Regardless of the situation behind the conception of a child: whether it was conceived by love, by accident, inside, outside of marriage, by entering into a cohabitation or any other situation, the children have the right by law to be recognized and enjoy the benefits that the parents must provide.
The acknowledgment of paternity implies a legal process that we are going to explain so that you have information about the elements, times, situations and legal considerations to follow, in case a father does not want to acknowledge his child.
Ways to Establish Paternity Acknowledgment
According to the Federal Civil Code of Mexico, specifically in article 135, there are two ways to establish paternity:
- By voluntary acknowledgment of paternity.
- By judicial declaration
The voluntary recognition does not require but the concession of the parents to give name and surname to the child and it is recorded in the birth certificate where other characteristics of the place, date and time of this event are also described with the intention of:
- To formally record the existence of a new Mexican citizen.
- To contract all the rights and responsibilities of the parents towards the child.
This is the ideal condition that should be met, regardless of whether the parents are married, cohabitating or separated, including in the case of adopted children.
However, if this situation does not occur and the father refuses to acknowledge paternity, the law allows to establish the acknowledgment by judicial declaration.
If the latter situation is your case and you must undertake a paternity acknowledgment by means of a judicial declaration, you will need a lawyer to represent and set up the lawsuit that must be processed before a family judge.
It is important to point out that the acknowledgment of paternity can be made by the mother or the child, as long as the child is of legal age, since the Federal Civil Code in its article 139 clearly states that the child can investigate paternity or maternity, based on the fact that he/she has the right to know his/her parents, the same right that can be transmitted to his/her descendants.
What to do when a father does not want to recognize his child?
Taking as a fact that he has hired the services of a lawyer or law firm, he will begin the process of “provoked acknowledgment” according to the provisions of Article 146 of the Civil Code, where in the first instance “the alleged father” will be summoned before a family judge to make the statements in favor or against paternity.
The family judge will be able to order any information or evidence he considers necessary in the paternity trial, among them we can mention the well-known DNA test or any other that contains a scientific, biological, hereditary or anthropomorphic criterion.
We consider important to mention in a textual manner a paragraph of article 146 which states: “The refusal of the alleged father to appear before the Judge or to submit to the paternity test, will be considered as positive of the existence of the biological link, without prejudice to the right to challenge it”.
This means that if the father refuses to take the tests and to go before the judge, the paternity will be considered as positive without the father being able to challenge this decision.
Time that counts for paternity cases
Mexican laws and codes take into account presumptions in time to appear in favor of the plaintiff, i.e. the mother of the child, for this reason it is very important to pay attention to the lapse of time prior to the conception and pregnancy of the child to be recognized:
In the case of spouses, the husband may not disavow his paternity within one hundred and eighty days after the marriage (Article 328 of the Civil Code) provided that the following situations are present:
- That he found out about the pregnancy before getting married; (this must be proven with written proof in principle).
- If he was present and signed the birth certificate, (or has his declaration of not knowing how to sign);
- If he has acknowledged his wife’s child;
- If the child was not born capable of living.
- However, the husband may deny his paternity after three hundred days counted from the judicial separation in cases of divorce and annulment of marriage (Article 327 of the Civil Code), although it is allowed that the former spouse, the child or the child’s guardian, may claim that he is the father.
If there is still a denial on the part of the alleged father, Article 330 of the Civil Code will require that he must file his action within sixty days of:
- The birth of the alleged child,
- The day he arrived on the scene,
- The day on which he discovered the fraud,
- If the mother concealed the birth of the child.
- If she was present;
- If she was absent;
In the case of cohabitants also the times are considered, same that are embodied in article 383 of the General Civil Code that expresses in a tacit way that children are presumed:
- Children born after one hundred and eighty days from the beginning of the concubinage;
- The children that were born within three hundred days after the life in concubinage was ceased (terminated).
- The truth is that contesting paternity regardless of the circumstances and the characters, requires a decision that will be made by a judge who will have the power to issue a judgment where the child will be recognized with the surname of his parents and the rights of inheritance and food by them.
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