The procedure for establishing maternity and paternity in court, sample application

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Legal relations between a woman and her child arise immediately after registering the birth of the baby in the registry office. In the vast majority of cases, it is not difficult to prove a relationship: it is enough to present a certificate of birth of the child at the medical institution where the baby was born.

However, there are a number of situations when a woman has to prove blood relationship with her child. In this case, maternity must be established in court.

Definition

What is establishing maternity? This is what is commonly called the procedure for finding a biological mother. That is, from whom the baby was born.

Ideally, there are no problems with this, especially if a woman gives birth in a hospital under the supervision of doctors. However, sometimes in life problems arise with establishing the origin of a baby. And not only with fatherhood. For example, if we are talking about surrogacy.

When doubts may arise

Establishing and challenging maternity in Russia is regulated by the country's Family Code. It specifies the basic principles for determining the origin of babies. Next, we will focus directly on motherhood.

When might it be necessary to check family ties with the mother or search for them “from scratch”? For example, if:

the child was born outside the maternity hospital;
after a successful birth, the baby was declared dead;
a child has disappeared or been abducted;
parents see nothing in common with the newborn;
We are talking about surrogacy.

In any case, it is imperative to establish the origin of the baby, even during a normal birth in a maternity hospital. Without this, it will not be possible to issue a birth certificate, as well as other documents for the newborn.

When is it required?

Recognition or establishment of maternity is required in the following cases:

if we are talking about surrogacy (according to current legal norms, the mother is recognized as the woman who gave birth to the child; in the case of surrogacy, the woman who carried the child writes a refusal of the child before its birth);
if the birth of the child took place outside of a medical organization, and no medical documents about the birth of the child were issued;
if the birth of a child occurred on an aircraft or ship, and the captain drew up a corresponding report;
if the child was born without any witnesses (the woman establishes her maternity in court).

Determination methods

Establishing motherhood at the moment can occur in different ways. It all depends on the specific life situation. Therefore, you will have to take into account when the need arose to determine the origin of the baby.

At the moment, the following ways to solve this problem are possible:

establishing paternity and maternity without trial;
judicial procedure for determining who is the mother.

In reality, everything is not as difficult as it seems. In any case, if you don’t bring the matter to court. However, everyone should know both scenarios. They are described in more detail below.

Classic case

According to Family Law, maternity is established on the basis of a medical certificate of the established form. It is given to a woman after childbirth.

We are talking about a medical birth certificate. This document contains information about the mother and the baby. Paternity based on such an extract is neither confirmed nor denied.

Accordingly, initially the mother will be the one who gave birth in a medical institution. But, as already said, life takes various turns. And therefore it will not be possible to get by with just one case. For example, a woman can be a surrogate mother or even give birth outside the maternity hospital.

Establishing maternity

Unlike recognition of paternity, when establishing the origin of a newborn from the mother, it does not matter whether he was born in an official marriage, or whether the woman gave birth to a child for herself. That is why, to register the birth of a baby, an application from one mother is sufficient.

But when visiting the registry office, she must have with her a document confirming that she gave birth to this child.

If the baby was born in a medical institution, then maternity is established on the basis of a birth certificate issued in this institution. The document indicates the surname, first name and patronymic of the mother, the date of birth of the baby and his gender.
Maternity is established in the same general manner if artificial insemination of a woman was used or an embryo was implanted. But there is a condition: there must be written consent to the procedure from both parents if they are married, or from one woman if she is single.
It is not uncommon for a woman to give birth outside a medical facility. In such a situation, the basis for establishing a family relationship will be a medical report from a doctor, paramedic or other medical worker who helped the woman during childbirth, or a certificate from a medical institution to which the woman must contact after the birth of the baby.
It is also possible to establish maternity if other evidence of the relationship between mother and baby is presented, for example, DNA testing, as well as some others discussed in the Civil Code of the Russian Federation.
In some situations, the relationship between mother and child can only be established in court. This occurs in the absence of any official grounds for extrajudicial birth registration. In this case, the court must establish the fact that the baby was born by the woman who declares her motherhood.

In addition to establishing maternity, family law allows for challenging the relationship between a woman entered in the birth record as a mother, who in fact is not one.

But there are exceptions to this rule: if a child was born after implantation of an embryo, then the woman who gave birth to the baby does not have the right to challenge the motherhood of another woman if she agreed to enter this woman’s data in the “mother” column of the child’s birth certificate.

Thus, in Art. 48 of the RF IC establishes that information about the mother is entered into the child’s birth record in cases where there is:

Medical certificate of birth. Issued in cases where a woman gave birth in a medical facility.
Certificates from a medical professional. Issued if a woman gave birth outside a medical facility, but in the presence of a health worker.
According to a witness. Possible in cases where a woman gave birth outside a medical institution and in the absence of any health worker, but in the presence of other (third) persons.
By the tribunal's decision. It is necessary if there is no evidence from other persons that the child was born by a woman declaring that she is the mother of the baby.

Not in the maternity hospital - the first case

The pre-trial procedure for establishing maternity in Russia is the most common. But it is not always possible to cope with the task quickly and without additional problems.

It happens that women give birth outside of medical organizations, but under the supervision of doctors. For example, some practice home birth. What to do in this case?

A woman should contact a medical organization where there is a doctor who assists in childbirth. Or a medical birth certificate is issued by an entrepreneur engaged in medical activities, provided that the mother herself submitted an application in the established form.

Arbitrage practice

Of course, establishing maternity is not as popular a legal process as establishing paternity. However, judicial practice in such cases is quite extensive. There are often cases when establishing maternity in court becomes necessary due to the legal illiteracy of the baby’s mother.

Example

Nina Vorobyova gave birth to her daughter at home; no one was present at the birth. Since she had three other young children, she did not find time to go to the maternity ward to obtain a birth certificate for her daughter. Accordingly, she did not have any document about the birth of the baby. Three years later, Nina decided to send the girl to kindergarten, but since she did not have a birth certificate for the child, employees of the education department, and then the guardianship authorities, became interested in the origin of the baby and whether she had a family connection with Vorobyova. The question of establishing the fact of motherhood arose.

The woman filed a lawsuit to establish the fact of maternity. The court ordered a DNA examination, which showed that the girl was indeed the applicant's daughter. The court satisfied Vorobyeva’s claims and made a decision to establish the fact of the applicant’s motherhood in relation to her young daughter.

Also, judicial practice knows many examples when it is not the mothers themselves who go to court, but the guardianship and trusteeship authorities.

Example

Neighbors of Olga Novikova contacted the guardianship and trusteeship authorities. They stated that over the past three weeks, the crying of a newborn baby has often been heard from the neighbor’s apartment, but they have no information that the woman went to the maternity hospital. But a month before contacting the PLO, they saw Olga pregnant.

OOP officers visited Novikova, who showed them the newborn and stated that the birth happened quickly and she did not have time to call an ambulance. After the birth of the child, I felt fine, so I was in no hurry to go to a medical facility. She hasn’t thought about registering the baby’s birth, and she doesn’t have time for it, since she’s currently busy caring for the child.

PLO employees filed a claim in court to establish maternity in order to register the birth of the baby. The court satisfied the requirements of the PLO in full.

Of course, the lack of birth documents for minors, or other situations in which it is necessary to establish maternity in court, are not as common as claims to establish paternity. But they do exist. This means that knowledge of the order and procedure for going to court is required. This means that you need to consult a competent family law lawyer.

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Outside the hospital - second case

But that's not all. Life is unpredictable. You can never say with certainty that childbirth will take place in a medical facility or under the supervision of medical specialists.

A situation in which a woman gives birth without a doctor and not in a medical facility will be quite difficult. There are known cases of girls going into labor on airplanes or other unusual places.

In such circumstances, maternity is established on the basis of statements from witnesses who were present at the birth of the potential mother. One person is enough.

Important: you must contact any maternity hospital in the region or directly to the registry office. It's better to choose the first option. It will eliminate most of the unnecessary problems.

The Constitutional Court summarized the legal positions on the protection of motherhood, paternity and childhood

The Constitutional Court of the Russian Federation published an informational and thematic collection of its legal positions on the protection of motherhood, paternity and childhood as of July 2021.

In Resolution No. 25-P/2011, the Constitutional Court noted that the deprivation of single mothers - civil servants raising children under the age of 14 years, of state protection, which, in the event of dismissal at the initiative of a representative of the employer, is guaranteed by law to women undergoing military or law enforcement service, as well as for those women who carry out activities under an employment contract, it is unacceptable, since, in violation of the constitutional principles of equality, fairness and proportionality, it does not have a reasonable and objective justification and is not based on the characteristics of the state civil service.

According to Resolution No. 28-P/2011, both parents may be eligible for state support, which is needed by a family with a child under three years of age and therefore requiring special care, especially if such a family is raising several young children. Accordingly, when determining state support measures aimed at ensuring the material well-being of the family, large families raising young children should be provided with increased protection, since in such cases the mother is often unable to work due to the need to care for and raise children, and is therefore the sole breadwinner is the father.

The Constitutional Court noted that the provision of the guarantee enshrined in Part 4 of Art. 261 of the Labor Code of the Russian Federation, cannot be made dependent solely on which of the parents works and which takes care of the children, since differentiation is based only on the specified criterion and does not take into account all the circumstances that are significant for the parents to fulfill the obligation to support and raise children properly , reduces the effectiveness of the system of state support for the institution of the family and, in conditions of insufficient measures of social protection for workers with family responsibilities, can lead - in violation of the constitutional principles of equality and justice - to differences in the situation of families raising young children that have no objective and reasonable justification.

In Resolution No. 31-P/2012, the Constitutional Court indicated that clause 4, part 1, art. 33 and sub. “a” clause 3, part 1, art. 37 of the Law on State Civil Service in conjunction with Part 3 of Art. 37 of this law, in essence, constitute a single regulatory provision, which, allowing for dismissal from the state civil service (termination of service contract) at the initiative of a representative of the employer of pregnant women serving in the civil service who are not on maternity leave, in cases not related to liquidation the relevant government agency, including when committing a disciplinary offense, introduces differences in the scope of guarantees for such women provided in the system of current legal regulation, based on only one criterion - the scope of professional activity, and therefore does not comply with the Constitution of the Russian Federation.

The Constitutional Court noted that this does not mean that when committing a disciplinary offense, pregnant women - civil servants - based on the legal status of civil servants and taking into account the requirements imposed on them in connection with the implementation of tasks to ensure the execution of the powers of federal government bodies, government bodies of the constituent entities of the Federation , persons holding government positions in the Russian Federation, and persons holding government positions in constituent entities of the Russian Federation are completely exempt from disciplinary liability. In such cases, a disciplinary sanction may be applied to a state civil servant - provided that the fact of committing a disciplinary offense is established - taking into account its severity, the degree of guilt of the civil servant, the circumstances under which the act was committed, and the previous results of the civil servant performing his official duties (Part 3 Article 58 of the Law on State Civil Service).

Surrogacy

Unfortunately, not everyone can give birth on their own. And not everyone is ready to take in someone else’s child from an orphanage. If a couple is unable to give birth, they often try IVF. Maternity in such a situation is established on a general basis.

If IVF does not help or artificial insemination cannot be carried out for one reason or another, surrogacy comes to the rescue. In fact, a stranger will carry and give birth to a child for the couple.

From the point of view of establishing the origin of a child, this situation is considered one of the most difficult. This is due to the fact that you will have to carry a lot of documents with you.

Namely:

contract for the provision of surrogacy services;
written consent of the “client” spouses to register them as parents;
the consent of the surrogate mother to register the born baby in the name of those for whom she gave birth.

In this case, the last document is drawn up after childbirth or shortly before it. Generally, all consents are considered irrevocable. It will not be possible to refuse them after official registration.

Establishing the origin of children during surrogacy

In recent years, artificial reproduction methods have been increasingly used at the birth of children, one of which is the use of surrogacy.

Surrogacy is the implantation of germ cells from the parents of the unborn baby into a stranger’s woman for the full gestation and birth of the baby. It is used in cases where the blood mother, due to some circumstances, is not able to bear a healthy child.

The entire procedure is regulated by Federal Law No. 323-FZ of November 21, 2011, according to which the parties must draw up a surrogacy agreement. In this document, a woman invited to bear a child agrees to bear and give birth to a child for the second party to the contract. She also undertakes, after the birth of the baby, to transfer it to the other party to the contract.

Immediately before concluding the document, the woman must sign a consent to medical intervention to implant an egg or embryo into her. If she is officially married, then it is also necessary to obtain the consent of her husband to carry out the procedure.

Note. When a child is born by a surrogate mother, the law does not allow the use of her egg. In other words, in this case, the woman acts only as a vessel for bearing a child who is not her own by blood.

In order for the biological parents to receive parental rights to the baby after the birth of a baby carried by a surrogate mother, her consent is required. There are cases when a woman, after giving birth to a child, refuses to hand it over to her parents. In this case, maternity is established by court decision.

The court examines the case materials:

an agreement between the surrogate mother who carried and gave birth to the child and the biological parents;
the reasons for her refusal to enter information from the other party to the contract as about the parents of the newborn.

If there is an agreement on surrogacy, and it is duly drawn up, the applicant’s demands to establish maternity, even if she has no genetic relationship to the child, in the vast majority of cases are satisfied by the court in full.

About decisions in court

In Russia, the courts not only establish the origin of a child from a girl, but also refute the relationship. The second operation is quite common, but in relation to fathers.

If maternity is established in court, you will need to act as follows:

Draw up a statement of claim in the prescribed form. It describes the situation in which a specific baby was born.
Collect evidence that can confirm the relationship. For example, witness statements, examinations and DNA test results.
File a claim in court.
Take part in the meeting.
Receive a court decision regarding the establishment of maternity in a particular case.

It doesn’t sound too confusing, but in reality, problems may arise with determining the relationship of the baby to the woman. For example, if the bio-mother does not want to recognize the child.

Establishing the origin of a child in court

Situations when a woman gives birth outside of a medical facility, and there is not a single medical worker or other person nearby who could testify that this particular woman gave birth to a baby, are, unfortunately, not as rare as it might seem. In this case, the mother must immediately contact the maternity ward, upon discharge from which she will receive the necessary birth certificate.

But there are a number of situations when registration of legal relations between mother and child is possible only by court decision, among them:

A woman suspects that her baby was switched at a medical facility. In this case, it makes no difference whether there was intent or the substitution occurred by accident; in this case, you cannot do without a trial.
The newborn was declared dead immediately after birth, but the mother does not believe this fact and suspects that her child was given to other parents.
The child was kidnapped by third parties or lost by the mother.
The surrogate mother deliberately misled the baby's parents.

The procedure for considering a claim to establish maternity occurs in two ways, which will depend on the presence or absence of other interested parties:

if one woman claims to be the mother of the child, then the case is considered in a special proceeding;
if there is already a birth certificate of the baby, in which another mother is entered, or several women claim the child, then the claim is considered in the procedure of claim proceedings.

Establishing the fact of the birth of a child by a specific woman

Establishing the fact of the birth of a baby by a specific mother occurs in the manner prescribed by Chapter. 28 Code of Civil Procedure of the Russian Federation. If establishing maternity in this manner is impossible, then it occurs in court.

That is why, in any case, you must first contact the registry office and write an application to include information about the mother in the child’s birth record. If this procedure is impossible, then the registry office staff will write a refusal. Only after receiving this document will the mother have the opportunity to file a claim to establish maternity in court.

The claim is sent to the place of residence. The statement of claim must indicate the purpose for which the plaintiff is asking to make changes to the birth record and the reason why it is not possible to make changes to the children’s documents without a court decision.

A distinctive feature of claims to establish maternity in a special proceeding is the fact that, unlike any other claims, the defendant in the claim is not indicated here. If, in addition to the applicant, there are other interested parties, then they are indicated in the text of the application.

It must be remembered that in cases where a third party prevents the establishment of maternity of a particular woman, the court does not have the right to make a decision on establishing maternity. He can only give a recommendation that the applicant apply to the court through the procedure of claim proceedings.

Establishing maternity through special legal proceedings is impossible if:

there is no registration of the birth of a newborn;
There is no entry about the mother in the baby’s birth certificate (there is a dash).

The court decision on establishing maternity itself cannot become a document confirming the relationship between the mother and the child, but it is the basis for making changes to the record of his birth.

Establishment of maternity through legal proceedings

So, going to court with a claim to establish maternity through legal proceedings is necessary in cases where:

there is no record of the baby’s birth in the registry office;
another person is included in the children’s documents as the mother;
The court refused to allow the applicant to consider the case in special proceedings.

The applicant is exempt from paying the state fee, since the establishment of maternity is carried out in the interests of a minor (Article 333.36 of the Tax Code of the Russian Federation).

Algorithm of actions

Filing a statement of claim in the procedure of claim proceedings is a more complex process than the consideration of cases in special proceedings, since it involves a legal dispute between several parties. The procedure for going to court is as follows:

Collection of necessary documents and evidence in the case.
Drawing up a statement of claim.
Submission of the claim and the package of documents attached to it to the court.
Participation in litigation.
If necessary, a medical examination.
Receipt of a court decision that has entered into force.
Changing the birth record of the baby, or, if the record was not made earlier, registering the birth.

Collection of evidence

When filing a claim to establish maternity, the plaintiff must prepare evidence of her relationship with the baby. Depending on the circumstances, the following documentary or other evidence will be required:

If several women are applying for the role of mother at once, then genetic examination may be needed.
If we are talking about a surrogate mother, a surrogacy agreement.
A certificate from the maternity hospital or other medical institution where the baby was born.
Birth certificate of a minor.
If a newborn is declared dead at birth - a death certificate for the baby.
If a child has been kidnapped or gone missing - documents stating that he is wanted.

Preparation of a statement of claim

The statement of claim to establish maternity must contain the following information:

last name, first name and patronymic of the applicant, her passport details and registration address;
the same information about the defendant;
the name of the guardianship and trusteeship department on whose territory the trial is taking place;
the name of the district prosecutor's office at the plaintiff's place of residence;
title of the claim: “Statement of Claim to Establish Maternity”;
detailed information about the applicant and the minor in relation to whom a family relationship is established;
the reasons why information about the applicant as the child’s mother was not included in the birth record;
information about the whereabouts of the minor;
information about those persons who are caring for the child at the time of filing the claim;
references to laws and regulations on the basis of which the plaintiff requests that her claim be satisfied;
claim;
a numbered list of documents attached to the claim;
date and signature.

Sample statement of claim to establish maternity

Trial

The participation of the applicant in a claim to establish maternity in the judicial process is mandatory. If the plaintiff refers to the testimony of witnesses as evidence, then he must independently ensure their appearance at the trial.

Sometimes, in order to prove the origin of a minor from the applicant, she is required to undergo a genetic examination. In such cases, it is advisable, at the stage of preparation for the process, to draw up a petition for the appointment of a DNA examination. It can either be attached to the claims or filed directly in the lawsuit itself.

If the court considers that a genetic examination is necessary to prove the applicant’s position, it will order it.

The procedure for conducting genetic testing is as follows:

The court issues a separate ruling on the purpose of the DNA test. He sets the date for collecting the genetic material and the medical institution in which the examination should be carried out.
Persons for whom a DNA test has been ordered must appear at a medical institution on a date determined by the court to submit biomaterial.
A laboratory specialist collects genetic material. Usually, a swab from the inside of the cheek is sufficient for examination.
An analysis is performed that, with an accuracy of 99.99%, indicates the origin of the baby from the applicant, or, if the minor in respect of whom maternity is established, has no family connection with the applicant, the result of the analysis will be zero.
A report on the results of the examination is generated. Medical institution specialists send a certificate to the court. Transfer of examination results to third parties is not permitted.

Judgment

At the end of the trial, the court makes a decision. Depending on what requirements were specified in the statement of claim, the decision will be as follows:

establish the applicant’s maternity in relation to the minor specified in the claim;
exclude information about the defendant as the mother of a minor from the birth record;
change the baby's details in the birth record.

The court decision comes into force 30 days after the verdict is rendered. This procedure is provided to ensure that the losing party to the proceeding has the opportunity to challenge the court’s decision at a higher authority.

State registration

As stated above, a court decision, even if it has entered into force, is not a legal document confirming the legal relationship between mother and child. In order for the relationship to be legally confirmed, it is necessary to register the relationship in the registry office. To do this, the mother of a minor contacts the civil registry office where the birth of the baby was registered. She must have with her:

passport;
birth certificate or certificate of the child;
a court decision that has entered into force;
receipt of payment of state duty.

The amount of the state duty will be:

350 rubles – for issuing a document establishing a relationship;
650 rubles – for issuing a new birth certificate for the baby.

Who can go to court

It is worth paying attention to the fact that judicial determination of maternity can be carried out on the basis of a claim filed not only by the baby’s natural mother. Who else has the right to appeal to the mentioned authority?

Today, the following persons can file a claim in court to establish the origin of a child from a specific girl:

baby's father;
the woman's husband;
prosecutor;
representative of the guardianship authorities;
the organization where the child is located;
adoptive parents;
guardians;
persons raising the child.

Additionally, the child himself can submit a corresponding request to the court, but only after reaching adulthood. You can file a claim at age 16 if you have been emancipated.

What does the procedure give?

Establishing maternity in court has its pros and cons. But what does it give?

After confirming the birth of a baby with a specific child, the following happens:

It becomes possible to determine the cohabitation of mother and baby.
The child has the right to child support from the mother. In a woman, they occur in relation to her spouse until the child is 3 years old.
The mother will be able to apply for child benefits and compensation.
Inheritance rights arise.

It's actually not that difficult. The main thing is to properly prepare for the relevant meeting.