Paternity proceedings: parentage and recognition of paternity in Spain

There are times when a man has a child out of wedlock and, for one reason or another, refuses to acknowledge paternity. This may be due to a desire not to reveal the infidelity to his partner or a more or less reasonable doubt as to whether he is really the father.

In either case, the mother of the child has the possibility to file a paternity suit with the purpose of having the courts determine that he is indeed her child. A process that will result in her having to face her rights and obligations towards him.

Paternity suit: what is it?

As we have already hinted at above, a paternity suit is the initial stage of a legal process to determine whether a person is the child of a man. Let us start from the assumption that all children who are not recognised by their fathers experience injustice in many respects. For example, they cannot bear their father's surname, they have no relationship with their father's family and they do not have the moral and financial support that he could give them.

These are the main consequences of not recognising a child. It may seem an unusual situation, but it is not so unusual. Moreover, one only has to think of similar cases of well-known people, such as the singer Julio Iglesias or the bullfighter Manuel Benítez, "el Cordobés". In any case, the Spanish Constitution recognises the right of all people to know who their parents are.

What does a paternity suit consist of?

Firstly, it must be said that this type of lawsuit can be filed by the mothers of children not recognised by their fathers, as long as they are minors or are incapacitated. They can also be made by their legal representatives or, even, by the Public Prosecutor's Office if they consider that their rights are being violated. Once they have reached the age of 18, they themselves may proceed to file them.

It should be noted that paternity is an action that does not expire with the passage of time, even if it is not claimed. Therefore, the claim can be filed at any time during the child's life.

The principle of proof

This is a concept of great relevance, since if it is not fulfilled, the claim will not be admitted. In this regard, the law requires that "reasonable and plausible" facts be specified which attest that the mother and the alleged father had intercourse within the time frame compatible with the conception and birth of the child.

Generally, a plausible account is usually sufficient. However, witness statements, photographs showing the couple together, conversations by any means, or even paternity tests based on DNA traces obtained by private detectives (which are perfectly legal) are never superfluous.

If the judge considers that the evidence provided is sufficient, he or she can even demand that the alleged father pay child support until the legal proceedings are finally resolved.

The judicial procedure: how to request a paternity test?

Once the lawsuit has been admitted for processing, the lawyer will summon both parties, who must attend with a lawyer and a solicitor. If the judge concludes that there is sufficient evidence, he will ask the alleged father to take a paternity test. He may refuse, but if he does so, the judge may proceed to determine that he is the father of the complainant automatically.

But what if the father is already deceased? In this case, the judge will ask the parents, siblings or children to take the paternity test. They can also refuse, but in that case he can order the exhumation of the body, which is a procedure they cannot refuse.

However, it may have happened that the alleged father was cremated and it is impossible to carry out the paternity test in this way. If this is the case, the judge will rely on the rest of the evidence provided by the plaintiff to decide whether he or she was the father or not.

The judgment

Depending on the course of the proceedings, the judge will issue a judgement in which he or she will either corroborate or deny the paternity of the defendant. If paternity is established and proven, he or she will have to meet his or her obligations immediately: pay child support from that moment onwards and retroactively, include him or her as a legitimate heir to his or her property, etc.

Obviously, he or she will also acquire the same rights as any divorced parent (parental rights, visiting rights, etc.), unless the judge determines otherwise or the child is of legal age and can freely decide on the matter. He or she may even apply for custody, although this is a highly unlikely scenario.
However, the recognition of paternity does not imply that the child has to change his or her surname to that of his or her father. This is a decision that he will take for himself if he is over 18 years of age and that will correspond to his mother or legal representative if he is still a minor.

In any case, the judge will inform the Civil Registry and order that the respondent be listed as the applicant's father on all his documents. It should be noted that, on the whole, a paternity suit is a long and expensive process that requires a family lawyer specialised in this type of case. In fact, the work of a good lawyer can significantly reduce both the time delay and the financial cost.