A mother's parent-child relationship with the child is established without great difficulty, by designating the mother in the child's birth certificate, whether or not she is married, and without her having to apply for recognition (article 311-25 of the Civil Code), establishing the father's parentage may prove more problematic, but the parent-child relationship has a real impact on parental authority.
In French law, there are four ways of establishing paternity: non-contentious establishment (by operation of law, by voluntary recognition or by possession of a state recorded in a deed of notoriety) and contentious establishment (by judgment).
The establishment of paternity by effect of law: the presumption of paternity.
The essential element in the field of the presumption of paternity is that it benefits only the married father. Unmarried fathers must always recognize the child or have the possession of the state established in order to establish parentage.
This presumption of paternity is provided for in article 312, paragraph 1, of the Civil Code, which provides that "a child conceived or born during marriage has the husband as its father". The child is therefore covered by the presumption of paternity if he or she was born during the marriage, or conceived during the marriage but born 10 months after its dissolution (article 311 of the Civil Code).
The exclusion of the presumption of paternity:
If the child is covered by the presumption of paternity, it is nevertheless excluded when the child was conceived in circumstances that make it unlikely that the husband will become a father. These circumstances are provided for by article 313 of the Civil Code, which sets out two of them:
- The person who declared the birth to the civil registrar did not designate the husband as father.
- The child was conceived during a period of legal separation, i.e. when the parents applied for divorce or legal separation.
In both cases, the presumption of paternity, which should normally have applied because the child is well "conceived or born during the marriage", is excluded and paternal filiation is not established.
The restoration of the presumption of paternity:
If the presumption of paternity had to be met, but is excluded because of circumstances making it unlikely that the husband will become a father, it can nevertheless be restored in three different ways:
- The establishment of state possession with respect to the husband;
- The husband's recognition of the child. This solution is preferable because it is easier to recognize a child than to have a deed of notoriety drawn up establishing possession of state.
- Action to restore the presumption of paternity: provided for by article 329 of the Civil Code, this action may be brought by the parents while the child is not yet of legal age, and thereafter by the adult child for a period of no more than 10 years. It will then be a question of proving that the husband is the biological father (a biological expertise may be ordered).
The establishment of paternity by acknowledgement by the father:
In the event that the child's biological father is not married to the mother, the simplest way to establish the father's parent-child relationship is to acknowledge paternity, i.e. to declare, in an authentic instrument (drawn up by the notary or civil registrar), his paternity with regards to the child.
This recognition has two advantages:
First, there is no time limit for recognition. It can therefore take place at any time: before the child's birth (article 316 of the Civil Code expressly provides for prenatal recognition), after he or she reaches legal age, or even after his or her death.
Secondly, acknowledgement of paternity is free, therefore it is not subject to the consent of the child or mother and, in principle, is not mandatory. It should be noted, however, that judges sometimes seem to admit that a person who knows he is the parent of a child, but does not acknowledge it, is liable in tort (this is the position taken by the judges of the Colmar Court of Appeal on June 23rd, 2005, the court having held that "by failing to recognize a child he knew to be his own and by failing to confer on the child the status and benefits attached to a legally established filiation, the father acted offhand and irresponsibly and failed in his elementary duties towards his child, which constitutes wrongful conduct even if there is no text stigmatizing this type of attitude").
The establishment of paternity by state possession:
What if the father does not want to, or cannot, recognize the child?
In this case, it is possible to establish parentage by possession of a state, which is defined as the fact that a child behaves and is considered as such. To establish parentage, possession of the record must be established in a deed of notoriety issued by the guardianship judge (article 317 of the Civil Code) on the statement of three witnesses attesting to the combination of the elements constituting the possession of the record.
The constituent elements of state ownership
To establish possession of a child's status, the judge will take into account three main elements (article 311 of the Civil Code):
- The fact that the father treats the child as his own, providing for his education, maintenance and that the child also treats the father as his own.
- The fact that the social and family environment considers the father as the child's.
- The fact that the child actually bears his father's name.
Moreover, the fact that the father provides for the child's education is not sufficient as such. He must do so in a continuous, peaceful, public and unambiguous manner. Thus, he must do so in the usual way and for a fairly long period of time. Nevertheless, judges are particularly flexible in their assessment and there is no requirement that the father treat the child as his own consistently since the child's birth, or that the father and child live together (Civ.1ère, 3 March 1992).
Conditions for issuing the deed of notoriety establishing possession of the state
The deed of notoriety may only be requested by the mother, father or child for the entire duration of the possession of the state and within a maximum period of 5 years, starting from the day on which the possession of the state ceases or the day on which the parent dies.
Once this 5-year period has expired, only the action to establish possession of the state is possible, for the benefit of any interested party, for 10 years from the cessation of possession of the state or the death of the alleged parent (Article 330 of the Civil Code). It will then be necessary to demonstrate that all the elements of state ownership are present.
The establishment of paternal filiation by the action in search of paternity:
Where the child is not covered by the presumption of paternity (his father was not married to his mother), and has not been recognised by his father and does not have possession of a state (his father is not present in his life), paternal filiation may be established by means of an action in the search for paternity.
The action to establish paternity, provided for in article 327 of the Civil Code, may be brought by the mother on behalf of the child within 10 years of birth, and by the child from the legal age (18) until the age of 28.
In order to prove paternity, a biological expertise may be ordered by the judge.
What is the impact of the establishment of paternity on parental authority?
A clear distinction must be made between the attribution of parental authority (the fact of holding this right) and the exercise of parental authority (the concrete implementation of this right).
With regard to the attribution (and therefore the ownership) of parental authority, it belongs to the father and mother and only to them (article 371-1 of the Civil Code). It therefore results from the establishment of the child's parent-child relationship. As soon as the father has established his parent-child relationship with the child, he shall have parental authority.
With regard to the exercise of parental authority, it is in principle a joint arrangement, i.e. the father and mother make decisions concerning the child together (article 372 of the Civil Code). Nevertheless, two exceptions to the common exercise of authority are provided for:
- Where parentage has been established in respect of the father more than one year after the birth of the child;
- Where parentage is judicially established with regards to the father (following an action to establish paternity, an action to establish possession of the state or an action to restore the presumption of paternity).
Thus, for example, if an acknowledgement of paternity has been made more than one year after the child's birth, the father will have parental authority but will not exercise it. He nevertheless retains the right to supervise the child's maintenance and education (article 373-2-1 of the Civil Code) and also has the right of access and accommodation (article 373-1 of the Civil Code).
However, even in these two cases, parental authority may become joint if the parents make a declaration to the registry of the High Court or by decision of the Family Court (article 372 of the Civil Code).