AKMV How to deny paternity
QUESTION
Hello, I have an 11-year-old daughter. Her father acknowledged paternity at the registry office; we were not married. However, now after 11 years, her father has found a girlfriend who convinced him that our daughter is not his. I do not agree with them testing my daughter, given that she is 11 years old and understands everything. Is it possible that even after 11 years he can have her tested? Naturally, our daughter is his.
ANSWER:
Pursuant to Section 93, Paragraph 1 of Act No. 36/2005 Coll. on the Family and on amendments and supplements to certain acts: “a man whose paternity was determined by a mutual declaration of the parents may deny paternity before a court within three years from the date of its determination, only if it is excluded that he could be the father of the child; this period shall not end before the expiry of three years from the birth of the child.”
According to specialized legal literature (Horváth, E., Varga, E.: Family Act Commentary. Iura Edition 2014) “From this point of view, it is crucial to establish the moment of the formation of the mutual declaration and its registration in the registry of births, deaths and marriages, i.e., in the case of declarations made simultaneously, on the day of their execution; if they were performed sequentially, on the day of the accession of the second parent’s declaration; in the cases specified in Section 91, Paragraph 3, from the day of the child’s father’s declaration.”
Proceedings for the denial of paternity constitute one of the types of proceedings in matters of determination of parentage, which are regulated by Act No. 161/2015 Coll., the Civil Non-Adversarial Procedure Code.
JUDr. Veronika Michalíková, MBA QUESTION
A man is resolving a legal problem with his ex-partner concerning child support. They have a son together, but the ex-partner is also demanding child support for another child who is not his biological son. The man only recently discovered that paternity can be challenged within three years from the birth of the child, but he has already missed this deadline. Now he would like to know how to proceed so that he is not registered as the father of this child. He also attempted to have a DNA test performed; however, the judge informed him that paternity tests can only be carried out until the child reaches three years of age, and that in his case, it is already too late to request a test.
ANSWER:
Hello, Based on the facts stated by you, we assume that paternity to the son of your ex-partner was determined on the basis of the so-called second presumption of paternity, which is regulated in Section 90 et seq. of Act No. 36/2005 Coll., the Family Act (hereinafter referred to as the “FA”). This constitutes a so-called mutual declaration of both parents before a registry office or a court.
Pursuant to Section 90, Paragraph 1 of the FA: “A man whose paternity was determined by a mutual declaration of the parents shall be deemed to be the father.”
A presumption determined in this manner may be successfully denied by the putative father under the conditions laid down in Section 93, Paragraph 1 of the FA: “A man whose paternity was determined by a mutual declaration of the parents may deny paternity before a court within 3 years from the date of its determination, only if it is excluded that he could be the father of the child; this period shall not end before the expiry of three years from the birth of the child.”
However, other methods of determining paternity (e.g., the determination of paternity by a court decision pursuant to Section 94 of the FA, which follows next in order) can only be resorted to once the second presumption of paternity has been successfully denied. This is also confirmed by the judgment of the Regional Court in Trnava, Case No. 15CoP/202/2023, according to which “If the first presumption applies, the application of the second presumption is excluded until such time as the first presumption is denied by a final and effective decision.” The same applies to the third presumption of paternity (paternity determined by a court decision), which comes into consideration only when paternity determined by the second presumption has been successfully denied. It can also be deduced from the wording of Section 93, Paragraph 1 of the FA that the court may rule on the determination of paternity only on the condition that “paternity was not determined by a mutual declaration of the parents.”
However, from the information provided by you, as well as from the analysis of the relevant provisions of the Family Act, it follows that in your case, the conditions for the denial of paternity determined pursuant to Section 90 et seq. of the FA are not met. As long as the second presumption of paternity is not denied, it is not possible to address the third presumption of paternity in order, which could come into consideration, and its denial.
The only way to deny paternity to the child of your ex-partner is the denial of paternity upon a petition by the child.
Pursuant to Section 96, Paragraph 1 of the FA: “If it is necessary in the best interest of the child and if the period established for the parents of the child to deny paternity has expired, the court may, upon a petition by the child, decide on the admissibility of the denial of paternity. In these proceedings, the minor child must be represented by a guardian ad litem.”
In this case, the court first decides whether the denial of paternity is admissible at all. Only when the court grants the child’s petition regarding the admissibility of the denial of paternity, “the child may, after this decision becomes final and effective, file a petition for the denial of paternity (Section 96, Paragraph 2 of the FA).” However, in the proceedings, the court primarily monitors the best interest of the child.
Until you possess a court decision on the denial of paternity, the registry office will not remove you from the birth certificate of your ex-partner’s child.
JUDr. Veronika Michalíková, MBA