Paternity Determination and DNA Tests in the Czech Republic
The issue of paternity determination is among the key institutes of family law, which has fundamental impacts not only on the legal status of the child, but also on a whole range of other legal relationships including maintenance obligations, inheritance law or citizenship. In the current Czech legal regulation, which is contained primarily in Act No. 89/2012 Coll., Civil Code (hereinafter "CC"), we encounter a comprehensive system of rules that combines traditional legal presumptions with modern possibilities of genetic testing.
The legal regulation of paternity determination has undergone significant development in recent decades, which reflects not only social changes in the understanding of family and parenthood, but also technological progress in the field of medical genetics. While previously paternity determination was based primarily on legal presumptions and not very reliable methods, today we have means allowing practically one hundred percent determination of biological paternity.
In practice, three basic methods of paternity determination are distinguished:
- determination by law based on legal presumption,
- determination by recognition of paternity and
- determination by court decision.
Each of these methods has its specifics, procedural requirements and legal consequences, which must be carefully distinguished, especially when providing legal advice to clients in this sensitive area of family relationships.
This article will deal with the last possibility within the entire process of paternity determination, namely the determination of paternity by court decision. This is an extreme possibility and by far the most problematic phase of paternity determination. It is necessary to understand what the procedure for court determination of paternity is, what powers the court has or what the chance of success is.
Filing a motion for paternity determination
The first step is filing a motion for paternity determination with the court. This motion may, according to § 783 para. 1 CC, be filed by the mother, child or man who claims to be the father (alleged father). The motion is filed with the general court of the child, i.e., the district court in whose district the child has residence. Filing the motion is not time-limited in any way, it is possible to file it even many years after the child's birth and the law also provides for the possibility when the alleged father is already deceased.
Course of proceedings for paternity determination
In the actual proceedings for paternity determination, evidence plays a key role. First, the court hears the mother, the alleged father, possibly witnesses, and in a small percentage of cases it may happen that the court decides already at this stage (most often in cases where it is proven that it is impossible for the alleged father to be the actual father of the child). In most cases, however, the court proceeds to conduct additional evidence.
Such evidence will most often be an expert opinion prepared using genetic (DNA) tests. Currently, DNA tests are also the only method used for paternity testing in the Czech Republic and allow paternity to be determined with almost 100% accuracy. The only exception when DNA tests are usually not performed is paternity determination for an unborn child. In such a case, tests can be performed, but it is a highly risky procedure.
Forced performance of DNA tests
In an ideal case, the alleged father will undergo DNA tests voluntarily, but this will definitely not be the case in all instances. It is quite common for the alleged father not to want to undergo the tests. How will the court proceed in such a case?
In many fundamental documents such as the Charter of Fundamental Rights and Freedoms or the Convention on the Rights of the Child, the child's right to know their parents has been firmly established. Both Czech and foreign case law then consistently confirms that this right takes precedence over the alleged father's right to refuse DNA tests and thus avoid paternity determination.
If the alleged father does not cooperate, the court has the right to order DNA tests to be performed, even in the absence of the alleged father. The court can then enforce this obligation with fines of tens of thousands, or even by having the alleged father brought before the court. This was stated by the Constitutional Court almost 20 years ago in judgment I. ÚS 987/07 of 28.2.2008.
Czech judicial practice has also encountered cases where the alleged father refuses to undergo DNA tests and stays abroad to avoid having to undergo the tests. In such a case, the Czech court may, in accordance with the Hague Convention on Legal Assistance, request a court of a foreign state to request the performance of evidence, i.e., DNA tests. If the alleged father still refuses to cooperate, foreign authorities can also have him brought in, perform tests and subsequently hand over the collected samples to Czech authorities.
Disciplinary fines in case of non-submission to DNA test
As already mentioned above, the first step in case of the alleged father's unwillingness to undergo DNA tests will be the imposition of a disciplinary fine. Such a fine may reach, according to § 53 para. 1 of Act No. 99/1963 Coll., Code of Civil Procedure (hereinafter "CCP"), an amount of up to CZK 50,000 and may be imposed repeatedly. The total number of disciplinary fines imposed is not explicitly limited. However, the fine will probably be imposed at most a few times, since the court can enforce the obligation by more forceful means.
Bringing in for DNA test
If disciplinary fines do not force the alleged father to undergo DNA tests, the court may proceed to order the alleged father to be brought in. In such a case, the alleged father will be brought by the Police of the Czech Republic to a court expert who will perform sample collection and subsequently DNA testing.
Although this procedure limits the alleged father's right to bodily integrity, the Constitutional Court has repeatedly found that in the case of paternity determination, this is an appropriate procedure that does not violate the constitutional order. In addition to judgment file no. I. ÚS 987/07, the Constitutional Court expressed similar conclusions in resolution file no. I. ÚS 2693/15, III. ÚS 3165/17 or II. ÚS 854/17.
Courts will proceed in the same way even in cases where the motion for paternity determination is filed by the alleged father and the child (or their legal representative or guardian) refuses to undergo DNA testing.
Ordering DNA tests and the child's interest
In proceedings for paternity determination, it must also be kept in mind that for the court to order DNA tests to be performed, determining the biological father must be in the child's interest. If the motion for paternity determination is filed by the child, determining the biological father will almost always be in the child's interest. In cases where the motion for paternity determination is filed by the alleged father, determining paternity may not be in the child's interest in all cases.
For example, the Constitutional Court in its judgment file no. I. ÚS 1858/23 #2 of 13.2.2024 decided that when a three-year-old child lives in a harmonious family with the mother and legal father (the mother's husband listed on the birth certificate), it is not appropriate to order DNA tests at the alleged father's request. Even if it turned out that the alleged father is indeed the biological father of the child, it is not in the child's interest to disrupt the current harmonious family relationships. In this case, however, the Constitutional Court also stated that it is possible that conditions may change in the future. At an older age, determining the biological father may already be in the child's interest.
However, it is not possible to say where exactly the boundary lies when paternity determination is still in the child's interest and when it is no longer, and it always depends on the individual case and assessment by the court.
Proceedings against a deceased alleged father
A specific case is the situation when the alleged father is no longer alive. The law also provides for this situation. If this occurs, the court appoints a guardian against whom the motion for paternity determination is filed. However, the situation of performing DNA tests becomes complicated. If the remains of the alleged father are preserved, it is possible to take samples for DNA tests from them. Often, however, the remains are not preserved and in such a case it is necessary to use relatives of the deceased alleged father for DNA tests.
Conclusion
In cases where the paternity determination process reaches the stage of proceedings before a court, the court will in the vast majority of cases order DNA tests. Such tests are subsequently performed regardless of the father's will, so that the child's right to know their own origin is not harmed. With almost one hundred percent certainty, the court then determines whether the alleged father is also the biological father of the child or not.
For more information, contact us at:
JUDr. Mojmír Ježek, Ph.D.
ECOVIS ježek, advokátní kancelář s.r.o.
Betlémské nám. 6
110 00 Praha 1
e-mail: mojmir.jezek@ecovislegal.cz
www.ecovislegal.cz
About ECOVIS ježek, advokátní kancelář s.r.o.
The Czech law firm ECOVIS ježek focuses in its practice primarily on commercial law, real estate law, litigation, but also financing and banking law. It provides comprehensive advice in all areas, thus creating an alternative for clients of international firms. The international dimension of the services provided is ensured by previous experience and through cooperation with leading law firms in most European countries, the USA and other jurisdictions within the ECOVIS network operating in 75 countries worldwide. Members of the ECOVIS ježek law firm team have many years of experience from leading international law and tax firms in providing legal advice to multinational corporations, large Czech companies, but also medium-sized firms and individual clients. More information at www.ecovislegal.cz.
