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Why is the entry of a child's biological father on the birth certificate important?

Under Article 7 of the UN Convention on the Rights of the Child, the child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents. Estonia has acceded to the Convention, thus obliged to guarantee the rights provided for in the Convention to every child living in Estonia.

According to the Estonian Family Law Act, the woman who gives birth to a child is the mother of the child. The man by whom a child is conceived is the father of the child. The rights and obligations of a parent towards a child arise for the mother and father who are entered onto the child's birth certificate. It is not mandatory under Estonian law to enter the father on the birth certificate. This means that not all children are guaranteed the right to know and be cared for by their parents. This is often a conscious choice of the parent(s).

The Green Paper on Family Benefits, Services and Parental Leave issued by the Ministry of Social Affairs in 2015 [1] sets out various reasons why a father's entry on a child's birth certificate is not made by the parent(s):

  • the mother does not wish to share her further life and the upbringing of the child with the father  and does not inform the father of her pregnancy and/or the birth of the child;
  • the parents do not want to share their further life and upbringing of the child and they jointly decide not to enter the father's name on the birth certificate;
  • the father does not want to (officially) admit paternity;
  • the mother does not know who the child's biological father is;
  • the mother (and father) has decided not to enter the father's name on the birth certificate in order to receive state support;
  • the child is born as a result of artificial insemination.

In addition to situations where the father's entry is deliberately omitted from the child's birth certificate, there are also cases where the wrong person is deliberately entered on the child's birth certificate as the father. As the result, the legal parental rights and obligations are given to the wrong person.

What are the consequences of not entering the biological father on the child's birth certificate?

First, a child whose biological father is not on the birth certificate, is deprived of the right to know both his or her parents and to be cared for by both parents. The child is also deprived of the right to maintain personal contact with both parents, provided by the Family Law Act.

Under the Estonian Family Law Act, parents have equal rights and obligations with respect to their children unless otherwise provided by law. A parent has the obligation and right to care for the minor child, including to care for the person of the child (custody over person) and for the property of the child (custody over property) and to decide on matters related to the child.

Only the parents entered in the birth certificate have the parental rights and obligations arising from the Family Law Act. By knowingly failing to indicate the child's biological father on the birth certificate, the child is deprived of the right to know and receive parental care from both parents. It is presumed that it is in the best interests of every child to have both parents to care for and raise him or her. This is the case regardless of whether both the mother and the father live with the child or only one of them. Parents can exercise joint custody while living separately.

In addition, the child must be guaranteed the right to communicate with his or her parent living separately. In a situation where the child's father has not been entered on the birth certificate, the child does not have the legal basis to implement the right to communicate with his father living separately from the child.

Secondly, a child whose father is not on the birth certificate is deprived of the right to maintenance from both parents. Pursuant to § 96 of the Family Law Act, adult ascendants and descendants of the first and second degree are required to provide maintenance. A minor child is entitled to maintenance in the first order.

A minor child has the right to receive maintenance from both his or her mother and father, regardless of whether the parent lives with the child or or not. Pursuant to § 100 (2) of the Family Law Act, the parent of a minor child fulfills the obligation to maintain the child by paying maintenance, especially if he or she does not live with the child or if he or she does not participate in the child's upbringing.

In a situation where the child's birth certificate does not contain an entry about the father, the child cannot apply for or receive maintenance from the father. In such a situation, the child is the victim.

Thirdly, it should not be underestimated that there may be critical situations in a child's life that require information from his or her biological parents, including father's health risks, hereditary diseases, etc. Relevant information may be essential to prevent, deter or mitigate similar health threats. If the child does not know who the biological father is, the necessary help may not be received in time due to a lack of information.

Fourthly, if the child's father is not entered on the birth certificate, the child will be deprived of a survivor's pension in the event of the father's death. Pursuant to § 20 (1) of the Estonian State Pension Insurance Act, in the event of the death of a breadwinner, the dependent members of his or her family have the right to a survivor's pension. The right of a child, parent or widow to a survivor's pension does not depend on whether or not they were dependent on the breadwinner.

A family member entitled to a survivor's pension is, inter alia, the child of the breadwinner and the grandchild who is under 18 years of age.

In addition to a survivor's pension, a child whose father is not on the birth certificate is not entitled to an inheritance in the event of the death of his or her father. According to the Estonian Law of Succession Act, descendant relatives - children and grandchildren - inherit in the first order. If the descent of the child from the father has not been established, the child does not acquire the right to inherit.
 
The interests of the child are certainly not protected in a situation where the wrong person has been entered on the birth certificate as a father, who has parental rights and obligations towards the child. In addition to the rights of the child, the rights of the child's biological father and the fictitious father are violated. Contesting paternity is a time-limited process that requires going to court and being aware of the content and deadlines of the procedure for contesting paternity. If the time limit for contestation is "expired", this may have irreversible consequences.

How to establish and challenge paternity?

If there is no entry for the father on the child's birth certificate, paternity can be established through a court by bringing an action to establish paternity. The persons who have the right to file a corresponding action are listed in the Family Law Act. These are the man who wants to establish that he is the father of the child, as well as the mother of the child or the child him- or herself.

If a wrong person is entered on the child's birth certificate, paternity can be challenged in court within the prescribed time limit. The term for contesting paternity is one year from the day when the person entitled to contest paternity has become aware of the circumstances on which the contest is based. Paternity can be challenged by a man who is entered on the birth certificate, the mother of the child or the child himself. If the legal representative of a minor child has not challenged paternity in time, the child may personally challenge his or her descent from the father as an adult.

In addition, within one year of the birth of a child, paternity may be challenged by a man seeking paternity instead of the man entered on the birth certificate.

Whether or not a man is the child's biological father can be determined by a DNA test carried out at the Estonian Forensic Institute. The fact that a DNA test has established that a person cannot be the biological father of a child is not in itself sufficient not to confer parental rights and obligations on a person who is entered on a father's birth certificate. To do so, an action for contesting paternity must be brought before a court within the term specified by law.

Failure to challenge paternity in a timely manner can have irreversible consequences for all parties - the child, the fictitious father and the biological father. E.g. in a situation where the DNA test reveals that the father on the birth certificate is not the child's biological parent but the term for contestation has expired, the child loses the right to know and communicate with his or her biological parent, the fictitious father has legal obligations to maintain the child and the biological father essentially loses the opportunity to participate in the life of his child.

However, the Family Law Act provides another opportunity to contest paternity arising from acknowledgement, taking account of the significant interests of a child. To this end, a corresponding request must be made to the minister responsible for the area, who is the Minister of the Interior.

[1] The Estonian Ministry of Social Affairs, “Peretoetuste, teenuste ja vanemapuhkuste roheline raamat“, Tallinn 2015, p 71.

https://ajakiri.lastekaitseliit.ee/2018/04/04/miks-on-oluline-lapse-bioloogilise-isa-kanne-sunnitunnistusel/

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