Do you suspect deception, a desire to illegally profit from your feelings by challenging paternity? Have you become an unwitting alimony payer? Or did you simply have certain suspicions that you are not the real father of the child? Have you often wondered what actions need to be taken to achieve the truth? Disputing paternity is the answer. This question especially arises after the divorce of the spouses, when all joint property is distributed during the division of the property of the spouses - the time comes for the concept of disputes about children.
If you have at least one of these questions, or another, similar situation has arisen, then you have probably already decided to challenge paternity. Our family lawyer, or family lawyer as he is also called, will tell you all the intricacies of the procedure - challenging paternity.
Who can file a claim to challenge paternity?
Certain categories of citizens are granted the right to challenge paternity at the legislative level:
- persons who are officially registered as parents;
- paternity can be challenged by the biological father of the child who wishes to establish his paternity in relation to the child;
- a child who has become an adult can challenge paternity, knowing that the person indicated as his father is not such, and not wanting to have any legal connection with this person.;
- guardians or those who are legally entitled to represent the interests of the child.
USEFUL: watch the video on how to challenge paternity and ask your question in the comments of the video
Establishing paternity
The most common practice is to determine paternity in the absence of marital relations between the child’s parents. The extrajudicial procedure is determined by the actual registration of paternity in the state registry office, while the father recognizes the child as his own, and the mother does not express any objections.
The need for a judicial format for establishing paternity arises in various life circumstances, including:
- the birth of a child within marriage, but from another man (presumably);
- the man refuses to voluntarily establish paternity;
- the child's unmarried father has died;
- legally recognized incapacity of the child's father;
- the child's mother does not recognize the man's paternity;
- the child's mother is incompetent, has lost parental rights, or has died, while the guardianship service refuses to establish paternity.
The applicant for a claim to establish the paternity of a child can be his mother or father, or the child himself upon reaching adulthood. There is no limitation period in this area of law.
Procedure for challenging paternity
You should know that, in accordance with family law, the entry about parents in the birth register can only be changed in court, by filing an application to challenge paternity in a court of general jurisdiction. There is no other procedure for this action.
The procedure for challenging paternity (challenging paternity by a mother, challenging paternity by a child) involves submitting the following documents:
- the corresponding statement is a claim (Article 131 of the Code of Civil Procedure of the Russian Federation);
- a copy of the child's birth certificate;
- a document confirming payment of the amount in the amount of the state duty established by law (clause 3, clause 1, article 333.19 of the Tax Code of the Russian Federation);
- reliable information that proves that the citizen recorded in the act as a parent is not biologically such (Article 55 of the Code of Civil Procedure of the Russian Federation).
Conducted genetic testing, witness statements, as well as other materials (personal letters, photographs) are information that serves as evidence.
Which court should I go to?
Regardless of the mutual wishes of the parents, the resolution of such disputes in a global court is not allowed. Therefore, drawn up according to the sample, the claim to challenge paternity is transferred to the district judge for further consideration. At this stage, it is necessary to take into account the rules of jurisdiction, that is, challenging paternity must take place in the region of residence of the defendant. The following circumstances are exceptions to these rules:
- the plaintiff is raising a minor child on his own;
- the applicant is in the care of an incapacitated citizen;
- It was not possible to establish the defendant's place of residence.
When is it not permissible to challenge paternity?
The Family Code legally limits the legal challenge of paternity in the following cases:
- When a married couple has a child as a result of implantation or artificial insemination, which was carried out with a written agreement of both the mother and father for such a medical procedure.
- If the interested citizen expressed a desire to challenge his paternity after an act was recorded stating that the child was born from a surrogate mother who produced the baby from the medical implantation of an embryo, and such a procedure is confirmed by agreement from three parties.
- When deciding whether to file a claim to challenge paternity, it must be borne in mind that the father should not have known that he was not the actual father of the child at the time he was indicated by his father in the birth register. Otherwise, the request to challenge paternity will not be satisfied by the court. This rule is regulated by the Family Code of the Russian Federation.
- If the man who is listed as the father in the act was not officially married to the mother of this child, but voluntarily agreed to recognize himself as his parent. In this case, paternity recognized in the registry office obliges the citizen challenging paternity in court to present to the court evidence that information confirming that there is no family connection between them became known to him only after he declared voluntariness in the registry office recognition of himself as a father.
- When the applicant who files the relevant claim is not legally endowed with such a right.
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.
Grounds for challenging paternity
The basis for challenging paternity is, first of all, the record of the registry office about the father of the child, when in fact the indicated person is not the father of the child. In this case, a man can be indicated as the father of the child:
● due to the presence of a registered marriage with the child’s mother, while not being the child’s biological father;
● if the person, when establishing paternity, did not know that he was not the biological father of the child.
Evidence to challenge paternity
The law office "Katsailidi and Partners" provides evidence that the man is not the father of the child:
- explanations of the plaintiff and defendant, as well as third parties,
- witness statements,
- written evidence, such as letters, including email correspondence,
- photos,
- audio and video recordings,
- conclusion of a genetic examination, which is ordered by the court during the consideration of the case. The conclusion, of course, can be made by a man before going to court, but the child’s mother may question the reliability of the conclusion of the examination presented by the plaintiff. It is worth noting that genetic testing is the most important and most reliable evidence containing information about whether a man is the actual father of a child or not.
According to the position of the RF Armed Forces, if a child has reached 10 years of age, it is necessary to find out his opinion, since in this case the interests of the child are directly affected, and if the child’s mother recognizes the claim of the legal father, the court does not have the right to accept such recognition, because it entails a violation of the rights of the child. The court must evaluate evidence in its entirety.
When can you file a claim?
According to the Resolution of the Plenum of the Armed Forces of the Russian Federation dated May 16, 2017 No. 16, persons directly related to a minor can file a claim to challenge paternity:
- Mother.
Filing is permitted if the child is born during the marriage or within 300 days of the divorce. Proceedings are possible if one man is recognized as the father, but another person is the biological parent. An important condition: a man who previously recognized himself as a father should not have known about the lack of kinship at that moment; - Father due to doubts about relationship.
- A child over 18 years of age who believes that the man recorded as the parent is not the father.
- A biological parent who wants to obtain rights to a child when another person is listed as the father. A dispute is carried out followed by the establishment of kinship.
Clause 25 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 16 indicates that the legal representative has the right to act on behalf of one of the parents if he is declared incompetent by a court decision.
How to write an application to contest paternity?
Jurisdiction of cases challenging paternity: a lawsuit challenging paternity should be filed in the district court at the place of residence of the defendant.
State duty when filing a claim to challenge paternity: the state duty for filing the said claim is paid in the amount of 300 rubles.
When preparing a claim, follow the rules of the Code of Civil Procedure of the Russian Federation regarding the form and content of the claim, which must be in writing and contain information:
- the name of the district court where the plaintiff files the claim;
- Full name and address of the plaintiff, telephone number, email;
- Full name and address of the defendant, telephone number;
- name of the claim: “statement of claim to challenge paternity”;
- the contents of the claim indicate the circumstances of the case that served as the basis for filing a lawsuit. For example, the plaintiff and defendant were in a registered marriage in which they had a child. When the child turned 10 years old, the plaintiff began to notice that the child did not look like him and decided to have a genetic examination, which showed that he was not the child's biological father. In connection with these circumstances, the plaintiff files a lawsuit in court. Perhaps the plaintiff learned that the child was not his, from some third parties, or from the child’s mother, i.e. The circumstances may be different and they must be presented without the emotional component and assessment of the behavior of the child’s mother. It is not necessary to conduct a genetic examination before filing a claim; you can file a petition to order such an examination at the stage of consideration of the case by the court. The claim should also refer to legal norms regarding issues of challenging paternity;
- in the pleading part of the claim the requirements are indicated, namely, you can indicate
- establish that the plaintiff full name, date of birth, place of birth is not the biological father of the child full name, date of birth, place of birth;
- exclude from the record of birth certificate No. ___ dated “__” _____ ___, compiled by the Civil Registry Office, the child’s full name, date of birth and place of birth, information about the plaintiff’s full name, date of birth and place of birth, as the child’s father;
- change the child's last name from ____ to ________ (mother's last name).
- By challenging paternity, a person actually challenges the entry about the child’s father contained in the birth register and, accordingly, in the child’s birth certificate
When justifying his claims, the plaintiff will refer to certain circumstances that may be supported by some documents. Copies of the relevant documents must be attached to the claim, listing them in the appendix. You must also attach the original receipt of payment of the state fee. It is possible in the pleading part of the claim to indicate a list of witnesses (full name, address) whom the plaintiff asks to be summoned to court if they know any circumstances in the case;
At the end of the application there is a date, the plaintiff’s signature and a transcript of the signature.
The claim with copies of documents is filed with the court according to the number of persons indicated in the claim, under the mark on the copy of the plaintiff when directly filed in court. You can submit your claim by mail.
USEFUL: see more tips on filing a claim in court, write your question in the comments of the video
Filing a claim in court
The statement of claim to challenge paternity is sent to the district court at the place of residence of the defendant (the child’s mother). It is necessary to pay a state fee of 300 rubles.
The court's decision to challenge paternity will be the basis for excluding the corresponding entry from both the certificate and the civil registry book. From the moment the decision comes into force, the man has no parental responsibilities. The plaintiff also has the right to demand that the child’s surname be changed if it does not match the mother’s surname on the certificate.
If the identity of the child's real father is established from the text of the statement or explanation of the persons participating in the case, the court will involve him as a third party.
After considering a claim to challenge paternity, the child’s mother has the right to make demands against the biological father or leave the child without such a record.
Child support after challenging paternity
If the court determines that the man indicated in the child’s birth certificate is not in fact his father and the record about him is subject to exclusion from the child’s birth record, then he becomes free from any obligations towards the child, including from paying alimony for his maintenance.
IMPORTANT: if alimony was collected in court, it is necessary, simultaneously with the requirement regarding challenging paternity, to submit a request for exemption from payment of alimony for the maintenance of a minor, collected on the basis of a decision (court order) of such and such a court dated such and such a date, attaching a copy relevant judicial act.
How to challenge paternity in court: step-by-step instructions
To revoke paternity, the plaintiff must complete several steps:
- Fill out documents, draw up a statement of claim, collect evidence. Proof is his responsibility: he must substantiate the claims, otherwise the court will refuse to satisfy the claim.
- Submit everything to the judicial authority and wait for a ruling to accept the materials for production. The judge has 5 days.
- Come to the meeting. If the defendant does not deny the lack of relationship, the issue is resolved at a hearing without requiring additional evidence or ordering a genetic examination. The decision is usually made immediately.
- Participate in litigation. If necessary, any party has the right to request consideration of the case without its participation, but it is better not to do so: this may interfere with the clarification of important issues and the establishment of the truth. The best option is representation by a lawyer for qualified protection of interests. If necessary, interested parties may be involved: representatives of the registry office, guardianship authorities.
- Receive a court decision after 30 days from the date of issue, when it comes into force.
Note! To cancel alimony, indicate this requirement in the statement of claim. Alimony obligations will be canceled after the court decision enters into legal force.
Documentation
For legal proceedings you will need:
- statement of claim;
- check for payment of state duty;
- certificates of registration, divorce;
- plaintiff's passport;
- certificate for a child under 14 years of age;
- passport of a child over 14 years old.
The last two documents are optional. If your ex-spouse does not give them to you, the judge will request them from him during a preliminary hearing (Article 152 of the Code of Civil Procedure of the Russian Federation).
State duty
When going to court, the plaintiff pays a fee of 300 rubles. and incurs additional costs. The costs of a lawyer and DNA examination can be recovered from the defendant when satisfying the claims.
Where to contact?
According to Art. 28 of the Code of Civil Procedure of the Russian Federation, the claim is filed at the place of residence of the defendant. Based on Art. 29 of the Code of Civil Procedure of the Russian Federation, the plaintiff may appeal to the judicial authority at the address of the location of the property or the last known place of residence of the defendant, if his actual address is unknown.
District and city courts deal with such cases.
Proof
If you want to challenge paternity, you need to provide evidence of the absence of biological relationship along with the statement of claim and other documents:
- Audio, video recordings, copies of correspondence via SMS or on social networks, where the defendant admits that you are not the father of a minor.
- Witness's testimonies. The request to call witnesses is expressed in the claim.
- An expert medical report indicating that you are unable to have children due to health reasons.
- Results of genetic testing. If the test is carried out without the knowledge of the mother, the conclusion is not added to the case file, but indirectly indicates the absence of consanguinity. The court has the right to order a re-analysis.
Important! The results of a DNA test are not conclusive evidence for the annulment of paternity: all presented materials are analyzed by the court as a whole. Based on them, a decision is made only if there is no other evidence.
Terms of consideration
The case is considered within two months. Production may be suspended for the period of examination - up to 10-20 days, then it is resumed again. Due to this, the time frame often increases.
What to do after receiving a court decision?
Having received a court decision that has entered into force, you must come with it to the registry office and write an application to make changes to the child’s vital records.
You will no longer be his father officially. The issue is resolved on the day of application.
Genetic DNA testing for paternity: grounds for appointment, features of the procedure
How to establish paternity after the death of a father?
Why is paternity contested?
Reasons for filing a claim in court with the procedure for challenging paternity, you benefit from the following:
- when challenging paternity, you are exempt from paying alimony that was illegally collected from you, and you will be able to devote your income entirely to your new family, or spend it on your own needs;
- Legally, you will not have any relation to the child previously registered in your name and, therefore, you should not worry about inheritance relations. You will be able to dispose of the inheritance as you see fit;
- You will relieve yourself of all responsibilities for the development and upbringing of the child, you will not need to worry about paying for his education, treatment, etc., and if the child is at fault, civil claims will not be brought against you for damages as a result of children's pranks.
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! Statement of claim for deprivation of parental rights
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.
