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:
If the child’s mother is married, her husband is automatically identified as the father. 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 by then).
And 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.
Do you believe that you are not the biological father of the child, even though the legal presumption of paternity is in your favour?
Or are you the mother of a child and need to protect the child’s interest in a dispute over denial of paternity? We can help you assert your rights. Contact us from anywhere and online.
If the child’s parents are not married, they both sign a parental consent declaration at the registry office or in court.
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.
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 considered the child’s father. In such a case, the parents do not even have to visit the registry office, as is the case with unmarried parents. If the child is born to a married couple, the registry office will obtain all the necessary documents directly from the maternity hospital (which has everything it needs, including a marriage certificate from the parents).
However, the situation is not always this straightforward. What are the other options for establishing paternity?
If the partners are not married, it is ideal to sort out everything necessary at the registry office before the birth of the child by means of a consent declaration 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 withdrawn. 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.
If there is a situation where the unmarried partners disagree and the partner does not want to be included on the child’s birth certificate, the child’s mother must apply to the court, which will then determine paternity. The reverse is also true. It may happen that the mother refuses to register the father on the birth certificate, even though he requests registration. Then, of course, the presumed father of the child can apply to the court.
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 does the trial to establish paternity proceed? 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 claim based on 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 the amount of maintenance to be paid to the other parent.
Tip: Want to file a paternity suit and not sure if you will win? We will assess your chances of success in court and suggest a solution that will lead to the desired outcome.
From law practice:
Mr. Adam found himself in a curious situation, having found a married girlfriend, Katerina. Although the girlfriend had officially moved out of her husband’s home and was living with Adam, the divorce took longer than they had intended and the girlfriend became 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.
Tip: The denial of paternity follows the way in which paternity was established. Generally, this can be done within six months of the man learning 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.
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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