Challenging a child’s fatherhood according to Greek Law: Capacity to stand before Court and initiate proceedings regarding the relevant lawsuit to be filed and the related deadlines to be met
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It is of common knowledge that in principle a woman carries her child-to-be born in her belly for a period of nine (9) months; it is also of common knowledge that a woman who is married to a husband carries in principle her husband’s child, thus the Greek Civil Code provides accordingly that as long as the child is to be born within the period of a woman’s marriage, or in three hundred (300) days’ time after the woman’s marriage with her husband has been terminated or nullified, the child is to be considered to have as lawful father that certain man/ husband with whom the mother had been related to.
That certain assumption which is practically and theoretically called presumption of legality regarding a child’s father, does not hold undisputed validity given that in real life in quite some cases the biological father of the child has turned out to be someone completely different from the mother’s husband. Therefore the question emerges regarding the reconstitution of truth, in order for both the child and the biological father to restore a relationship, even better a kinship who had been overlooked.
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Overturning the presumption of the legality of fatherhood is quite a legal task that is to be pursued, at least according to Greek Civil Code, only be filing a certain lawsuit exactly provided for to that specific end. The lawsuit to overturn fatherhood can only be filed by the following people:
- The mother’s husband and supposed father of the child
- The husband’s father or mother if he has passed away without having lost for any reason the right to proceed with such a legal procedure
- The child itself
- The child’s mother
- The man with whom the mother used to have a permanent sexual relationship in that critical period of time when the child had been actually conceived while her husband had been absent due to temporary separation purposes or else.
That certain right of each of the aforementioned is self-standing and independent/ irrelevant to each other’s right.
The lawsuit is to be brought before the Single-Person First Instance Court which shall proceed by initiating the special procedure provided for in these cases which is about family, marriage and registered partnership (article 592 and following of Greek Civil Procedural Code)and within that framework, the person who has initiated the procedure by having filed the case before the Court, is obliged to provide evidence enough either that the child had not been conceived thanks to the husband, in other words that the husband is not the child’s biological father, or that during the crucial period of conception, in other and more specific words, the crucial time-period defined as of day 300 and day 180 before child- carriage (see article 1468 CC) had been impossible for the mother to conceive because of her husband’s inability either because of incompetence, or because of distance e.g. travelling abroad, or due to lack of sexual intercourse between them. The fact that the mother has conceived a child other than that of her husband’s is to be proven in principle thanks to a blood analysis or a DNA analysis of all three involved parties, in particular mother, child and husband i.e. alleged father. It should be noted that in terms of the fatherhood presumption and the overall legal procedure to be followed, any legal means providing evidence is welcomed as in all the other legal procedures. However the matter of the fact is that for instance confession in this case, as well as in all the other cases related to Family matters, Marriage, Registered Partnership is to be somewhat likely taken bhy the Court, at least in comparison to other proof of evidence that might be presented to the Court.
In this line of reasoning, the vital role of medical expert opinion should be stressed and be brought in the center stage of the whole procedure: because of the doubts that in most of the cases the judge is left to be confronted with, asking for a medical DNA research to be conducted turns out to be the safest way to establish whether there is a biological kinship between the child and the mother’s husband. And it actually works in the following way as well: should one of the interested parties refuses to go through with the DNA procedure, by order of the Court the claims of any of the other counter litigant parties are automatically considered valid and self-evident.
The grounds on which the right to proceed with a lawsuit regarding challenge of fatherhood has long expired read as follows:
- With regards to the husband, if a year has gone by since he had been informed about the carriage as such and about all those events according to which it could be assumed that the child’s conception had not been his doing; in any case, if five -5- have gone by since the time of the child’s carriage
- With regards to the mother and the father of the husband, after a year has gone by since the time of their child’s death and the birth of their grand-child in question
- With regards to the child itself, after a year has gone by since his/ her adulthood
- With regards to the mother, after a year has gone by since the carriage of her child, or in case of a grave reason while still in matrimony, six months from the time the marriage has been terminated or nullified
- With regards to the man who had sexual intercourse with the mother, if two years have gone by since the time of carriage
These certain time thresh-holds as provided for by law have been quite narrow, but this has been so exactly because the issue of descendants and the line of kinship is not one to be left unattended indefinitely.
In case of a lawsuit which not only has been filed but it has been accepted, the child abolishes the right of being born as within the framework of a matrimony and, even more so, this goes back retroactively to the very first day of his/ her birth. Thus the decision is what we are accustomed to say in legal terms formative, and in order to be declared as such, it needs to be irrevocable. So, according to such a formative decision as soon as it is declared irrevocable as well, the child abolishes all kinship rights related to the husband of his/ her mother, e.g. loss of alimony rights, loss of succession rights etc etc).
If the lawsuit had been introduced by the man with whom the mother had sexual intercourse while separated from her husband, that same Court ruling serves as a declaration of the child’s recognition by that man, which in principle and in essence means that the child is not to be perceived as a child born without father.
As seen from the child’s side, the child as such reserves a right to file a lawsuit challenging fatherhood even in a later period, that is even after a year has gone by since the time of the child’s adulthood. At an earlier stage, i.e. when still a minor, the child is lawfully represented by a special commissioner –as per the provisions of article 1517 Civil Code – in order to have that lawsuit properly filed, given after all that there is a clash of vested interests between the child as such and its -supposed- parents (helpful to understanding the fundamentals, if not all, of the above the works of Koutsouradis, Agallopoulou, Georgiadis-Stathopoulos, Fountedakis, and relevant Greek case law, e.g. First Instance Court of Thessaloniki 2423/1992, Court of Appeal of Athens 859/1999, Single Person First Instance Court of Lefkada 214/2000), even if the child appears before court as a side-litigant with one of his -supposed- parents, because in cases like these nothing is to be taken for granted. So, in a nutshell, the main idea is that the child initiates a legal process against both his/ her mother and her husband both of whom are considered counter-litigants.
So, as already said, according to article 1470 case 3 CC the child as such is allowed to challenge fatherhood within one year after his/ her adulthood. There is, however, the question of which exact date should be perceived as the initial date of this deadline, and in a few words whether this is a right only to be enjoyed for just a year after the threshold of eighteen years of age has been reached, i.e. from the moment the child reaches 18 and until the time he/ she reaches 19, or whether there is the option of practically moving forward with such a process only when the child is still considered to be a minor.
Now, the thing is that greek case law provides us with a plethora of rulings whereby on thing seems to become more obvious than the other. So, according to the aforementioned renowned legal scholars, the answer is that the child is allowed to move forward with such a lawsuit only when the child is still considered to be a minor. On the other hand, though, according to the provisions of article 1517 CC, as already stated above, the child is to be appointed with a special commissioner/ representative in case the child’s vested interests are at odds with those of his mother or his father, and even with those of his/ her mother’s and father’s spouses and even relatives of the first degree of kinship, be it by blood or by affinity.
Filing a lawsuit on the grounds of challenging fatherhood consists the epitome of a clash of vested interests between the child and the child’s parents, and the necessity of a special commissioner/ representative is not to be questioned, even if a -supposed- parent takes the child’s side. Therefore, the plea to have someone appointed as special commissioner/ representative for the child is to be filed either by one of the parents or by someone else vested with such aright, or by a Public Prosecutor, or even by a self-appointed court authority (articles 1591, 1629 CC).
So, the lawsuit shall be filed on behalf of the child by the appointed special representative
This is exactly the point where the aforementioned legal detail lies: it is highly suggested that if one of the persons designated as per the provisions of the aforementioned article 1469 CC to file such a lawsuit omits to do so, that this very person could ask for a different person to be appointed as special commissioner/ representative on behalf of the child, so as for this latter to save the day and the deadline, up until the day of course that the child becomes an adult and his/ her deadline shall be taken into consideration.