It details what the law says regarding the recognition of children and how paternity can be determined.
What is filiation?
The descent relationship that exists between two people, one of whom is the father or mother of the other.
What are the types of affiliation?
- Affiliation by nature.
- Affiliation by assisted human reproduction techniques.
- Affiliation by adoption
What are the basic principles regarding filiation?
- Equality of all children, so that they are not discriminated against whatever the circumstance of their birth, that is, whether they are born within or outside of marriage.
- Supremacy of the best interest of the child, which means considering the child as a subject of law, seeking their greatest possible spiritual and material fulfillment, guiding them in the exercise of their essential rights according to their age and development. The State and its organs must guarantee these rights, adapting Chilean legislation to the Convention on the Rights of the Child.
- Everyone has the right to identity, to know their biological origin, to belong to a family. From this principle arises the possibility of investigating paternity and maternity.
How can parentage be determined?
Through three sources:
- The law, which determines filiation based on certain assumptions, for example, the presumption of paternity of children born within marriage.
- The voluntary recognition made by the father, the mother or both of the child.
- The judicial sentence, that is, when a court declares paternity or maternity previously unknown or modifies a previously determined one.
Where to go to determine a filiation?
The Family Courts are competent to hear a filiation trial . In these courts it is possible to exercise the following filiation actions:
- Affiliation claim action, which seeks to enable the investigation of paternity or maternity.
- Action to challenge affiliation, which seeks to ignore a previously determined affiliation.
- Action of simple ignorance of the matrimonial paternity of the child born before 180 days from the celebration of the marriage.
- Annulment action for the recognition of a child.
The filiation trials are developed in two hearings in the Family Courts . If in the first hearing paternity is recognized, the trial is concluded. If the defendant does not appear, denies or expresses doubts about her paternity, the judge will immediately order the DNA test.
Through what means is the investigation of paternity or maternity possible?
In filiation trials, the law enables the investigation of paternity and maternity, through the use of all kinds of evidence.
At present, the DNA test is the safest method for establishing biological parentage since it allows determining paternity and / or maternity with almost complete certainty. The judge can give this evidence, by itself, sufficient value to establish paternity or maternity, or to exclude it.
The unjustified refusal of one of the parties to take the examination will presume paternity or maternity, or the absence of it, as appropriate. It is understood that there is an unjustified refusal if, after having mentioned the part twice, it does not attend the examination.
What are the effects of filiation?
One of the effects is constituted by the rights-duties of the parents , encompassed within the parental authority:
- The upbringing or personal care of children.
- The education and establishment of the minor, that is, to provide him with the education, profession or trade that allows him to subsist on his own.
- The right to maintain a direct and regular relationship (formerly called visitation rights) for the father or mother who does not take personal care of the minor.
- Correct children without undermining their health and personal development. This faculty excludes all forms of physical and psychological abuse.
- Parents must contribute to these duties, through the obligation to provide food.
Filiation raises the Patria Potestad , which means for or parents that have the following powers:
- The right to use the child’s assets and to receive their fruits.
- The administration of the son’s assets.
- The representation of the son.