Who is the child's father? How to legally establish paternity of a child
Sometimes it is not immediately clear who a child's father is. In this situation it is advisable for everyone involved to take a DNA test. A simple cotton swab test easily clarifies the issue of paternity. But what if either the mother or the alleged father refuses to cooperate with a DNA test?
Can you physically force someone to take a DNA test?
No, not literally. Everyone has the right to physical integrity, which means that people can decide for themselves what happens to their own body. It is not possible to force a person to submit DNA for testing.
However, a child also has the right to know who its real father is and to know from whom they are descended.
In the event of a conflict, a court must decide which right prevails over the other: the right to physical integrity (no DNA test) or the right of the child to know from whom it is descended (a DNA test). Both rights are basic human rights and therefore of the utmost importance. In most cases, the right of the child to know its paternity is deemed more important, but not always.
The question a judge always has to decide upon is: what is in the child’s best interest? If a DNA test is in the best interest of the child, the decision to take a DNA test usually follows.
In very rare cases, it may not be in the child’s best interest to know who its biological father is, e.g. when it already has two (legal) parents who are presumed to be its biological parents. For example, if the DNA test will not lead to a change in legal paternity, as was decided by a family court in Gelderland in 2020.
In the vast majority of cases, however, the right of the child to know who its biological father is will prevail. Hence, a DNA test must take place. If it has been established that the person involved may be the father, the court will usually order a DNA test to be carried out.
But how do you force a DNA test?
In the Netherlands compelling someone to comply with a DNA test this is done step by step. First of all, the court decides that a DNA test is necessary and at which scientific institute the DNA test must be taken.
If a party ignores the judgment, the court will impose a financial penalty. For each day that the alleged father or the mother does not comply with the verdict, a sum determined by the court must be paid to the other party. For the mother, the penalty is meant to reinforce that she must cooperate by taking the child for the DNA test or carrying out a home test with a cotton swab. The longer the judgment is ignored, the more expensive it becomes for the party refusing the paternity test.
As a last resort, the court can even go as far as ruling that if the DNA test is refused, the mother or father must go to prison until the court order is complied with. The latter rarely happens, but the possibility exists as the following case shows.
From penalties to other measures
Maastricht District Court of 21 March 2021:
In 2018, the mother and the presumed father of the child agreed to have a DNA test carried out as part of injunction proceedings to determine legal paternity. The father bought a commercial DNA test and did his part of the test. The mother, however, did not keep to the agreement. She refused to test the child.
In 2020, the court ruled that the mother had to have a DNA test performed on the child by a pediatrician within one month. For each day she does not comply with the court order, she must pay a penalty of € 100 to the presumed father, up to a maximum of € 5000.
As the mother still refused have the DNA test carried out, the alleged father took action and claimed the penalties via a bailiff. However, it turned out the mother could not be forced to pay the penalties, because she had a very low income and a bailiff cannot seize income below the social minimum. Hence ignoring the verdict had no financial consequences for the mother.
In March 2021 the court created a very clear path for the mother, by deciding:
- at which institute the test must be taken;
- that the mother must make an appointment with the institute within 14 days of the judgment, whereby the mother must accept the next possible appointment;
- that the mother will inform the court of the date of the appointment for the DNA test within 14 days of the judgment;
- In the event of a violation of this order, the mother must immediately go to prison: initially for 12 hours; the following week for 24 hours and so on. The duration is extended weekly by 12 hours, up to a maximum of 72 hours. The woman must serve the prison sentence until she complies with the court order;
- parties must inform the court as soon as the test result is available, so that the court can finally decide whether the alleged father is the biological father of the child or not.
Even the fact that the mother has a total of five children and is a single parent was no reason for the court not to impose a punitive prison sentence. After all, the mother can ensure that she does not end up in prison by complying with the court order. We assume that by now paternity has finally been established in this case.
Is a DNA test always necessary to determine paternity?
There are situations in which the court decides who the father is without having taken a DNA test.
In the Netherlands there is no law that prescribes that paternity can only be determined by a DNA test. The court can also base its decision on an assumption, if, for example, the mother of the child provides compelling evidence why a certain man must be the father of the child. In these cases, the court can determine paternity without a DNA test. It will then be up to the father to appeal and deny paternity: by providing DNA!
In conclusion
Children have the right to know from whom they are descended. Courts therefore carefully examine what is in the best interests of the child. Ultimately the interests of the child and the truth will usually prevail.
How can Bowmer & Nuiten help you?
We have an experienced team of family lawyers at hand to assist you in any paternity case. If you have any questions regarding establishing paternity, please contact us.
