How it works: resolution of the Plenum of the Supreme Court on challenging paternity and maternity

Do you suspect deception, a desire to illegally profit from your feelings by challenging paternity? Have you become an unwitting alimony payer? Or did you simply have certain suspicions that you are not the real father of the child? Have you often wondered what actions need to be taken to achieve the truth? Disputing paternity is the answer. This question especially arises after the divorce of the spouses, when all joint property is distributed during the division of the property of the spouses - the time comes for the concept of disputes about children.

If you have at least one of these questions, or another, similar situation has arisen, then you have probably already decided to challenge paternity. Our family lawyer, or family lawyer as he is also called, will tell you all the intricacies of the procedure - challenging paternity.

Who can file a claim to challenge paternity?

Certain categories of citizens are granted the right to challenge paternity at the legislative level:

• persons who are officially registered as parents;
• paternity can be challenged by the biological father of the child who wishes to establish his paternity in relation to the child;
• a child who has become an adult can challenge paternity, knowing that the person indicated as his father is not such, and not wanting to have any legal connection with this person.;
• guardians or those who are legally entitled to represent the interests of the child.

USEFUL: watch the video on how to challenge paternity and ask your question in the comments of the video

Article 52 of the RF IC. Challenging paternity (maternity) (current version)

1. Situations are possible when the husband of the child’s mother is not the actual father of the child, therefore the entry of the husband of the child’s mother as the father can be challenged, but only in court. It must be taken into account that the RF IC does not limit the right to challenge in court the record made about the father (mother) of a child. At the same time, in case of challenging the record of the father (mother) made in relation to a child born before March 1, 1996, it must be borne in mind that, by virtue of Part 5 of Art. 49 CoBS of the RSFSR, such an entry could be challenged within a year from the time when the person recorded as the father or mother of the child became or should have become aware of the entry made.

Incorrect indication of paternity (in exceptional cases of maternity) may be the result of a technical error, honest misconception, or deliberate misleading of the registry office.

Cases challenging paternity are considered within the framework of lawsuit proceedings. On the procedure for considering cases of challenging paternity records, see Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 16, 2017 N 16 “On the application of legislation by courts when considering cases related to establishing the origin of children.”

As follows from paragraph 1 of the commented article, the circle of persons who have the right to challenge paternity and maternity is quite wide. These include: a person recorded as the father or mother of the child, a person who is actually the father or mother of the child, the child himself upon reaching the age of majority, the guardian (trustee) of the child, the guardian of a parent declared incompetent by the court.

In paragraph 25 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 16, 2017 N 16 “On the application of legislation by courts when considering cases related to the establishment of the origin of children” it is said that “this right also belongs to a child under the age of eighteen who has acquired full legal capacity as a result of emancipation or marriage (clause 2 of Article 21, clause 1 of Article 27 of the Civil Code of the Russian Federation). Due to the fact that family legislation is based on the inadmissibility of arbitrary interference by anyone in family affairs (Article 1 of the RF IC), this list of persons is exhaustive and is not subject to broad interpretation. If a claim to challenge an entry about the father (mother) of a child in the birth register is filed by a person not included in the list of persons specified in paragraph 1 of Article 52 of the RF IC (for example, one of the heirs of the person recorded as the father (mother) child, or a relative of the child who has not been appointed as his guardian or trustee in accordance with the procedure established by law), the judge refuses to accept the statement of claim on the basis of paragraph 1 of part 1 of Article 134 of the Code of Civil Procedure of the Russian Federation, and if proceedings have been initiated in the case, the court terminates the proceedings in accordance with paragraph two of Article 220 of the Code of Civil Procedure of the Russian Federation.”

If the request to challenge paternity or maternity is satisfied, appropriate changes are made to the registration book of the registry office. When considering a case of challenging paternity by the actual father or mother or other persons, the court is obliged to involve in the case the person who is registered as the father of the child, since if the stated requirements are satisfied, the previous information about the father must be excluded from the birth certificate of the child.

2. The Family Code of the Russian Federation establishes cases when paternity cannot be contested. The provisions of paragraph 2 of the commented article prohibit challenging paternity to a person who was not married to the child’s mother at the time of making an entry about the child’s parents in the register and who knew that he was not the actual father of the child. Consequently, a challenge to paternity can only take place if the court finds that the person at the time of making the paternity record did not know that he was not the father of the child.

Obviously, the legislator in this case proceeded from the interests of the child, since identifying the true father would have taken a long time, as a result of which the child would have been deprived of the right to receive maintenance.

It is necessary to keep in mind that the rule provided for in paragraph 2 of the commented article on the impossibility of satisfying the demands of a person registered as the child’s father on the basis of paragraph 2 of Art. 51 of the RF IC, on challenging one’s paternity, if at the time of the entry this person knew that he was not the father of the child, does not exclude his right to challenge the entry made based on a violation of the will (for example, if an application to establish paternity was filed under the influence of threats, violence or in a state where the plaintiff was not able to understand the meaning of his actions or control them). This is stated in paragraph 27 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 16, 2017 N 16 “On the application of legislation by courts when considering cases related to establishing the origin of children.”

3. Clause 3 of the commented article defines the procedure for establishing the origin of a child born as a result of using the method of artificial insemination and embryo implantation. Married persons who have given their consent in writing to the use of artificial insemination or embryo implantation, if they have a child as a result of the use of these methods, are recorded by his parents in the birth register. It does not matter whether the spouses are genetic parents or not.

However, in the case of implantation of an embryo into another woman for the purpose of bearing it, these persons can be registered as the parents of the child only with the consent of the woman who gave birth to the child (surrogate mother). When state registration of the birth of such a child, simultaneously with a document confirming the fact of the child’s birth, a document must be issued, issued by a medical organization and confirming the fact of obtaining the consent of the surrogate mother to register the spouses as the child’s parents (Clause 5, Article 16 of the Federal Law “On Civil Status Acts” ).

Thus, the expression of the surrogate mother’s consent to carry the embryo at the time of implantation is not enough for the persons who entered into a corresponding agreement with her to be recorded as parents. Such consent must be given by her after the birth of the child, and if she does not confirm her consent, then she herself can be recorded as the mother of the child. However, if she has given such consent, she cannot subsequently withdraw it.

Paragraph 3 of the commented article does not allow challenging paternity in a situation where the spouse has given his written consent to the use of artificial insemination or implantation of an embryo, since it is obvious that such a spouse knows that in reality he is not the biological father. However, such a ban is not absolute. In particular, a claim can be brought if the plaintiff proves that artificial insemination did not actually take place, and that conception occurred naturally from another man.

It is also not allowed to challenge the record of parents either by the spouses (or one of them) who gave their consent to the implantation of the embryo into another woman for the purpose of bearing it, or by the woman herself who gave birth to the child (surrogate mother), on the basis that the child was born with using methods of artificial human reproduction.

According to paragraph 32 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 16, 2017 N 16 “On the application of legislation by courts when considering cases related to the establishment of the origin of children,” the birth of a child with the use of donor genetic material by spouses (a single woman) does not entail the establishment of parental rights and responsibilities between donor and child, regardless of whether this person was known to the child’s parents or not (anonymous donor). Taking this into account, a person who was a donor of genetic material does not have the right, when resolving claims to challenge and (or) establish paternity (maternity), to refer to the fact that he is the actual parent of the child.

For the same reasons, the demands of persons registered as parents (single parent) of a child to establish paternity in relation to the person who was the donor of the genetic material with which the child was born cannot be satisfied.

Comment source:

“ARTICLE-BY-ARTICLE COMMENTARY TO THE FAMILY CODE OF THE RUSSIAN FEDERATION” UPDATED

S.P. Grishaev, 2017

Procedure for challenging paternity

You should know that, in accordance with family law, the entry about parents in the birth register can only be changed in court, by filing an application to challenge paternity in a court of general jurisdiction. There is no other procedure for this action.

The procedure for challenging paternity (challenging paternity by a mother, challenging paternity by a child) involves submitting the following documents:

• the corresponding statement is a claim (Article 131 of the Code of Civil Procedure of the Russian Federation);
• a copy of the child's birth certificate;
• a document confirming payment of the amount in the amount of the state duty established by law (clause 3, clause 1, article 333.19 of the Tax Code of the Russian Federation);
• reliable information that proves that the citizen recorded in the act as a parent is not biologically such (Article 55 of the Code of Civil Procedure of the Russian Federation).

Conducted genetic testing, witness statements, as well as other materials (personal letters, photographs) are information that serves as evidence.

How to challenge paternity

Hello to those reading this article!

So, the previous articles were about:

-Establishment of paternity in general terms

-Establishment of paternity voluntarily

-Establishment of paternity in court

Now let's talk about such a procedure as challenging paternity.

Challenging paternity means challenging the entry about the child's father that the civil registry office makes in the birth register. The record of the child's father can only be challenged in court. You will have to go to court even when both persons recorded as the mother and father of the child agree to change the record about the father.

The following have the right to challenge paternity:

• the person registered as the father or mother of the child,
• the person who is actually the father or mother of the child (biological parent),
• the child himself upon reaching the age of majority (or under 18 years of age who has acquired full legal capacity as a result of emancipation or marriage (clause 1 of article 52 of the RF IC; clause 25 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of May 16, 2017 N 16).
• guardian (trustee) of the child,
• guardian of a parent declared incompetent by a court.

Note!

In cases of challenging paternity, taking into account the opinion of a child who has reached the age of ten years is mandatory (Article 57 of the RF IC; paragraph 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 16; paragraph 8 of the Review, approved by the Presidium of the Supreme Court of the Russian Federation on April 13, 2016).

To challenge paternity, you need to adhere to the following algorithm.

Step 1.

Prepare your documents

To challenge paternity you will need (Articles 131, 132 of the Code of Civil Procedure of the Russian Federation; clause 19 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 16):

• statement of claim to challenge paternity;

• a copy of the child's birth certificate;

• evidence confirming that the person recorded as the child’s father is not his biological father. Such evidence can be obtained from explanations of the parties and third parties, testimony of witnesses, written and material evidence, audio and video recordings, expert opinions;

• notification of delivery or other documents confirming the sending to other persons participating in the case, copies of the claim and documents attached to it, which these persons do not have;

• documents confirming that the party (parties) have taken actions aimed at reconciliation, if such actions have been taken and the relevant documents are available;

• a document confirming the payment of the state duty or the right to receive benefits for its payment, or a request for a deferment, installment plan, a reduction in the amount of the state duty or an exemption from its payment.

State duty amount

The state fee for filing a non-property claim is 300 rubles. (Clause 3, Clause 1, Article 333.19 of the Tax Code of the Russian Federation).

You also have the right to prepare a petition for the court to order a genetic examination, with the help of which the presence or absence of a family relationship with the child can be established (part 1 of article 35, part 1 of article 55, article 79 of the Code of Civil Procedure of the Russian Federation; clause 20 of the Resolution of the Plenum Supreme Court of the Russian Federation No. 16; paragraph 8 of the Review).

Step 2.

Contact the district court with the claim and the documents attached to it

As a general rule, a claim is filed in the district court at the place of residence of the defendant (Articles 24, 28 of the Code of Civil Procedure of the Russian Federation).

The court satisfies requests to order a genetic examination, call witnesses, and introduce additional evidence during the hearing.

If a party evades participation in the examination, fails to provide the experts with the necessary materials and documents for the study, and in other cases, if, due to the circumstances of the case and without the participation of this party, the examination cannot be carried out, the court makes a decision on the basis of all previously presented evidence. In this case, the court, depending on which party evades the examination and what significance it has for it, has the right to recognize the fact for the clarification of which the examination was appointed as established or refuted (Part 3 of Article 79 of the Code of Civil Procedure of the Russian Federation).

If the child’s parents were not married at the time of his birth and the father’s record was made at their joint application, at the father’s request, or by court decision, and subsequently the citizen recorded as the child’s father intends to challenge his paternity, the following must be taken into account.

The court will refuse to satisfy the request to challenge paternity if the citizen, when registering him as the child’s father, knew that he was not in fact his father. However, this does not exclude his right to challenge paternity in connection with a violation of the will - for example, if an application to establish paternity was submitted by him under the influence of threats, violence, or in a state where he was not able to understand the meaning of his actions or direct them (Clause 2 of Art. 52 of the RF IC; clause 27 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 16).

Also, if during the trial it is established that the citizen registered as the child’s father is not his biological parent, the court has the right to satisfy the claim to challenge paternity. However, in exceptional cases, in order to ensure the interests of the child and taking into account the specific circumstances of the case (for example, in the case of a long-term family relationship between the child and the person registered as his father), the court may refuse to satisfy the claim. Thus, this is possible if, simultaneously with the claim to challenge paternity, the mother or guardian (trustee) of the child did not submit a demand to establish paternity in relation to the biological father, or such a demand was not made by the biological father, and the person registered as the father objects to the satisfaction of the claim ( clause 29 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 16).

If the claim to challenge paternity is satisfied, the court makes an appropriate decision. In the operative part of the decision, the court indicates which entry is incorrect (which civil registry office made it, the number and date of the entry, in relation to which persons it was made), what changes or corrections need to be made to it (Articles 194, 198 of the Code of Civil Procedure of the Russian Federation) .

Step 3.

Prepare the necessary documents to correct the paternity record and submit them to the registry office

The basis for making corrections and changes in civil status records is a court decision. In addition, it is necessary to attach an application for a correction or change in the civil status record and the following documents (clause 1 of Article 69, Article 71 of the Law of November 15, 1997 N 143-FZ):

• applicant's passport;

• child's birth certificate;

• receipt for payment of state duty.

State duty amount

The state fee for making corrections and changes in civil registration records, including the issuance of certificates, is 650 rubles. (Clause 5, Clause 1, Article 333.26 of the Tax Code of the Russian Federation).

Documents must be submitted to the civil registry office at the place of residence or at the place where the child’s birth registration record is kept (clause 1, article 71 of Law No. 143-FZ).

The corrected certificate must be issued within one month from the date of submission of the application. If there are good reasons, the head of the civil registry office may increase the period for consideration of the application by no more than two months (Clause 1, Article 72 of Law No. 143-FZ).

This article is subject to copyright. It is prohibited to copy, distribute (including by copying to other sites and resources on the Internet), change the text and/or any other use of this article (part of the text of this article), my other articles, materials from this site without the prior consent of the copyright holder and a link to source. If this condition is violated, the person who violated the law will be held accountable.

Have questions? Write in the comments!

Subscribe to my Yandex channel. Zen and Instagram.

When is it not permissible to challenge paternity?

The Family Code legally limits the legal challenge of paternity in the following cases:

1. When a married couple has a child as a result of implantation or artificial insemination, which was carried out with a written agreement of both the mother and father for such a medical procedure.
2. If the interested citizen expressed a desire to challenge his paternity after an act was recorded stating that the child was born from a surrogate mother who produced the baby from the medical implantation of an embryo, and such a procedure is confirmed by agreement from three parties.
3. When deciding whether to file a claim to challenge paternity, it must be borne in mind that the father should not have known that he was not the actual father of the child at the time he was indicated by his father in the birth register. Otherwise, the request to challenge paternity will not be satisfied by the court. This rule is regulated by the Family Code of the Russian Federation.
4. If the man who is listed as the father in the act was not officially married to the mother of this child, but voluntarily agreed to recognize himself as his parent. In this case, paternity recognized in the registry office obliges the citizen challenging paternity in court to present to the court evidence that information confirming that there is no family connection between them became known to him only after he declared voluntariness in the registry office recognition of himself as a father.
5. When the applicant who files the relevant claim is not legally endowed with such a right.

Rules for filing a claim

The petition must be drawn up in full compliance with the requirements established by Articles 131-132 of the Code of Civil Procedure of the Russian Federation.
Important: such claims require the payment of a state fee (for non-property claims). This is established in Article 333.19 of the Tax Code of Russia. The payment amount will be about 300 rubles.

If the court makes a satisfactory decision, the fee will be required to be paid again:

• for making amendments to documents;
• for re-issuance of a birth certificate.

This is regulated by Article 333.26, part 1, paragraph 5 of the Tax Code of the Russian Federation. The amount of this fee will be 650 rubles.

Article 131 of the Civil Procedure Code of the Russian Federation “Form and content of the statement of claim”

Article 132 of the Civil Procedure Code of the Russian Federation “Documents attached to the statement of claim”

Article 333.19 of the Tax Code of the Russian Federation “Amounts of state duty in cases considered by the Supreme Court of the Russian Federation, courts of general jurisdiction, and justices of the peace”

Article 333.26 of the Tax Code of the Russian Federation “Amounts of state duty for state registration of acts of civil status and other legally significant actions performed by civil registry authorities and other authorized bodies”

Read also: Child's rights in the Russian Federation

How to file a claim to challenge paternity in court

Particular care must be taken when collecting documentation that will serve as a substantiation of the plaintiff’s claims.
During the trial, the court orders a medical examination. Participants can refuse to take it - this is their right. No enforcement action will be taken, but the decision will be made taking this circumstance into account. In this case, the court will independently admit or deny the fact about which the investigation was ordered. Grounds - part 3, article of the Code of Civil Procedure of the Russian Federation, paragraph 21 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. dated 05.16.18

Important: DNA testing does not provide complete confidence that paternity will be invalidated.

Article 79 of the Civil Procedure Code of the Russian Federation “Purpose of examination”

What to write in a statement of claim

The text should indicate the circumstances that caused another person to be recorded as the father (married, in a relationship). It is also important to collect evidence indicating the impossibility of relationship between the baby and the man. What information is required in the application:

• the name of the court to which the petition is sent;
• information about the parties to the proceedings (plaintiff, defendant, child) - full name, date of birth, passport information, place of residence, contacts;
• requirements - to challenge paternity, change the birth certificate and the entry in the vital register;
• applications;
• Date of preparation;
• applicant's signature.

If a representative of the plaintiff or defendant takes part in the process, then their details must also be indicated in the petition.

Grounds for challenging paternity

The basis for challenging paternity is, first of all, the record of the registry office about the father of the child, when in fact the indicated person is not the father of the child. In this case, a man can be indicated as the father of the child:

● due to the presence of a registered marriage with the child’s mother, while not being the child’s biological father;

● if the person, when establishing paternity, did not know that he was not the biological father of the child.

Evidence to challenge paternity

The law office "Katsailidi and Partners" provides evidence that the man is not the father of the child:

• explanations of the plaintiff and defendant, as well as third parties,
• witness statements,
• written evidence, such as letters, including email correspondence,
• photos,
• audio and video recordings,
• conclusion of a genetic examination, which is ordered by the court during the consideration of the case. The conclusion, of course, can be made by a man before going to court, but the child’s mother may question the reliability of the conclusion of the examination presented by the plaintiff. It is worth noting that genetic testing is the most important and most reliable evidence containing information about whether a man is the actual father of a child or not.

According to the position of the RF Armed Forces, if a child has reached 10 years of age, it is necessary to find out his opinion, since in this case the interests of the child are directly affected, and if the child’s mother recognizes the claim of the legal father, the court does not have the right to accept such recognition, because it entails a violation of the rights of the child. The court must evaluate evidence in its entirety.

In which court will it be considered?

Jurisdiction is a “sorting” between courts of cases that are subject to consideration at first instance.
That is, a specific court is established whose duties will include the trial of the claim. There are two types:

• generic - refers the case to the jurisdiction of a certain level of the judicial system;
• territorial - divides the boundaries of authority between courts of the same level.

Petitions in such cases are sent to the district court at the place of residence of the defendant (articles and Code of Civil Procedure of the Russian Federation). Alternative jurisdiction is not provided.

Article 28 of the Civil Procedure Code of the Russian Federation “Bringing a claim at the place of residence or location of the defendant”

Article 29 of the Civil Procedure Code of the Russian Federation “Jurisdiction at the choice of the plaintiff”

Statute of limitations

They are not provided for in such disputes. But time can be an obstacle in the proceedings: obtaining the necessary evidence will be much more difficult.

Read also: Are loans for maternity capital legal?

The defendant may change his country of residence, or even die. In such a situation, resolution of the dispute will only be possible through an exhumation procedure. And for this you will need to obtain the consent of the relatives of the deceased, which is not always feasible.

How to write an application to contest paternity?

Jurisdiction of cases challenging paternity: a lawsuit challenging paternity should be filed in the district court at the place of residence of the defendant.

State duty when filing a claim to challenge paternity: the state duty for filing the said claim is paid in the amount of 300 rubles.

When preparing a claim, follow the rules of the Code of Civil Procedure of the Russian Federation regarding the form and content of the claim, which must be in writing and contain information:

1. the name of the district court where the plaintiff files the claim;
2. Full name and address of the plaintiff, telephone number, email;
3. Full name and address of the defendant, telephone number;
4. name of the claim: “statement of claim to challenge paternity”;
5. the contents of the claim indicate the circumstances of the case that served as the basis for filing a lawsuit. For example, the plaintiff and defendant were in a registered marriage in which they had a child. When the child turned 10 years old, the plaintiff began to notice that the child did not look like him and decided to have a genetic examination, which showed that he was not the child's biological father. In connection with these circumstances, the plaintiff files a lawsuit in court. Perhaps the plaintiff learned that the child was not his, from some third parties, or from the child’s mother, i.e. The circumstances may be different and they must be presented without the emotional component and assessment of the behavior of the child’s mother. It is not necessary to conduct a genetic examination before filing a claim; you can file a petition to order such an examination at the stage of consideration of the case by the court. The claim should also refer to legal norms regarding issues of challenging paternity;
6. in the pleading part of the claim the requirements are indicated, namely, you can indicate

• establish that the plaintiff full name, date of birth, place of birth is not the biological father of the child full name, date of birth, place of birth;
• exclude from the record of birth certificate No. ___ dated “__” _____ ___, compiled by the Civil Registry Office, the child’s full name, date of birth and place of birth, information about the plaintiff’s full name, date of birth and place of birth, as the child’s father;
• change the child's last name from ____ to ________ (mother's last name).
• By challenging paternity, a person actually challenges the entry about the child’s father contained in the birth register and, accordingly, in the child’s birth certificate

When justifying his claims, the plaintiff will refer to certain circumstances that may be supported by some documents. Copies of the relevant documents must be attached to the claim, listing them in the appendix. You must also attach the original receipt of payment of the state fee. It is possible in the pleading part of the claim to indicate a list of witnesses (full name, address) whom the plaintiff asks to be summoned to court if they know any circumstances in the case;

At the end of the application there is a date, the plaintiff’s signature and a transcript of the signature.

The claim with copies of documents is filed with the court according to the number of persons indicated in the claim, under the mark on the copy of the plaintiff when directly filed in court. You can submit your claim by mail.

USEFUL: see more tips on filing a claim in court, write your question in the comments of the video

On May 16, the Plenum of the Supreme Court adopted a resolution on how to consider disputes over maternity and paternity. The project was discussed back in April. For the first time, it provides explanations on the establishment of maternity, and a separate chapter is devoted to surrogacy. The resolution also answers whether it is possible to collect alimony in Russia from a foreigner living abroad and whether heirs can challenge the facts of paternity and maternity. Explanations of the Armed Forces - in the form of simple cards.

1. What to do if the child’s birth certificate is lost, but the registry office refuses to issue a new one, since the birth certificate is also lost?

You can go to court (at the applicant’s place of residence). He considers the application in a simplified manner - to “establish facts of legal significance.” With the help of a court decision, you can restore the birth record.

If in the same situation the birth documents are lost or there is a dispute regarding maternity or paternity, you can still go to court, but it will consider the application in a special or lawsuit manner.

2. In which court are territorial claims for establishing paternity, maternity and/or collection of alimony heard?

The applicant files a claim in the interests of the child, so they can choose which court is more convenient for them to go to - at the place of residence of the plaintiff or the defendant.

3. Is it possible to consider a case to establish the origin of a child if it is not known where the defendant lives?

Yes. The court begins to consider the case after making sure that the defendant is not at his last known address. If the missing person does not have a representative, the court appoints a lawyer for him.

4. Is it possible in Russia to file a claim to establish paternity and collect alimony against a foreign citizen who lives abroad?

Yes, if the plaintiff lives in Russia and the international treaty does not contain other rules.

5. It happens that prospective fathers argue about the origin of the child even before his birth. For example, if a married woman becomes pregnant, the presumption of paternity of her husband applies, but another man can challenge it. Is it possible to resolve such conflicts in court before giving birth?

No, you need to wait until the baby is born. If an application is submitted too early and is rejected, it can be submitted again later.

6. Can a court satisfy a claim to challenge paternity only on the grounds that the mother or guardian (trustee) of the child agrees with it?

No, because a mother can thus pursue her own goals and act to the detriment of her son or daughter. The court must assess whether the child’s rights to know his parent, receive care and financial assistance from him, and so on will be violated.

For these reasons, a settlement agreement cannot be concluded in such a case.

7. Can the court reject a claim to challenge paternity if there is no requirement to establish it in relation to the biological parent, and the man registered as the father objects to the claim?

In “exceptional cases” it can if it is in the best interests of the child. For example, with “long-term family relationships”, “a stable emotional attachment of the child to this person”, “the person’s intention to continue raising the child and caring for him as his own”.

8. What documents can be used to register the origin of a child from a specific woman?

The following will help confirm maternity without a trial:

– a document from the hospital - if the birth took place there, or assistance was provided by a doctor from this hospital, or the mother went there after giving birth;

- a document from a doctor-individual entrepreneur - if he helped deliver the child;

– a statement from a person present during the birth, if it did not take place in a hospital and without medical care (if the child was under one year old).

If these documents are not available, maternity will be confirmed by the court in a special manner (“to establish facts of legal significance”).

9. What evidence in court confirms the fact of the birth of a child to a particular woman?

This may include:

– medical documents confirming the birth of the child;

– medical documents about the origin of the child (birth history);

– explanations of the participants in the case;

– testimony of witnesses, including witnesses of childbirth (if they did not take place in a hospital);

– expert opinions.

10. Can outsiders, including heirs, applicants for inheritance, and other relatives of the child who are not his guardians or trustees, challenge the record of parents in the registry office?

No, the court will reject this claim, because outsiders cannot interfere in family affairs. Only those who are registered there, either biological parents, or guardians or trustees of the child, as well as the child himself upon reaching adulthood, can challenge the record of parents.

11. What is surrogacy?

This is the bearing and birth of a child under an agreement between a surrogate mother and potential parents, whose reproductive cells were used for fertilization (or a single woman). At the same time, the latter cannot give birth to a child for medical reasons.

12. Who is registered as the parents of the “surrogate” child?

“Clients” of the surrogate mother (including single women) - with her consent.

13. And if the surrogate mother does not agree to give up the child and her “clients” go to court, how should it resolve the case?

It is believed that the consent of the surrogate mother has priority, so it is difficult for potential parents to “sue” the child. But the resolution of the Plenum states that her refusal in itself does not put an end to the matter. The courts need to study the terms of the surrogacy agreement, find out why the surrogate mother is against it, take into account the interests of the child, and so on.

Child support after challenging paternity

If the court determines that the man indicated in the child’s birth certificate is not in fact his father and the record about him is subject to exclusion from the child’s birth record, then he becomes free from any obligations towards the child, including from paying alimony for his maintenance.

IMPORTANT: if alimony was collected in court, it is necessary, simultaneously with the requirement regarding challenging paternity, to submit a request for exemption from payment of alimony for the maintenance of a minor, collected on the basis of a decision (court order) of such and such a court dated such and such a date, attaching a copy relevant judicial act.

The Supreme Court explained the procedure for determining paternity

Sergei Surikov* was married for a year and a half. In the first two months of marriage, he and his wife had a child, whose father was registered as Surikov. But as the child grew older, the father noticed that the child did not look like him at all, and doubted that the child was his.

When the couple divorced, Surikov challenged paternity in court. Two authorities refused him. The courts noted that he did not present indisputable evidence that would indicate that he is not the father of the child. At the same time, the court ordered a genetic examination with the participation of the child’s mother, to which she did not appear. But this does not change the matter, the two authorities decided, since the main thing is to protect the interests of the minor, “the realization of his fundamental right - the right to a family, the right to know his origins, to know his parents and to receive care from them.” Judging by the case materials, there was no attempt to re-examine.

• The Supreme Court taught how to pay a joint loan after a divorce
  January 16, 8:48

But the Civil Disputes Collegium of the Supreme Court, chaired by Alexander Klikushin, canceled the decisions (case No. 39-КГ19-6) and explained how to act in such a situation.

The Supreme Court recalled that a married father and mother of a child are recorded as parents upon the application of either of them. Each of them can challenge this in court. The de facto parents, the child himself after reaching adulthood, his guardian or the guardian of the parent if he is declared incompetent have the right to do the same. In this case, the party in the case needs to prove the circumstances to which he refers.

• Divorce in a new way: court for exes
  December 18, 8:03

One of such evidence could be a molecular genetic study, writes VS. The panel referred to the Plenum of the Supreme Court of 2021 No. 16 On cases related to the origin of children. It states that the court may order such an examination, taking into account the opinions of the parties and the circumstances of the case. The district court did just that, but the child’s mother did not come at the appointed time, and the examination was not carried out. What to do if a party evades the examination is stated in Part 3 of Art. 79 Code of Civil Procedure (Purpose of examination). Depending on who exactly decided to avoid it, and on the significance of the results for the party, the court has the right to recognize as established - or, conversely, refuted - the fact for which the examination was appointed. This issue is resolved each time separately, depending on the circumstances.

In this case, the court had to check whether there were circumstances that objectively prevented the defendant from coming, and whether a new deadline was set for the study. But the court did not check this, ultimately neither establishing nor denying paternity. The error was not corrected by an appeal. The Supreme Court sent the case for a new trial to the court of first instance.

Features of disputes about paternity

Claims to challenge paternity, with rare exceptions, are very emotional, and the situation in and outside the trial is either very tense or one-sided, says family dispute lawyer Elena Ovchinnikova. The development of the situation and the further quick outcome of the case directly depends on whether the defendant admits the claims.

Not in all cases in such claims it is possible to provide indisputable evidence that the legal husband at the time of the child’s birth was not his father - separation, for example, or evidence of an affair, the lawyer says. A record of paternity in the case of a registered marriage is made by force of law upon the application of one of the spouses. From the point of view of the judicial process, the absence of such evidence is a refusal of the claim, but only in the case of a full and comprehensive consideration of the case by the court of first instance. There are several ways of development, shares Elena Ovchinnikova, a lawyer in family disputes.

Challenging paternity: development options Output No. 1: The defendant admits the claim, the molecular genetic examination carried out confirms the stated requirements, the paternity record is declared invalid and excluded from the registry office birth book.

Exit No. 2. The defendant does not admit the claim and, being confident in the outcome, appears for a molecular genetic examination. Its result (father/non-father) will be used as the basis for the court's decision.

Exit No. 3. The defendant does not acknowledge the claim and does not appear for the examination (I am confident that the outcome of the case will be unfavorable for her, or for personal reasons). In this case, the court of first instance gives its assessment of such failure to appear and:

— or sets a date for re-selection/provision of material (if the failure to appear is considered satisfactory),

- or makes a decision in favor of the applicant (in the case of an unreasonable refusal to conduct an examination, and therefore recognition of the fact as established. The most difficult moment in such a situation is to establish in court the reason for the failure to appear for the examination. In most cases, the defendant’s side simply does not appear at the trial) .

Lawyer Elena Ovchinnikova

Most of these claims either very quickly ended with a positive court decision in favor of the applicant - within 1 month, or simply ended with a court decision in favor of the applicant due to the fact that there are only three ways out of such a case, says the lawyer. The result is a matter of time.

*The names and surnames of the participants in the dispute have been changed by the editors

Why is paternity contested?

Reasons for filing a claim in court with the procedure for challenging paternity, you benefit from the following:

• when challenging paternity, you are exempt from paying alimony that was illegally collected from you, and you will be able to devote your income entirely to your new family, or spend it on your own needs;
• Legally, you will not have any relation to the child previously registered in your name and, therefore, you should not worry about inheritance relations. You will be able to dispose of the inheritance as you see fit;
• You will relieve yourself of all responsibilities for the development and upbringing of the child, you will not need to worry about paying for his education, treatment, etc., and if the child is at fault, civil claims will not be brought against you for damages as a result of children's pranks.