What is paternity establishment
Establishing paternity, in essence, is recognition of the fact of the origin of a child from a specific man, which can be carried out either voluntarily or in court.
By establishing paternity of a child, a man assumes the full range of parental rights and responsibilities towards him.
The father can take on parental responsibilities voluntarily by applying together with the mother to the registry office, however, if for some reason this does not happen, then paternity can be established in court.
Find out in more detail about the reasons, methods and consequences of establishing paternity.
Who can request paternity verification?
Usually, the question of how to prove paternity is dealt with by the child’s mother. She also usually demands the collection of alimony. However, this does not mean that only she can file a claim. In fact, judicial establishment of paternity can also be carried out at the initiative of other persons:
- The man himself. If the woman does not give consent, he has the right through the court to demand recognition of himself as the father of the child;
- A guardian or trustee who is dependent on the child. This is practiced if the mother has died or been deprived of parental rights, and her son or daughter has been placed in foster care;
- Guardianship authority. This is allowed if paternity is established in relation to a person who, although he has reached 18 years of age, is recognized as incompetent;
- The child himself. Having reached the age of majority, he has the right to demand that the court consider the issue of his father.
USEFUL INFORMATION: What is needed to establish paternity in the registry office?
Legislation
Questions about establishing paternity are regulated by the Family Code of the Russian Federation. In particular, the RF IC has Article 48, which is called: “Establishment of paternity in court.” Legal relations of a property nature, including those arising between parents and children, accordingly, are regulated by the norms of the Civil Code of the Russian Federation.
Issues of registering the origin of a child are established by the norms of the Federal Law of November 15, 1997 No. 143-FZ “On Acts of Civil Status”. When filing a claim in court to establish paternity and during the trial, one should also be guided by the norms of the Civil Procedure Code of the Russian Federation. In addition, there is a fairly extensive judicial practice, which, although not a source of law, is taken into account by judges when considering this category of cases.
How to prove paternity in court
The first thing you need to do is file a claim with the court, attaching the necessary documentation. During court hearings, available evidence regarding blood relationships is considered. The main ways to recognize paternity in court are to establish a man’s ability to conceive, study photo and video materials, correspondence, testimony, and conduct a blood test.
But the collected evidence base may be considered insufficient, and the blood test shows only a negative result. The only way to accurately establish consanguinity, the results of which are accepted for judicial review, is genetic testing.
Reasons and conditions for going to court
It is not possible to go to court with a claim for recognition of paternity in all cases, but only if the conditions provided for by law are met.
Article 49 of the RF IC stipulates that the judicial procedure for establishing paternity is applied only if two conditions are simultaneously met:
- the child’s parents are not legally married to each other;
- there is no application to the registry office to enter information about the child’s father in the civil register.
Who can file a claim
Based on the provisions of Article 49 of the RF IC, both the child himself (once he reaches the age of majority) and his father or mother, guardian or trustee can file a claim for recognition of paternity.
Establishing paternity for trial using a DNA test
Many people are interested in how paternity is proven in court using DNA testing. Before drawing up a statement of claim, you can undergo a pre-trial genetic examination and provide its results in a documentation package. This will be an additional advantage when considering the case.
When an examination is ordered in court, the procedure is carried out on the basis of the relevant resolution. At the same time, the personal data of all testing participants must be recorded in the documents, biomaterial samples must be collected by a qualified specialist, and the results must be documented in accordance with established requirements. You can do a DNA test and clarify all the most important points of the procedure for free at.
Types of establishing paternity in court
Types of judicial proceedings in cases of establishing paternity are methods established by civil procedural legislation for considering and resolving disputes in claims for establishing paternity. In accordance with the norms of the Code of Civil Procedure of the Russian Federation, there are two types of legal proceedings for this category of disputes:
- claim proceedings;
- special production order.
The special order is also called simplified.
Special procedure for judicial proceedings
Unlike claim proceedings, a special procedure for proceedings when considering cases of establishing paternity is applied only in cases where there is no dispute about the law. This procedure is applied in cases where there is no need to prove anything to the court: all the necessary evidence has been collected, all the facts are present, no one disputes that the man is the father. In this case, the court only needs to “legitimize” by its decision the legal status of the father in relation to the child.
Consideration of cases in claims proceedings
In lawsuit proceedings, everything is somewhat more complicated, because here there is a dispute about the law, which means that the man will have to prove his paternity. Therefore, before filing a claim, you need to make sure whether there are enough grounds for this and collect the necessary evidence.
It is likely that during the proceedings it will be necessary to request additional evidence and interview witnesses. Very often, the fact of relationship has to be confirmed using DNA testing.
Why is paternity established in court?
Quite often, in ordinary life, a parent is considered to be a person who lived together and took care of the child, which does not always coincide with the concept of “biological father.” In the legal sphere, the fact of kinship must be properly confirmed, otherwise the man will not have legal rights regarding the child.
Recognition of this fact is made by issuing a birth certificate, which indicates the parents. But sometimes a man does not want to acknowledge paternity or there are certain circumstances that prevent this. In this case, there is every reason to prove paternity through the court and, in accordance with this, receive payments provided for by law.
Also, such a way out is possible in a situation where a child was born within 10 months after the official divorce, while the ex-spouse and the other person simultaneously consider themselves a parent. In addition, a man can file such a claim in the event of the death of his mother, her recognition as incompetent, or deprivation of parental rights.
The procedure for establishing paternity through court
The procedure for establishing paternity in the judicial system begins with filing a claim. Before going to court, it is necessary to establish whether there are sufficient grounds for filing a claim to establish paternity, to competently and reasonably draw up the application itself, to state in it all the known facts and evidence in support of one’s legal position.
Step-by-step instructions for establishing paternity will help plaintiffs with this.
First of all, you need to find out in what legal procedure this dispute can be considered. As already noted, in the absence of a legal dispute, the case can be considered through simplified (special) proceedings. Otherwise, the father will have to face litigation, which provides for a much more complex procedure for resolving the dispute.
In addition to determining the jurisdiction of the dispute and drawing up the claim itself, it is important to worry about the evidence base to support your legal position, collect all the necessary documents and certificates, if necessary, file a motion to subpoena witnesses who can confirm your case, and if necessary, be prepared for genetic examination.
To ensure that the court does not reject your claim, it is never a bad idea to ask family law lawyers how to file a lawsuit for acknowledgment of paternity. The fact is that it very often happens that the plaintiff, although he has every reason to recognize paternity, due to legal illiteracy, cannot always exercise his rights.
It is not easy for a man who wants to recognize paternity through the court to figure out on his own which court to go to, what form the claim should be drawn up and what exactly needs to be included in it, as well as where and in how many copies the claim should be filed.
Thus, it should be borne in mind that proving paternity is a difficult process that not only takes a lot of time and effort, but also requires a certain degree of legal literacy. Therefore, it is very important to approach its resolution responsibly. When resolving issues related to establishing paternity, it will never be a bad idea to seek the help of specialists in the field of family law.
Where to go to establish paternity
The jurisdiction of cases of establishing paternity and maternity is regulated by the norms of civil procedural legislation. In this category of cases, no separate mechanism for their consideration is provided, therefore all issues regarding the establishment of paternity in court are subject to consideration by the relevant courts of general jurisdiction - city or district.
In accordance with Art. 28, 29 of the Code of Civil Procedure of the Russian Federation, a claim can be filed in court both at the place of registration of the plaintiff and at the place of registration of the defendant. The choice in this case remains with the claimant.
The statement of claim must be filed with the office of the appropriate court.
What documents are needed to go to court?
The case is accepted for proceedings and its judicial consideration is carried out by courts of general jurisdiction on the basis of a filed claim to establish paternity. The claim must be accompanied by documents confirming the legal position of the plaintiff (family relationship with the child), as well as all the evidence available to the applicant regarding the case.
If the plaintiff does not have any evidence, it can subsequently be demanded through the court.
Thus, the court must provide:
- statement of claim and a copy of the claim for the defendant;
- receipt for payment of state duty (300 rubles);
- a copy of the child’s birth certificate (if the claim is filed by the mother);
- a certificate from the child’s place of residence (if the claim is filed by the mother at her place of residence);
- evidence confirming the origin of the child from a specific man.
It should be remembered that the claim is filed in a quantity sufficient to provide a separate copy to each of the participants in the trial, including copies of the materials attached to the claim.
A claim for recognition of paternity can be filed in court by sending it by mail. In this case, you should make an inventory of what was included in the postal item, which, along with a receipt for payment of postal services, will be evidence of sending the claim to the official address of the court.
This method of submission may take some time, but it eliminates the need to stand in line at the office.
If the claim is filed not by the parent himself, but by his representative, for example, a lawyer, then the father will need to issue a power of attorney to represent his interests in court. It can be issued by any notary. To do this, you need to come to the notary’s office with a passport and provide information about the attorney; the latter’s participation is not required.
Regardless of how you go to court - in person, through a representative or by sending a mail message - the key to a successful resolution of the dispute will be whether the judge who will hear the case considers your claim to be satisfied. For example, if your claim is not sufficiently substantiated, the court may refuse to satisfy it.
List of evidence in court proceedings
When establishing paternity in court, all circumstances are taken into account that directly or indirectly prove the fact of the child’s origin from a specific man. This rule is directly provided for in Article 49 of the RF IC.
Thus, during the proceedings, the court can examine any appropriate and legally obtained evidence, such as witness testimony, expert findings, and documentary materials. To take such evidence into account, the main thing is that it does not raise doubts in the judge’s mind about the paternity of a particular man. After considering all the evidence, the court will make a decision.
Forensic examination in proving paternity
When considering the question of whether paternity can be proven without the father's consent, you should know that during the consideration of the case (if there is a corresponding request from one of the parties), the court may order a genetic DNA examination to establish paternity. For the judge, the expert's findings have no predetermined significance, which means that such evidence will be examined and taken into account to the same extent as any other.
But what if the father is against the examination? The court, of course, will not force a man to undergo a genetic test.
However, you need to know that an unjustified refusal to undergo it, as well as obstruction in its implementation, will not prevent further consideration of the case.
That is, the judge will have the right to make a decision on the essence of the dispute on the basis of other evidence already available in the case, and thus establish paternity in court.
Government duty
When filing a claim for recognition of paternity, it is mandatory to attach evidence of payment of the state fee (original payment receipt) for consideration of the case. You can pay the fee at any bank branch or through bank terminals, but to do this you need to find out the account details of the relevant court. The state duty is 300 rubles.
Procedure of trial
How long it takes to establish paternity through the court may depend on many factors: the workload of the court itself, the amount of evidence that the court needs to collect and examine, and the need for an examination (which in itself can take more than one month).
In addition, the period for consideration of the case depends on the conscientious performance by the participants of the process of their duties. Thus, the plaintiff and defendant are required to appear at court hearings on the appointed day and time, provide documents requested by the court on time, and so on.
What to do after establishing paternity
The court's decision to recognize paternity is not the final stage of the process of establishing paternity. With this decision, the man must contact the registry office in order to make an appropriate entry in the civil register.
A court decision that has entered into legal force is one of the grounds for registering paternity with the registry office.
You can contact either the registry office where the child’s birth was registered, or the institution at the place of residence of the father or mother. In addition, you can contact the registry office at the place where the court decision was made.
Entering information into the child's birth certificate
A child's birth certificate is the first document proving his or her identity. Making changes to the information contained in civil status acts on the basis of a court decision to establish paternity, accordingly, entails re-issuance of the birth certificate.
Voluntary acknowledgment of paternity
The procedure for recognizing paternity also provides for the possibility of establishing it without trial, on a voluntary basis. In this case, paternity is established on the basis of an application jointly submitted by the parents to the registry office. In some cases, for example, if the child’s mother has died or is declared incompetent, the father can apply to the registry office on his own. In this case, paternity is established at the initiative of the man.
Find out more about voluntarily establishing paternity.
I want to establish paternity so I can file for child support. Who will pay for the DNA?
Good afternoon. I want to establish paternity so I can file for child support. Who will pay for the DNA?
Lawyer Antonov A.P.
Good afternoon
According to Article 96 of the Civil Procedure Code, amounts of money to be paid to witnesses, experts and specialists, or other expenses related to the consideration of the case, recognized by the court as necessary, are first deposited into an account opened in the manner established by the budgetary legislation of the Russian Federation, according to the Supreme Court of the Russian Federation Federation, general jurisdiction court of cassation, general jurisdiction court of appeal, supreme court of the republic, regional, regional court, federal city court, autonomous region court, autonomous district court, district (naval) military court, administration of the Judicial Department in a constituent entity of the Russian Federation, and also to the body that provides organizational support for the activities of justices of the peace, the party that submitted the corresponding request. If this request is made by both parties, the required amounts are paid by the parties in equal parts. If the calling of witnesses, the appointment of experts, the involvement of specialists and other actions subject to payment are carried out on the initiative of the court, the corresponding costs are reimbursed from the federal budget. If the calling of witnesses, the appointment of experts, the involvement of specialists and other actions subject to payment are carried out on the initiative of the magistrate, the corresponding expenses are reimbursed from the budget of the constituent entity of the Russian Federation on the territory of which the magistrate operates. The court, as well as the magistrate, may exempt a citizen, taking into account his property status, from paying the expenses provided for in part one of this article, or reduce their amount. In this case, expenses are reimbursed from the corresponding budget. The return to the parties of unspent sums of money contributed by them towards the upcoming legal expenses is made on the basis of a court order. The procedure for returning unspent amounts of money to the parties is established by the Government of the Russian Federation. Thus, the examination is paid for by you, but the court may exempt you from these costs.
Sincerely, lawyer Anatoly Antonov, managing partner of the law firm Antonov and Partners.
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What are the legal consequences of establishing paternity?
Current legislation directly provides for the conditionality of the emergence of parental rights and responsibilities with the establishment of the origin of the child. Thus, establishing paternity of a child is the basis for the child’s right to maintenance and cohabitation with his parents (or one of them). If the father evades the voluntary fulfillment of his parental responsibilities, then in this case it is possible for them to be forcibly established by the court.
Alimony obligations
In addition, with the establishment of paternity, child support obligations arise in relation to the child. This issue can be resolved in court simultaneously with the consideration of the claim for recognition of paternity. In this case, alimony can be collected either as a percentage of earnings or other income, or as a fixed amount of money.
Find out in more detail what alimony obligations are.
Judicial practice in cases of establishing paternity
In claims to establish paternity, decisions are made taking into account the prevailing judicial practice in this category of cases. In particular, since 2021, when considering this category of cases, courts are guided by the provisions of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 16, 2021 No. 16 “On the application by courts of legislation when considering cases related to establishing the origin of children.”
An analysis of judicial practice in disputes related to the establishment of paternity shows that the majority of appeals to the court are initiated by the mothers of children, and fathers in such cases, accordingly, act as defendants.
This is largely due to the fact that the fact of establishing paternity automatically entails a number of responsibilities for the man to raise and support the child. That is why many men are in no hurry to voluntarily acknowledge paternity, and therefore mothers are increasingly turning to the courts to resolve these issues.
