Paternity challenge: how and when to request it?
Do you know what paternity challenge is? Who can challenge paternity? What is the deadline to challenge paternity?
Surely you have heard about recognition or claim of paternity in the media. However, paternity challenge and paternity claim are often confused when they are different terms .
In this post we explain what paternity challenge is, who can request it and in what terms .
But first we will tell you the differences between both concepts.
Differences between challenge and recognition of paternity
Challenge and recognition of paternity are different filiation actions .
And what is affiliation ? It is the bond that unites the parent with the child and generates a series of obligations and rights (surnames, food , parental rights , among others).
The affiliation may be marital or non-marital, depending on whether the children were born within marriage or not.
Paternity challenge or filiation challenge
If there is doubt about the veracity of the paternity or maternity of a recognized child, a paternity or filiation challenge may be initiated.
When a child is born during a marriage, the paternity of the child born is presumed .
Children of the husband are presumed to be those born after the celebration of the marriage and before three hundred days following its dissolution or the legal or de facto separation of the spouses.
However, this presumption admits evidence to the contrary , including biological evidence.
Claim/recognition of paternity or filiation
Another action is the claim of paternity or filiation. It is intended to recognize the filiation between a child and his mother or father .
Both actions (challenge and claim or recognition) are intended to determine who is the physiological mother or father of a person.
In any case, it will be necessary to present evidence to support the action.
Who can challenge paternity?
The people who can challenge paternity are:
- The supposed father .
- The son .
- Persons with legitimate interest : heirs, mother of the minor or incapacitated person, their legal representative, the Public Prosecutor’s Office…
- The supposed mother .
The mother or parent who is recognized as the surrogate may file an action to challenge filiation by justifying the assumption of childbirth or the identity of the child not being true.
Deadline for challenging paternity
We are going to distinguish the following assumptions:
- Challenge of marital affiliation
- Challenge of non-marital affiliation
- Challenge of filiation due to recognition of complacency
1) Challenge of marital affiliation
Challenge action by the husband:
The period to challenge paternity will be 1 year from the registration of the affiliation in the Civil Registry .
Now, it is necessary to make the following qualifications:
- If the husband is unaware of the birth, the period will count from when he becomes aware of the birth.
- If the husband, despite knowing the birth and registration, does not know that he is not the biological father, it will be counted from when he has knowledge .
Challenge action by the husband’s heirs:
If the husband dies before one year from the registration, the heirs may challenge paternity for the time remaining to complete the term.
Challenge action by the son:
The law distinguishes whether or not there is state possession.
But what is state possession? It is the appearance that a filial relationship exists between the alleged child and the alleged father or mother.
If there is status possession, the child may challenge paternity within 1 year from registration in the Civil Registry.
- If you are a minor, the year will count from when you reach the age of majority.
- If the child has judicially limited capacity, as soon as he or she regains sufficient capacity.
- If you are of legal age and are unaware of the lack of biological paternity, the period will count from when you become aware.
- If the child is a minor or has judicially modified capacity, the mother with parental authority, the legal representative or the Public Prosecutor’s Office may exercise the action within the same period.
If possession of status is lacking, the child may exercise the action at any time .
Challenge action by the son’s heirs:
If the child dies before the indicated deadlines, the action corresponds to his heirs for the time remaining until said deadlines are reached .
2) Challenge of non-marital filiation
Also in this case the law distinguishes according to whether or not there is possession of the state:
- If there is possession of the state, the action to challenge paternity will expire 4 years after the child, once the filiation has been registered, enjoys possession of the state. The action may be exercised by the child or the person who appears as the parent.
- If possession of status is lacking, non-marital paternity or maternity may be challenged by those who are harmed.
3) Challenge of filiation due to recognition of complacency
The recognition of compliance consists of recognizing a minor as a child even though one knows that he is not the biological father .
The challenge must be made within the period established by law:
- Marital affiliation : If the recognition has occurred before or after the marriage, the period will be 1 year from the registration in the Civil Registry .
- Non-marital filiation : If the person who recognizes by complacency and the mother of the person recognized do not marry and there has been possession of status, the period will be 4 years from the registration .