When a child is born, the biological father is not necessarily immediately considered to be the legal father in accordance with the law. This legal tie between the child and a father can arise in various ways. If the parents are married, the legal tie between the child and the man with whom the mother is married arises automatically (by operation of law). This does not also have to be the biological father. If there is no marriage, acknowledgement of the child may be necessary in order to establish the legal tie.
Acknowledging a child
If the mother is not married, she or the father will have to take steps to create a legal tie between the father and the child. The father can then, with the permission of the mother, acknowledge the child. He may even acknowledge a child prior to the birth by means of acknowledging the foetus. If the mother does not want to give her permission for the acknowledgement of the child, the father can apply to the court to provide substitute consent in order to be able to proceed with the acknowledgement of the child. Judicial proceedings are necessary in such a case. This application must be submitted by a lawyer on behalf of the father to the court. Asselbergs & Klinkhamer Advocaten has obtained a wealth of experience over the years with regard to the procedures concerning legal paternity. It is therefore advisable to engage a lawyer in the event of the acknowledgement of a child.
Judicial determination of paternity
If the father of a child does not wish to proceed with acknowledgement, but the mother nonetheless still believes it is important that a legal tie exists between the child and the father, the mother can apply to the court for judicial determination of the paternity. It is important to submit the application for judicial determination of the paternity to the court in a timely manner. The law states within which period such an application must be submitted. The application can be submitted by the mother or by the child. A lawyer is required for these proceedings.
Annulment of acknowledgement
If a child is acknowledged by a man, but he wishes to have this acknowledgement annulled, the court must be applied to for annulment of the acknowledgement. An application for the annulment of the acknowledgement can only be granted on the basis of specific arguments referred to in the law. This application can be submitted to the court by the mother, the acknowledger or on behalf of the child by a lawyer. Furthermore, in case of such an application, one must be alert to the periods within which this application must be submitted. The expert assistance of a specialised lawyer is therefore recommended.
Denial of paternity
If the paternity arose by operation of law within a marriage, the paternity can later be denied on the basis of the fact that the man is not the biological father of the child. This application for denial of the paternity must also be submitted to the court through a lawyer. The father, the mother or the child are entitled to submit this application. The application must be submitted to the court within the periods referred to in the law.
The court will appoint a guardian ad litem in all legal proceedings which concern the parentage of a child. The guardian ad litem is considered to be the legal representative of the child and will, in that capacity, only consider the interests of the child.
The family law specialists of Asselbergs & Klinkhamer Advocaten can discuss the possibilities with you with regard to creating or terminating the legal tie between the child and its father and they can assist you in legal proceedings for this purpose. Please contact us for advice.