Establishing paternity in court: how the process works

The procedure for establishing paternity in court

The judicial procedure for establishing paternity is usually initiated at the request of the second parent - the mother, or a guardian in the event that voluntary establishment is impossible for some reason.

IMPORTANT! The main normative act of this process is Article No. 48 of the RF IC “Establishment of paternity in court.” The procedure for establishing paternity usually involves an attempt to hold the second parent accountable, but the opposite situation also happens - the father himself submits an application for establishment, because for some reason he cannot fulfill his parental responsibilities towards the child.

Main stages:

Collection of evidence. This is a mandatory stage - without it, achieving anything in court will be problematic. It is required both by a mother who wants to prove the paternity of a particular man, and by a father who wants to prove his rights to the child. Often, when the parties completely disagree, genetic analysis is practiced.
Drawing up a statement of claim. The application for such processes is standard, but if you do not have experience as a plaintiff, then it is better to contact a legal consultant - he will help you draft it correctly in order to immediately gain a certain advantage in court.
Filing a claim. You can file it in court at the place of registration - your own or the defendant's. From a legislative point of view, there is no difference and you can choose according to your convenience.
The process itself. Depending on the circumstances of the case, the presence of the defendant may be either mandatory or optional. The court will consider all the materials and make its verdict, based primarily on the interests of the child - especially if he is not yet 3 years old.
Execution of the decision. After the court makes a verdict, it is time to wait for measures aimed at enforcing the decision - in the event that the defendant does not want to follow them voluntarily.

Keep in mind that almost any court decision can be appealed and the defendant can take advantage of this - in this case, you must be prepared to continue to fight for your rights and the rights of the child.

State duty for establishing paternity in court

Regardless of how paternity is established, the official registration procedure is the same, as is the state duty - at the moment it is 350 rubles.

The state fee has nothing to do with legal costs in the case of proceedings regarding the right to paternity - the amounts depend on the circumstances of the case, the status of the plaintiff (father or mother) and other factors.

Important

From a legal point of view, cases of recognition of paternity are considered by the courts in separate proceedings in accordance with the norms of the Civil Procedure Code. In this case, the procedural norm provides for the absence of a dispute about the law on the opposite side. In the case of establishing the paternity of a child related to the child’s origin from a specific person, the existence of a disputed relationship on the opposite side is assumed. On this basis, this category of case is considered in the manner of claim proceedings.

In accordance with the Resolution of the Plenum, paragraph 2, when deciding what rule of law should be followed in the proceedings on establishing paternity, namely Art. 49 RF IC or Art. 48 CoBS of the RSFSR, the court must proceed from the date of birth of the child.

Based on the analysis of judicial practice in cases related to the recognition of the fact of paternity and the establishment of paternity, we can conclude that in the presence of an acceptable evidence base, which includes witnesses, written documents, forensic medical examination reports, the courts establish the fact of paternity. The legal consequences of this category of decisions are the possibility of the child exercising his rights to inheritance associated with the death of his father, and during his lifetime, collecting alimony from him for maintenance.

Claim to establish paternity in court

Both parents can file a claim - both the father, who wants to achieve the opportunity to fully fulfill the parental role, and the mother/guardian of the child, who wants to bring the possible father to justice. It is even possible to file jointly - in this case, the court does not initiate proceedings, but simply establishes paternity in court with the full consent of the parties.

You can find a sample claim freely available on the Internet - it is a standard document that must be filled out with the correct information. Paternity claims are not considered complex, but if you are unsure, seek legal advice.

Methods for determining paternity

The most reliable method is DNA analysis. Biological material from the father and child is usually sufficient. Laboratory studies provide a high degree of reliability. The conclusion usually states: the probability that a child is conceived from this man is 99.99%, or zero. In the first case, this indicates that the person is the father of the child, in the second - about the absence of family ties.

Genetic material is usually obtained by scraping with a cotton swab from the inside of the cheek. But if a man is against genetic testing, it can be done anonymously. In this case, hair with bulbs, nails, a used toothbrush, a handkerchief with traces of blood, underwear with traces of sperm, etc. are suitable. However, if the laboratory’s conclusion appears in a lawsuit, it will be necessary to prove that the materials were taken from this particular person.

You can prove paternity without DNA. Arguments can be witness testimony, correspondence, recording of telephone conversations, the fact of long-term cohabitation of parents, etc. Proof can also be the obvious external resemblance of a man and a child. However, if close relatives (for example, siblings) who are similar to each other act as a potential father, such an argument usually has no force. On the part of a man challenging paternity, the argument may be infertility, a long absence of sexual contact with a woman at the time of alleged conception (business trip, serious illness, etc.), etc.

Alimony

Alimony payments usually become the cause of a claim in most cases. The most common claims are against alleged fathers who either did not know about their paternity or refuse to acknowledge it. There are also counterclaims from men who were awarded alimony incorrectly.

The right to alimony is, first of all, the right of the child, which is why the state protects it with a powerful legislative framework. Proving paternity of a young child is easier for the plaintiff-mother and more difficult for the plaintiff-father.

The court's decision to award alimony payments to the child (sometimes to the child and mother) ends most processes where paternity on the part of a man is denied. Failure to pay alimony is punishable by fines and restrictive sanctions (for example, you will not be allowed to cross the border).

Lawyer's answers to private questions

What is faster: to immediately establish the man’s relationship in court and demand alimony, or to collect it separately later?

There is no point in severing the claims. A paternity claim will take up to two months to be considered, and another month for a child support claim. It’s better to combine everything at once: this way the period will be reduced by one month.

Is it possible to file a claim to establish paternity and collect child support online?

Yes, if you have a verified account on State Services. To go to court online, just use the State Automated System “Justice”. The application can be compiled in doc format and uploaded along with other documents.

When does the court issue a decision to establish paternity and collect alimony?

A certified copy of the decision is issued to the participants in the process within five days from the date of adoption (Article 214 of the Code of Civil Procedure of the Russian Federation). In practice, this deadline is not observed, and it is better to check with the secretary about readiness.

Can a lawyer file a claim for alimony and paternity?

Yes. But for this you will need a notarized power of attorney. It can be issued without the presence of an attorney - his passport data is enough.

Is it possible to establish paternity through the registry office before marriage, and then collect alimony in court if we decide to get a divorce?

Yes. But to collect payments for a child, it is not necessary to get divorced; this can be done while married.

Legal consequences

From the moment the court decision comes into force, the man becomes the official father of the child. They are endowed with mutual rights and responsibilities.

A man has the right:

for communication;
to participate in education;
to receive benefits for families with children;
for registration of maternity capital (if there are grounds);
to receive child support in case of incapacity for work;
to inherit the child’s funds in the event of his death.

The child has the right:

for financial support until adulthood or in case of incapacity for work (by court decision or by agreement);
to inherit the father’s funds in the event of his death;
to receive a pension for the loss of a father.

How can I refer my father for a DNA test? How accurate are the results?

The father is notified of the claim. The court schedules a preliminary hearing. It is there that the judge will consider your request to demand evidence. Most likely, he will be satisfied. The court will request a DNA examination and send the father for it.

DNA testing takes place in the presence of a lawyer. He checks the father’s passport or birth certificate, takes photographs of the participants, and observes how biological material is taken for DNA analysis.

In the worst case scenario, the DNA test will be 99% accurate. Errors are excluded, accuracy is guaranteed.

What other evidence is suitable for trial?

If the father evades the DNA test and cannot be forced, provide the court with any other evidence that helps establish paternity. For example:

Testimony from relatives and friends;
Correspondence, photographs, videos;
Facts of joint purchases, trips;
Facts indicating that you lived and ran a household together;
Facts of co-parenting a child;
Mother's testimony about her relationship with her father.

The court considers everything. Prepare in advance. Even if the father passes the DNA test, provide the court with all additional evidence. They will never be redundant.

State duty

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.

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How to challenge and cancel a decision?

Of course, the court decision can be challenged by one of the parties, according to Art. 49 RF IC. To challenge it, it is necessary to file a second claim listing the arguments and objections against the court's decision. Also, the plaintiff or defendant can appeal the results of the examination and demand repeated studies.

From the documents you will need:

statement of claim;
a copy of the child's birth certificate;
receipt of payment of state duty (300 rubles);
evidence confirming that the person recorded as the child’s father is not his biological father.

It is impossible to unambiguously predict the outcome of events, since the court evaluates the evidence in its entirety based on a full and comprehensive study of the case materials according to its inner conviction.

We invite you to read our articles about the certificate of paternity, the procedure for establishing paternity through the registry office and after the death of the father.