Socio-affective parenthood prevails over registry parenthood, the biological bond, in cases of substantial error capable of authorizing the rectification of the civil birth registry.
This understanding was applied by the Third Panel of the Superior Court of Justice (STJ) in judging the case of a man who filed an action for rectification of the civil registry combined with a request for exoneration from alimony against his two registry children.
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According to the case records, in the case of the first child, the man registered him spontaneously after beginning a relationship with the mother, even though he knew he was not the biological father.
As for the second child, he registered her believing she was his biological daughter, and had an affective relationship with her until the age of 13, when, suspecting his wife’s infidelity, he filed an action for rectification of the civil registry. After the death of the registry father, a DNA test proved the nonexistence of the biological bond.
At first instance, the judge found the plaintiff’s requests well-founded. On appeal, the judgment was reversed on the grounds that the act performed in the registration of the first child is irrevocable, since the father acted of his own free will. As for the other child, the affective bond consolidated over time was considered to prevail.
Infringing motions (embargos infringentes) were filed and accepted by the second-instance court to authorize the rectification of the civil registry of both children.
Biological bond x affective bond
At the STJ, the rapporteur Justice of the case, Nancy Andrighi, kept the registration documents unchanged and emphasized that the presence of an affective bond prevails over the lack of a biological bond in situations in which the plaintiff has an interest in rectifying the birth certificate purely because the genetic relationship he imagined to exist is not verified.
For the magistrate, in this type of case it becomes necessary “to adequately protect the personality rights” of the child who lived for a certain period with the parent and consolidated in him the representation of the paternal figure, and who cannot now simply “see his memories and his records erased.”
Nancy Andrighi said that the civil registry of a child, carried out with the conviction that there was a biological bond, which was later ruled out by the DNA test, “constitutes a substantial error capable of, in theory, modifying the birth registry, provided that there is no socio-affective parenthood, which prevails over registry parenthood in view of the adequate protection of personality rights.”
Regarding the case under judgment, she stated that, “despite the error at the time of registration, there was sufficient demonstration that the parent and the daughter maintained an affectionate and loving relationship, living together, in a family environment, for a long period of time, rendering unfeasible the intended modification of the birth registry.”
Conscious registration
In the case of the child registered with awareness of the absence of a biological bond, the rapporteur emphasized that, in accordance with legal provision, the acknowledgment of children born out of wedlock is irrevocable.
“It happens that the acknowledgment of children is not, nor can it be, a voidable or modifiable legal act through mere external influences or the mere liberality of the parents, and is evidently not subject to the pleasures or displeasures of the parents’ relationships,” the rapporteur stated.
The number of this case is not disclosed due to judicial secrecy.
Source: STJ
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