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Can the presumption of paternity be restored after being discarded?

Verified 09 October 2019 - Directorate of Legal and Administrative Information (Prime Minister), Ministry of Justice

Yes, in some cases presumption of paternity may be reinstated.

The presumption of paternity shall be excluded where the birth certificate of the child does not designate the husband as the father. This is the case, for example, when another man has recognized the child before birth or in the event of divorce or legal separation.

Unrecognized child

The presumption of paternity of the husband of the mother of the child shall be restored when the state possession of the husband in respect of the child is established.

State possession may be established on the basis of several facts, including:

  • the alleged parent and child behaved as such in real life (actual family life),
  • the alleged parent has provided material support for the child's education and maintenance,
  • society, the family, the authorities recognize the child as the child of the alleged parent(s),
  • the child is named after the person or persons from whom the child is said to have been born.

Please note

this list is not exhaustive. Several facts must be established and consistent, but not all are required.

The state possession must meet the following 4 criteria:

  • It must be continuous: have some stability and rely on the usual facts, even if they are not permanent.
  • It must be peaceful, i.e. not fraudulently established.
  • It must be public: the alleged parent and child shall be recognized as such in everyday life: friends, family, administration, etc.
  • It must not be equivocal: there must be no doubt.

A notorious act of state possession must be sought in court.

The assistance of a lawyer is not necessary.

FYI  

the husband may also recognize child..

If the court accepts it, paternity shall be restored on the child's birth certificate by marginal mention..

Reinstatement of the presumption of paternity is retroactive from the date of birth of the child.

If the court refuses to issue the deed of notoriety, the presumption of paternity of the husband of the mother of the child can then be reinstated in court.

Action to restore the presumption of paternity may be taken by:

  • the mother of the minor child,
  • or the husband of the mother of the minor child whose presumption of paternity has been ruled out,
  • or the spouses together,
  • or a child of age up to 28 years,
  • or the heirs of the deceased child, before the expiry of the period of time available to act.

The assistance of a lawyer is compulsory.

Proof of paternity may be furnished by any means.

The judge may order a genetic examination (paternity test) which requires the agreement of the persons concerned. Refusal to do so may be interpreted by the judge as an admission of paternity or an admission of non-paternity.

If the appeal is successful, the restoration of the presumption of paternity is retroactive from the date of birth of the child.

The judge may also decide, where appropriate, on parental authority, the contribution to the maintenance and upbringing of the child, and the name of the child.

Child recognized by a man other than the husband

The presumption of paternity of the husband of the mother of the child may be reinstated in court.

Action to restore the presumption of paternity may be taken by:

  • the husband of the mother of the minor child whose presumption of paternity has been ruled out,
  • or the mother of the minor child,
  • or the spouses together,
  • or a child of age up to 28 years,
  • or the heirs of the deceased child, before the expiry of the period of time available to act.

The assistance of a lawyer is compulsory.

Proof of paternity may be furnished by any means.

The judge may order a genetic examination (paternity test) which requires the agreement of the persons concerned. Refusal to do so may be interpreted by the judge as an admission of paternity or an admission of non-paternity.

If the appeal is successful, the restoration of the presumption of paternity is retroactive from the date of birth of the child.

The judge may also decide, where appropriate, on parental authority, the contribution to the maintenance and upbringing of the child and the name of the child.