In today’s post we refer to a sentence that has become mediatic due to the importance it has for all those fathers who have turned out not to be biological fathers of their children. A reality that is much more present than we might think.
The Supreme Court recognized the right of a divorced man to visit the child who was apparently his daughter, after his wife tried to deprive him of this right by proving that he was not really the biological father of the child . With this decision, the Supreme Court placed the value of family affection above the biological ties, confirming the previous sentence.
Specifically, the judgment, reported by the newspaper El País, recognizes that, although the father is not in fact the biological father of one of his daughters, it is not appropriate to accede to the request of the mother to cease all relations of the minor daughter with the defendant, who was the result of an extramarital relationship of the mother. Thus, the Supreme Court upheld the visitation regime established in the appealed judgment, which “has correctly weighed the best interests of the child in a unique situation”, the Court assures.
The Supreme Court relies on the psychosocial report already examined in previous instances, which clearly states that the abrupt severance of relations of the child with the one she had as a father in the first three years of her life “has been a mistake”, and that the suppression of visits “does not imply any advantage, but quite the opposite”. On the other hand, recalls the Supreme Court, when it comes to assessing the interests of the child, the appeal cannot become a third instance.
The psychosocial report also pointed out that the little girl did not know why she had suddenly stopped going with her four-year-old sister (who was the appellant’s biological daughter) to the home of her former father. The judges considered that breaking the close bond with the person who continued to be a “very important reference point for the minor” would be detrimental to the child.
Therefore, the Supreme Court decided to maintain the visitation regime established after the divorce, so that the two girls could continue to enjoy weekends and holidays together with their father.
The specific case, step by step
Entering fully into the case, the defendant’s ex-partner, after the divorce judgment, requested a modification of the measures of the divorce agreement in relation to the custody of their minor daughter, given the existence of a biological paternity test that ruled out that the defendant was the father of the minor child.
Also, given that the child already had another family, she asked to suppress the payment of the pension of 200 euros per month that she received for her expenses. All this was recognized to the mother in the first instance. However, the appeal filed by the ex-husband, resolved by the Provincial Court of Cáceres, was in favor of the latter, establishing again a visiting regime of alternate weekends and vacations.
This second sentence assured that the decision to cut off contact with the person she had considered to be her father violated the principle of protection of the minor’s interests and could cause her a trauma that would affect the minor’s development.
Following this decision, the ex-wife appealed to the Supreme Court, alleging, among other things, the defenselessness suffered by the biological father during the process, since the decision on the visitation regime of the ex-husband affected him directly and meant that his right to relate to his daughter within the family environment was reduced.
In addition, according to the appeal, the appealed judgment would have violated the rights of the minor by depriving her of having a “normalized relationship of custody and guardianship with her biological parent”, who is the one who lived with the mother.
The non-biological father as “close relative” of the child
The appeal judgment, now confirmed by the Supreme Court, uses the concept of “close” in the field of family relations as a legal hook to justify its decision. It recalls that, since 2015, the Civil Code recognizes the right of “siblings, grandparents and other relatives and relatives” to personally relate to minors, without being prevented without just cause.
The relationship between the non-biological father and the child would fall, for the court, under this description, being a bond resulting from the paternal-filial relationship, “although, obviously, once the sentence issued in the paternity proceeding is final, he cannot be considered as a parent”.
However, the lack of biological filiation “cannot prevent or be an obstacle to be able to continue to maintain a broad relationship and contact, since that relationship is part or is integrated, without any doubt, in the concept of related person”. If you need advice on any case related to Family Law, contact our lawyers without obligation.
