What if the mother refuses the father’s recognition of a minor child?
28 September 2023
The mother is the woman who gave birth to the child. She has automatic parental authority over the child from birth.
The legal bond between the father and a child is not as obvious as with the mother.
Only when a child is born during a marriage does a legal bond between the father and the child automatically arise. You are then the legal father of the child and also have custody of the child. This is also known as establishing paternity under the law.
When a child is born and you are not married but are legally or de facto cohabiting, a legal bond with the child does not automatically arise. You will have to acknowledge the child in that case.
If the child is a minor, recognition is only valid if the parent in respect of whom parentage is established, the mother, gives her prior consent.
If she consents, the child is recognised and the legal bond with the child is also established.
But what in case your ex-partner, the mother of your child, refuses to give her consent to let you acknowledge the child?
You can then, as a father who wants to recognise his child, summon the mother to the competent Family Court and ask the court to authorise you in a judgment to proceed with recognition.
The court will then first invite and try to reconcile the parties to obtain the mother’s consent.
If the court reaches a reconciliation, it will have the consent needed for recognition and the child can be recognised.
In case there is no reconciliation and the mother continues to refuse her consent, the court itself will have to rule. The application may be rejected if it is established that the applicant is not the biological father, or if recognition would be contrary to the best interests of the child.
If the parentage relationship with the child cannot be established under the law or by recognition, there is a final option that can be invoked.
The establishment of parentage by court order, also known as the paternity investigation, is in that case the last possible solution to establish the parentage relationship with your child.
Here we explain how the paternity by court order works and what conditions must be fulfilled.
Parentage by court order: what conditions must be met to file a claim?
Children eligible for paternity investigation
It is important to know that for the paternity investigation, only children whose paternal parentage is not (or no longer) established and who also do not have an established maternal parentage link are eligible.
Thus, the child must not have any other established parentage link other than his maternal parentage, either in relation to a man or to a co-mother.
Can anyone oppose paternity investigation?
Yes, they can.
The adult or abducted minor child can oppose the establishment of parentage. This is an absolute right of opposition, which means that your claim will be declared inadmissible and will therefore be rejected.
The minor child who is not an adolescent and has reached the full age of 12 and the child’s mother can also oppose the establishment of paternity. In this case, the court will reject your claim only if it concerns a child who is at least one year old at the time of filing and the establishment of paternity is manifestly contrary to the interests of the child.
Exception – rape exception
Based on the concern to protect the traumatised mother from her rapist’s attempt to have his paternity established, there is an exception provided by law which is that in respect of the person found guilty of rape, the claim for paternity investigation is dismissed.
Rules of evidence
What evidence must you provide in order for paternity to be established? You have to provide evidence of the biological bond with your child.
There are three possible ways in which you can prove paternity:
- Paternity can be proved by proving possession of state.
Possession of state means a set of facts that prove the relationship of parentage, such as for example: the child has always borne your name, you have always treated the child as your child, you have always provided for the child’s upkeep and education, …
- In the absence of possession of state, you can also prove paternity by any legal means. For instance, you can have a DNA test performed, where your DNA and the child’s DNA are examined and compared.
- You could also prove sexual intercourse with the mother during the period of the child’s conception. This is also about a rebuttable presumption. You have to prove in this case that you had sexual intercourse with the mother during the period from the 300th day to the 180th day before the child’s birth. This is because this is the period during which the child is presumed to have been conceived.
Proof of the biological bond between you and the child is essential though. If it is proved that you are not the biological father of the child, the claim for paternity investigation is automatically dismissed.
Against which persons should the claim be brought?
If you bring an action to establish paternity, it must be brought against the mother and against the child.
Time limit for instituting the claim to establish paternity
The action must be brought within a period of 30 years. The 30-year period begins to run from the birth of the child or, if there is possession of state, from the cessation of statehood.
However, the time limit is suspended in respect of a minor child, so the child must bring the claim no later than his 48th birthday.
Establishing paternity by judgment
If it is proven that the biological bond between you and the child is established, the Family Court, will judicially establish paternity by judgment. The court of the child’s domicile has jurisdiction for this purpose.
Consequences of establishing paternity
The judgment confirming the judicial establishment of paternity has several consequences for you.
For example, once legal paternity has been established, you will be able to exercise parental authority over the child. This means that you will be able to participate in deciding on important matters concerning the child, such as choice of school, housing, health, etc.
This will also mean that you will have a maintenance obligation towards the child and should contribute to the costs of the child’s care, upbringing and education.
Finally, the child will also become an heir in your estate. In principle, the legal adoption does not affect the child’s name. The child retains the mother’s name, unless it is chosen to give the child your name.
The judgment can still be appealed or opposed.
Need help or advice?
If you have questions or need help regarding the establishment of your paternity, feel free to contact our office. Our experts in family law will advise and assist you in these proceedings.