Decision of the Oktyabrsky District Court of Samara on a claim to establish paternity

Rules for establishing paternity

If a child is born in marriage, the spouse is recognized as the father of the child (Article 48 of the RF IC).

If a person is not married to the child’s mother, paternity of this person can be established in the following ways:

1. Extrajudicial procedure: filing a joint application with the registry office . The paternity of a person who is not married to the child’s mother is established by submitting a joint application to the civil registry office by the father and mother of the child (paragraph two of paragraph 3 of Article 48 of the RF IC);

2. Establishing paternity in legal proceedings in the absence of a joint statement by the parents. Such a claim is filed when a parent (usually the child’s father) does not agree to recognize himself as the child’s father. When establishing paternity, the court takes into account any evidence that reliably confirms the origin of the child from a specific person. Such evidence can be obtained from explanations of the parties and third parties, testimony of witnesses, written and material evidence, audio and video recordings, and expert opinions. As a rule, to clarify issues related to the origin of a child, the court orders an examination, including a molecular genetic examination, which makes it possible to establish paternity (maternity) with a high degree of accuracy.

(see paragraphs 15, 19, 20 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. Establishing the fact of recognition of paternity in court in the event of the death of a person who recognized himself as the father of the child. In the event of the death of a person who recognized himself as the father of a child born on March 1, 1996 and later, but was not married to his mother, the court, in accordance with Article 50 of the RF IC, has the right, in a special proceeding, to establish the fact of his recognition of paternity (clause 22 Resolutions of the Plenum of the Supreme Court of the Russian Federation dated May 16, 2017 N 16)

Please note that in the context of consideration of a case on an application to establish the fact of recognition of paternity, proof of recognition of paternity by a person during his lifetime is sufficient.

Evidence in the case of establishing the fact of recognition of paternity may be:

• any evidence of a person’s long-term residence with the child’s mother before the birth of the child, after his birth, running a common household with the child’s mother during this period, participation in the upbringing and maintenance of the child, open recognition of himself as the child’s father;
• testimony about the circumstances listed above;
• joint photographs of the child and the child’s father, video materials.

4. Establishing the fact of paternity if there is reliable evidence of the child’s origin from a specific person. The court also has the right, in a special proceeding, to establish the fact of paternity of a person who is not married to the child’s mother in the event of the death of this person. This fact can be established by the court in relation to children born on March 1, 1996 and later, if there is evidence that reliably confirms the child’s origin from a given person (Article 49 of the RF IC), and in relation to children born from October 1, 1968 before March 1, 1996 - if there is evidence confirming at least one of the circumstances listed in Article 48 of the Code on Marriage and Family of the RSFSR (clause 23 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 16, 2017 N 16).

Establishing paternity through court

As we have already said, paternity is established exclusively in court, except for the case when the father voluntarily and the mother apply to the registry office to register parental rights. If the father is dead, then the case will relate to special proceedings and will be considered on the basis of the Family Code, Articles 49, 50, as well as Chapter 28 of the Civil Procedure Code. A claim can be filed not only by the mother, but also by the child himself upon reaching adulthood, a guardianship official, an adoptive parent or a guardian.

According to Article 266 of the Civil Procedure Code, an application to establish paternity must be submitted to a court of general jurisdiction at the plaintiff’s place of residence.

The legislation establishes two types of grounds for applying to a district court to confirm paternity:

• one of the parties is against or the issue of paternity causes controversy and doubt;
• paternal rights were not registered during life.

The latter situation also applies to those cases where the father died before the birth of the child, the relationship with the mother was not registered, as a result of which paternity was not officially confirmed. If in both the first and second cases there is a place for disputes, then the court proceedings are held under the name “Dispute about the right” (Article 264 part 3 of the Code of Civil Procedure of the Russian Federation). And disputes after the death of the father may arise due to the disagreement of the deceased’s close relatives with the mother’s request to establish paternity, since now the child will act as a direct heir and claim a share of the property of his biological father, of course, provided that the claim is confirmed.

The trial primarily involves considering not only the claims of the plaintiff and listening to the defendant as his defense, but also studying evidence that may become the main basis for establishing the fact of paternity. Therefore, it is necessary to think about the evidence base in advance, even if the father has died. Considering the order of the trial, one thing becomes clear that establishing the fact of paternity and the fact of acknowledging paternity are not much different in terms of their own protection. But as for other points, the fact of recognition of paternity does not make it possible to listen to the other side, since the defendant has died, and it is also impossible to conduct a direct genetic examination, which is the main evidence. Although, in some cases, the judge may order a DNA examination, where materials for the study are taken from the child and from a first-category relative of the deceased.

Most often, 2 months are enough for the judge to make a final decision from the date of filing the application. Sometimes the period may increase if the situation is unresolved as a result of multiple disputes or claims. After the decision is made, for it to fully enter into legal force, you must wait another 30 days, which are allocated for the purpose of filing an appeal. If the document has acquired legal force, then you can send it to the civil registry office and receive on the same day a new birth certificate of the child, according to which you have the right to bring the unscrupulous parent to justice or to give the child the inheritance rights of the deceased father.

When is the “fact of recognition of paternity” established, and when is the “fact of paternity”

For children born on 03/01/1996 and later, the court establishes the fact of recognition of paternity if this person recognized himself as the father of the child, or the fact of paternity when there is no evidence of recognition of paternity, but evidence is presented that reliably confirms the origin of the child from a specific person ( Article 49 of the RF IC) (for example, an expert opinion confirming paternity, medical documents reliably confirming the fact of paternity, etc. are presented).

The fact of paternity and the fact of recognition of paternity - what is the difference

Now in more detail what is the difference between these two concepts:

• establishing the fact of paternity is a procedure that is carried out forcibly through the court if the father is alive, but he refuses to submit a general application to the registry office, to establish paternity voluntarily and give him parental rights;
• establishing the fact of recognition of paternity - implies a court decision if the father is dead, but for various reasons the corresponding entry about his relationship with the child was not included in the certificate. The fact of recognition has a significant difference from establishing the fact of paternity - the father was aware that this was his child and this information was known to others.

This rule is regulated by Article 49 of the Family Code of the Russian Federation for children born after 03/01/1996. Based on the reasons for going to court and the grounds described above, the procedure for judicial proceedings will be determined. In the second case, it will be more simplified, however, despite the fact that the father has recognized the relationship with the child, you will still have to collect an evidence base in addition to writing a statement of claim to the court.

No dispute about the right

The fact of recognition of paternity or the fact of paternity can be established by the court according to the rules of special proceedings provided for in Chapter 28 of the Code of Civil Procedure of the Russian Federation, provided that there is no dispute about the law. If, when filing an application or considering a case in a special proceeding, it is established that there is a dispute about the law within the jurisdiction of the court, the court issues a ruling to leave the application to establish the fact of recognition of paternity or the fact of paternity without consideration, in which it explains to the applicant and other interested parties their right to resolve the dispute in procedure for claim proceedings (part 3 of Article 263 of the Code of Civil Procedure of the Russian Federation) (clause 24 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 16, 2017 N 16).

Establishing the fact of recognition of paternity: what is it?

It is done if the child’s father has already died, and the parents were not married, but during his lifetime the man recognized his son or daughter. This procedure is regulated by Article 50 of the RF IC and the Code of Civil Procedure.

There are often situations when a man did not intend to die, he was ready to officially recognize the child, give him his last and patronymic name, but simply did not have time to do this or died before the baby was born.

Establishing this fact is also necessary to respect the legal rights of the child, while he is guaranteed to receive:

• the inheritance left behind by the father;
• survivor pensions;
• financial compensation if the father died due to someone’s malicious intent or negligence or imprudence.

You can start the procedure only if certain conditions are met:

• the parents were not registered when the baby was born;
• during life, the man recognized his blood relationship with the child;
• the father is not missing, the fact of his death has been definitely established.

Expert opinion

Irina Vasilyeva

Civil law expert

There is no statute of limitations for the case. Since the plaintiff acts in court in the interests of the child, he does not have to pay the state fee.

Statement of claim

The territorial jurisdiction of the cases is as follows: the applicant has the right to appeal to any court of general jurisdiction - city, district or regional.

The court provides a sample application that can be filled out by the mother, the child himself upon reaching the age of majority, the guardian or trustee of the incapacitated person.

The application must indicate the following information:

• last name, first name, patronymic of the person submitting the application.
• the surname and initials of the putative father.
• name and address information of the judicial authority where the claim is filed.
• information about the child - first name, last name, date of birth, for what reason he was not recognized as the father.
• the purpose pursued by the plaintiff.
• all materials collected as evidence of the relationship between the child and the alleged father.
• list of additional documents - plaintiff’s passport, child’s birth certificate, father’s death certificate, etc.

A sample application for establishing the fact of recognition of paternity is available.

Procedure for considering the case

If no problems or property disputes arise during the process, and the evidence presented by the plaintiff is quite convincing, the case will be resolved quite quickly in a special proceeding; one court hearing will be enough.

However, disputes often arise about the right to inherit with other close relatives of the deceased, who also claim the inheritance and do not want to recognize the child as the son or daughter of the putative father.

In this case, it is not enough for the plaintiff to simply file a statement of claim; the parties to the conflict will have to go through the procedure of legal proceedings. The proceedings will be more complex and may last 2-3 months. The procedure in this case changes slightly.

Another lawsuit is drawn up, where the child is designated as one of the possible heirs. This paper is presented to the relatives of the deceased, who also claim the inheritance. Here, the totality of evidence collected by the plaintiff is of particular importance - the more there is, the higher the likelihood of a positive court decision in favor of the child.

A difficult point in collecting evidence is the search for facts indicating that the father recognized his child during his lifetime. Even if the evidence is lost, it would be useful to mention it at the court hearing.

The following is used as evidence:

• any documents, objects or testimony confirming that the man lived for some time with the child’s mother, ran a joint household with her, participated in the upbringing and maintenance of his son or daughter;
• paper and email letters, SMS messages where the father mentions the child;
• photos and videos showing father and child together;
• results of medical examinations confirming that, based on blood type or Rh factor, the child and the intended father may be close relatives.

Is it possible to use DNA testing?

As is known, it is impossible to carry out a DNA test posthumously. However, the plaintiff can agree with one of the close relatives of the deceased to participate in the examination. Compared to the biological material of the father, the percentage of relatedness in this case will be lower (not 99.9%).

Nevertheless, the test will show either a high or zero degree of relationship, which is a powerful argument for representatives of the judiciary.

Carrying out a DNA test usually causes the legal process to drag on for a long time, this happens for the following reasons:

• choosing a medical institution for DNA testing;
• long wait for analysis results;
• postponement of the court hearing due to newly discovered circumstances in the case.

We must not forget that DNA testing is done only voluntarily; it is impossible to force a person to undergo it.

The court's decision

If the court makes a positive decision and the fact of paternity is recognized, the deceased person is recognized as the biological father of the child, this gives him certain rights:

• bear the father's surname and patronymic;
• inherit property;
• receive a survivor's pension or financial compensation if the father's death was violent.

The court decision comes into force one month after its adoption. During this time, those who disagree with the court's decision have the right to appeal to higher authorities.

After 30 days, the plaintiff must contact the registry office, where the necessary changes will be made to the documents and the child will receive a new birth certificate.

The procedure for establishing the fact of paternity by the court

• documentary method through a claim to establish the fact of family relations (certificates, certificates, extracts, marks of special bodies in various papers);
• eyewitness evidence (oral evidence of paternity is less powerful in comparison with documentary methods of establishing a connection);
• special medical and technical examinations (analysis and processing of genetic research data, polygraph testing).

If in previous times the issue of establishing by the court the fact of recognition of paternity was resolved exclusively by documentary and witness methods, today the latest developments of scientists in the medical field can be used to confirm the fact of family ties.

Professional lawyers use in court only those data whose truth cannot be refuted. Therefore, the main evidence of paternity is documentary records, and additional evidence is empirical procedures, tests, photographs, and testimony.

ATTENTION: watch also the video on the topic of establishing paternity and ordering a DNA examination and do not forget to subscribe to the YouTube channel to be able to get free legal advice in the comments of the video:

Collection of data to establish paternity is necessary in the following controversial situations:

1. the rights of the heir must have clear boundaries (without knowing who the real father of the baby is, it is difficult to say that the child can count on state support or any benefits);
2. there is an urgent need to collect evidence for property claims;
3. There is a direct connection between the rights of the child and his family ties.

The most common reason for litigation is property disputes. In the case of a civil marriage, the child may not have documentary proof of paternity. If the deceased did not leave a will, then in such a situation neither the common-law wife nor the children have the right to claim part of the inheritance. To resolve the situation, a trial is held to establish the fact of recognition of paternity. After this, the child is restored to his rights.

Posthumous establishment of the fact of recognition of paternity is carried out only through the judicial authorities. The basis for the judicial opinion is the resolution of the 1996 plenum of the Russian Supreme Court. It makes it possible to establish a relationship between father and child, even if the parents were not legally married. In its decision, the Supreme Court was based on the Family Code of Russia, which was based on the RSFSR Code on Marriage and Family.