Can I force my ex to acknowledge my child?

Paternity within marriage

If a child is born within a marriage, there is no immediate problem. In that case, the mother's spouse is automatically recognised as the father. This is the so-called ‘paternity rule’. This rule is based on the assumption that the spouse is the biological father. This determination of paternity happens automatically, i.e. without the need for further legal steps.

1. Voluntary acknowledgement

The simplest way is for the father to voluntarily acknowledge the child. Acknowledgement is a legal act in which the man declares that he is the father. Acknowledgement can happen at any time and is retroactive to the birth of the child.

Acknowledgement is only valid if certain conditions are met:

• The consent of the mother and/or the child is required.
• After the death of the father, acknowledgement cannot take place.

2. Judicial establishment of paternity

A second possibility of establishing paternity outside marriage is the ‘forced’ establishment of paternity by a court.

If the father refuses to acknowledge the child, the mother or child can initiate court proceedings to establish paternity. This can only be done if paternal parentage has not been established before. The genetic father can also initiate these proceedings, although he can also acknowledge or - if the mother does not want to give consent - seek redress in the family court.

Evidence

For paternity to be established through the court, there must be evidence of the man's genetic paternity. This can be done in several ways:

• Possession of state: if the child was treated as the son or daughter of the man.
• Evidence of sexual intercourse between the mother and the alleged father during the legal era of conception. This evidence is rare in practice.
• Genetic evidence: a DNA test.

Possible objections

Not every claim is readily accepted. Possible obstacles are:

• Child's right of veto: if the child is of age, paternity cannot be established against his or her will.
• Interest of the child: a minor older than 12 can object if it is not in his or her interest.
• Objections by the mother: she can object if she believes the establishment is detrimental to the child.

Time limit

The paternity claim must normally be filed within 30 years of birth. For the child himself/herself, this time limit is suspended until he/she reaches the age of majority. This means that a child can file the case no later than his/her 48th birthday. If the child does not discover who his/her father is until later, the claim can still be filed.