CONTESTATION OF CHILD STATUS.
This action may be exercised when it is desired to remove the status of a legitimate child
resulting from the birth certificate and not true, namely:
(a) when the woman named as the mother is not such in reality;
(b) when the parents are not joined together in marriage, either because they did not
celebrate it or because it was annulled for bigamy or incest and spouses were in bad faith.
(c) when the child was born after 300 days from the annulment or dissolution of the marriage,
or legal separation. However, the defendant may prove the exceptionally long duration of the
pregnancy or that, despite the legal separation, the conception was the work of the woman's
husband. In these cases, in fact, the child is legitimate because it was conceived during the
marriage.
Active legitimates: those who result as a parent on the birth certificate; anyone who has a
current interest that is directly protected by the law.
Legitimate passive parties: the child and the parents. In case of death or incapacity, the
legitimacy is transmitted to the same persons to whom the action of disavowal is transmitted.
The action is imprescriptible.
Publicity and effects: The pronouncement ascertaining the merits of the action is subject to
annotation and transcription and has the following effects:
-hypothesis (a): the maternity of the woman mentioned in the birth certificate and thus also
the paternity of the husband is lost: thus the parents are unknown.
-hypothesis (b): the subject becomes the recognized natural child of the same parents
mentioned in the birth certificate, unless the invalidity of the marriage depends on incest. In
this case, in fact, formal ascertainment of filiation is not permitted.
-hypothesis (c): the paternity of the husband of the parturient is ruled out, so the subject
becomes the natural child of the woman only, unless recognized by the real father.
11.9. CHALLENGE TO THE RECOGNITION.CLAIM OF LEGITIMACY
The action of claim of legitimacy constitutes, in favor of a person, the status of legitimate
filiation, which does not result from the birth certificate.
This can occur in various cases, such as when the person has been declared the natural
child of his or her
parents married to each other or a child of unknown parents, when only one parent is
mentioned in the birth certificate, when the person is registered as a legitimate child of
parents other than his own, when there has been a false recognition by a man other than the
woman's husband. In the latter two cases, among other things, the status of legitimate child
or natural child resulting from the birth must be removed first.
Active legitimacy accrues to:
(a) the child or his descendants if he died without exercising the action before the age of 23;
if the child is incapacitated, his legal representative or a curator specially appointed by the
court may act.
(b) Those who assume that they are parents. Passively legitimized are the alleged parents,
but also the child and those who are mentioned as parents in the birth certificate.
The plaintiff may resort to the means of proof to prove the merits of his claims, but with the
relevant limitations (see 10.3), while the defendant, in resisting, encounters no limitation (243
cod civ).
The action is imprescriptible for both the child and the other legitimates.
Publicity: The judgment ascertaining the merits of the claim is subject to annotation and
transcription.
RECOGNITION OF CHILD BORN OUT OF WEDLOCK
Recognition of a natural child is the formal attestation by a person that he or she has
fathered another person out of wedlock.
This declaration constitutes a unilateral transaction of ascertainment. Although it is a
discretionary act of the parent, the acquisition of the status of a natural child does not depend
on the parent's arbitrariness, as the child may also be granted this status, to which he or she
is entitled, by the judicial declaration of paternity and maternity.
Author of the acknowledgment: may be the parent who is 16 years of age or older and not
disqualified. He must personally make the declaration and prove that nothing stands in the
way of recognition.
Passive subject: is the one who is attested to be his own child. With the '75 reform,
adulterous children can also be recognized, but not incestuous ones. Also inadmissible is
recognition of one who already has a status of natural legitimate filiation until this is removed.
Content of the stipulation: the intention to make the recognition must be unambiguously
apparent from the declaration.
Time of stipulation: recognition can take place:
(a) Before the birth
(b) At the time of the drawing up of the birth certificate
(c) At a time after the birth
(d) After the death of the acknowledged (in this case, the acknowledgment can take place
only in the interest of the child and his or her legitimate descendants).
Recognition may be joint, if made simultaneously by both parents, or separate, if made at
different times. In the latter case, the parent who first recognized must give consent to the
recognition of the other, if child is under 16 years of age. If this consent is lacking, the other
parent may apply to the juvenile court to grant permission for the recognition itself: the trial is
held adversarially with the parent who recognized the child, with the intervention of the public
prosecutor, and in the course of the proceedings the child must be heard.
The assessment of the convenience of the second recognition is left to the broad discretion
of the judge, who must take into account the moral and material interests of the child and
those of the parent who intends to proceed with the recognition. Usually, however, it is
preferable for the child to be able to rely on both parents.
Form: recognition is a formal transaction. In fact, it must be stipulated by means of a
declaration made to the registrar, to the guardian judge, to the one celebrating the marriage,
to a public official, or in a will.
Recognition, since it is an act of ascertainment, is not subject to revocation.
Publicity: the transaction is publicized by annotation in the birth certificate.
Appeal: is allowed in three circumstances: for defect of truthfulness, for incapacity of the
author, for violence against him.
(a) Appeal on the grounds of defect of truthfulness: an acknowledgment made by one who is
not the author of conception does not respond to the truth: this may depend on a mistaken
belief, but also on a precise design of the declarant.
The action can also be exercised in the case where there has been recognition of an
incestuous child generated in bad faith, or in any case when the store lacks the other
requirements (lack of judicial authorization, if the parent who committed incest and in good
faith...).
Proof of the falsity of recognition is achieved by proving the inability of the person who made
recognition to be the author of conception (by proving impotence or imprisonment
or genetic incompatibility).
Legitimate active parties: author of recognition, recognized subject, anyone with a moral or
pecuniary interest. If the recognized subject is a minor or a judicial interdict, the appeal may
come from a special curator.
Legitimate passive parties: author of recognition; the child. The intervention of the public
prosecutor is mandatory. The action is imprescriptible.
(b) Appeal on grounds of incapacity : may be exercised in cases where the author of
recognition is a
Judicial interdict or a minor under 16 years of age; only natural incapacity is not relevant in
this case.
Active legitimates : in case of interdiction are the guardian or the interdictor himself (within
one year after the revocation of the interdiction). In case of minor age, the author of the
acknowledgment is legitimated to act, within one year from when he/she became an adult.
Legitimate active party: author of the acknowledgment, who must act within one year from
the time the violence ceased or, if he or she was still a minor, from reaching the age of
majority.
Legitimate passive party: child
Judicial pronouncement of invalidity of recognition due to incapacity or violence does not
constitute an impediment for the parent to make a new recognition.
Private international law: the prerequisites for proceeding with the recognition of a natural
child are established by the national law of the child or that of the parent if more favorable.
The parent's national law governs the ability to proceed with recognition.
The forms are established by the law of the state in which it takes place or the law governing
the substance (Art. 35, Law 218/1995).
JUDICIAL DECLARATION OF PATERNITY AND NATURAL MATERNITY.
Even if the parent does not provide for recognition, a child born out of wedlock has the right
to have his or her status formally ascertained by judicial pronouncement.
The action cannot be exercised in cases where recognition of incestuous children is
prohibited by law (art.
278 Civil Code) however, Art. 279 Civil Code states that the ascertainment of filiation is
allowed for the sole purpose of giving the child the right to maintenance, education and
upbringing.
The proceedings: jurisdiction lies with the court of the place of residence of the person who is
assumed to be the parent.
The judgment is conducted in two stages:
-First stage: the court must first ascertain the presence of specific circumstances that make
the situation outlined by the plaintiff appear such that the existence of the filial relationship is
likely and probable. For this purpose, even the mother's statement alone may be sufficient is
about the author of the conception, all the more so if this is accompanied by evidence that, at
the time of conception, there was a stable relationship or intercourse with the alleged father,
or if the existence of a writing from which the filiation relationship is shown. The parties and
the prosecutor must be heard at this stage.
-Second stage: at this stage the plaintiff must prove that he is the defendant's child. There
are no limits to the admissibility of evidence, but of particular importance are the
uninterrupted enjoyment of state possession, somatic, immunohematological, and genetic
evidence.. On the other hand, the mother's statement alone that she had relations with the
alleged father at the time of conception is not decisive, but cohabitation more uxorio makes it
very likely that conception is the work of the person with whom the woman cohabits.
Active legitimated person: is the child of age or, upon his death, his descendants. If the child
is under the age of majority or
unborn child, the parent exercising parental authority may act in his or her interest; in the
absence of the parent, legitimated to act is the guardian, subject to the authorization of the
ordinary court.
If the child is interdicted, the guardian must act, subject to the authorization of the ordinary
court.
Forfeiture: The action may be brought by the child or his or her representative at any time,
while descendants may bring the action only within two years, under penalty of forfeiture, of
his or her death.
Legitimate passive party: is the parent against whom the filiation relationship is sought to be
established. In the event that the parent is dead, legitimacy is transferred to the arrivals.
Any interested party may intervene in the judgment; the intervention of the prosecutor is
mandatory.
Publicity: the judgment is subject to transcription and annotation.
STANDING
With legitimation, one who is born out of wedlock acquires the status of legitimate child of his
or her parent.
Legitimation can take place in two cases: by subsequent marriage; by court order.
(a) legitimation by subsequent marriage: this figure is favored by the legal system because it
presupposes the establishment of a legitimate family. It can occur in the presence of two
prerequisites:
❖ Establishment of the natural filiation relationship, in respect of both parents, made by
recognition or judicial declaration;
❖ Celebration of a valid marriage having civil effects.
Legitimation then operates when both conditions are met.
(b) Legitimation by court order: this must be requested by one or both
parents and only when there is impossibility or the existence of a very serious obstacle,
encountered by the parent, to legitimize by subsequent marriage.
In addition, other prerequisites must be met, namely: 1.That legitimation is in the best interest
of the child
2. The petitioning parent has reached the age of 16
3. That there is the consent of his or her unseparated spouse
4. That there is the consent of the legitimizing child who has reached the age of 16.
Consent is not required if the child has already been recognized by the parent seeking
legitimation. If this parent has legitimate children over the age of 16 who are cohabiting with
him or her, the judge must proceed to their hearing: this means that, in deciding whether or
not to grant legitimation, the judge must also take into account the interest of the rights of
those who are already members of the legitimate family.
Active legitimation: the parent, but after his or her death the request can be made:
A. By the child himself, if the parent had expressed in a will or public deed the will to
legitimize and
there also exists impossibility or serious impediment to legitimation by subsequent marriage.
B. From legitimate ascendants, if the parent did not express in life a will contrary to
legitimation,
provided that the filiation is established
C. By the child, by the legitimate ascendants, by the attorney appointed by the parent
himself, if the parent died after issuing power of attorney to contract marriage (because he
intended to legitimize the child by subsequent marriage). If, however, the child is not already
recognized, it is necessary that the power of attorney shows the intention to recognize or
legitimize the child.
Jurisdiction: legitimation must be pronounced by the court of the place of residence of the
parent bringing the application. The prosecutor must intervene in the judgment.
The ruling is appealable by the petitioner and the prosecutor.
Publicity: The pronouncement of legitimation must be noted at the bottom of the child's birth
certificate and transcribed in the same register.
Effects: legitimation produces the effects of legitimate filiation towards the parent against
whom it was pronounced. These run from the moment the order becomes final.
Private international law: legitimation by subsequent marriage is governed by the national
law of the child or that of parents at the time it occurs.
Legitimation by court order is governed by the national law of the providing parent. In
lack thereof, a declaration in lieu of the declarant may be submitted.
THE EFFECTS OF FILIATION.DUTIES OF PARENTS AND RIGHTS OF CHILDREN
With the establishment of the filiation relationship, an obligation arises on parents to
assistmorally and materially their children.
Children in, on the other hand, have a subjective right to receive assistance from their
parents.
Article 147 of the Civil Code specifies that parents are obliged to maintain, instruct and
educate their children, taking into account their abilities, natural inclinations and aspirations.
That is, parents must not only meet their needs but also personally provide for the education
of their offspring.
The duties of education and upbringing are extinguished when the child reaches the age of
majority, while the duty of maintenance lasts until the child is able to effectively enter the
world of work and provide for his or her own living needs: this occurs when the child is able
to earn an income corresponding to the permanently acquired professionalism.
The standard of living to be ensured is that conducted by the family, taking into account both
the available family resources and the educational needs of the child.
Parents are jointly and severally obliged to provide maintenance for their offspring; the
obligation is divided among them in proportion to their respective substances and capacity
for professional and household work (148 Civil Code).
In natural filiation, if the parents do not cohabit, the non-custodial parent must pay the other
an allowance proportionate to his or her economic possibilities to fulfill the obligation to
support the child.
If the noncustodial parent is found to be in default, the normal coercive means (enforcement,
attachment...) may be pursued; in particular, the diversion of the obligor's income may be
requested. In addition, compensation for damages is due.
When the parents do not have sufficient means, the obligation falls on the next of kin, who
must obviously have an economic condition that allows them to do so.
Legitimate, natural, adopted children participate in the succession of the deceased spouse
as legitimates. They are entitled to have a share of the inheritance reserved and to a varying
extent depending on the number of children and the spouse's concurrence.
Legitimate children can exercise the so-called "right of commutation" vis-à-vis natural
children: that is, to liquidate in money or with inherited property the entire inheritance share
of each of them. This is a potestative right, designed to protect a specific interest of
legitimate children in not being in communion with their natural siblings.
Natural children, on the other hand, may object to commutation, and in this case it will be up
to the court to assess the merits of the reasons behind the exercise of the right.
Natural children who are not recognizable, on the other hand, have limited inheritance rights:
they are entitled only, by way of legitimacy, to a life allowance within the limits provided for in
Article 580 cod civ, which is equal to the annuity of the share to which they would be entitled
if they were recognized (594 cod civ).
All children who are not recognizable are entitled to this life allowance, regardless of need.
The share payable in the abstract to children who are not recognizable is to be calculated on
all relict and donated property. If the deceased parent has attributed, by will or by gift, assets
for the benefit of unrecognizable children, they will have the choice of retaining these
attributions and forfeiting the allowance or claiming the allowance by forfeiting the
attributions.
