Establishing Paternity When the Father Is Not Listed on the Birth Certificate

Regarding the determination of paternity, we state the following:

In answering the question, we proceed from the assumption that you are not married and you have the child with a former boyfriend. According to the Family Act, the paternity of a child is then determined either by a) a mutual declaration of the parents (before the registry office—which you probably have not done, since the father of the child is not listed on the birth certificate—or before a court) or b) a court decision based on a submitted motion.

According to Section 94 of the Family Act: “(1) If the determination of paternity by a mutual declaration of the parents has not occurred, the child, the mother, or the man who claims to be the father may propose that the court determine paternity. (2) The man who had sexual intercourse with the mother of the child within a period of not less than one hundred and eighty and not more than three hundred days before the birth of the child shall be considered the father, unless serious circumstances exclude his paternity.” The man who claims to be the father of your child can therefore file a motion with the court seeking the determination of paternity for your child. In this case, the filing of the motion with the court is not restricted by any legal deadline. “In this case, the court proceeds in accordance with the principle of officiality; thus, with the aim of establishing the facts of the case, it also carries out evidence that the parties to the proceedings did not propose; in principle, however, this primarily involves DNA diagnostics, blood tests, male potency tests, as well as gynecological examinations of the mother and comparison of the delivery date and the timing of sexual intercourse)…” (Bános, R., Košútová, M: Family Act Great Commentary. 2nd updated edition. Eurokódex 2020). It will therefore not be decisive if you claim that the child is not his.

Naturally, you as the mother can also file a motion for the determination of paternity. Proceedings for the determination of paternity are linked by law with proceedings for the upbringing and maintenance of the minor child. This means that the court will simultaneously determine which parent it will entrust with the personal care of the minor and will also regulate the scope of the parents’ maintenance obligation, or eventually approve your agreement as parents, if you reach an agreement. “Courts generally determine the commencement of the maintenance obligation as of the date of the child’s birth, while respecting the maximum three-year period from the day the proceedings began for the retroactive determination of maintenance for a minor child.” (Horváth, E., Varga, E.: Family Act Commentary. Wolters Kluwer 2014)

According to Section 77, Paragraph 1, second sentence of the Family Act: “Maintenance for a minor child may be granted for a maximum of three years retroactively from the day the proceedings began, if there are reasons worthy of special consideration.” Such reasons include, for example, ignorance of the place where the obligor resides, poor health, and the like. Alternating personal care should be ordered by the court only if both parents are capable of raising the child, if both parents are interested in personal care for the child, if it is in the child’s interest, and if the child’s needs will be better secured this way. The court could order alternating care even if you did not agree to it, naturally provided that the conditions in the previous sentence are met, especially the interest of the child. When ordering alternating care, consideration will also be given to how the father showed interest and cared for the child (whether he was interested in seeing it, whether he contributed to it, and the like). In the case of ordering alternating personal care, maintenance for the child does not have to be determined (According to Section 62, Paragraph 6 of the Family Act: “If a minor child is entrusted to the alternating personal care of the parents, the court shall take into account the length of the alternating personal care of each parent when determining maintenance, or the court may also decide that during the duration of the alternating personal care of the parents, it does not determine maintenance.“)

Failure to enter the father on the birth certificate

The provision of Section 13, Paragraph 1, Letter c) of Act No. 154/1994 Coll. on Registries (hereinafter “RA”) establishes that: “The name, surname, maiden name, day, month, year and place of birth, birth number, citizenship, and place of permanent residence of the child’s parents are entered into the book of births.” Despite this provision, the biological father of the child is not obliged to provide his data for the purposes of entry on the child’s birth certificate. In the event that the father refuses to be entered on the birth certificate, he will not be “officially” the father of the child. This does not mean, however, that parental rights and duties according to Section 28 et seq. of the Family Act (hereinafter “FA”) will not apply to him—he still has the obligation to provide the child with care in the area of nutrition, upbringing, to care for its health and versatile development, and to represent it. However, if the mother of the child decided, for example, to enforce maintenance from the father (by filing a motion with the court to order the father to pay maintenance in a certain amount), the father would first have to be officially determined using one of the presumptions of paternity according to Section 84 et seq. of the FA.

How to request a paternity test?

A paternity test can be produced “on order” at one of the private laboratories, which generally request around €100 to €150 for this service. The minimum accuracy of a test in determining paternity today reaches up to 99.99%. Depending on how much you are willing to pay, many laboratories provide several variants of the DNA test, starting from the cheapest (serving mainly to basically answer the question of disputed paternity) up to the most expensive and accurate (resulting report with complex DNA profiles). The court can also be requested to impose an obligation to undergo a DNA test, especially during court proceedings for the determination of paternity.

Determination of paternity after years

The issue of determining paternity, including deadlines for filing a motion, is regulated in Section 84 et seq. of Act No. 36/2005 Coll., the Family Act (hereinafter “FA”). The possibilities for determining paternity are limited in time and depend both on who files the motion (the party with active legal standing) and on which presumption of paternity was used to determine the paternity.

Paternity determined by the 1st presumption of paternity – the mother’s husband: According to Section 86, Paragraph 1 of the FA: “A husband may, within 3 years from the day he learned of facts reasonably calling into question that he is the father of the child born to his wife, contest in court that he is its father.” A motion to contest paternity according to Section 86, Paragraph 1 of the FA can be filed only by the husband of the child’s mother, not the biological father! In his case, the deadline for filing the motion runs from the day he acquired knowledge that he is the father of the child (the so-called subjective deadline), not from the day the child was born. The running of the deadline to contest paternity in the case of a former husband is regulated by Section 89, which says that: “If it has been validly decided that the later husband is not the father of the child of a remarried mother, the three-year deadline to contest paternity for the earlier husband begins on the day he learned of the valid decision.” In this case, the start of the deadline is again tied to a subjective fact, which is the knowledge of the earlier husband that a valid decision was issued on the contestation of paternity of the later husband. According to Section 88, Paragraph 2 of the FA: “The mother may also, within 3 years from the birth of the child, contest that her husband is the father of the child. The provisions on the right of the husband of the child’s mother to contest paternity shall apply appropriately.” The mother of the child can also contest the husband’s paternity, likewise within a three-year deadline. However, her deadline begins to run on the day following the day her child was born (the so-called objective deadline).

Paternity determined by the 2nd presumption of paternity – a person determined by a mutual declaration of the parents: According to Section 93, Paragraph 1 of the FA: “A man whose paternity was determined by a mutual declaration of the parents may contest paternity before a court within 3 years from the day of its determination, only if it is excluded that he could be the father of the child; this deadline shall not end before the expiration of 3 years from the birth of the child.” According to Section 93, Paragraph 2 of the FA: “The mother of the child may also, within the same deadline, contest that the man whose paternity was determined by a mutual declaration of the parents is the father of the child.”

Paternity determined by the 3rd presumption of paternity – a person determined by a court decision: According to Section 94, Paragraph 1 of the FA: “If the determination of paternity by a mutual declaration of the parents has not occurred, the child, the mother, or the man who claims to be the father may propose that the court determine paternity.” Since the law in this case does not prescribe any deadline, it holds that a motion according to this provision can be filed at any time, without a time limit. However, the condition is that paternity could not have been determined by the 2nd presumption of paternity, i.e., by the mutual declaration of both parents before a registry office or court, and thus not even with the help of the 1st presumption.

Contestation of paternity upon the motion of a child

In the sense of Section 96, Paragraph 1 of the FA: “If it is necessary in the interest of the child and if the deadline established for the parents of the child to contest paternity has expired, the court may, upon the motion of the child, decide on the admissibility of contesting paternity.” According to paragraph 2 of the cited provision: “If the court decides to grant the motion submitted according to paragraph 1 and determines that contesting paternity after the expiration of the legal deadline is in the interest of the child, the child may, after this decision becomes valid, file a motion to contest paternity.”

Determination of paternity before delivery

Determining paternity for a child not yet born is, in principle, possible only through the 2nd presumption of paternity – by the mutual declaration of both parents. The 1st presumption, according to which the mother’s husband is considered the father, is out of the question, as according to Section 86, Paragraph 1 of Act No. 36/2005 Coll., the Family Act (hereinafter “FA”): “If a child is born in the time from the conclusion of marriage until the expiration of the three-hundredth day after the dissolution of the marriage or after it was declared void, the mother’s husband is considered the father.” Since the 1st presumption assumes that the child has already been born, it cannot be applied. According to Section 90 of the FA: “If paternity is not determined according to the presumption of paternity of the mother’s husband, it can be determined by the mutual declaration of both parents.” In such a case, the father is the man determined by the mutual declaration of both parents before a registry office or a district court (Section 91, Paragraphs 1 and 2 of the FA). According to Section 92 of the FA: “By the mutual declaration of the parents, paternity can be determined for a child not yet born, if it is already conceived.”

Hello,

According to Section 90 of Act No. 36/2005 Coll., the Family Act (hereinafter “FA”), “If paternity is not determined according to the presumption of paternity of the mother’s husband, it can be determined by the mutual declaration of both parents.” Thus, the man whose paternity was determined by the mutual declaration of both parents is considered the father (Section 91, Paragraph 1 FA).

However, a minor parent may make a mutual declaration only before a court (Section 91, Paragraph 3 FA). Professional literature in this connection states that when determining paternity by the mutual declaration of both parents, the court is, in principle, only to receive this declaration, while it is not in its power to “approve” or, conversely, “reject” it; however, in the sense of the Civil Code, it is still obliged to assess whether the legal act (in this case, the mutual declaration of the parents) meets the general requirements placed on the validity of a legal act, particularly the legal capacity of the parents (source: R. Bános – M. Košútová: Eurokódex commentary on the Family Act). Since the declaration is made by a minor, the court primarily verifies whether her declaration is an act appropriate to her volitional and intellectual maturity corresponding to her age (Section 9 of the Civil Code).

At the same time, Section 92 of the FA says that: “By the mutual declaration of the parents, paternity can be determined for a child not yet born, if it is already conceived.”

Court proceedings for the determination of paternity are regulated in Section 104 et seq. of Act No. 161/2015 Coll., the Code of Civil Non-Dispute Procedure (hereinafter “CCNP”).

According to Section 106 of the CCNP: “For proceedings in matters of determining parentage, the court in whose district the child has its residence has territorial jurisdiction. If there is no such court, the general court of the mother has jurisdiction, otherwise the general court of the person whose paternity is to be determined or contested.”

The proceedings begin only upon motion (Section 107 CCNP). According to Section 108, Paragraph 2 of the CCNP: “The party to the proceedings for the determination of paternity is the petitioner according to the regulations of family law, the child, the mother, and the man whose paternity is to be determined.”

The court’s procedure in this type of proceeding is illustrated by Pavelková: “The court first hears the mother, who identifies the father of the child. Subsequently, it hears the person whom the mother identified as the father, as to whether he acknowledges that he is the father. If the content of both declarations is identical, the court shall state this in the minutes. It shall notify the registry office that maintains the book of births in which the child is registered of the fact that the determination of paternity occurred by the mutual declaration of the parents. The participation of the man whom the mother identified as the father of the child cannot be compelled in these proceedings. However, it is different in proceedings for the establishment of paternity, where paternity is determined according to the 3rd presumption. The truthfulness of the declaration is not verified (source: Pavelková: Family Act – Commentary, 3rd edition, C.H. Beck, 2019).”

According to Annex No. 1 to Act No. 71/1992 Coll. on Court Fees and the Fee for an Extract from the Criminal Record, a court fee in the amount of 100 euros is paid for a motion to initiate proceedings in the matter of determining parentage.

However, if the mother is already of legal age, it is sufficient if she makes the declaration of determination of paternity before the registry office (Section 91, Paragraph 2 FA). In such a case, paternity is determined directly before the authority of the municipality or city district that maintains the registry. It is recommended that both parents appear at the registry in person and bring their valid ID cards with them. In some cases, the registry office may also request the future mother’s pregnancy card. The determination of paternity by the mutual declaration of both [parents] at the registry office may be free of charge, but we recommend verifying this fact at the specific registry office in your municipality / city / city district.