The procedure for collecting alimony if the child is step-child, filing a claim

At the birth of a child, the question of establishing paternity does not arise for citizens who are officially married. By default, registry office employees enter the name of the legal spouse on the baby’s birth certificate. Unfortunately, disappointing statistics show that children born in marriage are not always related to the husband. In this regard, men have a reasonable question: is it possible not to pay child support if the child is not mine.

In order to relieve oneself of the obligation to support a minor, it is necessary to carry out a certain list of actions.

Features of determining paternity

A complete list of the rights and responsibilities of parents of a minor child is described in the Family Code of the Russian Federation. According to this regulatory document, parents are included in the birth certificate according to the following procedure:

The child's mother fits in without any additional questions.
If the parents are legally married, then the spouse is automatically recognized as the father.
If citizens are in a civil marriage, then the addition of the father to the birth certificate of a minor is made only upon written request.
If the mother does not know exactly who the child is from, then she has the right to demand that the registry office employees not fill out the father field in the child’s document. Also, the mother has the right to independently choose the middle name for her child.

Denial of paternity

Voluntary renunciation of paternity does not exist in Russian legislation, since it is assumed that each parent is equally obliged to financially support their child until he comes of age or is emancipated in the period from 16 to 18 years.

You can refuse to pay alimony and child rights only in a few cases:

When challenging paternity and only if the minor is not really the child of the payer. Such cases are considered only in court; it is impossible to reach an amicable agreement with the ex-wife, even if she agrees.
When transferring rights to a child to another person. Most often, such situations arise if the spouse who is raising the child registers the marriage relationship again. If the new spouse agrees to the adoption of the child, then the biological parent has the right to waive parental rights and further participation in the financial support of the minor.

In other cases, it is impossible to waive parental rights, just as it is impossible to refuse to pay child support. The transfer of funds can only be stopped at the initiative of the recipient if he contacts the bailiff with a corresponding application.

Challenging paternity of a child born out of wedlock

According to the Investigative Committee of Russia, in relation to children born in a civil marriage, there are three scenarios for the development of events:

voluntary acceptance of paternity and entering the man’s name on the birth certificate;
forced establishment of kinship as part of legal proceedings;
a woman’s refusal to register her real father in order to receive additional preferences from the state.

Important! If a man knows in advance that the child is not his own and still gives his consent to include him as a father, then he is subsequently deprived of the opportunity to challenge paternity. This rule is regulated by Article 52 of the RF IC.

Can a husband refuse alimony for a step-child after a divorce?

The father has the right to refuse alimony if the child is not his own, only through the court or a verbal agreement with the children’s mother.

Since filing an application for abandonment of a step-child and court hearings will last several months, the father can agree with his ex-wife to deprive him of his status as an adoptive parent. An application to terminate adoption is submitted:

adoptive parent;
natural parent;
employee of the guardianship and trusteeship authorities;
prosecutor;
stepson/stepdaughter upon reaching the age of 14.

In judicial practice, approximately 15% of cases are considered in favor of refusing adoption. The court's decision is influenced by serious reasons:

dependence on narcotic, psychotropic and other illegal drugs;
leading an immoral lifestyle;
physical or psychological violence committed by the guardian;
evasion of transfer of alimony payments.

To achieve a positive result, the adoptive parent can agree with the mother to deprive him of parental rights. This procedure is faster and more successful. You can cancel parenthood of your spouse's children by referring to the Family Code, Art. 140 and Resolution of the Plenum of the Supreme Court of the Russian Federation No. 8 of April 20, 2006.

Challenging paternity

Challenging paternity is necessary if a child was born within/out of wedlock, the man recognizes himself as the father, and then it turns out that the son/daughter is not blood relatives of the father. Cancellation of paternity is not allowed if the man knew about the absence of a blood connection with the child and was registered as a parent voluntarily.

In this case, lawyers refer to the Family Code, Art. 52, paragraph 2.

Adoptive parents perform parental responsibilities to the same extent as their own parents. The adoptive parent will be subject to alimony obligations in the following cases:

If a married couple adopted a child from an orphanage and acquired the status of parents through the court.
If one of the parents registers a marriage, the new spouse can adopt a child only after deprivation of the parental rights of the natural father/mother.
If a widow/widower registers a marriage, the new spouse has the right to adopt a child.

Neither parent has the right to refuse to pay child support, since they have equal responsibilities for providing for and raising the child.

A judge rarely rules in favor of the plaintiff to challenge paternity when the child was adopted voluntarily. Deprivation of the adoptive parent's parental rights does not relieve the debt to pay amounts to the stepchild. This duty disappears when the new spouse “re-adopts” the child.

When the judge satisfies the request to waive child support if the child is not his own, the adoptive parent is freed from transferring money to the child’s account. To cancel a judicial act of collection or a settlement agreement, you must contact the district court. The chances of winning the case increase if there is evidence for the following situations:

the new parent fully supports and provides for the children's needs;
if the demand to collect payments is in the nature of an abuse of right (if the citizen is deprived of parental rights);
there is reason to believe that the transferred funds will not be used for their intended purpose (to meet the needs of the stepson/stepdaughter).

To cancel a paternity record you must:

Complete the document package and draw up a statement of claim using the sample.
Indicate in the application the request for alimony cancellation.
Collect evidence base.
Submit the documents to the court office and wait for a decision on acceptance of the materials.
Attend meetings.
Participate in litigation.
Get a court decision.

When making a decision, the judge is guided by the interests of the stepson/stepdaughter. If the court decides that financial support from new and former parents is required to meet the children's needs, it will retain the need to pay child support from the father/mother who has been deprived of parental rights.

Is illegally collected alimony returned?

The mother has the right to file for child support if the child is not the father’s own. However, adoptive parents are wondering about the removal of obligations to pay alimony and the return of unlawfully collected payments.

According to Art. 116 of the Family Code, paid amounts of alimony are not returned. There are 3 exceptions related to unlawful actions of the creditor:

if the court canceled the decision to collect alimony because the recipient provided false information or forged documents;
if alimony was paid under psychological or physical pressure, under the influence of deception;
if the court discovered the fact of forgery of a court decision, an agreement on the payment of amounts, or a writ of execution.

These cases concern claims for alimony in relation to adults with legal capacity. For children under the age of 18 and incompetent persons, child support is not returned under any circumstances.

Procedure for requesting cancellation of payments

You need to collect a package of documents and go to court. The list includes:

statement of claim;
passport and copies of all pages;
child's birth certificate;
marriage and divorce certificate;
documents proving the need to cancel alimony;
certificate of family composition;
writ of execution on which proceedings are conducted in the FSSP;
court order granting alimony;
receipt of payment of duty.

Next, the package of documents is transferred to the court office. The alimony payer should wait for the court’s decision to begin the proceedings, attend the court at the appointed time and day and participate in the hearing.

If you have questions about alimony payments, you should contact a lawyer. Only they can explain the intricacies of payment cancellation cases.

What to do if the legal spouse is not sure about the relationship with the child

If there is an official marriage, the so-called presumption of paternity applies, according to which the mother’s current spouse is automatically entered as the father on the birth certificate. However, if the latter is not completely sure of his relationship with the child, he has the right to challenge his own paternity.

Important! According to paragraph 3 of Article 47 of the Civil Code of the Russian Federation, the cancellation of entries in the civil registration books is carried out exclusively on the basis of a corresponding court decision.

A man who doubts his wife’s fidelity must file a statement of claim with the following requirements to the authority to challenge paternity:

Cancel paternity and remove the applicant's name from the father column in the baby's document. The legal act confirming the legality of this requirement is Article 51 of the RF IC.
Indicate in the child's birth documents information about the delegation of paternity to the new husband of the former spouse or another citizen who has expressed a desire to adopt a minor.

How to Prove that the Child is not from Me

Girls, I ask you for advice. Everything was heading towards divorce, I held on for the sake of my son. Yesterday I accidentally overheard her conversation in which she and her friend discussed that he was not mine. I left silently. I won’t live with her, but I love the child. How to behave with him and maintain the relationship?

I found out that my husband has a child on the side, I’m shocked to say nothing (read more...)

I paid child support, but the child turned out to be not mine: how to challenge paternity

If a man is sure that the child is not his own, then he has the right to challenge paternity in court. However, before making a statement, the victim must provide convincing evidence. As the latter, according to Article 86 of the Code of Civil Procedure of the Russian Federation, the following have the right to act:

the conclusion of a genetic examination indicating the absence of relationship between the plaintiff and the child;
letters, recordings of telephone conversations, messages from social networks, photographs and other materials containing evidence from the mother that the child is not the plaintiff’s relative;
documents proving that the parties have not lived together for a long time, which means the plaintiff is physically unable to be a father;
testimony telling about the presence of another man in a woman’s life.

How to cancel paternity determination if the results of the study are not in your favor?

Remember where you were when you conceived your child. If you were on a business trip, on vacation, or simply in another city or country and can prove it, contact the court with a request to conduct a forensic gynecological examination to determine the time of conception. By comparing the results of the study and the dates on your airline tickets or bank card account statements, the court may conclude that you cannot be the biological father of the child. Another option is to prove that at the time the child was conceived, the father was infertile. To do this, you can also initiate an examination at the request of the defendant.

Is it possible to return child support if the child is not mine?

A quite obvious solution for a man who learns that he is not related to a child is to return the funds transferred as alimony. When paternity is annulled, a man has the opportunity to demand in court:

complete cancellation of alimony obligations;
refund of funds for the past three years of alimony payments.

In order to obtain the right to a refund, a man, according to Article 116 of the RF IC, must collect evidence showing that the mother deliberately hid information about paternity in order to obtain financial gain.

Important! Even after receiving a genetic examination conclusion that there is no relationship with the child, the man does not have the right to stop alimony payments. The need to transfer obligations to a minor can be canceled solely by decision of a judicial authority.

Do I need to pay child support?

There are two concepts - return and exemption from alimony payments. Don't confuse them. If a young man paid alimony payments and challenged his paternity in court, then when the decision on this comes into legal force, he will be able to apply to the court with a new claim for exemption from paying alimony. Only a court decision and its entry into force are grounds for canceling monetary payments.

Important! If a man has not taken any measures on his own, then the money for alimony will simply continue to be written off. Also, during the period of litigation, alimony will be withheld. A copy of the court decision should be taken to the accounting department at work.

According to the law, it is impossible to return paid alimony. But there are exceptions to any rule. They are cases when:

alimony was collected on the basis of false documents;
the payment of alimony was declared invalid by the court due to the impact on the payer of deception, threats, and the use of violent actions against him;
payments were made on the basis of an invalid court decision;

Judicial practice on issues of challenging paternity is very extensive. Situations vary, as do their outcomes. He definitely says that it is impossible to win the case 100%. There are many subtleties that are worth considering, especially if one of the parties has malicious intent. For example, a woman wanted to teach a man a lesson and filed a lawsuit against him, declaring that he was the father of the child. And then take it and provide a certificate stating that they cannot conceive. The case failed. Or the surrogate mother decided to challenge the right to paternity, but was unable to. For all parties to the process gave written consent to conceive a child in this way.

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In summary: does a man have the right not to pay if the child is not his?

The obligation to provide financial assistance to a minor remains even after the man has irrefutable evidence that the child is not his. In order to finally cancel alimony, a citizen should file a claim in court and provide specific evidence of non-relatedness with the baby. Also, if a man has evidence of deliberate concealment from him of the fact of infidelity, he has the right to recover from the mother the alimony paid over the past three years.

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The procedure for challenging paternity

To initiate a procedure to challenge paternity, the alimony payer must collect the established package of documents and also go to court.

To cancel paternity, the person obligated to pay alimony must act according to the following scheme:

Collect the necessary package of documents, which may include not only mandatory papers, without which the application simply will not be accepted, but also documents proving the absence of relationship.
Pay the state fee, which in accordance with Art. 333.19 is equal to 300 rubles.
File a claim with the district court at the defendant’s permanent registered address. It is noted that the plaintiff is allowed to appeal to the district court at the address of the registry office where the child was registered.

After filing a statement of claim, within five days, the court accepts the statement of claim for consideration or rejects it with mandatory justification for its decision. After a short period of time, a preliminary hearing is scheduled and then the main hearing. As a general rule, the period for consideration of a claim by the court should not exceed two months, but in practice the duration of the proceedings may extend beyond two months.

On average, cases challenging paternity are considered within 1-3 months from the date of filing the claim, depending on the workload of the court.