Recognition (family law)


Recognition is the process in some jurisdictions whereby a man is recognised as the father of a child in situations where there is no presumption of paternity, generally due to the mother being unwed. Historically due to the Roman law principle of Mater semper certa est this action was not available to mothers, but since the introduction of in-vitro fertilisation this has changed. It is an act that confers legitimacy on the child.

Overview

When a child is born the mother is known, but the father is not certain. When the mother is married, the husband is presumed to be the father. When the mother is unmarried, some jurisdictions require the father to take extra steps to be recognised as the father, the presumption of paternity does not apply. The laws vary between jurisdictions but common themes are:
There is no requirement that the recogniser actually be the biological father. In fact, if the child already has a legal father the biological father may not be allowed to recognise their own biological child unless the legal father voluntarily denies fatherhood; a child may only have one legal father. This can happen in cases where the presumed father discovers a child is not their biological child. In this case the law holds the rights of the "social father" above those of the "biological father".
In all cases it is a voluntary act by the father to recognise a child.
Recognition is not generally possible in the case of mothers under the principle of Mater semper certa est. However, it may be possible in the case of anonymous birth.

History

The Napoleonic Code in 1804 had the concept of recognition and was a major influence on the civil codes of much of continental Europe due to the Napoleonic Wars, and throughout the world due to European colonies. It prohibited paternity suits and claims for child support in the case where both the mother and father were unwed. The purpose was to protect the legally married heterosexual reproductive family, there was no room in this system for natural children, mothers outside of marriage, and involuntary paternity. In an era without DNA testing, the discussions often revolved around evidence.
In the modern era DNA testing has made definitive proof of paternity possible but also the concept of parenthood has expanded. Intersection with the rights of children, state support of children and gender equality means this is a rapidly evolving area of law.

Worldwide

Similar concepts exist in Asian countries for the same reason: the protection of married heterosexual men from paternity suits from unmarried women. However, even there is introduction of DNA testing has changed the situation in recent years.

The Netherlands

Article 199 of Book 1 of the Burgerlijk Wetboek determines that the man who recognises a child becomes the child's legal father. This can be done by a public instrument, or by an act of recognition, completed by an officer of the Register office. It also the lists situations where 'recognition' may be considered invalid.
The requirement for the mother to consent can be overridden by a court, but only if the recogniser is the biological father, or if the lifelong partner of the mother consented to an act that could have led to the birth of the child, unless it would disrupt the relationship between the mother and the child, or it would not be in the best interests of the child.
The act of recognising a child does not automatically grant legal guardianship, this must be applied for separately via court order.
Since 2014 the act of recognition is also available to women who wish to be recognised as the mother of a child born to another women, for example if they are in a lesbian relationship.
In 2012 over 90% of all children of unwed mothers were recognised before the first year of age. Of the children born in 2000 only 9% remained unrecognised in 2012.

Denial of fatherhood

Denial of fatherhood is possible, but only if the presumed father is not the biological father. This procedure can be initiated by any of the father, the mother or the child.
Recognition in Belgium is set out in Article 315 and subsequent articles of the Belgian Burgerlijk Wetboek.
If the man/woman recognising a child is married to someone other than the legal mother of the child, then the act of recognition cannot be enforced until the spouse has been notified.
A challenge to the presumed legal fatherhood can be started:
A challenge cannot succeed if the legal father is the social father; that is, they act as a father toward the child, and they are considered the father by others.

France

Whether the parents are married or not, maternal affiliation is automatically established once the name of the woman is on the birth certificate. By contrast, if the parents are not married to each other, the presumption of paternity does not apply. By article 312 and the following articles of the Civil Code, paternity may be assumed in this case by a man wishing to recognise the child, by a declaration made in a public instrument before:
Recognition can be done before birth, during the declaration of birth or afterwards.
France recognises the possibility of anonymous birth for unwed women, in which case the mother's name does not appear on the birth certificate. In this case recognition by the mother after the fact is also possible.

Germany

The legal framework for the recognition of paternity is defined in section 1594 of the German Civil Code.
A child has in certain circumstances no legal father. This is always the case where no legal presumption of paternity exists, for example if at the time of birth the mother is unmarried or divorced or the marriage is legally annulled, or if the husband is deceased more than 300 days before the child's birth. The same applies to a child whose origin is unclear or if the previous paternity in the context of paternity fraud was excluded.
In these cases, an recognition of paternity by a man together with the consent of the child's mother results in the legal paternity of the child. Whether the recogniser is also the biological father of the child is irrelevant; the legislature intended to create with the process of the recognition of paternity the possibility for legal paternity for men that fill an actual father role, in the absence of a biological father. The act of recognition is not an assertion by a man that he is in fact the biological father of the child.

Poland

Family and Guardianship Code in art. 72 indicates that the recognition of paternity can occur if
In the case of any of the above two situations, paternity can occur by the acknowledgement of paternity by the father or by judgement of a court.
The statement necessary to establish paternity may be submitted by a person if they are at least 16 years of age and there are no grounds for legal incapacitation.
If a man having recognised paternity does not have full legal capacity, he may make a statement necessary for the recognition of paternity only before a court guardianship.
The recognition is unallowed if a child is major.