300 days after divorce and paternity – who will the child be registered under by law?

The Family Code states that if a child was born within three hundred days from the date of:

divorce;
invalidation of marriage;
from the moment of death of the spouse of the child’s mother,

The mother's ex-husband is recognized as the father of the child, UNLESS OTHERWISE PROVEN.

Further in parentheses there is a link to Article 52 of the Family Code “Challenging paternity”. Thus, the fact of the existence of a marital relationship that was terminated less than 300 days before the birth of the child is a sufficient basis for establishing the paternity of a specific person in relation to the child of the former spouse.

Many will argue how this is possible when, without the will of the person and the availability of DNA tests for paternity, a person can be recorded in the “father” column, when in fact he is not. However, this is enshrined in Article 48 of the Family Code and in the Federal Law “On Acts of Civil Status”, so everything is absolutely legal.

Legislation on three hundred days after divorce

Federal Law of November 15, 1997 No. 143-FZ “On acts of civil status”. Article 17 of the said Law stipulates: “If the marriage between the parents of a child is dissolved, declared invalid by the court, or if the spouse has died, but no more than three hundred days have passed from the date of dissolution of the marriage, recognition of it as invalid, or from the date of death of the spouse to the day of birth of the child... information about the child’s father is entered on the basis of the parents’ marriage certificate or other document confirming the fact of state registration of the marriage, as well as a document confirming the fact and time of termination of the marriage. If the child’s parents are not married to each other... information about the child’s father in this case is entered:

on the basis of the record of the act of establishing paternity if paternity is established and registered simultaneously with the state registration of the birth of the child;
at the request of the child’s mother if paternity has not been established.”

Please note that a joint statement from the mother and biological father of the child is not included in this list.

Family Code of the Russian Federation.

Article 48 states: “If a child was born ... within three hundred days from the moment of divorce, recognition of it as invalid or from the moment of death of the spouse of the child’s mother, the father of the child is recognized ... the mother’s former husband, unless otherwise proven ... The paternity of the spouse of the child’s mother is certified by a record of their marriage. 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...”

At the same time, paragraph 3 of this article is excluded by Federal Law No. 140-FZ dated November 15, 1997. Let's turn to him.

Until November 15, 1997, it was stipulated: “If the child’s mother declares that the father of the child is not her ... ex-husband, paternity of the child is established” on the basis of a joint application of the child’s unmarried parents, or in court.

Thus, the situation described above took place, but before November 15, 1997.

Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 16, 2017 No. 16 (as amended on December 26, 2017) “On the application of legislation by courts when considering cases related to establishing the origin of children.”

The Supreme Court also clarified this issue. “When considering cases related to the establishment of paternity, the courts should keep in mind that if a child was born ... within three hundred days from the date of divorce, recognition of its invalidity or from the moment of death of the spouse of the child’s mother, the father of the child is recognized ... the former husband of the child’s mother , unless otherwise proven in accordance with Article 52 of the Family Code (challenging paternity), while the paternity of the spouse of the child’s mother is certified by a record of their marriage.

If the civil registry office, with reference to the above circumstances, refused to register the birth of a child indicating the actual father as his father in the birth certificate on the basis of a joint application for establishing paternity filed by this person and the mother of the child, the question of establishing the paternity of this person may be resolved by the court after registering the birth of the child.

Thus, the civil registry office legally refuses to make such entries. There is no point in appealing such a refusal!

It can be unequivocally stated: legal inclusion in the “father” column of a child’s birth certificate of the child’s biological father (who is not the spouse of his mother) within three hundred days after her divorce is possible only after challenging the paternity of her ex-husband in court.

The simplest and most effective way out of this situation is to enter into a new marriage with the biological father of the child before his birth. Under such circumstances, he may be entered as the father of the newborn.

DNA testing solves the problem

If a woman denies that the husband from whom she divorced is the father, then one objection will not be enough. To avoid complications, you should:

contact the registry office with the real father of the newborn and draw up documents to recognize paternity;
the ex-husband will be the first to file a claim for non-recognition of his rights as a father.

Expert opinion

Egorov Stepan Stanislavovich

Legal consultant with 7 years of experience. Specialization: civil law. More than 3 years of experience in document examination.

It is possible to register the biological father, if 300 days have not passed since the divorce, only after resolving controversial issues with the ex-spouse. To do this, you need to go to court to resolve the issue of establishing paternity.

The first priority is to obtain a referral for DNA testing. If the ex-husband has suspicions about a woman’s pregnancy, he can independently file an application to establish paternity.

If during the consideration of the application the man’s doubts are taken into account, the court will issue permission for an examination to establish or refute the fact that he is the father of the baby.

If tests confirm that he is not involved in the pregnancy, he will not appear in the baby’s birth documents. In a situation where paternity is confirmed, all responsibilities provided for by law regarding the provision and upbringing of a newborn will be assigned to him on an equal basis with his ex-wife.

After 300 days from the date of divorce, the former spouse can be recognized as the father of the newborn only at his request.

If more than 300 days have passed since the divorce

If more than three hundred days have passed since the divorce, no questions should arise at the registry office. The entry is made on the basis of a joint application by the actual father and mother of the child, and such an application can be submitted during the mother’s pregnancy, but the entry about the parents will be made after the birth of the baby.

The state fee for establishing paternity is currently 350 rubles.

Up-to-date information on the procedure for establishing paternity in the civil registry office and the amount of the state fee for these actions is posted on the State Services portal.

Not wanting to include their ex-husband as the father of the child, women often “cunningly”:

You can come across cases where, in such situations, the civil registry office included the child’s biological father in the birth certificate, despite the fact that the “required” 300 days had not passed.

As a rule, questions about previously registered marriages arise only if there is obvious evidence of this. In reality, this information is not always verified. If there is no record of marriage in the passport, this point may not even be clarified. Therefore, the solution to the problem for a woman who wants to “cheat” comes down to replacing her passport and choosing the “correct” registry office.

After a divorce, women often return their premarital surname and, as a result, change their documents. The new passport may no longer contain information about past marriages. A woman’s answer to the question about the presence of previously registered marriages is not always checked, but rather very rarely.
Currently, civil registry office employees can quickly check the marital status of the child’s mother if they were the ones who registered the marriage or divorce. Consequently, for a birth certificate, women who want to “cheat” prefer to apply to another territorial body, where no one has previously been “seen.” But it is worth understanding that in fact they provide false information, and when the child reaches the age of majority, he can challenge the entry made in the birth certificate in court. Or the ex-spouse, confident that he is the father, can intervene in this process. And also a dissatisfied biological father can claim a violation of the Law.

How to avoid confusion?

When separating from your spouse and planning your future personal life in a new family, you should not neglect such a procedure as the official divorce. This will free both spouses from unnecessary problems in the future, because none of them wants to meet in court, especially on such a delicate matter. Having divorced, the ex-husband and wife can no longer think about how many days have passed since the divorce, but can create new happy families with peace of mind. Of course, it is not always possible to act exactly as prescribed by law, but since family peace depends on this, it is necessary to take all measures to formalize the relationship.

What should a man do who is listed as the father of his ex-wife’s child?

A very ridiculous situation can arise when the spouses have already divorced due to the wife’s infidelity. And after the divorce, the illegitimate child was also registered with the ex-husband. The situation is strange, but quite common in practice. Imagine a man "heartbroken by divorce" becoming the father of his wife's lover's child.

The case is unpleasant not only from a moral point of view, but also due to legal and material consequences. After all, the fact of paternity entails the presence of child support obligations in relation to a minor child.

The only way out for a man is to challenge paternity and exclude the record of the child’s father from the birth certificate, which is only possible through the court. Thus, after a divorce, the injured party again becomes the husband, now the ex-husband.

Court proceedings to challenge paternity, as a rule, are not routine in nature and in most cases are individual. Several persons may file such an application with the court:

mother of the child;
ex-husband listed as father;
putative biological father;
the child himself, after reaching adulthood.

In most cases, the court orders a genetic examination; however, if the claim is recognized by the child’s mother and biological father, the examination may not be ordered.

If a person evades participation in a genetic examination ordered by the court, the court, depending on which party is evading the examination, as well as what significance it has for it, has the right to recognize the fact for the clarification of which the examination was appointed as established or refuted. That is, if the biological father does not appear at the expert institution without good reason at the appointed time for the examination, his paternity will be established automatically.

Any biological substance with cells can be used as samples for DNA analysis: blood, sperm, nails, sulfur. But cut hair, for example, will not work - only torn hair with hair follicles. In a DNA test, simple repeating pieces of the chromosomes of the alleged father and child are compared, and the probability of paternity only approaches 100% - due to the possibility of the existence of a second person with a similar genotype.

Rules for writing an application

The mother of a newborn does not have to prove who the father of her child is. The Family Code not only gives the right to recognize the paternity rights of a former spouse, but provides a presumption of paternity. The Law stipulates that if the father and mother of the child are not married, then the father is included in the birth document upon the joint application of both parties.

But the Law is based on the Family Code, which includes a rule of 300 days after divorce for paternity. We are talking about a joint submission by parents of an application to the civil registry office to establish such status.

In many cases, when filing an application for voluntary recognition of paternity, people are faced with refusals. The fact of filing a general application is a voluntary recognition of paternity.

Therefore, it is necessary to present this statement correctly.

In order to submit an application correctly, you need:

have in hand a receipt for payment of the duty;
write a birth application indicating the details of the parents;
fill out an application to establish paternity;
Attach an extract from the maternity hospital to the documents.

If denied, you must receive written notice of the reason from the institution's employees. Having received a refusal at the place of birth of the child, you can contact the ACS at the place of registration of the father. Having supporting documents in hand, you can challenge the decision of the authorities in court.

The law of 300 days after a divorce is an opportunity to protect the rights of the child, and not to worsen the relationship of the former spouses. With a civilized approach, you will be able to resolve the controversial issue and provide the child with all the rights provided for in the articles of the relevant Federal Law.

The child was born after a divorce from another man, but was registered under the name of her ex-husband.

Who will the child be registered with after a divorce?

How to change a paternity record.

Lawyer — GoTab → Publications → Family law → Birth of a child after divorce: how to change data in the father column

From what date is the marriage considered dissolved?

A marriage can be dissolved in two ways:

In the registry office, in the absence of common minor children, and in the presence of mutual consent of the spouses, as well as at the request of one of the spouses, if the other spouse is recognized by the court as incompetent, missing, or sentenced for committing a crime to imprisonment for a term of over three years.
In court, if there are common minor children from this marriage or the spouse evades divorce in the registry office.

In the first case, the marriage is terminated from the date of state registration of the divorce in the civil registration book (one month after filing the application).

In the second case - from the day the court decision on divorce comes into force. Moreover, more than one month may pass from the date of filing the divorce claim.

The countdown of three hundred days must begin precisely from the date of termination of the marriage. If the registry office employees committed violations, then such acts can be appealed in court.

Pregnancy is a virus that is spread by men, but only affects women.

On April 14, 2021, a bill was introduced into the State Duma, according to which: if the child’s mother declares that the ex-husband is not the father of the child, paternity of the child is established by submitting a joint application to the registry office from the biological father and mother of the child. The bill was adopted in the first reading. The authors of the initiative emphasize that in the current conditions, a legal conflict actually arises; civil registry office employees write the ex-husband’s father on the child’s birth certificate when he is not one. In addition, the process of establishing paternity is highly bureaucratic and burdensome for all involved.

Thus, this bill proposes to return back paragraph 3 of Article 48 of the Family Code, which was discussed above.

Statute of limitations for establishing paternity

Art. 9 of the RF IC reflects that the rules of limitation do not apply to cases related to family legal relations. That is why paternity of a child can be determined in court at any time after the birth of the baby. In addition, even in relation to adolescents who have reached the age of 18, a claim can be filed to determine kinship. However, in such a situation, the consent of the child himself is necessarily required, which is recorded in Part 4 of Art. 48 RF IC.

Sources

https://razvodalimenty.ru/ustanovlenie-ottsovstva/
https://ORazvode.com/razvod/pravilo-300-dnej-posle-razvoda-po-zakonu.html
https://SemPravorf.ru/deti/300-dnej-posle-razvoda-otcovstvo.html
https://allo-urist.com/prezumptsiya-ottsovstva/
https://orazvodah.ru/zakonodatelstvo/300-dnej.html
https://prozakon.guru/semejnoe-pravo/razvod/zakon-300-dney.html
https://razvod-expert.ru/razvod-i-deti/prezumpciya-otcovstva/

[collapse]

Why exactly 300 days?

When writing this article, a detailed analysis of the regulatory legal framework, advisory legal materials, educational and scientific literature in the field of establishing paternity was carried out, however, it is not indicated anywhere why the legislator set a period of 300 days for recognizing the ex-spouse as the father of the child. It is generally accepted that the gestation period is 9 months, and then it would be advisable to set 270 days. But as a 2013 study by American scientists from the University of North Carolina showed, 10 months is a completely normal pregnancy period. These conclusions were obtained based on the results of a survey of 125 pregnant women. For most expectant mothers, the duration of pregnancy is in the range from 37 to 42 weeks, that is, the maximum gestation period is about 300 days. “Procreation standards will have to be revised,” say experts from the National Institute of Health Sciences in Durham.

Thus, depending on the moment of the child’s birth, the situation with who will be entered in the “father” column in the birth certificate may change. The situation seems absurd, but completely solvable. Legal experts provide legal support on all issues related to establishing and challenging paternity. Any questions? Call: + or write to WhatsApp.

Examples from judicial practice

Based on the documents presented, the court decided to begin proceedings. A second party was invited to the proceedings, namely the child’s mother. She, in turn, did not want to appear at any meeting.

Due to the fact that the legislation of the Russian Federation prohibits genetic testing without the mother’s permission, the court made a decision based on official medical documents presented by the plaintiff.

The doctors who provided the certificates confirmed that the potential father had a serious reproductive pathology. According to her, he was physiologically unable to conceive a child. As a result, the court made a positive decision regarding the plaintiff's application. After this the case was closed.

If you are interested in familiarizing yourself with the official document regulating the relevant issue, please refer to the articles of the Family Code. In particular, the case considered is described in Art. 48. RF IC.

But more importantly, if the situation is complex (for example, the mother does not want to conduct a genetic examination), it is recommended to seek professional help from a lawyer who specializes in the issues at hand. He will select the optimal strategy, which, if there is reason, will result in the judge making a positive decision.

Reading time: 13 minutes

The Family Code states that if a child was born within three hundred days from the date of:

divorce;
invalidation of marriage;
from the moment of death of the spouse of the child’s mother,

The mother's ex-husband is recognized as the father of the child, UNLESS OTHERWISE PROVEN.