibility is also discussed in these proceedings – which parent will be given custody of the child and what amount of maintenance will be determined for the other parent.
Tip: Establishing paternity is also important if you want alimony from your father. How much child support is your child entitled to and how to calculate it? Read our article.
If the potential biological father refuses to be determined as the father of the child, he cannot avoid a lawsuit himself if he is sued to establish paternity. The following principles apply:
If, on the other hand, the mother does not want the father to be established, the situation is again governed by legal principles which take into account the best interests of the child above all, not the wishes of the parents. The child’s right to have his or her biological parentage determined takes precedence over the personal preferences of the mother or father. The child has the right to know his or her biological father.
This right is based on the Charter of Fundamental Rights and Freedoms, which enshrines the right to identity and family ties. Even if the mother does not want the biological father to be identified, the court may initiate proceedings to establish paternity on the application of the child (or the child’s legal representative) or the biological father. The mother, as the legal representative, has no right to block these proceedings if they are initiated by another party (e.g. the biological father or the child after reaching the age of majority).
However, if neither the mother nor anyone else files a petition and none of the above presumptions apply, the father of the child remains legally undetermined.
Tip: The denial of paternity follows the way in which paternity was established. Generally, this can be done within six months of the man’s knowledge of the possibility that he is not the father of the child and up to a maximum of six years of age. In court practice, there are rare cases where the denial of paternity has occurred even later than six years. We have discussed the issue of denial of paternity in more detail in a separate article.
Mr Adam found himself in a curious situation, having found a married girlfriend, Katerina. Although the girlfriend had officially moved away from her husband and was living with Adam, the divorce took longer than they had intended and the girlfriend had become pregnant in the meantime. Under the law, the first presumption of paternity was given to the father of the child, but neither Adam nor Katerina agreed. Surprisingly, however, Katerina’s legal husband insisted on his paternity and probably saw a child (albeit a stranger’s) as a last resort to tie his wife to him. So the resolution clearly had to be reached in court proceedings. However, because of the disgraced husband, who even appealed against the very clear judgment, everything was unnecessarily complicated. In the end, however, Mr Adam’s paternity was confirmed.
Mrs Jana grew up knowing that the man on her birth certificate was not her biological father. Her real father was another man whom she knew well and who treated her as his daughter, even though his paternity was not formally recognised. This situation was the result of legislation which, until 2012, did not allow the paternity of a registered father to be challenged without the intervention of the Attorney General. The biological father never used this option because the family was comfortable with the current situation: the registered father paid maintenance and the biological father could be involved in Jana’s life without financial obligations.
The problem became acute after the death of the biological father, who had acquired a substantial estate shortly before his death. Because Jana’s birth certificate still listed the putative father, Jana had no legal claim to inheritance from her biological father. This situation led Jana and her mother to seek the help of our law firm.
The case was complicated not only legally, but also emotionally. The biological father had other children from another relationship who took a hostile attitude towards Jana. In order to prevent a possible paternity determination through DNA testing, they had the father’s body cremated.
Our law firm began the process by filing a motion to deny the alleged father’s paternity, which was necessary to subsequently establish the biological father’s paternity. At the same time, we secured the examination of witnesses who confirmed that the biological father recognized Jana as his daughter. Finally, the court ordered DNA analysis of the father’s immediate family, which allowed us to confirm the genetic link between Jana and the biological father.
After more than a year of litigation, the biological father’s paternity was formally acknowledged. Jana thus became the legal heir and received her share of the inheritance. This case shows that justice can be achieved even in complicated situations if it is backed by solid legal reasoning and a commitment to seek the truth.
Mr Marek was identified by Ms Petra as the biological father of her five-year-old daughter, Betya. However, Marek denied paternity and refused any contact with the child and her mother. Petra, with the help of our law firm, therefore filed a lawsuit to establish paternity in court. As part of the proceedings, it was necessary to conduct DNA tests. However, Marek refused to provide a sample and even moved abroad to avoid further court proceedings.
Despite his absence, the court ordered DNA testing as a key piece of evidence to establish paternity. In view of his refusal and his departure abroad, the court cooperated with the judiciary of the foreign country concerned. The Czech court used the mechanisms of international legal assistance and approached the judiciary in the country where Mr Marek was staying. In accordance with the Hague Convention on Legal Assistance and other international agreements, the foreign country was asked to carry out DNA tests on the basis of a Czech court decision. When Marek refused to cooperate with the foreign authorities, the DNA was forcibly taken. The sample taken was subsequently handed over to a Czech expert who carried out the analysis. The results confirmed unequivocally that Mr Marek is the biological father of little Bětka.
A paternity test can be performed at virtually any time during life, at any age of the child and the putative father. However, what if the putative father is already dead? Even in that case, a DNA test can be done, the situation is just a bit more complicated. One option is to obtain DNA samples from living relatives of the alleged father. These cases are reserved for the courts. Exceptionally, it happens that the biological material of the deceased putative father is preserved. A paternity test can then be carried out on this basis.
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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.
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