Prejudicial act of investigation on filiation

In Monterrey, Nuevo Leona women, mother of a small childpromoted legal action so that will investigate the paternity of your son with respect to what she points out as the biological father, who denied expressly the paternity that was claimed.

As a result of this, the mother promoted before the family court competent a prejudicial act (that is, a jurisdictional procedure prior to formally initiating a judgment) so that, through an expert test in biological-molecular matters, the characterization of the deoxyribonucleic acid (DNA) of the cells of the alleged fatherwith which the paternity from his son.

The family judge accepted the expert proposed by the mother to carry out the biological sample, required her to protest the charge and, once done, perform the test on the infant as if it were an expert. ordinary.

The alleged father, who was dissatisfied with the fact that the expert test on biological-molecular matters was performed, challenged the resolution that ordered it, and said controversy was definitively resolved in Amparo in Review 90/2022, by the First Collegiate Court in Civil Matters of the Fourth Circuit, which determined that the Code of Civil Procedures of the State of Nuevo León establishes a specific procedure for taking samples of the biological test of deoxyribonucleic acid, contained in its article 190 Bis IV, which must prevail over the general rules of offering of the expert evidence referred to in said order.

The above is because “the procedure provided for by said regulatory portion is designed to provide greater security to those involved and respects the best interest of the minor over his identity, it also provides certainty regarding the filial relationship with his parents, because regardless of the evidentiary possibilities of the parties, the State assumes the responsibility of appointing an expert, who will carry out the evidence in a certified place with the best sanitary conditions.”

“For this reason, the judge should not stick to the ordinary procedure established for the admission and presentation of expert evidence, since far from privileging the protection of the human right of the minor to know his identity, through an examination carried out in optimal conditions, it would be subject to an ordinary analysis, without the security guarantees necessary for this type of matter and contrary to the specific procedure expressly provided for by the legislator to privilege the best interests of the minor.”

“Therefore, the DNA study must be carried out before some institution with the capacity to carry out this type of tests, which meets the requirements established by the State Secretary of Health, in the terms required by the invoked precept 190 Bis IV. ”

Thus giving rise to the relevant thesis in the field: PREJUDICIAL INVESTIGATION PROCEDURE ON AFFILIATION. ARTICLE 190 BIS IV OF THE CODE OF CIVIL PROCEDURES OF THE STATE OF NUEVO LEÓN, BY ESTABLISHING A SPECIFIC METHOD FOR SAMPLING DEOXYRIBONUCLEIC ACID (DNA), PREVAILS OVER THE GENERAL RULES FOR OFFERING THE EXPERT EVIDENCE REFERRED TO BY THAT ORDER, published in the Gazette of the Judicial Weekly of the Federation yesterday, Friday, March 1, 2024, with digital registration: 2028329

As always, a pleasure to greet you, hoping that these few letters have been to your liking and, above all, useful. Until next time!

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Graduate in law from the Sinaloa Free School of Law, master in constitutional law and amparo and master in commercial and business law, with honorable mention, from the Universidad Panamericana, Guadalajara campus. He graduated with honorable mention from the postgraduate courses in civil and commercial procedural law, law of obligations and contracts and tax law taught by the Universidad Panamericana, Guadalajara campus and is a specialist in the areas of administrative, civil, family, commercial, agrarian, protection , notarial and corporate. He is studying the AD2 Senior Business Management program at IPADE. He is director of the legal services company LMA, Integradora Legal, based in Culiacán and Mazatlán. Member of the Mexican Bar Association, AC, he was president of the steering committee and founder of the Sinaloa chapter, and currently a member of the national council of said association, he also belongs to the American Bar Association. He is a professor at the Sinaloa Free School of Law, and serves as an advisor to the advisory council of the State Human Rights Commission of the State of Sinaloa. He was secretary of agreements of the First Criminal Court of La Paz and external legal advisor and Interim Secretary of the City Council of the Municipality of Rosario.

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