Child custody proceedings and paternity

Legal paternity has considerable legal consequences. It is therefore also advisable for fathers who are not married to the mother of a child to seek advice before recognising paternity. The specialist family law solicitors at Schneider Stein & Partner will advise you if you have any doubts about paternity and discuss with you what options are available to have paternity clarified.

Paternity by virtue of marriage to the mother

As long as paternity has not been successfully contested in formal proceedings, a child born in a marriage is legally descended from the mother's husband. This legal presumption of parentage can make it advisable to contest the parentage in court, as the husband is deemed to be the father of the child even if the spouses have been separated for a long time. Even in the case of obvious impossibility, for example due to the husband's infertility, the child born into the marriage is descended from the husband.

If the husband dies before the birth, the law recognises his paternity during an average conception period of 300 days. If the child was carried for longer than 300 days, this can also lead to paternity being attributed to the deceased.

Paternity by virtue of recognition

If paternity does not result from birth into a marriage, anyone who recognises paternity becomes the father of a child. This may or may not be linked to the idea of being the biological father of the child. Regardless of the motives, paternity then results from the voluntary assumption of the man with the consent of the mother. Due to the high voluntary recognition rate, a court decision is required in less than ten per cent of cases.

Contestation of paternity

If the person recognising paternity is not biologically the father of the child, the recognition may be contested. An example of a possible challenge to the acknowledgement is if the acknowledgement was made with dishonest intentions or if the acknowledgement was based on deception. A lack of intent on the part of the acknowledging party may also entitle the acknowledged paternity to be contested.

An application to contest paternity requires a corresponding application, which is subject to certain deadlines.

Timely, immediate advice from our family law specialists is therefore recommended as soon as doubts about parentage arise.

Judicial determination of paternity

If paternity cannot be established by birth into a marriage or by recognition, it can be established by a court. Court-established paternity cannot be contested.

Maintenance payments from the biological father

If paternity is successfully contested, it may be possible to make a claim against the actual biological father for reimbursement of maintenance payments to the child (so-called fictitious father recourse). Our lawyers and family law specialists will be happy to clarify the individual prospects of a fictitious father recourse in a personal consultation with you.

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