March 3, 2021

The TC recognizes a woman the interest of her youngest daughter to take her last name first

Facade of the building of the Constitutional Court of Spain, in Madrid.

Facade of the building of the Constitutional Court of Spain, in Madrid.
Europa Press

He constitutional Court (TC) has recognized the right of a woman to have her daughter carry her last name first, in a sentence in which it considers its appeal against the one issued by the Supreme Court when it considers that this body did not take into account the best interests of the minor, which must prevail.

The woman filed a lawsuit to determine the non-marital parental affiliation of her minor daughter, against her partner in which she initially requested the paternity test and that the girl’s surnames were first that of the father and secondly that of the mother , to which the defendant agreed.

However, on the day of the hearing before a Court of First Instance of Móstoles (Madrid), the woman requested that the surname of the minor remain as they already were, that is, first hers and then that of the father, to which the latter objected. considering the new petition untimely.

The Court upheld the mother’s claim in the sense set forth at the hearing in a resolution that was appealed before the Madrid Provincial Court by the father.

The Court upheld the father’s appeal and proceeded to change the daughter’s surnames, considering that the Court had not motivated the decision and that it did not comply with the legislation in force in the Regulations of the Civil Registry Law and in the Code Civil.

The mother appealed to the Supreme Court, which dismissed her appeal on the understanding that the best interests of the minor had not been violated, to which the woman filed an appeal before the Constitutional Court.

The judgment of the TC, of ​​which the magistrate Encarnación Roca has been the speaker, recalls that in any family procedure “the claims of the parents should not prevail but exclusively the real benefit of the minor child.”

It points out that “the question to be resolved in this case was not so much whether the change of surnames was detrimental to the common daughter as if, based on the fact that she held the mother’s surname as the first from birth, an alteration of this order would be more beneficial “.

It adds that “all the concurring circumstances should have been taken into consideration, the judicial body having to justify the benefit that the minor entailed by altering her surname with respect to the legal and factual situation that she already enjoyed.”

The TC concludes that the Supreme Court should have known the merits of the matter raised to determine if the resolution that had been appealed had protected the principle of the interest of the minor.

It considers that in the absence of a reasoned analysis on the merits of the matter, the mother’s right to effective judicial protection has been violated.

For this reason, the Constitutional Court reinstates women in their rights and annuls the sentences of the Court and the Supreme Court.


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