Legal parenthood may be created biologically, legally or socially. If the parents are also the begetters of the child, they are its biological parents. Legal parents are the child’s family in a legal sense, even though they are not its biological parents.
When a child is born, the woman who gives birth to the child automatically becomes its legal mother by the provisions of (Dutch) law. Since April 1, 2014, a woman may also obtain legal maternity of a child by acknowledgement, even if she didn’t give birth to it (so-called co-mothers). A woman also has the option of adopting her child, making her its legal mother. A child can also be adopted by another person, for example a foster parent who has cared for the child alongside its mother for a longer period of time (step-parent adoption).
An important aspect of legal paternity is whether the man was married to or had a registered partnership with the child’s mother at the time of the child’s birth. If this is the case, the man automatically becomes the (legal) father of the child. If this is not the case, the man can become its legal father by acknowledging the child before or after birth (at the civil registry and with the mother’s consent). Legal paternity can also be obtained by a legal determination procedure or by adoption. Legal determination can be requested if, for example, the biological father refuses to acknowledge the child or passes away before the acknowledgment.
Procedure for legal determination of paternity
A child’s mother may request the court to legally determine paternity within 5 years after the child’s birth. If the biological father’s identity or place of residence remain unknown, the mother can still file a request within 5 years after she becomes aware of the biological father’s identity or place of residence. Once the child reaches the age of sixteen, the mother is no longer authorized to submit such a request. The child can also apply for legal determination of paternity. There is no limitation period for this. If the child is still a minor, its interests are represented by a special curator during the proceedings.
The child’s biological father is not authorized to request legal determination of paternity. If the mother refuses to give her consent for acknowledgement, the biological father may ask for substitutive consent from the court in order to obtain legal paternity.
DNA research may be required in such cases. The court usually rules that each party pays half of its costs.
Contestation of paternity
When a man is married to the mother of the child at the time of its birth (and in some other cases), he will automatically be regarded as its father. If he is not the father, he can contest his paternity in court. If, however, he has previously adopted or acknowledged the child, he cannot contest his paternity at a later time.
If the man is regarded a child’s father because he was married to the mother at the time of birth, he can only contest paternity if he is not the child’s biological father. If he is the biological father, contestation is not possible. This means that a DNA test may be required for such procedures.
If the man was aware of his future wife’s pregnancy before their marriage, contestation by the father or mother is not possible either. Nor can father or mother contest paternity in cases where the man has agreed to an “act that has resulted in the child’s conception”. However, in both of these cases the father can still contest paternity if the mother has not been honest about the identity of the child’s biological father.