Establishing paternity in lawsuits. Establishing paternity in court. Establishing the fact of recognition of paternity
Establishing paternity
Hello, dear visitors of the Eliseika Club!
My virtual legal consultation open! True, only for members and guests of your Club, so subscribe to updates and you will always be among the first to know about new articles.
This section will contain articles on the most common topics, on frequently encountered problems, one way or another related to questions about children, families, the rights of pregnant women and women with minor children.
Today I will tell you on establishing paternity. This article was published in the March 2017 magazine "Liza. My child", for which I am a freelance correspondent.
You will be a dad ... voluntarily or forcedly!
It happens that a woman gives birth to a child without receiving the “blessing” of her beloved for his appearance. She did not receive a marriage proposal from him either. Moreover, the newly-made daddy quietly disappears from the life of a recent lover, leaving no material trace behind him. What to do?
It also happens (by the way, very often) that actually stopping marital relations, former spouses do not officially dissolve their marriage. At the same time, they create new families and, as a result, children are born. So, in the father column of a baby born in such a “marriage”, in his first document (as well as within three hundred days from the moment the marriage was dissolved, it was declared invalid or from the moment the spouse died), the name of the legal husband of his mother will flaunt.
Or vice versa, partners live together, they are doing well - they consider the marriage stamp in the passport to be superfluous. The matter, as they say, is master's, but in the birth certificate of their newborn baby "automatically" (only on the basis of medical certificate from medical institution where the birth took place) only information about the mother is entered. In order for a record about his father to appear in it, parents need to take special care of this.
There are many situations, even more questions. We will deal with each of them in detail. After reading this article, you will know:
What are the ways to establish paternity?
How is the procedure for establishing paternity through the registry office,
Features of establishing paternity through the court,
On establishing paternity by DNA,
Why and when is paternity established?
Which legal implications followed after its establishment.
Ways to establish paternity
Paternity can be established if information about the father in the record of acts civil status and no birth certificate. Paternity can be established voluntarily, through the registry office, or judicial order.
It is clear that this issue is resolved in court in the absence of the consent of one or the other parent or the death of the father or mother. Let's take a closer look at all these questions below.
One more moment. In the event that the spouse is not the father of the child, but is recorded as such in the documents, the information about the father in the record can be challenged in court at his request, at the request of the mother or biological father of the child. That is, in this case It's not about establishing paternity, but about challenging it. It is necessary to challenge paternity in court with the participation in the case of the person indicated by the father of the child.
For dads! The father himself can establish his own paternity. This occurs in the following cases: the mother’s unwillingness to register paternity on a voluntary basis, the death of the mother, her recognition as incapacitated, if it is impossible to establish her location or deprivation of the mother parental rights if there is no information about the father in the child's documents. With the consent of the guardianship and guardianship authorities, you can apply to the registry office, otherwise - to the court.
Voluntary establishment of paternity
If the mother at the time of the birth of her baby is not in a registered marriage, then with the father of the child she can apply to the civil registry office with a joint application to register his paternity. This is a fairly simple procedure.
A man voluntarily expresses his will to recognize the child indicated in the application as his father, and the child's mother gives her consent to this. In this case, the man may not be the biological father of the child; blood relations between them is not required.
Men, take note! It should be noted that if, when registering the establishment of paternity in the registry office, the man knew that he was not the birth father of the child, he loses the right to challenge his paternity in the future in relation to this child due to the lack of blood connection between them.
An application to the registry office is submitted in writing state registration the birth of a child or after it, providing a previously issued birth certificate. If one of the parents is not able to personally submit such an application, his will is drawn up separately and certified by a notary.
You can apply for the establishment of paternity even to future parents who are not married to each other. However, only if there are circumstances giving reason to believe that the filing joint statement after the birth of a child may be impossible or difficult. For example, dad is sent on a long business trip abroad. If there is such an application, the state registration of the establishment of paternity is carried out simultaneously with the state registration of the birth of the child.
Establishing paternity in court
Establishing paternity in court can be of two types - in lawsuit proceedings and in special proceedings.
Establishing paternity in a lawsuit
First, let's define what a claim is. The main component of this type of proceedings in civil proceedings is the existence of a dispute between two (or more) participants. Participants are endowed with the status of a plaintiff (one who claims a violation of his right, legitimate interests) and a defendant (who defends his position, challenging the claims of the plaintiff).
Here the dispute will be - non-recognition by one of the parents of the origin of the child from specific man.
One of the parents, a guardian (custodian), a person who is dependent on the child or the child who has reached the age of majority can file a claim with the court.
If the child lives with the plaintiff, the lawsuit is filed in a federal court of his choice: at the place of residence of the defendant or at his place of residence. If the child lives with the defendant, then the territorial jurisdiction is determined only by the place of residence of the latter.
You can immediately, in the same lawsuit, make a claim for the recovery of alimony. It should be noted that alimony will be collected from the moment paternity is established. For the previous period, from the moment of the birth of the child, alimony cannot be collected.
Establishment of paternity in the order of special proceedings
There is no dispute - there is no analysis, that is, action proceedings. However, there are sometimes legal obstacles to exercising their rights. To eliminate them, it is necessary to confirm or refute the existence of a legal fact, certain circumstances, the legal status of a citizen. Only a court can do this.
In our case, by way of special proceedings, the establishment of paternity is required when the father of the child, who is not married to his mother, has died, but during his lifetime recognized himself as the father of this child. The legal fact here will be the fact of recognition of paternity. The application can be submitted to the court at the place of residence of the applicant.
Such an establishment of the fact of recognition of paternity is most often required to include the child in the number of heirs and receive an inheritance, as well as to assign a survivor's pension to the child.
It should be noted! Even if the deceased left a will in favor of other persons, then in the event of establishing paternity minor the child will be entitled to a compulsory share of the inheritance.
If the application is satisfied, you can make changes to the birth certificate of the child and give the child the father's surname, as well as change the patronymic.
In addition, if there is no dispute about the right, within the framework of special proceedings, the court considers cases on the introduction of corrections, changes or exclusion of information about the father in the civil status records.
A woman who has a child before the expiration of three hundred days after the dissolution of the marriage or the death of her husband, if his father is another man, can apply to the court with such a statement. Since in this case, the father of the baby is registered as the former or deceased during specified period spouse.
Why exactly three hundred days? This is the maximum possible term pregnancy. This rule is designed to protect the interests of women. If at the dissolution of the marriage she was pregnant, the father of the child is responsible for his upbringing and maintenance. A woman will not be forced to prove the paternity of her ex-spouse - the evidence under the law is the very fact of the conclusion between them legal marriage.
Genetic Forensics: Evidence for Everyone?
Many people think that it is enough to conduct a DNA test, come with the results to the registry office or attach them to a claim for the recovery of alimony from a negligent dad, and with one stroke of a pen - information about the father is written down where necessary and a writ of execution about his maintenance obligations flew to his work.
Unfortunately no. If newly minted genetic expertise the father continues to resist and does not go with the mother of his child to the registry office to voluntarily establish paternity, then going to court is inevitable.
During the trial, the court may, at the request of one of the parties to the process or on its own initiative, order a blood test using the method of genetic or genomic fingerprinting or, more simply, conduct a DNA test to establish paternity. And only with the consent of the other party. This examination is not compulsory by the court.
However, the court cannot justify its decision only on the results of the DNA examination, since, according to the law, the results of the examination are one of the evidence in the case and must be evaluated in conjunction with others. Because none of the evidence has a predetermined force for the court.
Nevertheless, arbitrage practice strongly suggests that ninety-nine percent of paternity cases where forensic genetic testing was carried out with a positive result are decided in favor of the plaintiff. In addition, if the claim is satisfied, the cost of the expert examination, if it was paid by the plaintiff, may be borne by the defendant.
This is interesting! The genetic literature describes a case in Norway filed by the mother of a child who was born with a special rare structure of fingers - brachydactyly (shortening of fingers, more often on one hand, due to shortening of the middle phalanges). The defendant denied paternity, but when he was asked to show his hands at the court session, it turned out that he also had brachydactyly. He was recognized as the child's father; the decision was based on the fact that brachydactyly is determined by a gene that can be passed down from generation to generation and is so rare that the probability of fathering another man with the same gene is extremely small. At the same time, the absence of brachydactyly in a child would not exclude paternity, but would not allow a decision to be made without other evidence. Such a case is casuistry, and a modern court would hardly be satisfied with this proof.
Legal Consequences of Establishing Paternity
Before you decide to take a step to establish paternity, you need to think it over carefully, taking into account all the consequences that may arise in the future.
And they will not keep themselves waiting long if the mother needs to obtain the consent of the father of the child to commit certain actions. For example, to travel abroad to some countries or change the surname. After all, it is unlikely that a father who did not want to consider himself as such will flare up with paternal feelings for a child as soon as the court decision comes into force. And he will not treat his mother warmer, especially after litigation.
Another option is not excluded. Dad, for quite now legal grounds, may want to take part in the upbringing of the baby: see him as often as possible, take him to his place for the weekend, holidays.
Where is the problem here? On the contrary, it's wonderful!
Undoubtedly, this is basically the case. But experience shows that often mothers go to establish paternity only for the sake of alimony. Their plans did not include the communication of the child with the father (sadly, since they have every right to know and love each other). As a result: alimony is cheap (to be honest, gray salaries are not uncommon in our country), but habitual way the life of a mother with a child will have to change. Don't want to? Then the father will go to court with a lawsuit to determine the order of communication with the child, and the mother will be obliged not to obstruct their dates.
Go ahead. If a father is identified for a child, then his mother loses the status of a single mother, even if established father will avoid paying child support. Accordingly, a single mother who has established paternity will no longer have benefits.
After making changes to the record of the child's birth in connection with the establishment of paternity, the registry office is obliged to inform the authority social protection populationat the place of residence of the mother of the child within three days from the date of state registration of the establishment of paternity.
Now let's look at inheritance law. Undoubtedly, establishing paternity is beneficial if the father has property. But will it remain with him at the time of death? Will it be bequeathed to others? Please note that only minors are entitled to the compulsory share in this case.
On the other hand, we must not forget that the heirs of the first stage (if there is no will) are both children and parents (and mother and father equally), if they outlive their children.
However, the purpose of this part of the article is by no means to dissuade mothers from establishing paternity, but to pay attention to various nuances. It is more important for a child to see a “live” surname, first name, patronymic, even if the father is unknown to him, in his birth certificate than empty lines with official dashes.
Who knows, maybe establishing paternity will be the first step strong relationship between dad and child, the appearance in the life of the last one more grandparents, other relatives on the father's side, for which the son or daughter will later tell their mother Thanks a lot!
Yulia Khalova, lawyer
If you still decide to establish paternity, then very soon I will prepare for you samples of applications to the court and tell you about the production of such cases in court. Subscribe to blog updates in the form below so you don't miss out.
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” are gaining more and more popularity among the population. Children born in such unions are accordingly considered illegitimate. If 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 Paternity Establishment
Establishing paternity, in fact, is a recognition of the fact that a child is descended 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 obligations in relation to him.
The father can also take on parental responsibilities voluntarily by contacting the registry office with his mother, however, if this does not happen for some reason, then it is possible court ruling paternity.
Legislation
Paternity is regulated family code RF. In particular, in the IC of the Russian Federation there is 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 registering the origin of a child are established by the norms federal law dated November 15, 1997 No. 143-FZ "On acts of civil status". When applying to the court with a claim to establish paternity and during 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 jurisprudence, which, although not a source of law, is taken into account by judges when considering this category of cases.
Reasons and conditions for going to court
It is not possible to go to court with a claim for recognition of paternity, but only if there are conditions provided for 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 parents of the child 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 (when he reaches 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 judicial proceedings in cases of establishing paternity are the methods established by civil procedural legislation for considering and resolving disputes in 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 for this category of disputes:
- lawsuit proceedings;
- special production order.
A special order is also called a simplified order.
Special procedure for judicial proceedings
Unlike action proceedings, a special procedure for proceedings in cases of establishing paternity is applied only in cases where there is no dispute about the right. This procedure is applied in cases where nothing is required to prove to the court: all the necessary evidence has been collected, all the facts are available, 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 lawsuit proceedings
In lawsuit proceedings, everything is somewhat more complicated, because there is a dispute about the right, which means that a man will have to prove his paternity. Therefore, before filing a claim, you need to make sure that there are enough grounds for this, to collect the necessary evidence base.
It is likely that in the course of the proceedings it will be necessary to obtain additional evidence, to interview witnesses. Very often, the fact of kinship has to be confirmed with the help of DNA examination.
Take a sociological survey!
The procedure for establishing paternity through the court
The procedure for establishing paternity in the judicial system begins with the filing of a lawsuit. Before going to court, it is necessary to establish whether there are enough grounds for filing a lawsuit to establish paternity, competently and reasonably draw up the application itself, state in it all known facts and evidence to substantiate their legal position.
This will help claimants. 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 the order of simplified (special) proceedings. Otherwise, the father will have to face lawsuit proceedings, which provide for a much more complicated procedure for resolving the dispute.
In addition to determining the jurisdiction of the dispute and drawing up the claim itself, it is important to worry about the evidence base in support of your legal position, to collect all Required documents and certificates, if necessary, file a petition to call witnesses to court who can confirm your case, and, if necessary, be ready for a genetic examination.
To prevent the court from dismissing your claim, it's never a bad idea to ask family law attorneys how to sue for paternity. The fact is that it often happens that the plaintiff, although he has every reason to recognize paternity, but due to legal illiteracy, cannot always exercise his rights.
It is not easy for a man who wants to recognize paternity through the court to independently figure out which court to apply to, in what form a 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 needs to be filed.
Thus, it should be borne in mind that proving 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 responsibly approach its resolution. When resolving issues related to the establishment of paternity, it will never be superfluous to use the help of specialists in the field of family law.
Where to go to establish paternity
The jurisdiction of cases on establishing 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 issues 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 Code of Civil Procedure of the Russian Federation, a claim can be filed with the court both at the place of registration of the plaintiff and at the place of registration of the defendant. The choice in this case remains with the applicant.
The claim must be filed with the office of the relevant court.
What documents are required to apply to the court
Acceptance of the case for proceedings and its judicial review are made by courts of general jurisdiction on the basis of a filed claim to establish paternity. Documents confirming the legal position of the plaintiff must be attached to the claim ( 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, the court must provide:
- statement of claim and a copy of the claim for the defendant;
- payment receipt state duty(300 rubles);
- a copy of the child's birth certificate (if the claim is filed by the mother);
- a certificate from the place of residence of the child (if the lawsuit 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 sufficient quantity to provide a separate copy to each of the participants in the trial, including copies of the materials attached to the claim.
A claim for recognition of paternity can be filed in court by sending it by mail. In this case, you should draw up an inventory of what was included in the postal item, which, along with a check for payment for postal services, will be proof that the claim has been sent to the official address of the court.
This method of filing may take some time, but it eliminates the need to stand in line at the office.
If the claim is filed 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 issued at any notary. To do this, you must come to the notary's office with a passport and provide information about the attorney, the participation of the latter is not required.
No matter how you apply to the court - in person, through a representative or by sending a mail message - bail successful resolution the dispute will be whether the judge who will hear the case considers your claim to be satisfied. For example, if your claim is insufficiently 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 expressly provided for in Article 49 of the RF IC.
Thus, during the proceedings, the court may examine any relevant and lawfully obtained evidence, such as witness statements, expert opinions, documentaries. To take such evidence into account, the main thing is that they do not cause the judge to doubt the paternity of a particular man. Having considered 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 request from one of the parties), the court may order a DNA genetic examination to establish paternity. For the judge, the expert's conclusions have no predetermined value, 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 pass genetic analysis the court, of course, will not. However, you need to know that an unreasonable refusal to pass it, as well as obstruction in its conduct, 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 without fail it is necessary to attach evidence of payment of the state fee (original payment receipt) for the consideration of the case. You can pay the fee at any branch of the bank or through bank terminals, but for this you need to find out the details of the account of the corresponding court. The amount of the state duty is 300 rubles.
Trial order
How long it takes to establish paternity through the 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 term for consideration of the case depends on the conscientious performance by the participants in the process of their duties. So, the plaintiff and the defendant are obliged to appear at the court hearings on the appointed day and hour, to provide the documents requested by the court on time, and so on.
What to do after paternity is established
The court's decision to recognize paternity is not yet the final stage of the process to establish it. With this decision, a man needs to apply to the registry office in order to make an appropriate entry in the register of civil status.
A court decision that has entered into legal force is one of the grounds for registering paternity in 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, the registry office can also be contacted at the place where the decision was made by the court.
Entering information on the child's birth certificate
The birth certificate of a child is the first document proving his identity. Making changes to the information contained in civil status acts on the basis of a court decision on establishing paternity, respectively, entails reissuing a birth certificate.
Voluntary acknowledgment of paternity
The procedure for recognizing paternity also provides for the possibility of its establishment without trial, on a voluntary basis. In this case, paternity is established on the basis of an application jointly submitted by the parents to the registry office. In some cases, for example, if the mother of the child has died or been declared incompetent, the father can apply to the registry office on his own. In this case, paternity is established at 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 respect of 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 evades the voluntary fulfillment of his parental responsibilities, in which case they may be enforced by the court.
Alimony obligations
In addition, with the establishment of paternity, alimony obligations arise in relation to the child. This question may be resolved in court simultaneously with the consideration of a claim for recognition of paternity. At the same time, alimony can be collected both as a percentage of earnings or other income, and in a fixed amount of money.
Judicial practice in paternity cases
In claims to establish paternity, decisions are made taking into account the judicial practice that has developed in this category of cases. In particular, since 2017, when considering this category of cases, the courts have been 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 the establishment of 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 the fathers in such cases, respectively, are the 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 upbringing and maintenance of the child. That is why many men are in no hurry to voluntarily acknowledge paternity, in connection with which mothers are increasingly turning to the courts to resolve these issues.
Judicial Paternity Establishment: Video
- Establish the fact of recognition of paternity by Stroev Viktor Semenovich, born on May 14, 1979, a citizen Russian Federation, place of birth: Ulan-Ude, in relation to my daughter, Karina Viktorovna Voevodina, born on December 15, 2019, place of birth: s. Zyryanovskoye, Tomsk region.
- To oblige the Department of the Registry Office of the Zyryanovsky District to make changes to the birth record of Voevodina Karina Viktorovna, changing the child's surname to Stroeva, and also to enter Stroev Viktor Semenovich as the father.
The jurisdiction of such claims for the father of the child is general - that is, the claim is filed at the place of residence of the defendant. If the mother wishes to establish the paternity of the child, she can file a lawsuit of her choice - at her place of residence or at the place of residence of the defendant - that is, the father of the child. To establish paternity in court, you must 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 the persons participating in the case.
In cases of recognition of paternity, the testimony of witnesses cannot be dispensed with. Witnesses can be relatives, neighbors, friends and co-workers (interested persons indicated in the application cannot be witnesses in the case). Witnesses must be eyewitnesses of how the deceased took care of the child, talked about the fact that this is his child, shared plans for the future related to his son or daughter. Witnesses may be asked questions about why, during his lifetime, the father did not take steps to acknowledge his paternity.
Application for the establishment of the fact of recognition of paternity
In 2014 I became pregnant and in December 2014 our daughter Karina was born. My common-law husband, Stroev Viktor Semenovich, in order to provide for us, at the beginning of December 2014, went to work in Arkhangelsk on a shift. When the child was born, I turned to the registry office, where they answered me: due to the fact that our marriage was not registered, in order to recognize the paternity of Viktor Semenovich Stroev, we need to submit a joint application to the registry office. Since daughter Karina needed medical care and leaving as a newborn, the record of the father in the certificate of her birth is made from my words.
Application for the establishment of the fact of recognition of paternity
Pastic, I understand that the evidence in these cases will differ, tk. in the first case, we prove the subjective will of the father, and in the second, the objective origin of the child from the person. Therefore, the examination can. only needed in the second case, right? And what is suitable as evidence in the case of the fact of recognition of paternity? Suppose that there is no "classic" proof - letters with the text ". love, waiting for the birth of our child." no.
YurClub Conference
- the deceased father had to acknowledge the fact of the child's descent from him during his lifetime, which can be confirmed by evidence permitted by law;
- the mother of the child and the deceased citizen did not register family relations;
- the fact of recognized paternity is established in the courts according to the rules determined by the civil procedural legislation.
Establishing the fact of recognition of paternity (2018)
If the child was born unmarried, and the father of the child has not been established, then in order to receive an inheritance after the death of the father (or an inheritance after the death of the child), an application to the court with an application for establishment will be required. A mother of a child who has not reached the age of majority or a guardian can apply to the court with such a statement, and if the child has reached the age of majority, then he himself has the right to go to court.
The fact of paternity and the establishment of the fact of recognition of paternity
Special proceedings, or summary proceedings, are conducted at the level of the Magistrate's Court in the absence of contentious issues. In your case, given that the fact of paternity has not been established, a lawsuit is required, that is, a court of general jurisdiction. During the meeting, for starters, paternity will be established by considering the evidence presented, if there is not enough evidence, the court will send a submission for a DNA examination, after receiving the conclusion, the decision will already be made.
What is the difference between paternity proceedings and special proceedings?
The recognition of paternity expresses a subjective attitude towards paternity. It can be both before the birth of the child, and after that. In the special legal literature, it is rightly noted that when resolving the issue of establishing paternity, it is necessary to ascertain the opinion of the child himself, who has reached the age of 10 years. 14 Antokolskaya M.V. Family law. M., 1997. S. 191. .
Consideration by courts of civil cases involving a child
An application (special proceeding) may be submitted by any interested person. The person concerned is usually the mother. But the application can also be submitted by another person, for example, the guardian of the child. At the same time, the application can be presented both independently and with the help of a legal representative, whose duties and rights are fixed in a power of attorney that meets all the requirements of the law. The application is submitted at the place of residence of the applicant. The state duty for such cases is 200 rubles.
Establishing the fact of recognition of paternity
So, the information in the column "father" is filled in according to the words of the mother of the child: information about the "father-fiction" is entered, i.e. fictional face. The expression "father-fiction" means that the surname, name and patronymic entered in the act record do not imply that they really individualize existing man. The surname of the "father-fiction" is indicated by the registry office according to the surname of the mother of the child, and the name and patronymic of the "father-fiction" are recorded at the direction of the mother.
Establishment of the fact of recognition of paternity in the order of special proceedings
If one of the parents of the child cannot, for good reason, appear in person at the registry office to submit a joint application, his will can be issued as a separate application, while the signature must be notarized without fail.
The procedure for establishing paternity
After the death of his father, hereditary property remained, consisting of a residential building and a land plot, located at the address: I., st. L. No. 59. Residential building and land plot became the property of B.V.N. by inheritance after the death of grandmother B. L. V., who died on 06/01/2004, about which the Registry Office Department of the Registry Office of the S. Territory for the I. District made a record of the act of death No. 336 dated 06/08/2004 and issued a death certificate of the series 1-DN No. 7..8 (a copy is attached to the statement of claim).
Establishment of the fact of recognition of paternity in the order of special proceedings
Most often, a judge needs 2 months to make final decision from the date of application. Sometimes the period may increase in an unresolved situation as a result of multiple disputes or claims. After the decision is made, for its full entry into force, you must wait another 30 days, which are allocated for the purpose of filing an appeal. If the document has gained legal force, then you can go with it to the registry office and receive a new birth certificate of the child on the same day, according to which you have the right to prosecute the unscrupulous parent or enter the child into the heritage of the deceased father.
Application for the establishment of the fact of recognition of paternity
Only the alleged father, including a minor, until he reaches the age of 14, can be the defendant in the case, since, since he has been granted the right to recognize his paternity, there are no restrictions on filing a corresponding claim against him. Other interested persons may be defendants in connection with the establishment of the fact of paternity or the fact of recognition of paternity, if the existence of a dispute about the right prevents the establishment of this fact in a special proceeding, but this will not be a claim for the establishment of paternity, but another, on the basis of which a legal interest arises for establishing paternity, for example, a claim for the recognition of a child as an heir and for the division of an inheritance, for compensation for harm caused by the death of a breadwinner, a claim related to the right to use a dwelling, etc.
§ 2. Claim proceedings in cases of establishing paternity.
Jurisdiction and cognizance of paternity cases
Cases on the establishment of paternity were assigned to the jurisdiction of the courts of general jurisdiction by the all-union legislative act - the Fundamentals of Legislation on Marriage and Family, adopted on June 27, 1968 and entered into force on October 1, 1968. The date of entry into force of this legal normative act predetermined the scope of the judicial establishing paternity, linking it to the age of the child, namely, the judicial recognition of the father of the child by a person with whom the mother was not married, was applied to children born after October 1, 1968.
As in any other case of action proceedings, a paternity claim is brought in connection with the existence of a dispute about the law between the parties to the disputed legal relationship. The claim for the establishment of paternity is aimed at establishing parental legal relations between the child and his alleged father, who voluntarily evades registration of paternity in the civil registry offices. The defendant in such a claim disputes the existence of a parental legal relationship between him and the child, which necessitates judicial confirmation of the specified legal relationship. Thus, the proceedings to establish paternity in court in this case meet two the most important features action proceedings: the existence of a dispute about the right (1), conducted between the parties to this controversial legal relationship - the plaintiff and the defendant (2).
First of all, the child is a participant in the disputed legal relationship. It is his interest that is protected in the lawsuit. Consequently, as a participant in a disputed material legal relationship in the process, the child occupies the position of the plaintiff. Persons presenting a statement of claim to the court, as a rule, act as a representative of the child, except in the case when the alleged father himself brings the claim to establish paternity. In accordance with Art. 49 of the RF IC, one of the child's parents has the right to apply to the court. As a rule, this is the mother of the child, acting as a legal representative. The father of the child files a claim to recognize him as the father of the child, in particular, if the child's mother refuses to file a joint application with the civil registry office, or in the absence of the mother (death, it is impossible to establish her location) or in case of her incapacity, deprivation of parental rights, if the body of guardianship and guardianship refuses to give consent to the submission of such an application by him alone. In this case, the plaintiff is acting in defense of his interest. The demand to recognize him as the father also contains the interest of the child, however, there can be no question of any legal representation of the child, since the plaintiff does not yet have the legal status of a parent in this case.
The guardian or custodian of the child, or the person who is dependent on the child, as well as the child himself after reaching the age of majority, are also entitled to demand the establishment of paternity.
A minor mother of a child has the right to independently bring a claim to establish paternity when she reaches 14 years of age (clause 3, article 62 of the RF IC).
Filing a claim to establish paternity by a person who does not have such a right entails the return statement of claim on the grounds provided for n. 4 h. 1 Article. 135 Code of Civil Procedure.
In practice, the question arose about the possibility of accepting a statement of claim to establish paternity if a certain person is indicated as the father in the birth record of the child.
At one time the Plenum Supreme Court The USSR in its Decree of March 25, 1982 N 2 explained that the courts should not accept applications for establishing paternity for their proceedings if a certain person is indicated as the father in the birth record of the child (paragraph 3).
At the same time, the Plenum of the Supreme Court of the Russian Federation in Resolution No. 9 of October 25, 1996, recognizing the Decree of the Plenum of the Supreme Court of the USSR of March 25, 1982 No. 2 as invalid, in paragraph 9 indicated that by virtue of Art. 47 of the RF IC, an entry about the father of the child, made by the civil registry offices in accordance with paragraphs 1 and 2 of Art. 51 of the RF IC, is proof of the origin of the child from the person indicated in it. Considering this, when considering a claim to establish paternity in respect of a child whose father is a specific person (paragraphs 1 and 2 of Article 51 of the RF IC), it must be brought by the court to participate in the case, since if the stated requirements are satisfied, the previous information about the father must be excluded (annulled) from the birth record of the child.
The paragraph goes on to state that the court action order considers also the requirements for the exclusion of the record of the father made in the birth record in accordance with paragraphs 1 and 2 of Art. 51 of the Family Code of the Russian Federation and the introduction of new information about the father (i.e., establishing the paternity of another person), if there is no dispute on this issue between the interested parties (for example, between the mother of the child, the person recorded as the father, and the actual father of the child), since by virtue of paragraph 3 of Art. 47 of the Civil Code of the Russian Federation, the annulment of a civil status record in whole or in part can be made only by a court decision. When considering a case to challenge a record of paternity, one should take into account the rule of Art. 57 of the Family Code of the Russian Federation on the right of the child to express his opinion.
Several very important practical points follow from this explanation. First, there is no restriction on the possibility of going to court with a claim to establish paternity. The court is obliged to accept such a request for consideration and resolution, even if a specific person is indicated in the birth certificate of the child. Secondly, if only one demand is made to establish paternity, the futility of satisfying such a demand is obvious, since the origin of the child from another person is confirmed in the prescribed manner. Thirdly, it is only possible to “remove the obstacle” for the judicial establishment of actual paternity in the form of an act record in which another person is recorded as the father, only by canceling this record on the basis of a court decision. Fourth, in order to achieve such a decision, it is necessary to present an appropriate requirement to exclude the record of the father, made in accordance with paragraphs 1 and 2 of Art. 51 RF IC. Therefore, simultaneously with the claim for the establishment of paternity, it is advisable to apply for the exclusion (annulment) of the initial record of the father. Fifthly, such a claim is considered in a lawsuit in compliance with all the legislative provisions of the claim proceedings, including those regarding the execution of a statement of claim. Sixthly, this requirement requires the participation of a person registered as the father of the child, and his procedural position in this claim is determined by the rights and obligations of the defendant. Seventh, according to this requirement, the child has the right to express his opinion, and the opinion of a child who has reached the age of ten is subject to consideration, but is not binding on the court.
From the point of view of tribal jurisdiction, paternity cases are considered at first instance by district courts. Referring the majority of cases arising from family law relations to the jurisdiction of a justice of the peace, the law (Article 23 of the Code of Civil Procedure) directly indicates an exception to this rule in a number of cases, including cases of establishing paternity and contesting it.
The territorial jurisdiction of these cases is of an alternative nature. According to part 3 of Art. Claims for the recovery of alimony and the establishment of paternity may also be brought by the plaintiff to the court at the place of his residence, regardless of whether the claim for the establishment of paternity was filed simultaneously with the claim for the recovery of alimony or separately from it. It seems that this rule also applies to the case when an action to establish paternity is brought by the actual father of the child, since the law does not contain other reservations in this regard.
Lack of information about the place of actual residence of the defendant cannot serve as an obstacle to the consideration and resolution of the case in court. If the defendant's place of residence is unknown, the court proceeds to consider the case after the court receives information about this from the defendant's last known place of residence (Article 119 of the Code of Civil Procedure of the Russian Federation). At the same time, when considering a case in the absence of the defendant, whose place of residence is unknown, it is necessary to ensure the participation of a lawyer in the case as his representative, if the defendant does not have his representative (Article 50 of the Code of Civil Procedure of the Russian Federation).
It is possible to declare a search for the defendant, provided that, simultaneously with the claim for establishing paternity, a demand is made to recover child support from him. The judge in this case is obliged to issue a ruling on the search for the defendant, regardless of the petition of the plaintiff (part 1 of article 120 of the Code of Civil Procedure of the Russian Federation).
The need to establish paternity is present when a child is born in an unmarried or civil marriage. And a civil marriage is, in fact, a joint cohabitation without registration of relations in the registry office.
In this article:
Paternity Establishment: Consultations and Services
The trend of marriages is that faces are limited civil marriage. To protect children, it becomes necessary to establish paternity in a family that is not formalized in the proper way.
If a child is born in marriage, then he automatically acquires a mother and a father. Even if the marriage is dissolved within three hundred days, the father of the child will be former spouse mother. A similar situation in the literature is fixed as the principle of the presumption of paternity, it can only be challenged in court.
It is problematic to take this step on your own due to the specifics of the dispute. It is recommended to use qualified legal support in court in the person of a lawyer or lawyer.
The procedure for establishing paternity
Imagine a situation where a wife becomes pregnant by another man, after which a child is born. How in this situation to the spouse in the future to formalize paternity? Will her legal husband or a man on the side be the father?
In such a situation, if there is a legal marriage, the presumption of paternity will apply, that is, the legal husband will be established as the father of the child. The question then arises, how to biological father became the father of a child?
Simply going to the registry office and declaring this fact, with a request to enter this father’s child on the certificate, would be an unrealistic action. Two ways are possible here: voluntarily establish paternity or by going to court.
In court, there are also two ways in the order of action or special proceedings. Voluntary establishment of paternity will be the actions of the unmarried father and mother, aimed at filing an application with the registry office to establish paternity.
Establishing paternity through court
The judicial method of establishing paternity is based on action proceedings. One of the parents or guardianship authorities can apply to the court. The unmarried father of the child may also file if the child's mother has died or been declared legally incompetent. Go to court father maybe in the place of the defendant.
In the case of a mother's claim, the place of residence of the mother or the defendant is provided.
The following documents must be attached to the claim:
- birth certificate of the child;
- a receipt for the state duty, a certificate of the place of residence of the child;
- proof of paternity, if the mother is suing.
The main proof of paternity is confirmed by a genetic examination, which is done on a blood test.
If the claim is satisfied, then the cost of the examination can be assigned to the defendant.
When evading the examination, the court, taking into account the circumstances of the case and other facts in the case, may use other weighty evidence:
- correspondence documents;
- money provided for childbirth;
- information confirming the fact of communication of this person with the mother of the child at the time of his conception.
Special proceedings apply if the biological father has died. Establishing paternity in this case is advisable when deciding on the issue of inheritance.
If the deceased left a will, then the child in this case has a mandatory share in the inheritance. Also, the establishment of paternity in special proceedings is used when deciding on the appointment of a pension.
Disputing paternity
Disputing paternity occurs when the presumption of paternity, as described above, is applied.
The task of the court is to cancel the legal connection between the child and the non-biological father - the mother's spouse. IN similar situations the claim is filed only at the place of residence of this spouse of the mother. Either the mother or the biological father can apply to the court.
The mother will be the defendant if the biological father or spouse sends a lawsuit, if his wife, that is, the mother of the child, comes forward with a lawsuit. After a decision is made to challenge paternity, you can contact the registry office, where changes will be made to the birth record of the child indicating his father.