biological Affiliation
recognition of paternity. Damages. Moral damage. Test
The House Civil and Commercial 1 st of Mar del Plata, Room I, decided that the action for damages for lack of location, it tries against reconociente father and born since the birth parent known pregnancy or childbirth for women and denies paternity or subjection to scientific evidence for their determination, being a subjective responsibility, because no fault is required in the event of pregnancy, but in the refusal of recognition. The action for compensation for moral damages, it added, can be started simultaneously or thereafter (subject to any applicable limitation period) to the claim of state action, not obstando to it that the repair of damage due to lack of recognition of parentage on being invoked to determine the paternity. The test for moral damages, it was concluded, arises from the facts themselves, it need not be proved helplessness which is cast a young child, surrounded by uncertainty and negative influences of the entire environment by the lack of paternal presence. With this foundation, confirmed the sentence was partially granted the paternity suit and damages brought by the mother on behalf of her youngest daughter, declaring her illegitimate daughter's claim and ordered him to pay the sum of $ 8,000 in compensation for damages (Civ. CAM.ES 1st Com. de Mar del Plata, room I, 10.31.1996, LL Buenos Aires, Year 5, No. 3, April 1998, p. 390, 1707 ruling .)
Meanwhile, the House Civil and Commercial 1 st Mendoza, argued that no genuine recognition implies helplessness to prevent parent-child site for the biological link judicially. He also felt appropriate the sum of $ 15,000 in moral damages, set by the lower, taking into account the damage that over 10 years of life could have been the least for not having their father's name, have not been considered in the field of human relationships, the daughter of his father, and he had not received the attention and care that we were due (1 ª Civ CAM.ES Com. de Mendoza, 02.09.1998, Magazine Forum Cuyo, v. 28-1998, p. 133).
Action extramarital paternity claim: Retry. Idem
interesting statement in the House Civil and Commercial Paraná, Room I, confirmed the interlocutory rejected the plea of \u200b\u200bres judicata as special pre opposite statement against retry the action of extramarital paternity claim. In the above process, such action had been rejected by defects in the production of evidence in that, before the manifestation of the defendant to lack the means to go to be tested histocompatibility in the Federal Capital, the plaintiff had withdrawn the aforementioned evidence would be stating that the provisions of Article 4 of Law No. 23,511. When sentencing is merit that the situation was leading to the implementation of that standard, whereas the other evidence produced was insufficient to have proven the biological link. In the retrial, the appellate court proceeded on the basis that in our country as the right to know one's origins and the right to double jeopardy, are constitutionally guaranteed, and both are interested in public policy, so that the issue should be examined from other angles. Accordingly, it added, should be checked against competing rights to give priority to the most valuable, according to the circumstances of the case and the whole legal system. On that basis, he said, is to be noted that the child's right to know its own genesis, its origin, which is committed to personal dignity is an absolute and inalienable, and the rules that govern it are of imperative. In turn, it was stated, res judicata establishes a principle is not absolute, it has exceptions, can be waived, and recognizes certain limits linked to the existence of a prevailing interest. In the area of \u200b\u200bfamily law, was added, the principle of res judicata has special features that differ from the convictions. Finally, it specified, when there are disputes or questions between the rights of different people, which are involved in children's rights enshrined in the respective Convention, its article 3 provides that in all actions concerning it "a primary consideration shall be a primary interest of the child. " Given the choice, it was concluded, the foregoing and ethics of the case itself tip the interpretation of the rules to the investigation of objective truth about the identity of the child actor, so it must confirm the decision rejecting the plea of \u200b\u200bres judicata (CAM.ES Civ and Com. Parana, Room I, 18.05.1998, unpublished at time of this issue.)
claim Action child status
wedlock. Test. Findings
The First Civil Chamber of the Court of Cassation ruled that if the purpose of settling the claim of state action on illegitimate son, was admitted conducting a medical expertise to the alleged father without having first discussed the existence of the putative or serious evidence to justify the exercise of such action (art. 340, Code. Civ French), that decision is legally justified if the appreciation of the documentary evidence offered is inferred the existence of such assumptions or significant evidence. In this case, the Court of Appeals had reviewed the documentary evidence leaning to the process (pictures taken during the legal period of conception that showed the existence of stable and letters written by the alleged father who showed no doubt of his paternity of the child by birth), inferring the existence of serious presumptions or circumstantial evidence required by section 340 above. In another aspect, before the complaint alleged father being denied his request for an additional expertise, it was said that the Court of Appeals, exercising its power of discretionary, may decide not to order another medical expert, when using a scientifically recognized method has been obtained result. With these basics, upheld the ruling that had declared paternity for the appellant (C. Cassation, Cam. 1st Civ France, 11.03.1997, LL 1998-B-691, 97,007 failure, said by Pasqualini, François and Pasqualini Salerno, Valeria, paternity test. doctrine established by the French Court of Cassation ).
Recording of the final decision. Appeal pending
The Chamber 1 st Family of Cordoba ruled that it corresponds to accede to the registration of the final decree of affiliation handed down by the family, if still pending a direct appeal filed before the High Court against it, because of the litigation system assigns family that appeal suspensive effect, an effect that appears fully justified due to the inconvenience which would cause the revocation of a registered affiliation Case (CAM.ES Fam Córdoba 1 ª, 2 -3 to 98, LL, Year 15, No. 6, June 1998 p. 494, bug 2622).
Refusal to submit to bioassay
Again, the problem referred to the value of a refusal to submit to the biological evidence discussed in No. 1, p. 346, No. 2, p. 326, No. 5, p. 377, No. 6, p. 389, No. 7, p. 385, No. 8, p. 426, No. 11, p. 338, No. 12, p. 417, No. 13, p. 384, No. 14, p. 333, No. 15, p. 439 and N ° 16, p. 470 of this Journal. On this occasion, the room H of the Civil Chamber ruled that taking into account the high percentage of probability of inclusion or exclusion of the paternity test throws histocompatibility given by the applicant, which allows closer to objective legal truth, and valuing the offer expressly made by the defendant to submit to the respective studies, corresponds to grant the request for production of that test. This, it said, without prejudice to the outcome of the relevant joint assessment of other evidence, according to the rules of sound criticism. With these foundations, grant the request was made in the appeal, notwithstanding that the requested in the first production had been hampered by the defendant (Civ. Nat CAM.ES, Room H, 11/03/1997, Judicial doctrine 1998-1-259, bug 12548).
Birth registration. Presumption of paternity of the husband of the mother
The Directorate General of Registries and Notary on marital status, Madrid, upheld the order that declared the current legal presumption of paternity of the husband who applied for registration of birth. The mother had said that the child was not born of her husband have separated before the birth, and he stated not to father it. This Directorate ruled that the deadline to register nonmarital parentage of the child of a married woman, it is necessary during the proceedings attesting to the qualification, certifying that it has withdrawn the legal presumption of paternity of the husband, as formulated by Article 116 of the Civil Code. In the case, said the birth took place at the hundred and ninety-six days, reckoned from the marriage of the mother, so the real return of her husband, with the consent of the woman, who knew the pregnancy before marriage has no efficiency and not enough, according to the letter of Article 117 of the Civil Code, to destroy the legal presumption of paternity of the husband (DGRN, Madrid, 02.05.1996, Civil Law Yearbook, Volume L, Issue I, January-March 1997 p. 342).
Birth registration late
The same department decided to enroll after the deadline for affiliation marriage, the birth must have occurred during the term of the presumption of paternity of the husband mother, ie after the marriage and before the expiration of three hundred days after the dissolution or legal separation or de facto spouses (arts. 116 and 117 of the Code. Civ.) In the case, he said, the husband has duly proven that the last child was born three hundred days after presumption decayed parenthood. According to this, revoked the appeal and ordered the cancellation of registration of marriage extended affiliation (DGRN, Madrid, 02.05.1996, Civil Law Yearbook, Volume L, Issue I, January-March 1997, p. 344).
2. adoptive filiation
guardianship. Powers of judge
Civil and Commercial Chamber of Morón, Room I, reversed the ruling that had rejected in limine impetradas making demand by the keeper to be considered more suitable for the best interests of the child the choice of a marriage, not a single person as was the keeper. Instead, it decided to keep the situation guardian of the child and to process the adoption order made. The court granted saves, he said, is a typical measure of care involving the transfer of a minor who is not his legal representative, in order to be given the necessary material and spiritual. The keeper was added, assumes the same responsibilities as parents with the only difference that is not his legal representative, hence the guard, not provide a definitive or comprehensive solution to the problem the child, whether temporary effect. Consequently, the removal of the guardian is not subject to the same legal procedures provided for legal representatives, but merely the judge understands that his ability to exercise the function is gone it out of the same, but may not be removed arbitrary, and there must be some prima facie evidence of his unfitness. In this case, the child was four years old, about six months living with the plaintiff who had been given court in custody and now ask for its adoption, the child does not know who was the biological mother, for her mother was Petitioner, which had raised, caring, educated and provided a family that had not had before. Consequently, the court held that separate it from it after the election of a marriage was more convenient to provide protection rather than a single mother, was not appropriate, especially when there was no evidence of his lack of fitness and no reason to removal. In turn, he said that Article 315 of the Civil Code provides that any person may be adopting to meet the requirements of the Code, whatever their marital status. This indicated that the single family status does not in itself a failure of law to the prestress adopter, being the keeper for single standing to initiate the action. Finally, adding that as legal guardian of the child was granted 19,134 law still in force can not be regarded as insufficient basis that it was given for adoption purposes as prescribed by law 24,779, as debiéndose implementing the new law for future, does not apply to the guards before their entry into force, so that condition may be required had no legislative consecration (Civ CAM.ES Com. Morón, Room I, 10.09.1997, LL Buenos Aires, Year 5, No. 6, July 1998, p. 774, bug 1823).
International adoptions. Limits the right to consult books directly Civil Registry scientific purposes
The Directorate General of Registries and Notary on marital status, Madrid, confirmed the rejection made by the trial judge, which denied the applicant permission to examine the odd books section of the Register, in order to perform scientific research on international adoptions. To this end, he said, should be noted that the adoption, by its very nature, affect personal and family privacy of those directly concerned, so that his advertising is especially restricted as a result of the constitutional right to privacy functions as a limit on the right of access to records. Although the right to scientifically investigate international adoption, added, should not be curtailed, it is not enough to allow people outside the Registry to get to know intimate details about others, as the case if one accepts that those able to consider itself same books of births. Indeed, it was concluded, even though such intimate data will not be disclosed, the right to privacy requires that such data are known only by those directly affected. Third parties have to invoke a legitimate interest and especially referred to the need to prove marital status or content Register (DGRN, Madrid, 02.05.1996, Civil Law Yearbook, Volume L, Issue I, January-March 1997, p. 341)
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