Finding out that you are an expectant father will ideally evoke joyful feelings in you. But life can also bring situations where you suspect that someone else is probably the father of the child, or you know for sure that the child is not yours, even though there is a legal presumption to the contrary. What can be done in such a situation?
Legal and biological paternity are different categories. Ideally, they meet in one man, but this is not always the case.
Sometimes there are situations where it is in the interest of all concerned not to refute the factual conflict between legal and biological paternity (for example, when artificial insemination occurs and the father is registered and legally considered to be the husband of the mother, or the husband of the mother. in many cases, however, such a rare match does not occur and then it depends on whether the father (legal or biological) is aware of such a discrepancy and is interested in resolving and changing the situation. However, a mother who knows with certainty, or at least suspects, that someone other than her husband is the biological father may also be the petitioner in this case.
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 the denial of paternity? We can help you assert your rights. Contact us from anywhere and online.
Before we describe how to deny paternity, it is necessary to clarify who is actually recognised by law as the father and who can be registered as the father at the registry office. The old legal maxim is that the mother is always certain, while the father of the child is uncertain. Similarly, the Civil Code states quite simply that the mother is the woman who gave birth to the child.
As for the father, the situation is more complicated. The Civil Code provides for three so-called presumptions of paternity. A presumption is essentially a presumed fact which is valid until the contrary is established, i.e. it can be rebutted according to certain rules.
The law first identifies the husband of the mother as the father. Thus, if the mother of the child is married, her husband is automatically entered in the civil registry as the father. If the child is born within 300 days of the divorce, again the former husband is automatically entered in the register – unless the mother has remarried in the meantime, then the current husband is entered.
Many couples today, however, live together unmarried and the conception of the offspring is naturally part of these relationships as well. It does not matter whether it was a carefully laid plan or not. If the mother is not married, the situation is usually resolved by a declaration of consent by both parents, which is possible even before the child is born.
In the case of artificial insemination, the father is presumed to be the consenting father.
If the father is not determined in either of these ways, the mother, the child or the man who claims to be the father may apply to the court, which will take evidence and determine whether the man will be registered as the father.
Tip: We will discuss in detail the issue of paternity establishment, including possible exceptions and specific situations, in our separate article.
Denying paternity depends to some extent on just how paternity was determined.
If the husband of the mother has doubts about his paternity, he can go to court and ask the court to deny his paternity. However, he must do so within six months of becoming aware that he might not be the father. However, the latest he can apply to the court is when the child is six years old. He or she should duly substantiate his or her claim, write why he or she does not feel that he or she is the father, send the results of a paternity test, if one has been carried out, or file a petition to have one carried out.
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 (and within 300 days of the divorce). If the divorce proceedings are already under way, it is possible to deny and establish paternity at the same time during separate proceedings. In court, the mother, the husband and the new partner must agree that the mother’s new partner is the father of the child.
If the paternity has been established by the parents’ consent, the father has the right to file a petition with the court to deny paternity within six months of doing so. However, if the declaration was made before the birth, then the father has time to deny it within six months of the birth. This extension of time can help, for example, if the father only starts to have doubts on the basis of a significant physical difference in the child (e.g. different skin colour).
If the child is born after artificial insemination, the man who gave consent cannot deny his paternity. The only exception is if it is found that the woman became pregnant in a different way.
In general, it is possible to deny paternity up to a maximum of six years of age of the child. In this case, the legislator does not aim to limit the rights of the wrongly identified father, but rather to protect the interests of the minor child.
If one imagines a situation where, at the age of twelve, the offspring’s legal father learns of his wife’s long-ago infidelity, he is usually out of luck, because for a child that old a change in the parents’ personality might interfere too much with family and emotional ties. Another important aspect is also the child’s material background, i.e. that he or she has an established father to provide for him or her. Nevertheless, in exceptional cases, the law allows the court to waive the expiry of the six-year time limit for the child and to rule on the denial of paternity even later. However, the best interests of the child and public policy must require it. The child’s interest could be served if waiving the time limit would appear to be beneficial to the child’s emotional, intellectual, moral development.
Paternity may be denied by the registered father, but also by the mother. However, the latter has shorter time limits; she can file a petition with the court only within six months until the birth of the child against her husband. If the father has been determined by a consent declaration, then within six months of that declaration. Again, the shortening of the time limit in relation to the father is not intended to discriminate against women. It is based on the perfectly natural assumption that the mother should know who the father is, or at least suspect that he may be someone other than the one designated by the law. If the mother also had a six-year period of denial, this would again mean that the child’s rights would be weakened.
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 isn’t an unusual situation today either. A divorce can drag on and the baby’s already on the way. When the child is born, the mother’s husband will automatically be registered as the father. But in such a situation, usually both the husband, the mother and the real father of the child want someone else to be registered. If a divorce is already pending, the law allows for both the denial and the establishment of paternity in one proceeding. A petition must be filed with the court within one year of the child’s birth and at the same time all three parties involved (husband, mother, new partner) must declare to the court that they agree that the mother’s new partner is the father.
Dostupný advokát team of online lawyers will solve it for you.
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 child’s mother and need to protect the child’s interest in a dispute over the denial of paternity? We can help you assert your rights.
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