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Cuckoo children and their fathers

The term “cuckoo children” means that the alleged father is not the one from whom the child is biologically descended. If doubts arise as to whether the offspring is really one’s own son or daughter, this can have serious emotional, but also legal consequences.

In Austria, one occasionally hears the saying: “The child is from the postman after all”. A topic that is sometimes casually joked about lacks any humour for those affected. Someone who pays maintenance in the mistaken belief of paternity may later have claims for compensation. The legal term for this is pseudo-father recourse.

 

Cuckoo children: expiration date of legal actions

If paternity is doubted, one does not have unlimited time to take legal action. More precisely, one has two years from when “serious doubts” about paternity arise. Within this period, a corresponding application must be filed with the court with the aim of no longer being the (legal) father of a child in the future. If you miss this deadline, you remain the (legal) father. With all the consequences, including financial ones, that are associated with paternity. This means that if you have passed the time limit for asserting paternity in court, you still owe child maintenance. In any case, 30 years after the birth of the child, a father can no longer dissociate himself. According to the motto, if you have been a father for 30 years, you remain a father.

A two-year time limit is not a very long period. Case law sets a strict standard for what is called “serious doubts” that can trigger the time limit. In plain language, you have to be pretty sure that you are not the father. For example, this will be the case if the apparent father is not capable of fathering children, did not have sexual intercourse with the woman at the time in question or if he has written proof that he cannot be the father. A mere suspicion that he may not be the father or rumours are not sufficient.

 

Cuckoo children: Who pays after all?

 

complaint to the “real father”?

If it has been judicially determined that the apparent father is not the biological father, compensation can be demanded from the “real” father for the child maintenance paid so far. However, this is only possible within the scope of the real father’s ability to pay. This means that if the real father is not as solvent, he only has to compensate the ostensible father for the amount of maintenance he would have had to pay the child. Whether the non-biogically father sent the child to the most expensive public schools and paid for riding lessons for years is irrelevant. Furthermore, something can only be demanded from the child’s real father if he is also known. However, the mother does not have to reveal the identity of the real father if she does not want to.

 

complaint to the child himself?

It would also be conceivable to reclaim the maintenance payments made from the child – but with questionable success. On the one hand, children are not very wealthy in most cases, and on the other hand, it can usually be argued that the benefits received have already been used in good faith.

 

complaint to the mother?

A frequently chosen path in practice is to assert claims for damages against the mother. If the mother has misled the ostensible father through deliberately untrue statements, and he has therefore assumed to be the father of the child, she may be liable for damages. If the child is the result of an infidelity during the marriage, the breach of the marital fiduciary duty can also trigger a claim for damages.

 

Even if those affected understandably feel anger and disappointment, the social consequences should be weighed before taking legal action. If you have raised a child for years as a social father, even if not as a biological father, financial compensation is one thing. But with the legal loss of paternity, parental rights are also forfeited. In the worst case, this is accompanied by a break in contact with the child.

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