Courts rarely make decisions on the return of alimony. But in cases where paternity is contested, this is possible. Not many men want to take care of other people's children, much less pay them child support. Even if paternity was successfully challenged, it will rarely be possible to obtain the return of alimony.
You will need the assistance of a competent family law attorney. In this case, the likelihood of receiving compensation for unreasonably withheld alimony will be much higher. But if a stronger lawyer is on the woman’s side, then, despite the disputed paternity, the money paid by her stepfather may not be recovered from her.
Grounds for challenging paternity
It happens in life that the man recorded as the father of a child is not actually his biological father. Such circumstances can become clear at any time after the birth of the child. In judicial practice, cases of challenging paternity most often occur for the following reasons:
- A man, registered as the child's father on the basis of a registered marital relationship with the child's mother, having found out that he is not the biological father of the child, applies to the court to challenge his paternity in relation to the child born by his wife (ex-wife).
- A man, who is in fact the biological father of the child, goes to court with a claim to challenge the paternity of the man, recorded as such by virtue of the presumption of paternity.
- The mother of the child challenges the paternity of her husband (ex-husband), who is not actually the biological father of the child born to her, in order to terminate the legal relationship between the man and the child. It is also possible to challenge the paternity of a man if he is recorded as the father of the child on the basis of voluntary establishment of paternity, but the claim can be satisfied only on the condition that at the time of making a record of him as the father of the child, he was sure of his biological paternity.
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By whom and when can paternity be challenged?
All this is described in the above-mentioned articles of the RF IC. It also talks about ways in which problems that arise with establishing maternity or paternity can be resolved.
Thus, Article 52 states that an entry in the birth book and serving as confirmation of the status of the parents can be questioned exclusively in court, and only by the following persons:
- Citizens who were recorded as biological mother or father.
- A person who has evidence of actual relationship with the child.
- A young man himself, but only after he reaches adulthood.
Sometimes there is a need to confirm that the man who agreed to register paternity in his name knew that there was no blood relationship with the child. When considering this issue, the court may take into account, in addition to oral testimony of witnesses, letters of personal correspondence, audio and video materials. And in this situation, he will no longer be able to renounce his parental rights.
Procedure for challenging paternity
Let us remind you that paternity can only be challenged in court , even with the consent of both parties. Disputes about challenging paternity are considered by the court in the manner of claim proceedings. The procedure for challenging paternity is regulated by Article 52 of the Family Code of the Russian Federation.
When challenging paternity, you should be aware of the following aspects:
- If a man, at the time of voluntary establishment of paternity , knew that he was not in fact the biological father of this child, his claim to challenge paternity would be denied (clause 2 of Article 52 of the Family Code of the Russian Federation).
- If a man recognized his paternity under the influence of threats, violence, or in a state where he was unable to understand the meaning of his actions and manage them, he can challenge the record of his paternity precisely on the grounds of violation of will (clause 10 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated October 25, 1996 No. 9 “On the application by courts of the Family Code of the Russian Federation when considering cases of establishing paternity and collecting alimony”). The given list of grounds for challenging the record of paternity is not closed, therefore we believe that recognition of paternity under the influence of deception can also be regarded as an action committed in the absence of the will of the person.
- If conception occurred through artificial insemination or embryo implantation, as well as during the birth of a child by a surrogate mother, the law prohibits spouses, as well as the surrogate mother who has given consent to the relevant procedures, from referring to these circumstances as a basis for their claims when challenging paternity.
- In a claim to challenge paternity, the plaintiff can also make a demand to change the child’s personal data, i.e. assigning him the surname and patronymic of the biological father (for example, the biological father demands that the child be given his surname and patronymic after his own name). New data in the registration information about the child is entered by the civil registry office on the basis of a court decision. In the absence of the actual father, the child’s new surname and patronymic can be recorded by the registry office from the words of the mother.
- If at the time of consideration of the case on challenging paternity, the child in respect of whom paternity is being disputed has reached 10 years of age, he has the right to express his opinion and must be heard by the court during the trial, taking into account his opinion is mandatory, as provided for in Article 57 of the Family Code of the Russian Federation . The need for courts to comply with this rule was indicated by the Plenum of the Supreme Court of the Russian Federation in its Resolution No. 9 of October 25, 1996.
Some questions and answers
Many people turn to lawyers with their problems regarding invalidation of paternity. Both mothers and fathers of children ask questions to professionals.
Situations vary. If a child was born within the framework of a family relationship, it can be more difficult to refute paternity.
However, courts often make decisions in favor of the interested party to the dispute. It is only important to prepare your claim correctly.
Denial of paternity
My husband flatly refuses to confirm that our little daughter is his and is threatening us with divorce. What should I do?
We recommend! Establishment of paternity in court by way of claim proceedings
Alla, Moscow.
Expert commentary
Roslyakov Oleg Vladimirovich
Lawyer, specialization civil law. More than 19 years of experience.
Ask a question
Contact the court with a substantiated claim to establish the fact of paternity. At the same time, you should insist on ordering an examination. Judges usually agree to this request. It is important to know that if the spouse refuses the research, the court ultimately has the right to do without its results. There is an article for this. 79 Code of Civil Procedure of the Russian Federation.
The birth of a child without long-term cohabitation of spouses
I have not lived with my wife for several years. Moreover, now we are in different cities.
I heard from friends that her son was born a month ago. How can I protect myself from claims regarding alimony?
Fedor, Balashikha.
Expert commentary
Roslyakov Oleg Vladimirovich
Lawyer, specialization civil law. More than 19 years of experience.
Ask a question
For now you can do nothing. If a claim arises, counterclaims can be made. They will concern the exclusion of information about your paternity from the registry office documents.
Evidence of non-paternity
This is the situation. My wife gave birth to a girl as part of our marriage.
I have reasonable suspicions that this is not my daughter. What is the best way for me to deal with this situation?
Konstantin, Krasnogorsk.
Expert commentary
Roslyakov Oleg Vladimirovich
Lawyer, specialization civil law. More than 19 years of experience.
Ask a question
From a worldly point of view, it is best to talk to your wife and resolve all differences. However, you can insist on conducting a biological examination. The court has the authority to appoint it.
Alimony and paternity
Please advise how to solve this problem of mine. I am currently paying child support for my five year old son.
However, I became reliably aware that he has a different father. What should I do?
Evgeniy, Vnukovo.
Expert commentary
Roslyakov Oleg Vladimirovich
Lawyer, specialization civil law. More than 19 years of experience.
Ask a question
The only correct solution would be to go to court. The submitted statement of claim may contain several demands. The first of them has an emphasis on legally establishing the fact that you are not the boy’s natural father. You also need to ask to cancel the existing record for the child and exemption from paying existing child support. When collecting them by bailiffs, it is necessary to transfer to them the court decision that has entered into force.
Who can challenge paternity
The provisions of Article 52 of the Family Code of the Russian Federation, in contrast to the previously existing Code of Laws of the RSFSR, expand the circle of persons who can challenge the entry of parents in the birth register. According to previous legislation, these could only be persons registered as parents, i.e. There was no direct reference to such a right of other persons in the law. Now plaintiffs can also be persons who are the actual father and mother, but are not registered as such with the civil registry office.
So, the plaintiff in a case challenging paternity can be:
- Person recorded as the child's father
- The person who is actually the father of the child
- Child's mother
- Child's guardian or custodian
- Guardian or trustee of a parent who has not reached the age of 16 or has been declared incompetent by a court
- The child himself after reaching adulthood
The specified circle of persons is exhaustive . For example, grandparents cannot go to court to challenge the paternity of their grandchild, even if the child’s parents are minors. They are granted this right only if they act as guardians of a child whose minor parents have not reached the age of 16.
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How to challenge paternity
The first stage is a statement of claim to challenge paternity.
Of course, you need to know how to file a paternity challenge. A claim in court is drawn up with mandatory compliance with the requirements of Articles 131-132 of the Code of Civil Procedure of the Russian Federation, otherwise there will be grounds for the court to perform such procedural actions as leaving the claim without progress, returning the claim or refusing to accept it.
At this stage, it is recommended to use the services of a qualified lawyer who will quickly and competently draw up a statement of claim, correctly formulate the evidence base and file a claim in court. The statement of claim must contain: the name of the court to which the claim is filed, information about the parties (full names, addresses, telephone numbers), details of the child in respect of whom paternity is being disputed.
The plaintiff must clearly substantiate his claims: set out in detail the circumstances that gave rise to the claim, and provide evidence confirming these circumstances. If the plaintiff in his claim refers to witness testimony, then the contact information of these persons should be indicated.
It is also necessary to indicate a list of documents that the plaintiff attaches to the claim.
These are the following documents:
- Receipt for payment of state duty
- Copies of the claim for the defendant and third party
- Copies of marriage, divorce, and birth certificates
- Other available written evidence
All copies of documents that are annexed to the claim must be submitted according to the number of persons participating in the case.
The third party in the case must indicate the civil registry office (ZAGS), since a positive court decision to challenge paternity is the basis for this body to make changes to the birth certificate of the child (clause 1 of Article 69 of the Law of November 15, 1997 No. 143-FZ ).
Important nuances in the generally accepted procedure for recognizing paternity
The issuance and official registration of a birth certificate is carried out at the place of residence at the time of birth of any citizen of the Russian Federation. The registry office is responsible for completing the necessary registration. The basis for this is a certificate issued by a specialized medical institution (maternity hospital). At the same time, a complete set of data is recorded about who exactly and at what time a particular baby was born.
A situation may arise where the issuance of a birth certificate is based on the performance of witnesses. This happens if the birth took place outside of a specialized medical center. For example, if an obstetrician was called to attend a premature birth at home. In such a situation, the birth of a child is evidenced by the person who took part in the birth.
What happened must be recorded on paper or other storage media. Then, based on this document, it will be possible to draw a conclusion about the successful outcome of the birth. And it is this that will be taken as the basis when issuing a child’s birth certificate.
So, under what conditions can a man be recognized as a father, even without being related by blood to the newborn:
- Based on the laws of the Russian Federation, a man is recognized as the father of a child born if at the time of birth an official marriage was concluded between him and the woman in labor.
- If the spouses are divorced and the child was born within three hundred days of the divorce.
Sometimes women resort to deliberately delaying the divorce process. This allows them to legally name their ex-spouse as the de facto father. Based on this, they file a claim for alimony.
Evidence in a case challenging paternity
The subject of proof in court in a case challenging paternity is the absence of biological relationship between the child and the person indicated as the father of this child.
- One of the main evidence is the result of a genetic study for the presence of such a relationship. If the defendant in court does not accept the requirement to challenge paternity, the plaintiff must file a petition to order a forensic genetic examination to establish a relationship with the child. The results of genetic fingerprinting (DNA analysis) confirm the relationship between people with up to 99.9% . Such evidence, as a rule, decides the outcome of the case in court.
- A situation is possible when the defendant refuses to participate in genetic fingerprinting, for example, the mother refuses to bring the child to an expert institution to take the test, or the child’s legal father refuses to take the appropriate test. In this case, the court may, on the basis of paragraph 3 of Article 79 of the Code of Civil Procedure of the Russian Federation, recognize as established the fact that the person is not the father of the child and make a positive decision in the case.
- In addition to the results of genetic research for kinship, evidence in the case may also include: witness statements, correspondence of the parties, photos and videos and other written evidence. The court evaluates all the evidence presented by the parties in their totality.
- Sometimes genetic testing is not necessary because the plaintiff challenging his paternity can confirm the circumstances he is citing with the help of an expert opinion about his inability to conceive a child.
- If the defendant admits the claim , then the court makes a positive decision without examining the case materials on the basis of such recognition.
- As stated above, when challenging paternity after its voluntary recognition, the plaintiff must first of all prove to the court that at the time of making a record of establishing paternity, he did not know that he was not the father of the child, i.e. he honestly made the mistake of believing himself to be the biological father of the child. The defendant’s task will be to prove the opposite.
As an example of the court’s assessment of evidence when challenging paternity by a person who voluntarily acknowledged paternity of a child, we provide an excerpt from a decision in a civil case rendered by the Frunzensky District Court of St. Petersburg in 2015.
According to the case materials, Smirnov A.A. voluntarily established his paternity in relation to his daughter S.V. Matveeva. - Smirnova A.A., born in 2012, about which the civil registry office made an act record, in which A.A. is Smirnova’s father. the plaintiff is indicated - Smirnov A.V.
From the plaintiff’s explanations it followed that on October 5, 2014, he learned from the defendant that he was not the real father of A.A. Smirnova; before that, he believed himself to be the father of the child, since, according to his calculations, the time of the child’s conception coincided with the period of the beginning of their intimate relationship, and he had previously had no reason to doubt his paternity.
According to a genetic study conducted during the consideration of the case at the request of the plaintiff, Smirnov A.V. really was not the biological father of Smirnova A.A. The defendant’s assertions that at the time of making the act record the plaintiff knew that he was not the real father of the child were confirmed only by the testimony of the defendant’s parents and girlfriend.
These witness statements were not accepted by the court as the only reliable ones, since they were not supported by other types of possible evidence (letters from the parties, etc.), and also did not refute the directly opposite testimony of witnesses on the part of the plaintiff.
The court also critically assessed the defendant’s explanations that when entering into an intimate relationship with the plaintiff, the latter told her about a genital injury received in childhood, as a result of which he allegedly could not have children, and allegedly for this reason the plaintiff did not object to his registration father in relation to a child born to her by another man.
The plaintiff refuted these arguments by presenting a medical report based on a clinical study, according to which the pathology interfering with reproductive function in Smirnov A.A. no, therefore he can have children.
As a result, the court came to the conclusion that, due to the contradiction of the evidence presented and the impossibility of reliably establishing the circumstances of the plaintiff’s awareness of his indication in the registration record as the father of a child other than his own at the time of its commission, the court cannot consider it established that at the time of registration of the birth of Smirnova A. A. the plaintiff knew that he was not her biological father.
As a result, the claim to challenge paternity was satisfied, information about Smirnov A.V. as the father of Smirnova A.A. were excluded from the birth certificate of the latter.
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Examples from judicial practice
When a child was born during a marital relationship or within three hundred days after a formal divorce, the default presumption of paternity applies.
However, the law allows one to cast doubt on the relevant fact. Both the mother and his putative father have the legal right to seek assistance from the district court.
Several precedents are given below as illustrative examples.
Challenging paternity after divorce at the request of the mother
The essence of the existing dispute is briefly as follows. The woman turned to her ex-husband with a lawsuit, in which she asked to testify that he is not the father of her daughter.
The girl was born before three hundred days had passed since the divorce was completed. Therefore, the default entry included information about the former spouse.
And also a claim was made that paternity belongs to the plaintiff’s current common-law husband. The defendant did not object to the stated demands.
By its decision of June 23, 2021 in case No. 2-68/2017, the Shelabolikha District Court of the Altai Territory satisfied the claim. At the same time, the motivational part was based on the results of officially conducted examinations.
Denial of paternity by a man
A citizen of Nikolaev (last name has been changed) filed a lawsuit in court. He asked to exclude the entry about the child with reference to Nikolaev’s paternity.
The requirements were motivated by the fact that on the day the boy was born, the couple had not lived in the same territory for a long time. In addition, his birth served as the basis for the subsequent dissolution of the marriage.
By the decision of the Zyuzinsky District Court of Moscow dated February 11, 2014 in case No. 2-353/2014, the plaintiff’s demands were satisfied. As a result, the court decided to exclude current information about the father from the registry office record.
If the absence of paternity is known in advance
The subject of the dispute was the appeal of a man challenging the paternity of a girl born during a marital relationship. He was included in the deed record by his father.
The application is motivated by the fact that the plaintiff could not have children due to health problems. In turn, the defendant objected to the demands put forward.
She explained to the court that she gave birth to a child from another man in agreement with her husband, and he knew it. In addition, the plaintiff took care of the girl and paid alimony even during her studies at the institute.
By decision of the Otradnensky District Court of the Krasnodar Territory dated May 23, 2017, case No. 2-560/2017, the claims were denied.
The judge pointed out that the abolition of paternity can only take place in a situation where the man did not know that he was the father of the girl at the time of the formation of the act record.
When spouses do not live together
A woman filed a lawsuit to exclude her husband as the father from the birth record of her son. The statement is justified by the fact that the spouses have not lived together for a long time and do not run a household.
The defendant did not object to the demands and confirmed that, for his part, he had nothing to do with the paternity of his son.
Under such circumstances, the Zaeltsovsky District Court of Novosibirsk, by its decision dated May 13, 2017, case No. 2-1110/2017, considered it necessary to satisfy the claim.
Challenging paternity jurisdiction
When filing a claim, it is necessary to comply with the rules of civil procedural legislation on territorial and generic jurisdiction.
- Patrimonial jurisdiction: cases challenging paternity are within the jurisdiction of district courts .
- Territorial jurisdiction: these disputes are considered by the courts at the place of residence of the defendant , i.e. according to the rules of general jurisdiction. As you can see, in contrast to disputes related to the establishment of paternity, when challenging paternity, the rules of the Code of Civil Procedure of the Russian Federation on alternative jurisdiction do not apply.
Statute of limitations for challenging paternity
According to current family law, claims to challenge paternity are not subject to the statute of limitations .
Attention: The exception is cases when paternity is disputed in relation to a child born before March 1, 1996 (the date of entry into force of the Family Code of the Russian Federation). In this case, the man can challenge his paternity within one year from the day he learned that he is not the biological father of this child. This is due to the fact that a one-year statute of limitations was applied to claims to challenge paternity in accordance with the provisions of the previously in force Code of Laws of the RSFSR.
Cancellation of child support after challenging paternity
If a man who has disputed his paternity of a child is the payer of alimony for the maintenance of this child, then after the court decision to exclude the entry about him as the father from the birth certificate of this child enters into legal force , he can apply to the court with a separate a claim for release from further payment of alimony.
A positive decision to challenge paternity with a note of entry into legal force is the basis for the court to satisfy a claim to exempt this person from paying alimony .
Important: It should be borne in mind that despite the fact that the court granted the claim to challenge paternity, the withholding of alimony will cease only after the court decision on exemption from alimony payment enters into legal force.
Thus, if no action is taken, alimony will continue to be accrued and withheld while the court is considering the case for exemption from alimony payments, and this may take several months. In order to avoid this, it is initially advisable to negotiate with the alimony collector (the child’s mother or guardian). It is possible that the claimant will voluntarily return the alimony paid during the consideration of the claim.
If the claimant refuses to voluntarily return the amounts of alimony, the plaintiff, when presenting a demand for release from the alimony obligation, should submit a petition to the court to take measures to secure the claim , namely, to suspend the collection of alimony under the writ of execution until the dispute is resolved.
Based on the results of consideration of such a petition, the court will issue an appropriate ruling, a copy of which must be submitted to the accounting department at the place of work.
Example of a statement of claim
In the Kartalinsky City Court of the Chelyabinsk Region
Plaintiff: Egorov Pavel Borisovich,
Born 02/17/1982, place of birth: Kaliningrad region, address: 456830, Kasli, st. Sovetskaya, 45,
tel. 4964154615
Defendant: Egorova Daria Sergeevna,
Born 03/02/1980, place of birth: village. Yailyu address: 457351, Kartaly, st. Molodezhnaya, 5, apt. 98,
passport 2789 No. 3956126
tel. 494145346313
Statement of claim to challenge paternity
Since November 25, 2019, I have been in a registered marriage with Egorova Daria Sergeevna. This is confirmed by marriage registration certificate No. 1842489. However, since 01/01/2021, we are not actually in a marital relationship, we live separately, we do not run a common household.
Since 01/09/2021 I have been living in another city - Kasli. Officially employed here at PromStroyServis LLC. We didn’t dissolve the marriage because there was no time and it didn’t bother me.
On February 19, 2022, the defendant gave birth to a daughter. And since the marriage between us was not dissolved, then in accordance with Part 2 of Art. 48 of the Family Code of the Russian Federation, I am listed as the father of the child. The child was given my surname and patronymic, about which the Civil Registry Office of the city of Kartaly compiled act record No. 152 dated 02/25/2022.
I am not the biological father of the child, which confirms the fact of separation. This fact can be confirmed by the testimony of my mother: Maria Stanislavovna Egorova (Kartaly, Yasnaya St., 1). Moreover, I know that from May to December 2021, my wife lived together with Solntsev Igor, born in 1983. This can be confirmed by the neighbors of Egorova D.S. and Solntsev himself, I don’t know his place of residence. The child's surname and patronymic were assigned unreasonably; I am not obligated to bear parental responsibilities towards the child and do not want to.
Based on the above and in accordance with Art. 52 IC RF, 151-152 Code of Civil Procedure of the RF I ask the court:
- To establish that Pavel Borisovich Egorov, born 02/17/1982, a native of the Kaliningrad region, is not the father of Victoria Pavlovna Egorova, born 02/19/2022, born in Kartaly to Daria Sergeevna Egorova.
- Amend the birth certificate entry No. 152 dated February 25, 2022, compiled by the civil registration office in Kartaly, excluding information about the Plaintiff as the father of the child.
Application:
- Receipt for payment of state duty;
- A copy of the plaintiff’s work record;
- Marriage certificate (copy);
- Copy of the child's birth certificate
- Russian passport of the plaintiff (copy) with a mark of registration at the place of residence
- Petition to request evidence from the Civil Registry Office
- Petition to call witnesses
- Notice of sending the claim and documents to the defendant
Egorov P.B. May 15, 2022
Refund of child support after challenging paternity
According to the law, reclaiming alimony back is not allowed . This is directly provided for in Article 116 of the Family Code of the Russian Federation.
But there is an exhaustive list of exceptional situations when you can demand the return of alimony amounts:
- If the decision to collect alimony is canceled due to the establishment of the fact that alimony was collected on the basis of false information or forged documents submitted by the alimony collector
- If the alimony payment agreement was declared invalid by the court as concluded under the influence of deception, threats or violence on the part of the alimony recipient
- If alimony was paid on the basis of a forged court decision, alimony payment agreement or writ of execution, and this was established by a court verdict.
Please note that when it comes to alimony collected for the maintenance of a minor child , the law does not imply the reverse collection of alimony , but the collection of amounts of paid alimony from the alimony claimant , whose guilt in committing the above acts is established by a court decision or verdict, according to the claim alimony payer who has challenged his paternity.
The procedure for challenging paternity in court is quite complex , takes a significant amount of time, and, of course, requires a competent approach from a lawyer . In addition, the difficulty of addressing such disputes from a moral perspective must be taken into account. Taking into account all the peculiarities of consideration of these disputes, it is advisable to entrust the preparation of procedural documents and the conduct of the case to a qualified lawyer .
The Legal Department employs procedural lawyers specializing in family law , who, based on their knowledge and experience, will help you correctly build a legal position, and, if necessary, competently protect your interests in court .
