La aplicación del principio de interés superior del niño en procesos de impugnación del reconocimiento voluntario de paternidad

Abstract

This paper is a case study of a procedure to impugn the voluntary recognition of paternity, where the person who had filed the complaint was the one who recognized the minor as his daughter, the main basis of the claim was that he did not share blood ties with her, that is that he was not her biological father, for that reason he went through the ordinary way requesting the recognition to be annulled. In the first instance the DNA examination was ordered, for which the mother of the child did not attend, it was requested again, but it was also not possible. Finally the procedure came to the Constitutional Court through an Extraordinary Action of Protection against the sentence in which it had been decided not to proceed with the cassation of the case, the Constitutional Court decided not to grant the extraordinary action for protection basing their decision on the reason that voluntary recognition of paternity could be appealed on grounds of nullity, but not because of biological truth, which was what the actuator manifested. In the course of this paper the facts of interest of the cause of study have been clarified and research has been carried out on the recognition of children, which can be distinguished for the purpose of study in two classes, by order of the judge, the first is the one in which the parent of his or her own free will and knowing all that implies decides to accept the paternity of a minor, and the second is when the judge decides that a person will assume it. One form used to collect information was the conduct of interviews with legal professionals who are fully trained to learn about family processes, For this matter the questions were focused on the legal effects that this figure produces as on parents as on the recognized minors, another question was focused on the need to perform a DNA test when it really will not be a cause for legal challenging, when it would be appropriate to claim the nullity due to defects of consent. Among the topics that have developed within the present investigation are the following: principle of best interest, filiation, presumption of paternity, voluntary paternity recognition, petition contesting filiation, and minors’ right to identity. It should also be noted that the general objective is to determinate the causes for which voluntary recognition of paternity is considered irrevocable, through an analysis of the application of the principle of the best interests of the child in the process of challenging it; and as specific objectives: to identify the requirements of voluntary recognition in the Civil Code, to consider the irrevocability of voluntary recognition, and demonstrate the legal consequences of voluntary recognition of paternity in relation to the principle of the best interests of the child.