Establishing the fact of recognition of paternity
In accordance with domestic norms of family law, if a child was born in marriage, then the existence of paternity is assumed by itself. However, in other cases, things are much more complicated. At the same time, the procedure for establishing paternity may entail a number of legal consequences: a change in the child’s surname and patronymic, the emergence of additional rights and obligations.
Find out more about the reasons, methods and consequences of establishing paternity.
Possibility of establishing paternity after the death of the father
There are situations when a man died before his child was born or before the latter was officially registered. When determining whether paternity can be established after the death of a father, let us turn to Russian legislation. It says that this can only be done in court. In this case, you will need to indicate the reason why paternity needs to be established. Having such a decision in hand, the mother of the child and the baby himself receive certain rights.
But in order to get the desired result and a court decision in your favor, you will have to prove that the deceased was really the father of the child. This falls on the shoulders of the interested party who goes to court. In this case, the following facts must be present:
- the child was born during a relationship that was not officially registered;
- the man acknowledged paternity before death;
- directly the fact of the father's death.
Recognizing paternity if the father has died is very important for the subsequent life of the child, both legally and morally.
DNA examination
An examination to establish paternity (genetic fingerprinting or DNA) after the death of the father is not a decisive factor for the court's decision. However, its implementation may be necessary (along with other evidence) when, for example, the child’s father did not participate in raising the child during his lifetime.
In cases of posthumous paternity determination, DNA testing is usually not ordered. This is due to the fact that the material for testing can be taken directly from the child’s father, which is difficult (and sometimes impossible) after his death.
Reasons for establishing paternity
As already noted, when going to court, the interested party must indicate why he needs it. Otherwise, the application may be returned without consideration. Some of the most common reasons for filing a paternity claim include:
- the need for the mother to receive a survivor's pension;
- the possibility of obtaining benefits and other social payments;
- making changes to the child’s documents;
- receiving an inheritance by a child as a direct heir.
Who should go to court
An application to the court is submitted by the mother of the child or the guardianship and trusteeship authorities acting in the interests of the minor. In addition to them, a person who is dependent on a child can also go to court. As a rule, this is one of the immediate family or the institution where the minor lives. In addition, the child himself can submit an application to establish the fact of recognition of paternity upon reaching 18 years of age.
How to determine
If the guy is sure that the child is his own, he and the baby’s mother just need to come to the registry office and get a birth certificate. But it happens that a parent does not recognize his heir, believing that the mother is deceiving him.
In this case, paternity determination is carried out. It takes place independently (before receiving a birth certificate) or after under the supervision of a court.
The fact of establishing paternity can be determined in different ways:
- By date of conception, gestational age or date of birth: to do this, it is necessary to calculate whether the mother and father had sexual intercourse on the specified day. This is not the most accurate option, but it is often used by women even before childbirth to restore justice.
- By external signs: this method has been used by many generations of families. But even in this case, accuracy leaves much to be desired: the child may turn out to resemble only his mother or grandparents. Also, a woman could become pregnant from a person who looks similar to the intended father.
- By blood type or Rh factor: for this, blood is taken from the mother’s partner and the born baby and compared. This method was popular before: it is more scientific and eliminates most errors, but it is still not the most accurate and does not provide a 100% guarantee.
- By DNA: this option allows you to get a 99% reliable result and is used in all complex cases. The court also relies on it to restore the truth. You can do a DNA test both during pregnancy and after childbirth.
All of these methods can be used to confirm or refute the guardianship of a particular man to a particular child. They can also apply to a citizen of another state.
Types of legal proceedings
Posthumous paternity determination may be required in two cases:
- when a citizen recognized himself as the father of a child, but did not have time to submit documents to the registry office to establish this fact officially;
- when a man refused paternity or died before the birth of the child.
In both cases, it is necessary to go to court, but the procedure for considering the case will differ. The first case will be considered in a special proceeding, but the second will deal with a dispute that is resolved in a lawsuit.
Establishing paternity in a special manner
A special procedure is a simplified type of production, which is characterized by certain features:
- the subject of judicial protection here will not be a violated right, but a legitimate interest;
- in such cases there is no defendant, the parties are only the applicant and interested parties;
- in this category of cases it is impossible to abandon the claim or file a motion to secure it.
In the case under consideration, a fact will be established that has legal significance, i.e. fact of recognition of paternity.
Consideration of the case in litigation proceedings
If a man died before the birth of a child, then there will be a dispute about the right, which means it must be considered according to the rules of litigation. The legislation does not clearly define the period during which one can file a claim in court in such a case. Based on this, it should be understood that this can be done at any time.
Also, the case will be considered through the claim procedure if there is any dispute (inheritance, restoration of rights, and so on). This procedure will take much longer, because it requires establishing a relationship.
Death of mother
Posthumous establishment of paternity after the death of the child’s mother may be necessary both for the father himself and for the child’s relatives (guardians), or for the child himself when he grows up.
A man who considers himself the father of a child, or other interested parties, can establish the right of paternity in court. They will have to declare their desire to the district court at their place of registration.
In addition to the death of the mother, the basis for judicial establishment of paternal rights may be:
- mother's incapacity
- untimely absence
- deprivation of her parental rights
Those. in any situation where the child is actually left without maternal care, the father (or interested parties) have every right to go to court to establish “de jure” the fact of paternity.
This statement of claim can only be written with the consent and support of the guardianship authorities. The guardianship authorities here are the guarantors of full respect for the rights and interests of the child when establishing paternity in relation to a particular man.
Procedure for establishing paternity
In order to know how to establish paternity after the death of the father in court, you must first decide in what manner your case will be considered. After this, the applicant must prepare an application and a package of documents attached to it.
Which court should I go to?
To establish the fact of recognition of paternity, an application is submitted to the district court at the place of residence of the person wishing to establish such a fact.
List of required documents
It is necessary to submit the following documents to the court to establish the fact of recognition of the paternity of a deceased citizen:
- a copy of the person's death certificate;
- a certificate from the registry office confirming the absence of officially registered marriage relations;
- a copy of the child's birth certificate;
- certificate of cohabitation with a minor (issued by housing and communal services).
You can also attach other documents that will be considered evidence in this case in court.
In addition to the package of documents, it is necessary to file a claim for recognition of paternity. It is this that will serve as the basis for starting the procedure for establishing kinship.
The application must set out all the available evidence, explain why paternity could not be established in another way and for what purposes this is needed. Along with this, the application may indicate a request to change the child’s surname and patronymic, make adjustments to the vital record and other documents.
Proof
It is important to collect all possible evidence in this case, because on their basis the final decision will be made. Such evidence may include:
- various documents;
- written materials in which the deceased mentioned that he had a child;
- joint photographs and video shooting;
- information obtained from witness testimony.
None of the evidence can be recognized by the court as priority over the others; all of them must be considered in their entirety. Before the start of the court hearing, it is also necessary to determine the list of persons who can act as witnesses in the case (friends, relatives, neighbors, and so on).
Appointment of genetic examination
If a case is being considered as part of a lawsuit, a genetic examination may be ordered. If the case is considered in a special manner, then its implementation is impossible.
Often, genetic testing is prescribed if the father died as a result of violent acts or in cases where monetary compensation is possible for his heirs.
In such cases, donors will be persons who are blood relatives of the deceased. However, the examination is voluntary, so if such persons refuse to participate in it, it will be impossible to conduct it.
State fee for filing an application
In accordance with the Tax Code of the Russian Federation, in the event of paternity being established posthumously, the applicant is exempt from paying the state fee for filing a statement of claim in court, since he applies to protect the legitimate interests of the child.
The process of considering a case in court
Regardless of whether the case is being considered in a claim or special proceeding, it goes through the same stages. The court listens to all witnesses and examines all evidence provided.
As noted earlier, there is no defendant in special proceedings. The applicant, as well as interested parties who can give some evidence, must be present at the court hearing. In claim proceedings, interested parties can also submit their objections.
As a general rule, the case is considered within 2 months. A reasoned court decision to establish paternity posthumously enters into legal force one month after it is made. In the future, you need to contact the registry office at your place of residence with this decision, since it is the basis for making changes to the birth certificate of the child. A new birth certificate is also issued there, which includes information about the father.
Judicial practice on issues of establishing paternity
Judicial practice shows how important such type of evidence as witness testimony is in this category of cases. Thus, more often a positive decision is made in cases where the widow is supported by the relatives of her late husband. If there is an unfriendly attitude, trials take much longer and are more complicated.
The outcome of a case usually depends on its size and the amount of evidence provided. As practice shows, the testimony of witnesses alone, despite all their importance, or written materials alone are not enough for the court to make a positive decision. It is necessary to have various types of evidence, and the more there is, the better for the applicant.
Proof
To achieve a positive outcome of the case, you need to prove the presence of all or a number of the following circumstances:
- Cohabitation of the child's parents, maintaining a common household. For proof, you can use payment and other documents, correspondence, photo and video materials, and witness testimony.
- The fact that the defendant recognized his paternity of the child.
- Participation of the putative father in the upbringing and financial support of the child.
Again, the decisive evidence in the dispute may be the conclusion of genetic fingerprinting. It can be carried out at the request of the plaintiff, and if the claims are satisfied, the costs of paying for the study will have to be compensated by the defendant.
