Recently, a law was approved that substantially modified the process by which paternity is contested in Puerto Rico. Law Number 215 of December 29 of 2009 became valid 30 days after its approval, thus “opening a window” of six months for all parents who had previously attempted to contest their children’s paternity or voluntary recognition because they are not the biological parents. Prior to this, a very short time period was allowed: only three months if the parent was living in Puerto Rico, or six months if the parent was living outside of Puerto Rico, calculated from the date of inscription of the child in the demographic registry. After this short time period expired, the statute of limitations ran out, and parents were unable to contest the paternity or voluntary recognition of their children.
Before we begin discussing the importance of this recent amendment, we must clarify three main topics:
- Paternity Presumption
- Voluntary Recognition
- Paternity Contest
Paternity Presumption
There is a presumption that establishes that any child born from a married couple is theirs. In addition, it is presumed that all children born after 300 days after the dissolution of the marriage, or divorce, are children of the male spouse. The father of this presumed child is the presumed father. All fathers can expect that all children born to their wives during their marriage are presumably theirs, and these children can be inscribed in the demographic registry without their consent, because it is presumed that if they are married or they are born during the 300 days after the divorce, these children are theirs. The reality is that sometimes this is not true, and the biological reality is substantially different, and before this law, the time period of three months or six months was final and could not be extended. This is no longer the case.
Voluntary Recognition
Voluntary recognition is the process by which the father recognizes his son as his. This applies only to fathers. Oftentimes, the father accompanies the mother of the minor to the demographic Registry and both parents affirm in writing that the minor that is being inscribed at that moment is theirs. Frequently, we’ll hear of a father who “gave his last name” to a minor that knowingly wasn’t his, for sentimental, economic, or moral reasons. This constitutes a voluntary recognition, and that recognized child is, and will be, for all legal purposes, his child for the rest of his life. Therefore, this child will have a right to obtain child support from his or her father, use his or her father’s last name, and inherit in an equal matter as any other child would, be it presumed or recognized.
Paternity Contest
A paternity contest is the process by which the paternity of a presumed or voluntarily recognized child is contested, or denied. This process usually requires the filing of a lawsuit, or undergoing an administrative process through ASUME. Before this new law was approved, in addition to the time period being so short, the statute of limitations was calculated from the time the minor was inscribed in the demographic registry.
¿So how is it now?
The most important change that this law provides is that the time to contest paternity was extended to six months, which is calculated from the moment the parent is informed or finds out that his or her child is not theirs. In addition to this, any and all parents that have wanted to contest the paternity of their presumed children in the past, but were unable to because the statute of limitations had run out, are now able to do so, because the new law opens a window of six months from its date of approval. The law was approved on January 28, 2010, so any parent that wants to contest the paternity of their children must file a lawsuit before July 28, 2010.
Also, biological parents will have a longer time period to contest the paternity of the legal parent, and therefore be named legal parents of the minor they are intending to recognize as theirs as they will have a maximum of one year calculated from the time of inscription in the demographic registry.
The law states as follows: “… Based upon the date at which knowledge is obtained of the error or approval of this law, whichever is longer.”
The second-most important change brought on by this law are the persons authorized by law who will be able to contest the paternity. These are:
- The presumed father
- The biological father
- The mother
- The child, by himself or herself, or through their legal representation (if he or she is a minor)
These are the two most important changes in the law. For more details, you can read the law in Spanish, as approved, by clicking this link:
