24. ESTABLISHING THE ORIGIN OF CHILDREN / Family law: Cheat sheet

Establishing the origin of children in family law

The basis for the rights and responsibilities of parents and children is the origin of the children. Descent is the biological (blood) connection between a child and his parents. The origin of a child is considered established and becomes a legal fact if it is certified in the manner prescribed by law. This procedure is the state registration of the birth of a child in the civil registry office.

When state registration of the birth of a child, which must be carried out within one month after his birth, a record of the child’s birth certificate is drawn up, which indicates the necessary information defining the personal status of the child, as well as information about his parents. A record of parents made by the civil registry office is evidence of the child’s origin from the persons indicated in it and can only be challenged in court.

Recording of information about the child’s mother is carried out on the basis of an appropriate medical document confirming the fact of the birth of the child by this woman (for childbirth outside a medical institution and without medical assistance - on the basis of the certificate of persons present at the birth). However, cases of absence of such documents are possible: in this situation, the origin of the child from this mother (maternity) can be established in court by filing a claim to establish maternity.

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Recording information about the father, if the mother is in a registered marriage, is made on the basis of the presumption (assumption) of paternity of the person married to her established by law. The mother's husband is registered as the father of the child born to her at the request of either spouse. The registration of the mother's husband as the father of the child is made regardless of how much time has passed from the moment of marriage to the moment of birth of the child. The law does not establish any deadlines in this case. The mother's husband is registered as the child's father even in cases where the child was born no later than 300 days after the termination of the marriage. This rule applies equally both in the event of termination of a marriage by the death of a spouse, and in the event of its termination during the life of the spouses by divorce or recognition of the marriage as invalid (Article 48 of the Family Code (FC)). Thus, for 300 days after the termination of the marriage or the recognition of the marriage as invalid, the presumption of the origin of the child from a man married to the mother continues to apply.

The record made about the father (paternity) can be challenged in court. Paternity can be challenged at any time (there is no statute of limitations in this case) when the person recorded as the father becomes aware that he is not the biological father of the child. If the father is incapacitated, his paternity can be challenged by his guardian (Articles 48, 51 and 52 of the Family Code).

In cases where the parents are not married to each other, family law provides for two ways to establish paternity.

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Voluntary establishment of paternity

It involves filing a joint application to establish paternity with the civil registry office after the birth of a child by his father and mother, who are not married to each other. The joint application to establish paternity must confirm the recognition of paternity by a person who is not married to the child’s mother, and the consent of the mother herself to establish the paternity of this person in relation to the child born to her.

If there are circumstances in which it is impossible to submit an application after the birth of the child, the law (Article 48 of the Family Code) gives the child’s future parents the right to file a joint application to establish paternity during the mother’s pregnancy. In this case, the registration of parents is made after the birth of the child, so the submitted application can be withdrawn by the father or mother at any time before registering the birth of the child with the civil registry office.

Voluntary establishment of paternity is also possible at the request of one father, when the child’s mother has died, been declared incompetent by the court, deprived of parental rights by court, or it is impossible to establish her whereabouts. In order to prevent infringement of the rights and interests of children, filing such an application is possible only with the prior consent of the guardianship and trusteeship authority, and if the said authority refuses to give such consent, if there is a court decision on this issue.

A record of the child's father made on the basis of voluntary establishment of paternity may be challenged in court. However, the court does not have the right to satisfy such a requirement if it establishes that the person who voluntarily established his paternity knew at the time of establishment that he was not the biological father of the child (Clause 2 of Article 52 of the Family Code).

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How to establish paternity in court?

What steps must be taken to establish paternity in court:

determine who exactly will act as the plaintiff, it can be either the mother or the father, or even a guardian;
the preparation process is carried out and only then the statement of claim is transferred to the courtroom with all the necessary documentation that must be attached to it;

interests are protected during the judicial review process;
if the case is won, documents must be submitted to the registry office for consideration and for this it is necessary to carry out the procedure for state registration of kinship;
You may need a documentary base with evidence that paternity has been established, and it will be issued by the registry office.

Often in the Russian Federation, such cases occur in judicial practice. This usually concerns issues of establishing the paternity of deceased citizens, and in such cases, any claim can be filed by mothers who have children under 18 years of age.

The key purpose of the claim is to carry out the procedure for collecting alimony, or the child must be recognized as one of the heirs of the property of the deceased parent. It is much less common to find cases challenging paternity that were considered at the initiative of biological fathers.

Establishing paternity involves a conflict of interest, which can be eliminated by proving your point of view in court, which is done by collecting evidence, first of all, a certain list of documents, the totality of which will tip the scales to one side or another. At the first stage, the applicant submits to the court:

The claim and its copy, which the court sends to the defendant;
A payment document that confirms that the state fee for legal proceedings in the case has been included in the budget;
A power of attorney by which the plaintiff authorizes the representative to represent him in court;
Documents confirming the requirements. These can be a child’s birth certificate, information from the state. authorities, joint photographs of the defendant and the baby, which indicate that the plaintiff and defendant live together, indicate a list of witnesses who are to be called for questioning in the courtroom, etc.

During legal proceedings, any of the parties upon a petition, as well as the court itself, on its own initiative, has the right to order an examination. DNA testing may be the most effective, guaranteeing a reliable result, but due to its high cost, they do not always use the right to prescribe it if other evidence is sufficient.

If an exhaustive list is not available, the parties themselves make every possible attempt to prove their case.

In addition, in cases of this category, they practice scheduling a preliminary hearing, during which the parties stipulate what additional evidence the court needs to request in order to study and evaluate it during the judicial investigation.

Claim;

Special.

The claim proceedings include:

drawing up the claim itself, which identifies the plaintiff (the person who goes to court), the defendant (the person against whom the claims are made), and also sets out the circumstances of the case (the reason for going to court and evidence of the validity of the claims) and the claims themselves;
collection of written evidence that is attached to the claim;
filing a claim in court;
participation in the trial. Involves presenting evidence to the court, filing petitions, petitions, etc. in order to defend their demands.

The claim is subject to a state fee, the payment receipt of which is also sent to the court along with the claim.

Making the desired decision to satisfy the requirements involves a subsequent application to the registry office to make a record there about the child’s father in accordance with the decision. After which the registry office issues a corresponding certificate for the child, which reflects information about the father.

Refusal to satisfy the claim and disagreement with such a decision gives the right to appeal the decision through the appeal procedure.

The Tax Code provides for the mandatory payment of a fee in cases of establishing paternity, both in claims and in special proceedings. The amount of the duty is determined in Art. 333.19 of the Tax Code of the Russian Federation and amounts to 300 rubles.

The plaintiff has the right to apply for exemption from paying the duty, but the request must provide reasons for the reason. The court, having considered the petition, will either make a satisfactory decision on it or refuse it.

At the same time, when a decision is made, the court indicates in it that the state duty and other legal costs are recovered from the loser. Therefore, satisfaction of the claims entails the defendant returning to the plaintiff the amount of the paid duty.

Motherhood is wonderful, and it’s up to the mother to decide whether to raise and support the child herself or ask the father for help. But you shouldn’t take on sometimes unbearable burdens, especially in material terms. You should not put the brakes on the issue of involving a biological father in the child’s life, who does not want to take on the burden of paternity. The practice is that the courts are always on the side of mothers and children, and approach the collection and analysis of evidence carefully.

Attention

The most important thing in a claim to disprove the fact of paternity is the evidence presented, which must completely exclude the possibility of paternity. Evidence in such cases includes:

results of DNA examination and other forensic examinations (about inability to reproduce, an individual map of the course of pregnancy and childbirth);
witness testimony (which can confirm the fact of separation of spouses, the presence of another man with the wife);
written evidence (official documents, personal correspondence, etc.);
other evidence that is not prohibited by law, refuting the fact of paternity.

We suggest you familiarize yourself with: What are the documents for a temporary residence permit for marriage in Sakhorovo?
In many cases, a genetic examination is an indisputable argument in the case of refuting the fact of paternity, which can be requested during a court hearing.

A claim to establish paternity can be brought not only by the mother of the child, but also by a person who considers himself his father. STATEMENT OF CLAIM to establish paternity A statement of claim to establish paternity is filed in the general manner with the district court at the place of residence of the defendant. The plaintiff is exempt from paying the state fee when filing a claim, since the claim is aimed at protecting the interests of the child.

Judicial establishment of paternity is used in the following cases:

the man does not want to recognize the child;
a woman prevents paternity from being established voluntarily;
the blood father wishes to exclude information about the legal husband from the child’s documents;
the biological father died before paternity was established.

Not all men wish to obtain parental rights and responsibilities in relation to natural children. The main reason for refusal is the obligation to provide financial support for the minor. Often, information about the presence of a natural child is hidden from the official spouse.

The law protects the interests of the minor. And the presence of an official father is in the interests of the child. Therefore, the issue can be resolved forcibly.

In some cases, a woman does not want to include information about the biological father in children's documents. This is primarily due to the reluctance to advertise the identity of the child’s natural parent. In this case, the man can go to court.

Paternity can only be established upon the application of the interested person.

It should be said that such court cases aimed at establishing paternity usually fall into the category of rather complex disputes. They are often very lengthy in terms of resolution and difficult from a moral point of view for all persons involved. Therefore, the child’s mother, who wants to protect the latter’s rights and establish paternity in court, must first weigh, evaluate all the pros and cons and take into account all the possible legal consequences of this step.

Good afternoon. The jurisdiction of cases by the magistrate is determined by the provisions of Art. 23 Code of Civil Procedure of the Russian Federation. It directly states that cases of establishing paternity are not within the jurisdiction of the magistrate. You need to file a claim in district court. The father’s simple failure to appear in court does not matter at all, because You must first figure out whether the father was notified of the trial, whether there were good reasons why he could not appear, etc.

The commented article establishes the judicial procedure and grounds for recognizing paternity in court in the event of the birth of a child to parents who are not married to each other. This procedure is quite rightly called forced, since the mutual will of the child’s parents, who are not married to each other, is absent to recognize the fact of paternity.

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