By judgment 5A_590/2016 of 12 October 2017 , the Federal Supreme Court confirmed last year’s decision that a putative father could be forced to give a DNA sample.
The earlier case revolved around a man who doubted that he was the father of a prostitute’s child and therefore refused to take a paternity test. However, the Federal Court ruled that the child’s right to know the biological father outweighed the obligation of a father to undergo a DNA test.
In the current case it was the other way round: a divorced Swiss man had recognized the child of his ex-wife from Kosovo. The competent home and residence communities, however, doubted his paternity, as they regarded the marriage as a fictitious marriage and the migration office wanted to turn the Kosovar woman away. However, as the mother of a child with Swiss citizenship, the woman was allowed to remain in Switzerland. Although the Zurich Supreme Court denied the mandatory DNA test, the Federal Supreme Court overruled this by confirming its previous practice and classifying the threat of mandatory DNA testing to clarify the issue of ancestry as proportionate. It referred to the legal basis of the duty to cooperate in the clarification of paternity in Art. 160 and 296 para. 2 of the Swiss Civil Code. 2 ZPO.
The clarification of the question as to whether the legal father is also the genetic father could be opposed at most by a fixed familial identification structure of the child, i.e. a relationship between the child and the father, which would be endangered by the answer.