The judges fail against removing the daughter of a Pacense's daughter

ANTONIO J. ARMERO Cáceres

The Supreme Court has put an end to the aspirations of a mother from Badajoz that her daughter, born in 2010, not bear the surname of her father, who ignored the minor from her birth. The woman formally requested that both of the girl's surnames be her mother's, but the General Directorate of Registries and Notaries denied the request. She then decided to initiate a judicial process that has just ended, with a result contrary to her interests.

The argument that the General Directorate presented to oppose the modification was that the exceptional circumstances that the law requires to allow this type of change did not exist. The mother of the minor challenged the resolution, so that the case reached the courts, specifically the Court of First Instance and Instruction number one of Badajoz. In her lawsuit, the appellant required the modification "in view of the absolute neglect and lack of contact from the parent, which led to the consequent deprivation of parental authority of the latter," explains the civil chamber of the Supreme Court. "The judgment of first instance -continues- dismissed the claim in its entirety, considering that the deprivation of parental authority did not in itself cover the removal of the claimed paternal surname." "He added -he continues- that the required requirements were not met either, since the circumstances alleged to justify the change of surnames were not considered exceptional and, furthermore, it had not been shown that the requested change would redound to the benefit of the minor ».

The mother appealed this ruling, but the second instance to analyze the case, the Provincial Court of Badajoz, ruled in the same sense as the Court of First Instance and Instruction. According to the Court, "the fact that a parent - the father - has ignored her daughter and does not have a personal relationship with her or does not support her materially is, unfortunately, not an anomalous, rare, infrequent circumstance." «It does not fit, of course -he continues-, in the concept of exceptional that this norm establishes. A different question is that such neglect can cause legal consequences, among which is the deprivation of parental authority, but this fact in itself is alien to surnames. "These -he continues- are determined by filiation, here not questioned at any time, and not by parental authority, which by the way, even suppressed, it can be rehabilitated." And he adds that "it is not fully proven that a change in the minor's last name brings benefits."

Instead of throwing in the towel, the woman opted to exhaust the judicial route by appealing to the Supreme Court. Her lawyer, from her office, used jurisprudence in her defense arguments, in which she cited three sentences from the sixth section of the Provincial Court of La Coruña that ruled in the opposite direction to what had been done. made the one in Badajoz. In these rulings, the Galician court concluded that "the total abandonment of the father with respect to his daughter from birth and the absence of personal and material ties with the father and the paternal family must be classified as exceptional circumstances." This last cataloging is the one required by the Civil Registry Law to be able to access the change of surname. The norm includes some assumptions, but the concept of 'exceptional circumstances' is not a closed list, but leaves the way free for the interpretation of what may or may not have that consideration. The only specific reason specified refers to the "victims of gender violence or their descendants who live or have lived in homes where such a situation has occurred."

Judgments upholding abandonment and lack of contact as exceptional circumstances have not been sufficient in this case. The Supreme Court explains that at least two sentences from the same section of a provincial court in the opposite direction are also required. In other words, the appellant needed at least two rulings differently from what the Provincial Court of Badajoz did -and it exposed three- but also two from the same section of a different provincial court that would resolve the matter in the same sense in which The Badajoz provincial authority did it.

In addition, the civil court of the Supreme Court abounds, "as the party itself acknowledges, the judgments cited in its appeal refer to different cases." Hence, Francisco Marín Castán, the rapporteur magistrate, considers that the appeal of the Extremaduran mother cannot prosper because it incurs "manifest lack of foundation." The consequence of this ruling is the end of the claim in the judicial process, since against the resolution of the Supreme Court, which does not include an order to pay costs, there is no appeal.