How to recognize paternity and receive child support if the child’s father denies his involvement in the birth? To do this, you need to file a claim in court to establish paternity.
There are often situations in life when this needs to be done. It all depends on the specific circumstances and goals. However, in most cases, in order to receive alimony, confirmation of paternity through the court is required.
To apply, you must prepare documents for the claim and attach a request for a DNA examination. How to do this correctly, read the article.
Establishing paternity and collecting alimony: methods
Determination of paternity and collection of alimony entails the emergence of personal non-property and property legal relations between parents and children.
Moreover, children born out of wedlock have the same rights and obligations in relation to their parents and their relatives as children born from persons married to each other.
If the child was born during marriage or less than 9 months after its dissolution, then paternity is presumed automatically. However, this does not mean that this fact cannot subsequently be challenged in court.
When a child was born in a civil marriage, the parents can, by mutual agreement, register the fact of paternity at the registry office. If there is a dispute between people about the origin of the child, then the fact of paternity is certified by a court decision.
Judicially
Questions about how to determine paternity in court are explained in Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 16, 2017 N 16 (as amended on December 26, 2017) “On the application of legislation by courts when considering cases related to establishing the origin of children.”
An application to the court to recognize a man as the father of a child can be filed:
- one of the parents (a minor mother of a child can independently file for determination of paternity and collection of alimony from the age of 14);
- guardian (trustee) of the child;
- the person who is dependent on the child;
- by the child himself who has reached adulthood.
When confirming paternity of children born after the entry into force of the Family Code, that is, from March 1, 1996, the court takes into account any evidence (written, oral, etc.) that reliably confirms the origin of the child from a specific person, including including examination.
Appointment of forensic examination
Currently, there are types of examinations that make it possible to confirm paternity with a high degree of accuracy.
These include, for example, genetic fingerprinting (by DNA, which contains a gene code that is individual for each person; a child’s DNA always combines the genes of the father and mother), by amniotic fluid (water during pregnancy).
Genetic fingerprinting as an examination based on genetic characteristics was carried out in 1988. According to experts, more than 10 thousand people apply annually for this type of examination due to the fact that, according to statistics, 14% of fathers who examine are not biological.
Alimony, whether within or outside of marriage, is the most common reason why people seek such an assessment, but not the only one.
For example, cases of replacing children in a maternity hospital, when it turns out that neither of the spouses indicated on the birth certificate are biological parents.
The expert's conclusion on the issue of the origin of the child becomes one of the pieces of evidence that must be assessed by the court in conjunction with other information available in the case, since no data has pre-established validity.
Expert commentary
Roslyakov Oleg Vladimirovich
Lawyer, specialization civil law. More than 19 years of experience.
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The father's failure to appear for the examination, when it is impossible to conduct it without him, or failure to provide the necessary research items, in itself is not an absolute basis for the court to recognize the fact for which it was appointed to clarify as confirmed or refuted.
This issue is resolved by the court on a case-by-case basis.
The court's position depends on a number of conditions:
- for what reasons did the father not appear for the examination;
- why the necessary research items are not presented;
- what significance does the expert opinion have for the court, based on the evidence available in the case in its totality.
If the child was born before March 1, 1996, the court should be guided by paragraph 2 of Art. 48 of the Code of Marriage and Family of the RSFSR.
Only the following circumstances are taken into account:
- cohabitation and management of a common household by the mother and the defendant before the birth of the child;
- joint upbringing or maintenance of a child;
- acknowledgment of paternity by the defendant, reliably confirmed by evidence.
Proof of at least one of these circumstances is sufficient. These circumstances can be confirmed not only by written, but also by witness testimony.
Requests for acknowledgment of paternity, regardless of the child’s age, are not subject to the statute of limitations..
In accordance with paragraph 5 of Art. 45 of the RF IC, confirmation of paternity in relation to a child who has reached the age of 18 is allowed only with his consent, and if he is declared incompetent, his guardian or guardianship authority has the right to do this.
Such consent is necessary in order to avoid dishonesty on the part of the person wishing to confirm paternity and subsequently collect child support.
If during the life of the father paternity was not established either voluntarily or forcibly, and the parents were not married, the court, in accordance with Art. 50 of the Family Code has the right to certify the fact of recognition of paternity during life.
This fact is established according to the rules of special proceedings, both with the help of written and other evidence.
Acknowledgment of paternity and child support
Simultaneously with the claim to determine paternity, as a rule, demands are made for the collection of alimony. In these cases, alimony without marriage is awarded from the day the application is submitted to the court, and not from the moment the child is born (clause 2 of article 107 of the RF IC).
The possibility of collecting money for the past is excluded, since before the claim to establish paternity was satisfied, the defendant was not recognized as the father of the child.
In case of delay in payments by the father, the mother of the child has the right to file a claim for alimony penalty.
If paternity is not confirmed either voluntarily or involuntarily, then information about the child’s father in the civil registration book is entered at the direction of the mother.
The child's father's surname is written according to the mother's surname, and the first and patronymic names are written according to her wishes. This entry does not interfere with the subsequent confirmation of paternity, either voluntarily or forcibly.
The legislation allows, at the discretion of the mother, not to indicate anyone as the father of the child; then a dash is placed in the “father” column on the birth certificate.
General information about establishing paternity
According to the Family Code, in order for parents to have responsibilities towards a newborn, a procedure must be carried out to register the fact of the birth of the baby. This procedure is carried out in the registry office: a birth certificate is issued for each newborn, which indicates the mother and father of the child. And only after this do parental rights and responsibilities towards the child arise. Without such a record, parents are officially considered strangers to the child.
With the establishment of a relationship between mother and child, everything is much simpler; for this, it is enough to have a medical certificate about the birth of the baby from the maternity hospital. This document will be proof that the citizen of the name is the mother of the baby; subsequently, she will only need to submit an application to the registry office, where a birth certificate will be issued for the child.
Even if a woman does not have a passport and did not give birth to a baby in a maternity hospital or in some other medical institution, to indicate her as the mother of the baby, a medical examination and testimony from third parties will be required that this particular woman gave birth to the child. Based on these two pieces of evidence, a birth certificate will be issued for the baby.
It is much more difficult to identify the father. The following options are possible here:
- The parents of the newborn are officially married . In this case, the mother's husband is entered on the child's birth certificate automatically, even if the child's biological father is another man.
- Parents are divorced, or mother's husband has died . If the baby was born no later than 300 days after the marriage ended, the ex-husband’s details are entered on the birth certificate.
- The baby's mother and father live in a civil marriage . If the father wants to register the child as his own, he must, together with his common-law wife, apply for voluntary recognition of paternity to the registry office. The same is true if the parents do not live together, but the man wants to enroll the child in his name.
- The child's mother has been declared incompetent by the court or deprived of parental rights . A father who wants to register a child as his own must obtain the consent of the guardianship and trusteeship authorities and then submit an application for voluntary recognition of paternity to the registry office.
- The child's mother or father refuses to include information about the father on the birth certificate . The second parent will be able to do this only by court decision.
- The child's father died or was declared missing by the court . The fact of paternity is established posthumously, only in court.
How to file a paternity claim
Both the mother and the father of the child have the right to file a claim. In any case, it will be considered by the court at the place of residence of the defendant. There is no state fee to be paid for filing an application.
Before preparing it, it is worth collecting evidence to justify the requirements.
For example, if a father’s application is submitted for recognition of paternity, he must provide evidence of cohabitation with the child’s mother. This could be written explanations from neighbors and other facts.
If the goal is to recognize a man as the father of a child, the lawsuit with attachments is filed in two copies, one of which will be sent to the defendant by mail.
How to prove paternity and apply for child support
Establishing paternity in court if two parents are not married and their joint application is not available in the registry office is possible only if the court has an application from one of the parents of an adult child or his guardian.
The father must file the claim at his place of residence, the child’s mother can choose the place of filing the claim - at her place of residence, or at the place of residence of the father.
In order to file a claim in court, you need to prepare the following documents:
- a statement of claim by a person who wishes to prove a biological connection with the child;
- for the defendant - a copy of the claim;
- receipt of payment of state duty;
- a copy of the child’s birth certificate (the original certificate must be submitted to court);
- certificate of the child’s place of residence;
- proof of paternity;
- copies of all these documents for the defendant.
The court considers the case within five days, after which a date for a preliminary court hearing is set.
At a preliminary hearing in court, the possibility of providing new documents to prove paternity is decided, and an examination may be ordered. After this meeting, a date for a new one will be set - the main one. If an examination is ordered, it is carried out both before and after the first trial. As a rule, the examination often occurs after the first main meeting. The examination involves conducting a blood test (DNA).
If the defendant avoids a medical examination because he is not interested in recognizing the child as his own and paying child support, the court cannot force him to take the test. But according to the Code of Civil Procedure of the Russian Federation, Article 79, paragraph 3, regardless of whether there is an examination or it was not carried out, the court must review all the evidence and make a reasoned decision.
Evidence in this case may include:
- written documents: correspondence, the defendant’s personal file, money transfers, his applications for the child’s admission to a child care institution, certificates of family composition, certificates from medical institutions, messages, questionnaires, documents that confirm that the time of conception of the child and the time of residence of the parties coincide.
- witness's testimonies;
- photo and video shooting.
It should be taken into account that in relation to children who were born before 03/01/1996 (the adoption of the Family Code of the Russian Federation), the above rules do not apply. In this case, only the following will be accepted in court:
- evidence of cohabitation of the parties;
- joint upbringing or child support;
- general housekeeping.
The meaning of a statement of claim and going to court
This document is necessary to initiate the procedure for recognizing paternity in court. We'll briefly tell you what you should pay attention to.
First, the name of the court is written, and then full information about the plaintiff and defendant. After this comes the name of the document (“Statement of Claim”) and its subject. In this case, these will be the demands of the defendant.
By filing a lawsuit, the child’s mother also asks to be awarded alimony. In this case, it is also worth emphasizing the statement and drawing the attention of the court.
The application to establish paternity itself must begin with a description of the circumstances of the cohabitation and the fact of the birth of the child. After this, evidence must be provided that the defendant is the father and not another man.
A paternity claim must be completed by requiring that the defendant be recognized as the father of a particular child. Additionally, a clause on the collection of alimony is indicated.
During the consideration of the case, the court may order a genetic examination. Its results will provide reliable evidence of paternity.
Expert commentary
Roslyakov Oleg Vladimirovich
Lawyer, specialization civil law. More than 19 years of experience.
Ask a question
The court decision that has entered into legal force will be the basis for the father’s parental rights and responsibilities. In particular, from this moment the person has obligations to pay alimony. In addition, the new father of the child may insist on giving him his last name.
Establishing paternity and collecting alimony: judicial practice
When considering this category of cases, the courts examine several key blocks. First of all, this is confirmation of the fact of a relationship or cohabitation of two people. At the same time, the date of birth of the child is also compared.
When a man categorically disputes paternity, a DNA test is ordered. If no objections are received, then sometimes other evidence is sufficient. Along with witness statements, photographs and even screenshots of pages from social networks are used.
As for alimony, courts use different approaches when assigning them. The debtor’s earnings and the presence of other minors as dependents are taken into account as a basis. Who the child currently lives with also plays a role.
Here are some recent illustrations from legal precedents. They touch upon the issue of confirming paternity and collecting alimony from different sides.
Assignment of payments for a child
A citizen filed a lawsuit against her former partner. The statement is motivated by the fact that during the period of living together in a civil marriage, the couple had a minor daughter. But the man refused to complete the documents through the registry office.
The plaintiff insisted not only that the defendant is the girl’s father, but also to collect alimony in the amount of ¼ of the income, as well as 5,000 rubles. from the current subsistence level. The man asked to assign only payments as a percentage, citing the fact that he has another family.
Having considered the application for recognition of paternity and alimony , the Sovetsky District Court of Makhachkala indicated that DNA testing confirmed the fact of relationship. Therefore, by decision of December 30, 2019 in case No. 2-4003/2019, paternity was established. At the same time, alimony was awarded in the amount of ¼ of existing earnings. It is interesting that in judicial practice indexation is also mentioned.
Fixed amounts
Another case that was considered by the Federal Court of the Sovetsky District of Makhachkala. The child's mother filed an application to establish paternity and collect alimony from her former partner.
The fact of the relationship between father and daughter was confirmed by several pieces of evidence. Along with the testimony of witnesses, photographs from the ceremonial discharge from the maternity hospital were added to the case. Therefore, the court did not order additional genetic testing.
As for alimony, the plaintiff asked to collect a quarter of the income from the defendant, but not less than 10 thousand rubles monthly.
However, in the decision dated December 6, 2019 in case No. 2-6055/2019, the emphasis was placed on the fact that there was no evidence of the father’s income, as well as the allocation of funds for the maintenance of the child. Therefore, the court ordered alimony in a fixed amount within half the subsistence level.
If the child lives with the father
The Malgobek City Court of the Republic of Ingushetia considered a claim to establish paternity and collect alimony filed by the mother of a minor girl. She asked to recognize her former common-law husband as the father of her daughter and to collect monthly alimony for her maintenance.
The man did not deny his relationship with the child, but objected to the appointment of alimony. After all, his daughter lived with him and had full financial support. This position was also supported by the guardianship service, which conducted a preliminary examination of living conditions.
As a result, by the decision of November 19, 2019 in case No. 2-1169/2019, the fact of the defendant’s paternity was legally established. The demands for alimony were left unsatisfied.
When the defendant has several children
A civil marriage is often characterized by the fact that a man can have children from different women. And if there are no problems with establishing paternity - there is a molecular genetic examination for this, then options for alimony are possible.
As an example, we can cite the decision of the Noginsky District Court of the Moscow Region dated November 14, 2019 in case 2-4042/2019. The plaintiff filed an application demanding recognition of the fact of paternity of the defendant and to collect from him monthly payments for the maintenance of his son in the amount of 1/3 of his income.
At first, the man disputed his attitude towards the child, but the examination put everything in place. Considering that the citizen also had children from other mothers, the court limited the monthly amount of alimony at 1/6.
The Crucial Importance of Expertise
The Svetloyarsky District Court of the Volgograd Region was considering a case brought by a woman against her former common-law husband to confirm paternity and collect alimony. The author of the statement insisted that she had a close relationship with the defendant. As a result, a child was born.
But the man objected to the demands and categorically disputed his paternity. The court had no choice but to order a genetic examination.
Her findings showed a lack of relationship. Therefore, by the decision of September 3, 2019 in case No. 2-411/2019, the claim was rejected in full.
