Three children with three employees in ten months, but you don’t recognize them: when is the DNA test mandatory in Italy?

The story is extreme, but it reports a case that is frequent in the Italian courts: the recognition of paternity. An entrepreneur would have conceived three children with three employees of his company in ten months and would have no intention of recognizing them. The first child was born in January, the second should be born in June, the third in October. The first of the three women, who gave birth in January, since the man refused to take a DNA test, has requested paternity recognition from the Court of Cassino, where the first hearing is set for September. Man can be forced to do the DNA test? Can he not recognize his own children? We answer with the help of the lawyer Philomena Lipardiof the Court of Rome, which deals with family law.

Can a man be forced to take a DNA test?
“A pregnant woman can ask the alleged father to take a DNA test, but he is not obliged to do so. At this point, the woman can sue the alleged father so that the Judge, having examined the evidence, can ascertain paternity. The judicial declaration of paternity/maternity is governed by art. 269 ​​and following of the civil code. This article in particular establishes that proof of paternity or maternity can be given by any means, but obviously the mother’s affirmation alone of the existence of relations with the man mentioned is not enough. However, in practice, the Judge starts from this and then proceeds with an official technical consultancy: haematological investigations and DNA examination. At this point two hypotheses can be verified: a negative outcome can be obtained, and the investigation then concludes with the exclusion of paternity, or the compatibility between father and son can be ascertained with the percentage of statistical probability that the subject is the biological father. The Court of Cassation has established that a percentage equal to or greater than 99.72% of probability constitutes autonomous and sufficient proof of paternity”.

If the alleged father also refuses to take the DNA test ordered by the Judge?
«The Cassation, with sentence n. 32308 of 2018, established that he cannot be forced because the will to undergo blood sampling to carry out DNA tests cannot be coerced. However, in case of refusal, even if legitimate but lacking adequate justification, the Judge can evaluate the behavior of the party pursuant to art. 116, or draws evidence from such behavior. In fact, the refusal to undergo haematological investigations constitutes a behavior that can be assessed by the Judge, of such high circumstantial value as to be able, by itself, to allow the demonstration of the validity of the request”.

If the paternity is recognized?
«The father has the right to maintenance for the child, starting from birth, the prescription of which starts from the judicial declaration of paternity/maternity. The child will also be able to ask the father for compensation for the moral damage, represented by the absence of the parent and the suffering of a moral nature suffered due to the absence of the father figure”.

Is there a limitation period for requesting the judicial declaration of paternity/maternity?
«For the son the action is imprescriptible. This means that it can be started at any time during the life of the child who asks for paternity or maternity to be declared. If the son dies before having started the action, this can be promoted by the descendants, but, in this case, within two years of his death ».

It often happens in court to ask for DNA tests and who can ask for it?
“Yes, cases like this are becoming more and more frequent. The adult child is entitled to propose an action for the declaration of paternity/maternity; if, on the other hand, the child is a minor, the action can be brought in his interest by the parent who has already recognized the child and therefore exercises responsibility or, if he has not been fully recognized, by the guardian”.

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