Application to establish the fact of recognition of paternity after the death of the father (sample)

If the child’s father cannot, for objective reasons, attest to his paternity, this issue can be resolved through the court by filing an application to establish the fact of recognition of paternity. By objective impossibility, the law understands cases where the child’s father died or went missing. And I simply did not have time to establish paternity. Although his behavior indicated his intention to “legitimize” paternity in relation to this child.

As a general rule, the child’s father is the spouse (official). Or an ex-spouse, when the child was born within 300 days after the divorce. When the parents are not in a registered marriage, the father must contact the registry office. Only by submitting an application to the registry office on a voluntary basis, information about the father will be entered into the certificate. If the child's father refuses to file a statement, the child's mother can go to court to establish paternity.

Note!

Statement of claim to establish paternity

An interested person applies an application to establish the fact of recognition of paternity when the father of the child was not married to the mother, but recognized himself as the father of the child. However, for various reasons, he is physically unable to contact the registry office.

Grounds for filing an application with the court

When filing an application to establish paternity, the applicant (usually the child's mother) must indicate the grounds. This could be receiving an inheritance, applying for a survivor's pension, receiving child benefits and social benefits due to the death of his father. That is, the applicant must have an interest in going to court.

Often, the child's mother simply wants the child to have a memory of his father. So that he knew who his father was and did not feel “fatherless”, he officially received his father’s surname and patronymic. And this is also a valid basis for going to court.

Relatives of the deceased can also initiate recognition of paternity.

We recommend that you honestly and openly indicate in your application the grounds for establishing the fact of recognition of paternity. This will allow the court to involve all interested parties in the case. He will definitely explore their position on this issue. Otherwise, persons whose interests may be affected by the court's decision will have the opportunity to file an appeal at any time when they become aware of its decision.

Preparation of documents

When preparing an application, it is necessary to find out the position of the relatives of the deceased regarding the recognition of his paternity. You should also clearly define the rationale for going to court and take care to collect the appropriate evidence.

An important point for going to court is that there is no dispute about the law. If there is a dispute about the right between relatives, heirs and other interested parties, there is no point in filing such an application. Having found out that there is a dispute about the right, the court will leave the application without consideration. And he will invite the applicant to go to court through a claim proceeding.

By way of action, you should go to court if the alleged father denied his paternity during his lifetime. The defendants in this case will be the heirs of the deceased.

Interested parties in the application must indicate citizens and organizations whose rights and interests may be affected by the court decision. These could be the parents of the deceased, his other children, or heirs. The Pension Fund, social security authorities, etc. are indicated as interested parties. It is to these organizations that, after the decision is made, the applicant will apply to receive some benefits or payments.

Correspondence, video and photographic materials, checks and receipts, and other documents can be used as evidence of recognition of paternity. From the contents of the documents presented to the court it should be clear that the deceased considered himself the father of the child. And he did not hide this from those around him, showed concern for the child and acted as a legal representative.

In cases of recognition of paternity, one cannot do without the testimony of witnesses. Witnesses can be relatives, neighbors, friends and co-workers (interested persons indicated in the application cannot be witnesses in the case). Witnesses must be eyewitnesses of how the deceased cared for the child, talked about the fact that this was his child, and shared plans for the future related to his son or daughter. Perhaps the witnesses will be asked questions about why during his lifetime the father did not take measures to recognize his paternity.

When preparing the application, it is necessary to decide whether it is necessary to change the child’s surname and patronymic (according to his father) or leave the mother’s surname.

Algorithm of actions

In practice, the procedure can be divided into the following stages:

Collection of documents.
Preparation of a statement of claim.
Payment of duty.
Sending documents to court.
Trial.
Obtaining a court decision.
Making changes to the birth record.

Collection of documents

List of documentation for applying to court:

the applicant's civil passport;
an extract from the house register;
father's death certificate;
child's birth certificate;
fee payment receipt;
petition to bring witnesses;
photos and videos of the deceased and the child;
correspondence (letters, SMS, screenshots from instant messengers);
bank account statement showing the receipt of funds for child support from the deceased.

One of the indisputable proofs is the result of a DNA study. However, in the case of establishing the fact of recognition of paternity, the study can be carried out with other relatives (parents, brothers, sisters, aunts, uncles, grandparents of the father).

If the applicant has the results of a DNA test in hand, then it can be attached as evidence. Otherwise, you can prepare a petition to appoint an examination.

Features of preparing a statement of claim

Regardless of the method of consideration of the application, the plaintiff must prove the paternity of the deceased. The burden of proof rests with the approver. Therefore, it is necessary to pay special attention to preparing the evidence base.

An important condition is the presence of witnesses on the part of the deceased. The relative must:

recognize the child as the son of the deceased;
confirm that the deceased recognized the child as his own;
refute the fact of the confession.

If relatives live in another country or refuse to attend the court hearing, the court will proceed from the evidence provided by the plaintiff.

Payment of duty

Often, posthumous paternity determination is a claim to protect the interests of a minor child. Therefore, an applicant acting on behalf of a minor is exempt from paying the fee.

If the application is submitted by a child who has reached 18 years of age, or by a guardian of an incapacitated citizen, then a fee of 300 rubles must be paid. The original receipt is attached to the claim.

Referral to court

The procedure for establishing the fact of recognition of paternity differs slightly from the option for considering an application. The review period varies depending on the option.

Depending on the situation, the issue can be resolved:

In the procedure of claim proceedings (Section 2 of the Code of Civil Procedure of the Russian Federation). Applicable when there is a dispute. For example, relatives of the deceased refuse to recognize a family connection. As a rule, the new relative is the priority heir. Therefore, other recipients of property do not want a competitor to appear. The procedure may take a long time.
By way of special legal proceedings (Section 4 of the Code of Civil Procedure of the Russian Federation). Applies if other relatives are absent or have no objections. This option is often used if there is no inherited property left after the deceased. The application is considered in one meeting. The applicant's request is satisfied.

Trial

The legal process varies depending on the order in which the application is processed.

When considering the application, the plaintiff must prepare a short speech. It should contain the following information:

about the cohabitation (close communication) of the mother of the child and the deceased;
information about pregnancy;
about the deceased man’s attitude towards his girlfriend’s pregnancy;
whether he met her from the maternity hospital;
whether he gave money for the maintenance of a minor,
did you buy him gifts?
whether publicly recognized as a son/daughter.

In addition, the court hears witnesses (neighbors, friends, relatives).

Specialists from district guardianship departments and registry offices are invited to participate in the process. A specialist from the guardianship department gives an opinion if the application is submitted to protect the interests of a minor.

If there is insufficient evidence, the court may order a DNA test. Comparative material is taken from a relative of the deceased and from the child. Payment for the examination is borne by the plaintiff. In accordance with the results of the analysis, a decision is made.

Obtaining a court decision

If the court has satisfied the plaintiff's request, then it is necessary to obtain a court decision. The document is issued on the day of announcement, but comes into force only after 30 days.

Submission and consideration of an application to establish the fact of recognition of paternity

An application to establish the fact of recognition of paternity is submitted to the district court at the applicant’s place of residence. The child’s mother or the child himself can submit an application after reaching the age of 18. In the interests of the child, the guardianship and trusteeship authority may make such a statement.

When submitting an application to the court, the applicant is exempt from paying the state fee, since he is applying to protect the interests of the child.

The period for consideration of an application in court is up to 2 months. After drawing up a reasoned decision, it will enter into legal force after a month. Legally, to confirm paternity, it is necessary to contact the registry office with a court decision to make corrections in the child’s birth certificate and obtain a new birth certificate.

Preparation for trial

Many people wonder how to legalize the fact of establishing paternity after the death of the father. In other words, what to do if there is direct evidence that a certain man is the parent of a specific child? This fact can only be legitimized in court. So, if a parent has died, the issue of establishing paternity after the death of the father can be resolved if the following conditions are met:

the plaintiff proves that the alleged person recognized the child during his lifetime;
the applicant refers to the fact that the minor is a relative of the deceased, if he did not know him;
the plaintiff and the child’s father were not married (cohabitation is not taken into account by the judge);
This type of legal proceedings is carried out within the framework of a special procedure - the establishment of facts of legal significance (Article 264 of the Code of Civil Procedure of the Russian Federation).

See also:
How to change a child’s last and middle name

To understand the essence of such a procedure, a woman or other applicant needs to clearly understand that the subject of protection will not be a violation of any right, but rather the legal rights of the child. In cases of special (declaratory) proceedings there is no defendant, since he died. There are only the applicant (plaintiff) and the persons participating in the case. If for some reason you refuse this procedure, having already begun it, then your appeal will still be considered on its merits, since the law obliges the judge to always conclude cases of this category by issuing a verdict.

Who can act as a plaintiff?

In addition to the person who has a legal interest in the fact of establishing kinship after the death of the father-child, there are a number of categories of citizens and officials who can initiate this procedure:

The mother of the child, if the latter has not reached the age of 18 at the time of filing the application.
Guardians and trustees of the child, since they are persons whom the law has assigned with the duty of representing the interests of the minor and protecting him from abuse by any persons.
Guardianship and trusteeship authorities, as well as their territorial institutions and services. Orphanages, if the mother of a child who did not have a father was deprived of parental rights and died.
A person who is raising or dependent on a child. The main thing is that an applicant of this category has a direct interest in establishing paternity and has no self-interest. The court carefully checks these circumstances.

The family law does not explain who exactly is the person who is raising or dependent on the child. But in cases of establishing paternity after the death of the father, there is numerous judicial practice. And it follows from it that such persons can be: brothers or sisters (even if they are half-blooded), who are dependent on the child, uncles, aunts, grandmothers, grandfathers, stepmothers, stepfathers.

Preparation of evidence

Of course, irrefutable evidence in court of a child’s origin from a specific parent is the entry about the father in the child’s birth certificate and in the registry office in the register of facts of legal significance. Today the law allows any type of evidence in this category of cases. They must have a special property - confirm the origin of the child from a specific person, and also be reliable.

What facts can become such confirmation in a statement of claim to establish paternity after the death of the father? The list of such evidence has been developed by judicial practice and is the following list:

Joint photographs and video materials, recordings from audio media, which can confirm the fact of a warm relationship between the child and the deceased man, as well as between his parents.
Certificate of death of the father - it will serve as the basis for initiating legal proceedings.
An extract from the civil registry office confirming the absence of marriage between the applicant and the deceased father of the child.
The birth certificate of the child, in which there is a dash in the “
father
”
.
Documents confirming the residence of the applicant and the deceased citizen in the same residential premises (certificate from the Housing Office).
Receipts confirming the purchase of property for mutual use.
Documents indicating the mutual care of the deceased father and mother of the child (applicant).
Statements from the deceased father's accounts confirming the fact of providing financial assistance to the child.
Outpatient cards from a gynecology or maternity hospital, since primary data about the baby’s father is indicated from the mother’s words.
Testimony of witnesses who can confirm the fact of meetings or cohabitation of the deceased father and child.
Correspondence on social networks is considered evidence if it has not been deleted. It may indicate a warm relationship, a sexual relationship between the mother and the child’s deceased father.
Letters, postal orders, parcels, as well as receipts for their receipt.
Petitions or applications submitted by a deceased citizen in support of a child’s application for placement in a kindergarten, school, or in clubs or sections.

Genetic examination

Of course, the strongest evidence in cases of establishing kinship is the results of genetic testing.

An expert’s conclusion about the origin of a child from a specific father is carried out using the method of “genetic fingerprinting”. However, this is only possible when the body is not buried and is in a hospital or morgue. If there is no genetic material of the deceased father, the court decides to conduct an examination by taking DNA samples from relatives of the potential parent of the child, who is no longer alive. This situation is extremely rare.

If during the process the court comes to the conclusion that it is impossible to take DNA samples from the deceased father of the child and none of the relatives of the deceased gives voluntary consent (without which they cannot be forced to take them) to obtain samples for comparative research, then exhumation may be carried out. This method is extremely rarely used by the court, since it is not ethical from the point of view of respect for the personality of the deceased.

Genetic examination is established by court decision. Moreover, payment for the research is borne by the citizen who filed an application to establish paternity in court. However, there are some peculiarities with the distribution of the burden of paying for a DNA test:

the amount is deposited with the court before the decision is made;
if the applicant evades payment, the medical institution that conducted the examination may bill him in court;
If during the proceedings a positive decision is made in favor of the plaintiff, then the costs will be borne by the relatives of the child’s deceased father.