Establishment of paternity in a judicial proceeding. What to do after establishing paternity. How does the legal proceedings for establishing paternity differ from the procedure for special proceedings?

26.04.2019

The child's parents are not spouses. The legal husband is not the father of the baby. Circumstances vary. Sometimes a parent is unwilling or unable to establish paternity voluntarily.

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How is paternity determined in court? The fact of confirmation of paternity as a legal aspect will entail certain parental responsibilities.

And men do not always agree to voluntarily recognize themselves as fathers. The state protects the interests of the child.

There is a specially designed procedure when an interested person can file a claim for acknowledgment of paternity. How is the establishment of the fact of paternity through the court?

General aspects

Legal disputes regarding the establishment of paternity are usually lengthy in terms of time and difficult in moral standards.

It is necessary to collect a lot of evidence, it may be necessary to involve witnesses, sometimes it is necessary to touch upon the purely personal side of the life of the parties.

The child's mother needs to consider carefully whether she is prepared for the consequences of recognizing legal paternity. Usually, a claim for proof of paternity is filed for the purpose of obtaining alimony.

But often the mother of the child later certain time after satisfying the requirements, he again goes to court, already to deprive his father parental rights.

The fact is that the presence of a father requires his consent to any legal action affecting the interests of the child.

To go abroad with the child, move to another apartment, change the child's surname, etc. - all this requires consent from the father.

There is no limitation period for establishing the true father by the court.

Regardless of the age of the child himself, including upon reaching the age of majority, a paternity recognition procedure may be initiated.

Happens in the course of judicial proceedings, the defendant expresses consent to voluntary recognition of paternity by filing an application with the registry office.

The court is examining whether this means an admission of paternity. At the same time, the prospect of recognition of all other claims is being discussed.

Based on the results, a court decision is made. This category of cases cannot be completed with an amicable agreement.

What it is

There are two options for confirming paternity - voluntary and through judicial review.

Voluntary acknowledgment of paternity occurs when the mother of the child is not in a registered relationship, but the father recognizes the child. In this case, the parents submit a general application to the registry office.

In this case, a woman has the right to register a child with his biological father if the legal husband is not the true father and does not object to such registration.

V judicial procedure the process is carried out in the form of a claim proceeding. When the biological father has died and paternity needs to be established in order to respect the interests of the child, consideration takes place in a special procedure.

If legal spouse the child's mother is not the father, then the paternity record can be challenged in court.

The plaintiff can be a registered or actual father, mother, adult child himself, guardian, legal representative.

Courts are considering claims for confirmation of legal paternity in civil proceedings.

An application for the recovery of alimony may be filed immediately with a claim. If the plaintiff does not know where the defendant lives, a search may be declared on the basis of a court decision.

For what purpose is

When the birth of a child fell on the period before this date, but not earlier than 10/01/1968, the court decision is based on the provisions of Article 48 of the Code on Family and Marriage of the RSFSR.

A man can become the initiator of establishing paternity in cases when:

the mother's whereabouts are unknown;
the mother was deprived of parental rights;
the court recognized the mother's incapacity;
mother died.

Features of the procedure

Not only the presence of a child can become a pretext for determining paternity in court. Sometimes a lawsuit is filed even during pregnancy.

The grounds can be as follows:

parents are not in legal marriage;
it is highly likely that after the birth of the child it will not be possible to submit a general application to the registry office.

Sometimes, even before the baby is born, a DNA procedure is performed to establish paternity. For example, the mother has doubts about actual parentage, or doubts are expressed by the alleged father.

The father may be diagnosed with infertility, and the biological mother claims that it is this man is a real father.

It may be necessary to establish paternity during pregnancy through DNA when a Russian citizen who is married to a foreigner leaves for permanent residence.

At the same time, an examination by the embassy is initiated, but the woman's consent is required.

Step-by-step instructions for establishing paternity in court

The algorithm for the legal proceedings on determining paternity looks like this:

The plaintiff applies to the proper Judicial authority With statement of claim	Attached to the claim Required documents
The package of documents is considered by the judicial commission within five days	And a date is set for a preliminary court hearing to prepare for the main trial
At the preliminary hearing, the evidence is examined, its accuracy is determined	If necessary, a DNA procedure is prescribed
The trial is being conducted in the manner prescribed by law	All evidence, expert examination data (if carried out), testimony of witnesses are carefully studied
A court decision is made	—

If the claim is satisfied, the plaintiff may apply to correct the paternity record in the child's documents.

You need to know that the court cannot base its decision only on the results of DNA results. Expertise can be a weighty argument, but nothing more.

Sometimes a routine medical examination is sufficient for the court. For example, analysis will show that a man is generally incapable of conceiving.

In addition, the court does not have the right to force a citizen to make such an examination. However, the plaintiff can claim.

It is also necessary to take into account the fact that when establishing paternity for a child born before 02.28.1996, DNA analysis, in principle, has no legal force in the absence of other obligatory evidence.

Forced holding

Compulsory DNA testing is not possible. That is, whatever the grounds, the court can only appoint an examination, and the potential parents themselves decide to conduct an analysis or not.

But the defendant's failure to appear for an examination does not mean at all that paternity is automatically recognized.

Based on judicial practice, it can be noted that in the case of the father's (mother's) evasion from passing the DNA test, the norms are used when the fact of paternity is recognized without an examination. But not everything is so simple.

It is not enough just to carry out or not to carry out an examination to establish the fact of paternity. For the court, the result of the DNA test is only one piece of evidence.

For example, the cumulative base of documentary evidence and testimony indicate the fact of paternity of a particular person. In this case, a positive examination will only be a decisive factor.

Speaking about compulsory establishment of paternity, it is necessary to mention such aspect as refusal of paternity.

Such a refusal simply does not exist in Russia. If by law a man is recognized as a father, then the legal relationship with the child is severed solely by deprivation of parental rights or by challenging paternity.

What documents are needed

The main document for initiation judicial proceedings becomes a paternity suit.

It must be drawn up in accordance with all the rules:

the court where the claim is filed is indicated;
information about the plaintiff - full name and address of residence;
information about the defendant;
brief essence of the requirement;
grounds for appeal;
data on the documents provided.

Attached to the statement of claim:

a receipt for payment of the state duty (200 rubles);
documents confirming the grounds for the appeal;
copies of all submitted documents.

How can you dispute

If the mother of the child for some reason does not want to register the fact of paternity of the biological father, then the latter has the right to file a claim with the court.

But the important aspect here is whether a woman has a legitimate husband. When a child appears in a legal marriage, the spouse of the child's mother is recorded as the father.

To establish paternity, the biological father will first have to dispute the fact of the paternity of the husband of the child's mother.

If the father of the child is a man who doubts his paternity in relation to a particular child, or an outside man claims paternity, then an appeal to the court is required to challenge paternity.

The procedure for challenging is the same. A statement of claim is filed, the necessary documents and evidence are attached to it.

In this case, the challenging process can be initiated by the child himself upon reaching the age of majority.

But there are also some nuances regarding the dispute of paternity and which are provided by family law.

Video: establishing paternity. Statement of claim for alimony

According to clause 2 of article 52 of the IC, a person who at the time of registration of the child at the registry office knew that he was not a blood father cannot challenge the paternity.

According to Clause 3 of Article 52, a spouse who has given consent to IVF cannot submit a claim to contest paternity.

Emerging nuances

The list of different types of evidence that can be used in the process of establishing paternity is generally not limited.

The decision in any specific case is made taking into account any facts that for certain certify the origin of the child from the defendant ().

When establishing paternity in court, any arguments are taken into account. Evidence may point to paternity directly or indirectly, none of which has particular priority.

Only the body of evidence is considered. These may include:

questionnaires;
letters;
statements;
witness's testimonies;
evidence;
a will in favor of the child (if kinship is indicated in it), etc.

It does not matter what time period the obtained evidence belongs to. They can refer both to the time of pregnancy and to the period after the birth of the baby.

If after the death of the father

When the father, who recognized the child, but did not have time to officially register paternity, died, then paternity is not established, but the fact of paternity is recognized ().

Such a case is being considered after filing a claim for recognition of paternity in a special proceeding.

For children born before 1.10.1986, to establish the fact of paternity of a deceased person who recognized paternity, it is sufficient if the child was dependent on the deceased at the time of death.

In other cases, any appropriate evidence can be provided - testimony of witnesses, audio and video recordings, photographs, etc.

About motherhood

In some cases, a judicial establishment of maternity is required. Of course, such processes are more rare, since more often children are born in maternity hospitals, and the registration of a child at the registry office is carried out on the basis of documents received at a medical institution.

But what if the father died without properly formalizing his status. His biological child has the right to claim a share in the inheritance of the deceased parent, but first you need to establish the fact of paternity. This can only be done in a judicial proceeding.

Before initiating the posthumous establishment of paternity in court, it is necessary to clarify some of the circumstances of the case. If the deceased during his lifetime recognized himself as the father of the child, then it is necessary to apply to the district court with a statement to establish a fact of legal significance in the manner of a special procedure. Another situation is if the father of the child did not recognize himself as such or did not know about the birth of the child at all. In this case, the case is considered in the order of the action proceeding, since there is a dispute about the right.

Establishing Paternity in Special Proceedings

The special procedure applies in cases where the father was not married to the child's mother, but recognized himself as his father. It features a simplified trial procedure. In particular, there is no defendant in such cases. Instead of a claim, an application is submitted to the court, and the person initiating trial, named by the applicant.

It should be understood that if the court finds a dispute about the right in the circumstances of the case, the application for consideration of the case in the special procedure will be returned. How to understand if there is a dispute about the right in your case? Determining this is quite simple. Proceedings are applied in situations where there are other interested persons in the case, for example, the heirs of the deceased.

In special proceedings, the establishment of paternity after the death of the father, subject to the determination of the following circumstances:

The fact of the death of the alleged father.

The absence of an officially registered marriage between the mother and the father of the child.

The fact that the deceased recognized himself as the father of the child.

The purpose for which posthumous paternity is established.

No dispute about the right.

How to prove the fact of acknowledgment of paternity

In such situations, the most the right way establishing paternity, namely genetic examination, is not applicable. It is possible and necessary to prove only the fact that the deceased, by his actions and in words, recognized his kinship with the child. Evidence in similar cases very different are used.

Let's start with written evidence. It can be personal correspondence, telegrams, notebooks, diaries, even notes that the child's father passed on to the mother when she was in the hospital. Almost any written source is suitable, from the content of which it follows that the deceased considered himself the father of the child. In some cases, it is difficult to establish who exactly wrote the letter or note. To solve this problem, you can turn to the help of handwriting examination.

Lawyer assistance

Emails, SMS, messages in in social networks can also serve as evidence. The main difficulty here is the identification of the subscriber. To prove that the SMS correspondence was conducted with the alleged father of the child, you can apply to the court with a petition to request a certificate from the mobile operator that the phone number belongs to the deceased. Accounts Email and on social networks, mobile phone numbers are also often linked.

Testimony, as well as photo and video materials, is another means of proving the fact of recognition of paternity. For example, witnesses can confirm that the deceased lived with the child's mother during his lifetime, they ran a joint household, the alleged father participated in the upbringing and material support baby, considering him his own child.

According to statistics, about 30% of children in the Russian Federation are born out of wedlock. This situation is due to a number of reasons. Besides, in Lately the so-called “ civil marriages". Children born in such unions are accordingly considered illegitimate. While the process of establishing motherhood, as a rule, does not cause difficulties, then with the establishment of paternity, the situation is somewhat more complicated. In this regard, an increasing number of citizens are interested in such an issue as establishing paternity in court.

What is the establishment of paternity

Establishment of paternity, in essence, is the recognition of the fact of the child's descent from a particular man, which can be carried out both voluntarily and in court.

With the help of establishing paternity in relation to a child, a man assumes the whole range of parental rights and responsibilities in relation to him.

A father can take on parental responsibilities voluntarily by contacting the registry office with his mother, but if this does not happen for some reason, then judicial establishment of paternity is also possible.

Legislation

Questions about establishing paternity are regulated by the Family Code of the Russian Federation. In particular, the RF IC has Article 48, which is called “Establishing paternity in court”. Legal relations of a property nature, including those arising between parents and children, respectively, are regulated by the norms Civil Code RF.

The issues of registration of the child's origin are established by the norms Federal law dated November 15, 1997 No. 143-FZ "On acts civil status". When applying to the court with a claim for establishing paternity and in the course of the trial, one should also be guided by the norms of the Civil Procedure Code of the Russian Federation. In addition, there is a fairly extensive judicial practice, which, although not a source of law, is taken into account by judges when considering such a category of cases.

Reasons and conditions for going to court

You can go to court with a claim for recognition of paternity not in all cases, but only if there are conditions stipulated by law.

Article 49 of the RF IC provides that the judicial procedure for establishing paternity is applied only if two conditions are simultaneously present:

the child's parents are not legally married to each other;

there is no appeal to the registry office to enter information about the father of the child in the book of acts of civil status.

Who can file a claim

Based on the provisions of Article 49 of the RF IC, both the child himself (upon reaching the age of majority) and his father or mother, guardian or trustee can apply to the court for recognition of paternity.

Types of establishing paternity in court

Types of litigation in cases of establishing paternity are the methods established by civil procedural legislation for considering and resolving disputes over claims for establishing paternity. In accordance with the norms of the Code of Civil Procedure of the Russian Federation, there are two types of legal proceedings in this category of disputes:

lawsuit;

special production procedure.

The special order is also called simplified.

Special procedure for judicial proceedings

In contrast to the action proceedings, a special procedure for the proceedings in the consideration of cases on the establishment of paternity is applied only in cases where there is no dispute about the right. This procedure is applied in cases when the court does not need to prove anything: all the necessary evidence has been collected, all the facts are present, no one disputes that the man is the father. In this case, the court only needs to "legitimize" by its decision legal status father in relation to the child.

Consideration of cases in claim proceedings

In the lawsuit, everything is somewhat more complicated, because there is a dispute about law, which means that a man will have to prove his paternity. Therefore, before filing a claim, you need to make sure that there are sufficient grounds for this, collect the necessary evidence base.

It is likely that in the course of the proceedings it will be necessary to demand additional evidence, to interview witnesses. Very often, the fact of kinship has to be confirmed with the help of a DNA examination.

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The procedure for establishing paternity through the court

The procedure for establishing paternity in the judicial system begins with the filing of a claim. Before going to court, it is necessary to establish whether there are sufficient grounds for filing a claim for establishing paternity, to correctly and reasonably draw up the application itself, to state everything in it. known facts and evidence in support of their legal position.

This will help the plaintiffs step-by-step instruction establishing paternity.

First of all, you need to find out in what order of legal proceedings this dispute can be considered. As already noted, in the absence of a legal dispute, the case can be considered in a simplified (special) procedure. Otherwise, the father will have to face lawsuits, which provide for a much more complicated procedure for resolving the dispute.

In addition to determining the jurisdiction of the dispute and drafting the claim itself, it is important to worry about the evidence base in support of your legal position, collect all the necessary documents and certificates, if necessary, file a petition to summon witnesses who can confirm your case, and if necessary, be ready for genetic expertise.

So that the court does not refuse your claim, it will never be superfluous to ask family lawyers how to sue for the acknowledgment of paternity. The fact is that very often it happens that the plaintiff, although he has all the grounds for recognizing paternity, cannot always exercise his rights due to legal illiteracy.

It is not easy for a man who wants to recognize paternity in court to find out on his own which court to apply to, in what form the claim is drawn up and what exactly needs to be indicated in it, as well as where and in what number of copies the claim should be filed.

Thus, it should be borne in mind that proof of paternity is a difficult process that takes not only a lot of time and effort, but also requires a certain degree of legal literacy. Therefore, it is very important to take a responsible approach to its resolution. When solving issues related to the establishment of paternity, it will never be superfluous to use the help of specialists in the field family law.

Where to go to establish paternity

The jurisdiction of cases on the establishment of paternity and motherhood is regulated by the norms of civil procedural legislation. This category of cases does not provide for any separate mechanism for their consideration, therefore, all questions regarding the establishment of paternity in court are subject to consideration by the relevant courts of general jurisdiction - city or district.

In accordance with Art. 28, 29 of the Code of Civil Procedure of the Russian Federation, a claim can be filed in court both at the place of registration of the plaintiff and at the place of registration of the defendant. Choice in in this case remains with the claimant.

The statement of claim must be submitted to the registry of the relevant court.

What documents are required to go to court

The admission of the case to the proceedings and its judicial examination are carried out by the courts of general jurisdiction on the basis of the filed claim for the establishment of paternity. The claim must be accompanied by documents confirming the legal position of the plaintiff ( kinship with a child), as well as all the evidence available to the applicant in the case.

If the plaintiff does not have any evidence, then they can subsequently be claimed through the court.

Thus, it is necessary to submit to the court:

statement of claim and a copy of the claim for the defendant;

receipt of payment state duty(300 rubles);

a copy of the child's birth certificate (if the mother is filing a claim);

a certificate from the child's place of residence (if the claim is filed by the mother at her place of residence);

evidence confirming the origin of the child from a particular man.

It should be remembered that the claim is filed in an amount sufficient to provide a separate copy to each of the participants in the proceedings, including with copies of the materials attached to the claim.

A claim for acknowledgment of paternity can be filed in court by mailing it. In this case, an inventory of what was included in the postal item should be drawn up, which, along with a receipt for payment of postal services, will be evidence of sending a claim to the official address of the court.

This method of filing may take some time, but it makes it unnecessary to stand in line at the office.

If the claim is submitted not by the parent himself, but by his representative, for example, a lawyer, then the father will need to issue a power of attorney to represent his interests in court. It can be obtained from any notary. To do this, you must come to the notary office with a passport and provide information about the attorney, the participation of the latter is not required.

Whichever way you go to court - in person, through a representative or by sending a postal message - with a pledge successful resolution the dispute will be whether the judge who will hear the case considers your claim to be upheld. For example, if your claim is not sufficiently substantiated, the court may refuse to satisfy it.

List of evidence in court proceedings

When establishing paternity in court, all circumstances are taken into account that directly or indirectly prove the fact of the child's origin from a particular man. This rule is directly provided in article 49 of the RF IC.

Thus, in the course of the proceedings, the court may examine any appropriate and lawfully obtained evidence, such as testimony of witnesses, expert opinions, documentary materials... To take such evidence into account, the main thing is that it does not cause the judge to doubt the paternity of a particular man. After considering all the evidence, the court will make a decision.

Forensic examination in proving paternity

When considering whether it is possible to prove paternity without the consent of the father, you should know that in the process of considering the case (if there is a corresponding petition from one of the parties), the court may order genetic examination DNA paternity. For a judge, the conclusions of an expert do not have a predetermined meaning, which means that such evidence will be examined and taken into account to the same extent as any other.

But what if the father is against the examination? Forcing a man to go through genetic analysis the court, of course, will not. However, you need to know that an unjustified refusal to pass it, as well as obstruction of its implementation, will not interfere with further consideration of the case. That is, the judge will have the right to make a decision on the merits of the dispute on the basis of other evidence already available in the case, and thus establish paternity in court.

Government duty

When filing a claim for recognition of paternity against him in mandatory it is necessary to attach proof of payment of the state duty (original of the payment check) for the consideration of the case. You can pay the fee at any bank branch or through bank terminals, but for this you need to find out the account details of the corresponding court. The state duty is 300 rubles.

The order of the trial

How long it takes to establish paternity through a court may depend on many factors: on the workload of the court itself, on the amount of evidence that the court needs to collect and examine, on the need for an examination (which in itself can take more than one month).

In addition, the period for considering a case depends on the conscientious fulfillment of their obligations by the participants in the process. So, the plaintiff and the defendant are obliged to appear at the court sessions on the appointed day and hour, provide the documents requested by the court on time, and so on.

What to do after establishing paternity

A court decision on the recognition of paternity is not yet the final stage of the process of establishing it. With this decision, a man must contact the registry office in order to make an appropriate entry in the register of acts of civil status.

The court decision that has entered into legal force is one of the grounds for registering paternity with the registry office.

You can apply both to the registry office, in which the birth of the child was registered, and to the institution at the place of residence of the father or mother. In addition, you can apply to the registry office at the place of the decision by the court.

Entering information into the child's birth certificate

A child's birth certificate is the first document proving his identity. Changes to the information contained in acts of civil status, on the basis of a court decision on establishing paternity, accordingly, entails the renewal of the birth certificate.

Voluntary acknowledgment of paternity

The procedure for recognizing paternity also provides for the possibility of establishing it without trial, on a voluntary basis. In this case, the establishment of paternity is made on the basis of a joint application submitted by the parents to the registry office. In some cases, for example, if the child's mother has died or is declared incompetent, the father can apply to the registry office on his own. In this case, paternity is established on the initiative of the man.

What are the legal consequences of establishing paternity

The current legislation directly provides for the conditionality of the emergence of parental rights and obligations with the establishment of the origin of the child. Thus, the establishment of paternity in relation to a child is the basis for the emergence of the child's right to maintenance and Cohabitation with parents (or one of them). If the father shies away from voluntarily fulfilling his parenting, then in this case, their compulsory establishment by the court is possible.

Alimony obligations

In addition, with the establishment of paternity, child support obligations arise. This issue can be resolved in court simultaneously with the consideration of the claim for acknowledgment of paternity. In this case, alimony can be levied both as a percentage of earnings or other income, and in a fixed amount.

Judicial practice in cases of establishing paternity

On claims for establishing paternity, decisions are made taking into account the existing judicial practice in this category of cases. In particular, since 2017, when considering this category of cases, the courts are guided by the provisions of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 16, 2017 No. 16 "On the application of legislation by the courts when considering cases related to establishing the origin of children."

An analysis of judicial practice in disputes related to the establishment of paternity shows that the majority of appeals to the court are initiated by the mothers of children, and fathers in such cases, respectively, act as defendants.

This is largely due to the fact that the fact of establishing paternity automatically entails the emergence of a number of responsibilities for the man to raise and maintain a child. That is why many men are in no hurry to voluntarily admit paternity, which is why mothers are increasingly turning to courts to resolve these issues.

Establishing paternity in court: Video

Introduction
2. General features cases of establishing facts of legal significance
Conclusion
Bibliography
Introduction
An increasing number of children are born in unregistered marriages, that is, in marriages without formalization in the registry office. Questions arise.
How should the paternity of a child born in such a civil marriage be formalized?
There are other situations where it is necessary to establish paternity, for example, a woman, being married, had a close relationship with another man.
They give birth to a child who needs to be registered with the biological father of the child, and not with the husband of the child's mother.
There are two types of establishment of paternity - voluntary establishment of paternity and establishment of paternity in court. In a judicial proceeding, paternity can also be established in two ways - establishment of paternity in legal proceedings and establishment of paternity in a special procedure, when the child's father has already died and such establishment is required to protect hereditary or pension rights child.
Establishment of paternity is understood as a legal fact entailing parental relationship. It should also be seen as an institution of family law and as a way to protect the rights of the child.
In the first case, it is a set of legal norms governing relations arising in connection with the establishment of the child's origin, in the second, a measure aimed at restoring (recognizing) the violated (disputed) rights of the child.
The basis for the emergence of the rights and obligations of parents and children is the origin of children, certified in established by law order (Article 47 of the SK).
1. Differences in establishing paternity in claim procedure and in the order of special production
There are significant differences between the establishment of paternity in a claim procedure and in a special procedure. Consider the first type of paternity establishment - voluntary. In accordance with clause 3 of article 48 of the RF IC, a joint statement of the father and mother of the child can be used to register paternity if the woman is not in a registered marriage. That is, the mother and biological father must apply to the registry office with documents and formalize paternity in the proper manner. This can be done after registering the birth of the child. In case the mother is in formal marriage but husband ( ex-husband) is not the child's father, then she can also apply to the registry office together with the child's biological father and register the child to the child's real father by filing with the civil registry office joint statement... If, nevertheless, an entry was made for the mother's spouse or the mother's ex-spouse within 300 days after the dissolution of the marriage, then the registration of the child with the registry office is impossible without challenging the entry about the father itself. In accordance with clause 1 of article 52 of the RF IC, if the spouse ( former spouse) is not the father of the child, such an entry can only be challenged in court at his request, at the request of the person recorded as the father or mother of the child, or the person who is actually the father or mother of the child, as well as the child himself upon reaching the age of majority, guardian (custodian) of a child, guardian of a parent recognized by the court as legally incompetent.
In the event that an entry was made in the registry office with a joint statement of paternity, but in reality this person is also not the biological father of the child, then subsequently the interested persons also have the right to challenge the paternity in court. As indicated, paternity can be established through the courts. Paternity can be established both at the request of the father and at the request of the mother of the child. For example, the mother of the child does not want to register the paternity of the father on a voluntary basis. The child's father has the right to apply to the court for the establishment of paternity. The mother of the child, if she wishes, can establish paternity in court (Article 49 of the IC RF).
In addition, in the event of the death of a person who recognized himself as the father of the child, but was not married to the mother of the child, the fact of recognition of paternity by him can be established in court by way of special proceedings on the basis of Article 50 of the RF IC, subparagraphs 4 p. 2 article 264 of the Code of Civil Procedure of the Russian Federation. Establishment of paternity is permitted by the court in the course of action proceedings in the event of the birth of a child to parents who are not married to each other, and in the absence of a joint statement by the parents, the issue of the origin of the child is resolved by the court in the course of action proceedings upon the application of one of the parents, guardian (curator) of the child or at the request of the person who is dependent on the child, or at the request of the child himself upon reaching the age of majority on the basis of Article 49 of the RF IC.

The jurisdiction of such claims for the child's father is general - that is, the claim is filed at the place of residence of the defendant. If the mother wants to establish the paternity of the child, then she can file a claim of her choice - at her place of residence or at the place of residence of the defendant - that is, the child's father. To establish paternity in court, you should apply to the court with a statement of claim. The following documents should be attached to the application: a copy of the claim for the defendant, a receipt for payment of the state fee - now it is 100 rubles, a copy of the child's birth certificate, a certificate from the child's place of residence, if the claim is filed by the mother at her place of residence, evidence confirming the paternity of the child with copies for the defendant and persons involved in the case.
It should be borne in mind that until 03/01/1996, the RSFSR CoBS was in force, according to which there is a different procedure for establishing paternity. Therefore, to establish the paternity of children born before that date, the RSFSR CoBS should be used. For children born before the enactment Family Code RF, the court, when deciding the question of paternity, must be guided by Part 2 of Article 48 of the Code of the Russian Federation, taking into account the cohabitation and maintenance of a common household by the mother of the child and the defendant before the birth of the child or joint upbringing or their maintenance of the child or evidence that reliably confirms the recognition by the defendant of paternity on the basis of paragraph 2 of the Resolution of the Plenum The Supreme Court RF of October 25, 1996 N 9 "On the application by the courts of the Family Code of the Russian Federation when considering cases of establishing paternity and collecting alimony."
After the RF IC came into force in March 1996, when establishing the paternity of children, the procedure for submitting evidence changed. So, on the basis of Article 49 of the RF IC, the court takes into account any evidence that reliably confirms the origin of the child from a specific person. Such evidence includes any factual data established using the means of evidence provided for by the Code of Civil Procedure of the Russian Federation. For the mother of a child who gave birth out of wedlock, all the consequences of her step to establish paternity should be taken into account, since quite often difficulties arise later, and the mother has to apply for deprivation of parental rights or somehow solve the problem. After all, the presence of a father only on paper does not always have a beneficial effect on the child.
If the father does not want to take care of the child, then formalizing legal paternity will still not be able to force him to do it. At the same time, the mother may have problems with the child's father - for example, it will be necessary to obtain the consent of the child's father for certain actions, for example, traveling abroad to some countries, moving to another apartment, selling a child's property, changing the last name, etc.
Let us consider the second type of judicial registration of paternity - the establishment of the fact of recognition of paternity in a special procedure. If the alleged father of the child died, but recognized himself as the father of the child during his lifetime, then you need to apply to the court at the place of residence of the applicant to establish the legal fact of recognizing his paternity as deceased (Article 50 of the RF IC, Clause 4 of Article 264, Article 265 -268 Code of Civil Procedure of the Russian Federation). Such an establishment of the fact of recognition of paternity is most often required to obtain an inheritance and include a child in the number of heirs, as well as to assign a survivor's pension to the child. The application should indicate the stakeholders in the case. When establishing paternity in order to obtain an inheritance, such interested persons will be the heirs of the deceased.
If there are no heirs, then the state is involved as an interested person, the representative of which is tax office... If the deceased left a will, then in the case of establishing paternity minor child will have the right to receive a mandatory share in accordance with Article 1149 of the Civil Code of the Russian Federation. If the purpose of establishing the fact is the appointment of a survivor's pension, then the interested person should indicate the authority social protection the population who will award the pension.
The court itself does not make changes to the record, on the basis of the court's decision it will be possible in the registry office to amend the record of the birth of the child, as well as assign the child's father's surname and patronymic on the basis of Art. Article 58.59 of the RF IC.
... General Features of Cases on Establishing Facts of Legal Significance
Cases on the establishment of facts of legal significance are the most common of the cases of special proceedings. As you know, the emergence, change or termination of personal and property rights citizens or organizations depends on the presence or absence of legal facts. These facts must be confirmed by appropriate documents - various certificates, certificates, records of acts of civil status, etc. However, there are cases when this or that fact cannot be certified by an appropriate document due to its loss, destruction, impossibility of restoration or for other reasons ... In such cases, a judicial procedure for establishing legal facts is provided (Articles 264-268 of the Code of Civil Procedure). In accordance with Article 264 of the Code of Civil Procedure, the court considers cases on establishing: family relations; the fact of being dependent; the fact of registration of birth, adoption (adoption), marriage, divorce, death; the fact of acknowledgment of paternity; the fact of ownership of documents of title (with the exception of military documents, passports and certificates issued by civil registration authorities) to a person whose name, patronymic or surname indicated in the document do not coincide with the name, patronymic or surname of this person according to the passport or birth certificate ; the fact of ownership and use real estate; the fact of an accident; the fact of death at a certain time and under certain circumstances in case of refusal of the vital statistics authorities to register the death; the fact of acceptance of the inheritance and the place of opening the inheritance; other facts of legal significance.
Courts can accept applications for the establishment of facts of legal significance and consider them in a special procedure, subject to certain conditions, if, according to the law, such facts give rise to legal consequences - the emergence, change or termination of personal or property rights of citizens or organizations, the establishment of a fact is not connected with the subsequent resolution of the dispute about the right, subject to the jurisdiction of the court, the applicant has no other opportunity to obtain or restore the proper documents certifying a fact of legal significance. If the person concerned applies to the court with a request to establish a fact that has no legal significance, the judge must refuse to accept the application. If such a statement was mistakenly accepted by the court and a trial began on it, the court shall terminate the proceedings. Cases on the establishment of facts of legal significance should be considered by a court with the participation of the applicant and citizens interested in the outcome of the case, the relevant organizations of the social protection bodies, military registration and enlistment offices, etc.
A court decision in a case on establishing a fact of legal significance, according to Article 268 of the Code of Civil Procedure, is a document that confirms a fact of legal significance, and in relation to a fact subject to registration, serves as the basis for such registration, but does not replace the documents issued registration authorities.
The fact of family relations must be established in court in all cases when it directly gives rise to legal consequences, for example, if confirmation of such a fact is necessary for the applicant to obtain a certificate of the right to inheritance, to register the right to a survivor's pension, to state benefits for large families , and when the relationship cannot be confirmed by appropriate documents. In the decision on the case on establishing the fact of a state of kinship, the court must indicate the degree of kinship between the applicant and the relevant person, and if it is a question of establishing kinship of the heirs of the second and subsequent stages, notes the absence of the corresponding heirs of the previous stages. Establishing the fact of the deceased person's finding is important for inheritance, the appointment of a pension or compensation for harm. The fact that a deceased person is found is certified by a certificate issued by a housing maintenance organization corresponding to government agency... In the absence of such documents or the impossibility of their restoration, this fact can be established in court. When establishing the fact of being dependent for the appointment of a survivor's pension, it must be borne in mind that the right to given pension have disabled family members of the deceased who were dependent on him (Article 9 of the Federal Law "On labor pensions v Russian Federation"
To establish the fact of being dependent in order to register the right to inheritance, it is necessary that the dependent was incapacitated by the day of the death of the testator and was dependent on the testator for at least a year before the day of his death. When establishing the fact of being dependent for compensation for harm in the event of the loss of a breadwinner, the courts must take into account that, according to the law, the right to compensation for harm is not associated either with the presence of a family relationship between the dependent and the breadwinner, nor with the period of his dependent (Article 1088 of the Civil Code of the Russian Federation, Clause 2 of Article 7 of the Federal Law "On mandatory social insurance from industrial accidents and occupational diseases ".
Establishment of the fact of registration of birth, adoption (adoption), marriage, divorce, death is important for a number of private legal relations. It is necessary to pay attention to the fact that in this case it is not about establishing the facts of birth, marriage, etc., but about their registration with the civil registry offices. An appeal to the court with a statement to establish these facts is allowed if the interested person submits evidence confirming the impossibility of obtaining or restoring such a record, for example, the loss of an archive, the refusal of the registry office to restore the necessary record, and also if the corresponding record can only be restored on the basis of a court decision on establishing the fact of registration of a civil status act.
It is necessary to distinguish the establishment of the fact of registration of death (clause 3 of part 2 of article 264 of the Code of Civil Procedure) from the fact of death of a person at a certain time and under certain circumstances (clause 8 of part 2 of article 264 of the Code of Civil Procedure). In the first case, we are talking about the impossibility of obtaining or restoring the document of the registry office on the registration of death. In the second case, registration of the death event by the registry office was denied by virtue of Article 66 of the Federal Law "On Acts of Civil Status", which prompted the applicant's appeal to the court.
The fact of recognition of paternity is established by the court in the event of the death of a person who recognized himself as the father of the child, but was not married to the mother of the child (Article 50 of the Family Code of the Russian Federation). The mother of the child, his guardian or the person who is dependent on the child has the right to apply to the court. Evidence may be testimony, written and other evidence that can confirm the fact of recognition of paternity. As already noted, it is necessary to distinguish the fact of recognition of paternity from the establishment of paternity in court. In the first case, there is no dispute about the paternity of the child, the parties with opposite interests. In the second case, there is a dispute over the origin of the child from a specific person and, accordingly, a party with opposite interests. In this regard, the establishment of paternity does not take place in a special production, as in the first case, but within the framework of the claim proceeding.
Establishment of the fact of ownership of title documents is associated with the establishment of an error in the documents, which can no longer be corrected by the authority that issued this document... As a consequence, the courts must require the applicant to provide evidence that the document of title belongs to him and that the organization that issued the document is not able to make the appropriate amendment to it. Are not subject judicial review statements on the establishment of the fact that a person belongs to a military card, an identity card of a serviceman, a passport, certificates issued by the civil registry authorities, a certificate for an order or medal, since these documents are personal and not legal in nature. The list of facts to be established in court contained in Article 264 of the Code of Civil Procedure is not exhaustive. The courts have the right to establish other facts of legal significance, in particular, the fact of owning a share, a car, other property subject to registration in the event of the death of one of the spouses, in whose name the property was registered, the fact of erecting a building at the expense of one of the spouses, if it has not been dissolved, but in a long-broken marriage, when this circumstance prevents the sale of the house, the fact of the use of reprisals against the citizen.
paternity establishment judicial
3. The essence and procedure for establishing the fact of recognition of paternity
A new kind of facts, provided for by the Code of Civil Procedure of the Russian Federation, is the fact of recognition of paternity. In accordance with Article 50 of the RF IC, in the event of the death of a person who recognized himself as the father of the child, but was not married to the mother of the child, the fact of his acknowledgment of paternity can be established in court according to the rules established by the civil procedural legislation, in a special procedure ... When considering this category of cases, the court, taking into account the fact that the persons, the fact of recognition of paternity of which is established, are no longer alive, proceeds only from those circumstances that indisputably testified to the recognition of the deceased as their paternity in relation to this child... The facts confirming the recognition by the person of his paternity in relation to this child can be his letters, in which he called the child his own, questionnaires, statements (in Kindergarten, school, etc.). The testimony of witnesses is taken into account if there is no reason to suspect them of dishonesty or dishonesty (for example, testimony from friends or relatives of the deceased). Establishment of the fact of recognition of paternity is possible at the request of one of the parents, guardian (curator) of the child or at the request of the person who is dependent on the child, as well as at the request of the child himself upon reaching the age of majority.

For example, when indicating in the statement of interest in the inheritance of the deceased, the court invites to participate in the case the heirs of the line called for inheritance without taking into account the child in relation to whom the question of origin is being raised. Interested parties can declare that they are contesting the child's right to the deceased's inheritance. In this case, the court, having established the existence of a dispute about the right, subordinate to the court, issues a ruling on leaving the application without consideration, in which it explains to the applicant and other interested parties their right to resolve the dispute in the course of action proceedings. An application for establishing the fact of recognition of paternity is considered in a special procedure only if the alleged father is not alive. The death of this person must be confirmed by a death certificate.
Persons who have the right to apply to the court with an application to establish the fact of recognition of paternity are: the child's mother, guardian or custodian of the child, the person who is dependent on the child, the child himself upon reaching the age of majority. Applications in cases of establishing facts of legal significance are filed with the court at the place of residence of the applicant, with the exception of an application for establishing the fact of ownership and use of real estate, which is filed with the court at the location of the building (Article 266 of the Code of Civil Procedure). In the case of submission of an application by several persons living or located in different places, the application is submitted to the court at the place of residence of one of them of their choice.
An application for establishing a legal fact must meet the requirements listed in Article 131 of the Code of Civil Procedure. However, in addition to the usual details specified in Article 131 of the Code of Civil Procedure, the application must indicate the purpose of establishing this fact, and also must provide evidence confirming the impossibility of obtaining the appropriate documents confirming paternity by the applicant. Indicating the purpose of establishing a fact of legal significance is necessary so that the judge, when accepting an application, determines the legal significance this fact and cool stakeholders. If the application does not indicate the purpose of going to court, the judge has the right to leave such a statement without progress.
In addition to specifying the purpose of establishing concrete fact, the application must be accompanied by written evidence that would indicate the impossibility of obtaining the proper documents or the impossibility of restoring the lost documents.
Such evidence can be, for example, notifications from the registry office about the absence of a civil status record, a written refusal to restore a lost civil status record due to the impossibility of its restoration, a document confirming the drawing up of an accident statement, its subsequent loss and the impossibility of recovery out of court. and etc.
Cases on establishing the fact of recognition of paternity are subject to jurisdiction district court at the place of residence of the applicant. The statement on the establishment of the fact of recognition of paternity shall indicate: the court to which it is addressed, the applicant and his place of residence, the persons concerned and their place of residence (location), information about the child, his father and the date of death of the latter, the goal for the achievement of which it is necessary to establish of this fact, how the recognition of paternity was expressed, when, in what form, under what circumstances, to what persons, how the fact of recognition of paternity is confirmed, what is the interest of the interested parties, their attitude (if known to the applicant) to the establishment of the fact of recognition of paternity. The application ends with a request to the court to establish the fact of recognition of the paternity of a particular person in relation to the child.
The law requires confirmation of precisely the fact that the deceased during his lifetime unambiguously, without any conditions and reservations, indicated the origin of the child from him, and who considers it insufficient to cohabit with the child's mother, participation in the upbringing and maintenance of the child and other factors that indirectly confirm biological relationship. Only evidence of unambiguous content: "I am the father of this child" - gives the right to the court to make a conclusion about the validity of the statement. In this case, all prescribed by law means of proof. Most often this is written evidence. The testimonies of witnesses also occupy a significant place in the means of proof, they are used in the consideration of cases on establishing the fact of recognition of paternity.
The time of birth of the child does not matter for resolving the issue of paternity in a special procedure. However, it should be borne in mind that in relation to children born before October 1, 1968 from persons who were not married to each other, the court has the right to establish the fact of recognition of paternity in the event of the death of a person who recognized himself as the father of the child, provided that the child was dependent on this person at the time of his death or earlier.
With regard to children born on March 1, 1996 and later, to establish the fact of recognition of paternity, it is not enough to establish the facts of cohabitation with the child's mother and participation in the upbringing and maintenance of the child. The fact of recognition of paternity as deceased must be confirmed with certainty in court.
Conclusion
Summing up the results of this work, it should be noted that all the tasks set at the beginning of the study have been solved. The work established differences in the establishment of paternity in the order of action and special proceedings; the specifics of cases on the establishment of facts of legal significance have been determined; investigated the essence and procedure for establishing the fact of recognition of paternity. The conducted research allows us to make the following conclusions... There are two types of establishment of paternity - voluntary establishment of paternity and establishment of paternity in court. In a judicial proceeding, paternity can also be established in two ways - establishment of paternity in a claim proceeding and establishment of paternity in a special proceeding.
If the alleged father of the child died, but recognized himself as the father of the child during his lifetime, then you need to apply to the court at the place of residence of the applicant to establish the legal fact of recognizing his paternity as deceased. The facts confirming the recognition by a person of his paternity in relation to a given child can be his letters in which he called the child his own, questionnaires, statements (to a kindergarten, school, etc.). The testimony of witnesses is taken into account if there is no reason to suspect them of dishonesty or dishonesty (for example, testimony from friends or relatives of the deceased). Establishment of the fact of recognition of paternity is possible at the request of one of the parents, guardian (curator) of the child or at the request of the person who is dependent on the child, as well as at the request of the child himself upon reaching the age of majority.
The fact of the child's descent from a particular person may give rise to various rights to the child after the death of the father. In particular, these are the right to inheritance, the right to a pension and the right to compensation for damage in connection with the death of a breadwinner.
Bibliography
1.Constitution of the Russian Federation (1993) [text] // Russian newspaper. - 1993-№237.
2.Family Code of the Russian Federation of December 29, 1995 N 223-FZ // Russian newspaper of January 27, 1996.
.Civil Procedure Code of the Russian Federation of November 14, 2002 N 138-FZ // Russian newspaper of November 21, 2002.

As already mentioned above, paternity, the fact of paternity and the fact of recognition of paternity can be established in court. According to the rules of special legal proceedings, the fact of paternity and the fact of recognition of paternity is established (Article 50 of the SK, Article 247 of the Code of Civil Procedure).

In contrast to cases of claim proceedings, where the fact of the child's origin from a specific defendant serves as a condition for the emergence of a parental relationship with him and this category cases are called, respectively, the establishment of paternity, this fact, established in a special proceeding, cannot generate a parental relationship, since the alleged father of the child is absent from the living and there is no procedural figure of the defendant here. Establishing the fact of the child's origin in such cases may have other legal consequences: the emergence of hereditary, pension and other legal relationships.

According to Article 50 of the RF IC, a legal fact established by the court is called the fact of recognition of paternity. It says: "In the event of the death of a person who recognized himself as the father of the child, but was not married to the mother of the child, the fact of recognition of paternity by him can be established in court according to the rules established by the civil procedural legislation" Family Code of the Russian Federation of 29 December 1995 No. 223-FZ // Collected Legislation of the Russian Federation. - 1996. - No. 1. - Art. sixteen.

This formulation posed at least the following legitimate questions for lawyers. “First, should we abandon the established practice of establishing in a special production two types of legal facts indicating the origin of the child: the fact of recognition of paternity and the fact of paternity, operating only with the first of them? Secondly, does this wording mean a complete revision of the legal basis for establishing the fact of recognition of paternity in special proceedings?

The fact is that the previously valid Fundamentals of Legislation of the USSR and the Union Republics on Marriage and Family, as well as the KBS of the RSFSR, did not directly record the possibility of establishing the facts of paternity and recognition of paternity. Only in article 3 of the USSR Law of June 27, 1968 "On the approval of the Fundamentals of the legislation of the USSR and the union republics on marriage and family" the very possibility and conditions for establishing the fact of recognition of paternity in a special procedure were enshrined. However, this only applied to children born before October 1, 1968, i.e. the date of the entry into force of the Fundamentals of Family Law. This fact could be established if the alleged father of the child died, but during his lifetime he recognized and supported the child. The specifics of establishing the fact of recognition of paternity, which had to be taken into account by the courts when considering this category of cases, were pointed out in Resolution No. 2 of the Plenum of the Supreme Court of the RSFSR dated March 25, 1982 “On the application of legislation by the courts when considering cases of establishing paternity and collecting alimony for children and other family members "(formally, it is recognized as not subject to application on the territory of the Russian Federation by virtue of subparagraph" a "of clause 26 of Resolution No. 9 of the Plenum of the Supreme Court of the Russian Federation of October 25, 1996" On the application by courts of the Family Code of the Russian Federation when considering establishing paternity and collecting alimony ").

The wording of Article 48 of the RSFSR Code of the Russian Federation, which was in force earlier, did not exclude the establishment of the fact of the child's paternal origin even in cases where the alleged father of a child born out of wedlock died. The conditions for establishing the fact of paternity that were common with the fact of recognition of paternity were, first, the death of the alleged father of the child, and, as in the first case, the date of death had no legal significance; secondly, the absence of a registered marriage between this person and the mother of the child.

Differences in the conditions for establishing between the facts in question were also reduced to two circumstances. The first is the date of birth of the child; the fact of paternity was established in relation to children born after October 1, 1968. The second difference concerned the range of evidentiary facts. According to paragraph 7 of Resolution No. 2 of the Plenum of the Supreme Court of the USSR of March 25, 1982, “when making a decision to establish the fact of paternity, the court takes into account the circumstances provided for in part 4 of article 16 of the Fundamentals of Legislation on Marriage and Family.” Thus, the courts had to establish in this category of cases the facts of cohabitation and running a common household by the alleged father and mother of the child, the joint upbringing or maintenance of the child by them, evidence that reliably confirms the recognition by the defendant of his paternity (part 4 of article 16 of the Fundamentals, part .2 Article 48 of the RSFSR CoBS).

By itself, the legal possibility of establishing the facts of recognition of paternity and paternity was laid down in the current civil procedural legislation. According to Article 247 of the Code of Civil Procedure of the RSFSR, in a special proceeding, in principle, any fact of legal significance can be established, unless the legislation provides for a different procedure for its establishment. This was brought to the attention of the courts by Resolution No. 9 of the Plenum of the Supreme Court of the USSR dated June 21, 1985 “On jurisprudence in cases of establishing facts of legal significance ”. Among the legal facts to be established in special proceedings, the facts of recognition of paternity, paternity, registration of paternity (clause 2) were named "Kosova O. Establishing the fact of the child's origin in special proceedings // Russian Justice. -1998. - No. 1. P. 41.

Thus, prior to the adoption of the new Family Code, judicial practice clearly distinguished between the fact of recognition of paternity and the fact of paternity. Unfortunately, the position of the legislator regarding the understanding and application of Article 50 of the RF IC was not reflected in Section VIII of the RF IC.

Answers to those who stood before jurisprudence issues of application and interpretation of Article 50 of the RF IC are given in Resolution No. 9 of the Plenum of the Supreme Court of the Russian Federation of October 25, 1996 "On the application by courts of the Family Code of the Russian Federation when considering cases of establishing paternity and recovering alimony" Resolution of the Plenum of the Supreme Court of the Russian Federation of 25 October 1996, No. 9 "On the application by the courts of the Family Code of the Russian Federation when considering cases of establishing paternity and recovering alimony" // Rossiyskaya Gazeta. - 1996 .-- November 5. - item 10. Explained by the higher judicial instance on this issue in fact, they follow the logic that was laid down in the previous law enforcement practice of the courts. Should be drawn to them Special attention in connection not only with the edition of Art. 50 of the Investigative Committee of the Russian Federation, but also because in the past they often allowed the identification of the fact of paternity and the fact of recognition of paternity.

So, the fact of recognition of paternity is established in relation to children born before October 1, 1968, in the event of the death of a person who was not married to the child's mother and who recognized himself as the father of the child, provided that “the child was dependent on this person at the time of his death or earlier. " Resolution of the Plenum of the Supreme Court of the Russian Federation of October 25, 1996 No. 9 "On the application by the courts of the Family Code of the Russian Federation when considering cases on establishing paternity and recovering alimony" // Rossiyskaya Gazeta. - 1996 .-- November 5. - item 10

The plenum of the Supreme Court of the Russian Federation also explained that the courts have the right to establish the fact of paternity, arguing that the Family Code does not exclude such a possibility. This fact, as before, is established in relation to children born after October 1, 1968 in the event of the death of the alleged father who was not married to the child's mother. However, if the child was born after March 1, 1996 (the date of the entry into force of the new RF IC), when establishing the fact of paternity, the courts must take into account evidence that reliably confirms the child's origin from of this person(Article 49 of the RF IC), i.e. the same evidence as in establishing paternity in a claim.

As for children born in the period from October 1, 1968 to March 1, 1969, then, while establishing the fact of paternity, one should bear in mind the evidence confirming the existence of at least one of the circumstances listed in Article 48. CoBS of the RSFSR, i.e. those that, prior to the introduction of the new SK, were taken into account by the courts when establishing paternity in legal proceedings: living together and maintaining a common household, etc.

Considering the above, as well as the fact that over time the likelihood of going to court with an application to establish the fact of recognition of paternity is gradually reduced to naught, it seems necessary to clarify the wording of Article 50 of the RF IC. It could look like this: "In the event of the death of a person who was not in a registered marriage with the child's mother, the facts of paternity or acknowledgment of paternity can be established by the court according to the rules of civil procedure."

Applicants in these categories of cases in accordance with general rules special proceedings can be both the bearer of the relevant material and legal interest (hereditary, retirement, etc.) - a child who has civil procedural legal capacity, and persons who, by law, have the right to apply to the courts for the protection of subjective material rights and the interests of the child, - his legal representatives (mother, guardian, adoptive parent and others), as well as the prosecutor (Articles 41, 42 of the Code of Civil Procedure).

Of particular interest is the issue of granting the right to file an application for establishing the facts of paternity and acknowledgment of paternity to the person on whose dependent the child is. This can be, for example, close relatives of a child, his grandfather, grandmother, brother, sister, who have not formalized the powers of legal representatives in the manner prescribed by law. As it was explained in the previously valid decision of the Supreme Court of the USSR of March 25, 1982. Resolution of the Plenum of the Supreme Court of the USSR of March 25, 1982 No. 2 “On the application of legislation by courts when considering cases of establishing paternity and recovering alimony for children and other family members "// Bulletin of the Supreme Court of the USSR. - 1982. - No. 3., in the order of special proceedings, cases on establishing the fact of paternity are considered on the basis of applications of the same persons who have been granted the right to file claims for establishing paternity in accordance with Part 3 of Article 16 of the Fundamentals of Family Law (Part 1 of Article 48 of the Code RSFSR), as well as other persons to whom the legislation of the union republics provided such a right (clause 7). Among the list of Part 3 of Article 16 of the Fundamentals, there were also named persons on whose support the child was.

With regard to the circle of applicants in cases of establishing the fact of recognition of paternity, a slightly different explanation was made in paragraph 8 of the above-mentioned decision. Among the applicants, the following were directly named: the child's mother, his guardian (curator), the child himself upon reaching the age of majority, as well as other persons who were granted the right to file such a statement by the legislation of the union republics. Here, the persons containing the child at the time of the application were not named.

Following the logic of the explanations given by the Plenum of the Supreme Court of Russia on October 25, 1996 regarding the facts of paternity and recognition of paternity, it is reasonable to assume that the practice that had developed before the new Family Code came into force and in part of the range of possible applicants in these categories of cases. Only an addition is possible existing procedure in relation to cases of establishing the fact of paternity in relation to children born after March 1, 1996. It is unlikely that the solution of the procedural issue about the circle of applicants should be limited to the analogy with Article 49 of the RF IC. Mostly responsible general provisions civil procedure approach, laid down at one time in paragraph 7 of the resolution of the Plenum of the Supreme Court of the USSR of March 25, 1982 No.

So, in the case of the death of a person who recognized himself as the father of the child, but was not married to the mother, the court in accordance with Art. 50 SK has the right to establish the fact of recognition of paternity by him under the rules of special proceedings (if there is no dispute about the right). The court satisfies the application if it is established that the deceased acknowledged his paternity in relation to the child. This can only be evidenced by that group of evidence that confirms the subjective attitude of the alleged father to the child. These include participation in the upbringing or maintenance of the child, written statements of paternity both before the birth of the child and after birth.

Other evidence based on the requirements of Art. 50 SK in this case cannot be taken into account. So, living together, running a common household cannot testify to the recognition of paternity by a person. The conclusion of the examination cannot be taken into account either.

It seems that the legislator unreasonably limited the grounds for establishing the fact of recognition of paternity. Need to change this norm, expanding the grounds for establishing this fact. All evidence supporting the child's descent from the deceased alleged father must be taken into account. In addition, to expand the circle of persons who have the right to apply to the court with an application to establish the fact of recognition of paternity.