EIRP Proceedings, Vol 13 (2018)

Abstract

Admitting the claim in the denial of paternity, no matter who owns the right to action, has as effect of overthrowing the legal paternity presumption, making the child of marriage become a child out of wedlock without a paternal filiation.

So, all the legal effects of the filiation on her husband or husband's ex-husband are removed. However, under the law, some of the effects of paternity just removed may survive (for example, the child's family name may remain the name of the former presumptive father, although the latter is no longer a parent).

In this paper we propose to analyse such a situation, namely the right of the husband or ex-husband of the mother, to have personal ties with the child whose fatherhood was denied, but who was raised by that parent. Specifically, it is about art. 438 paragraph 2 of the Romanian Civil Code. This analysis will be made from a legislative, doctrinal and jurisprudential point of view, insisting that the superior interest of the child, judged by the judge on the basis of the administered evidence, is the one that will incline the balance to the granting or not of this personal and non-patrimonial right, which comes into the content of the notion of family life.