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Paternity: Should a court compel a mother to reveal the identity of a child’s dad?

By September 13, 2016No Comments

By Gianna Huesch

A controversial new law in Germany has stirred debate on the issue of proving a child’s paternity with news the German Justice Ministry has drafted legislation requiring mothers in some paternity cases to name “the man who was present at the moment of conception”.  Under the proposed new laws, a mother would only have the right to remain silent on the issue if she had good reasons for doing so, which would be determined by a court. The law is aimed at enabling a man who has been wrongly paying child support to reclaim such monies.

The debate has been instigated by a court ruling last year in which a man sued his wife after she admitted he may not be the biological father of their child. The man unsuccessfully attempted to force his wife to reveal the name of her former lover, prompting the judges in that case to assert that new legislation on the issue was required, resulting in the drafting of the new legislation locally dubbed “the Cuckoo Kids Law”.

The debate balances the issue of privacy against moral issues: that it is best for a child to know the true identity of their father, and that it is unfair for a man to pay child support if he is not the biological father of a child.

But is there really a need for such a law?  It’s unclear what the comparative figures are in Australia, but in the UK, for example, it is believed that between 2% and 10% of children may be biologically fathered by someone other than the man who thinks he is the father (what is known as “parental discrepancy”).

Given that the remedy of DNA testing does already exist, it seems the new German laws are probably unnecessary. At present, the presumption of parentage is created if a man is married to a mother, or is named on a child’s birth certificate as that child’s father. However, if DNA results are negative or a mother refuses to submit to testing, a man can apply through the courts to get a declaration of non-parentage and have any child support paid potentially refunded.

What do you think–should mothers be legally compelled to disclose private details of their personal lives?

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Do you need assistance with a family law matter, or perhaps requiring an ex-partner to undergo DNA testing to establish parentage? Please give us a call here at Alliance Family Law on (02 6223 2400 to see how we can help you.


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