How to establish paternity through court: step-by-step instructions

Family law provides that children born in marriage are considered to be the sons and daughters of their mother's husband, unless proven otherwise. However, not everyone is born this way. If the father does not object, he can, with the help of the registry office, confirm that paternity exists by registering the child in his name. However, if he does not agree to this, a special procedure may be required - establishing paternity in court.

Why is it necessary to establish paternity?

As a rule, paternity, that is, the origin of a child from a specific man, needs to be established for the following reasons:

• to receive alimony. This is the most common reason. The Family Code provides for the obligation of both parents to support their children - and if the fact of paternity is established, the child’s mother may raise the issue of collecting alimony for his maintenance;
• to receive an inheritance. This situation arises if the alleged father of the child has already died, but after him some property remains that can go to his son or daughter;
• to receive survivor benefits;
• finally, to protect the rights of the child. The law establishes that each child has the right to know both of his parents and communicate with them. If paternity is not established, the exercise of these rights is completely impossible.

Alimony

Child support will be collected from the moment paternity is established. For the previous period from the birth of the child, alimony cannot be collected.

For the mother of a child who gave birth out of wedlock, one should take into account all the consequences of her step to establish paternity, since quite often difficulties arise later, and the mother has to apply for deprivation of parental rights or solve the problem in some other way.

After all, having a father only on paper does not always have a positive effect on the child. If the father does not want to take care of the child, then legal paternity registration will still not be able to force him to do this. At the same time, the mother may have problems with the child’s father - for example, it will be necessary to obtain the consent of the child’s father for certain actions, for example, traveling abroad to some countries, moving to another apartment, selling the child’s property, changing the surname, etc.

Many mothers establish paternity, hoping for a large amount of child support. But alimony will be calculated only from the actual salary of the child’s father in the amount of 25%, if he has no other children. If the father does not work, then alimony can be awarded in a fixed amount. If the child’s father is identified, then the child’s mother will no longer be considered a single mother, even if the identified father evades paying child support. Accordingly, the mother who established paternity in court will no longer have the benefits of a single mother.

On the other hand, establishing paternity may be better for the child if the father has a high salary - the amount of alimony will be correspondingly high. If the father has property, then the child can count on receiving an inheritance after him (if, of course, the property is preserved and is not bequeathed to other persons).

Ways to establish paternity

According to the law, you can officially confirm the fact that a child is the son or daughter of a particular man in the following ways:

1. If married or within 300 days after its dissolution, simply obtain a birth certificate. According to the law, there is no need to prove paternity here. On the contrary, the husband must present evidence to the judge that the child was not born from him - otherwise he is automatically registered as the father.
2. Voluntary confession. With the consent of the mother, a man can submit an application to the registry office and ask to be recognized as the father of the child. After this, a record of paternity is entered into all official documents.
3. Forced confession. If there is no consensus between the parents, and one of them objects, it is necessary to use the establishment of paternity in court.

Let's talk about the latter in detail.

“Standard of Evidence” in Paternity Establishment Cases

To date, the term “standard of evidence” is used only in a few judicial acts of the Supreme Court of the Russian Federation and they are devoted to bankruptcy cases. For example, a “reduced” standard of proof when a creditor challenges transactions between a bankrupt and a third party: the creditor only needs to prove the existence of reasonable doubts about the “purity” of the transaction, and the bankrupt and the third party must refute them (since the creditor is objectively limited in the ability to provide evidence). Meanwhile, a “lower standard of proof” is also necessary for some other categories of cases, including establishing paternity in court. Since in this case, the plaintiff (mother) is objectively limited in her ability to prove the paternity of a particular person.

There is an opinion that cases of establishing paternity do not pose any problem at all - DNA examination provides a 99.99% answer to the question of interest. The judge only needs to make a decision based on this examination. However, what to do in a situation where the defendant, the alleged father, does not appear for the examination? Or does he completely ignore the court proceedings, not receive summonses, etc.? At first glance, again, there is no problem - the judge applies Part 3 of Article 79 of the Code of Civil Procedure of the Russian Federation and makes a decision in favor of the mother. But in practice this does not always happen.

Motherhood and childhood are under the protection of the state, caring for children and raising them is an equal right and responsibility of parents (Parts 1 and 2 of Article 38 of the Constitution of the Russian Federation). Every child has the right to know his parents, the right to raise them and ensure his parents’ interests (Part 1, Article 7, Parts 1,2, Article 8 of the Convention on the Rights of the Child, Part 2, Article 54 of the RF IC).

The Constitutional Court of the Russian Federation in paragraph one of paragraph 3 of Resolution No. 13-P of June 8, 2010 indicated that caring for children and their upbringing as the responsibility of parents, within the meaning of Article 38 (Part 2) of the Constitution of the Russian Federation, presupposes that Infringement of the rights of a child and the creation of unmotivated discomfort in life are incompatible with the very nature of relationships that have historically developed and ensure the survival and development of humans as a biological species.

Taking into account the above rules of law, when resolving disputes affecting the rights of the child, priority is given to the best interests of the child . (Decision of the Supreme Court of the Russian Federation dated September 29, 2015 No. 5-KG15-75).

Thus, disputes about establishing paternity are a specific category of cases, the main “beneficiary” of which is not the parties to the dispute - the mother and the alleged father, but a minor child. It is from the point of view of protecting the interests of the child that the judge should (ideally) distribute the burden of proof and evaluate the evidence presented by the parties.

In addition, (I’ll try to keep it simple) the event that results in the need to establish paternity is latent in nature; the possibility of proving it by traditional means (witness testimony, audio/video recording, written evidence, etc.) is very difficult (if not impossible) for objective reasons.

So, the mother, acting in the interests of the child (the protection of which should be a priority for the court) is objectively limited in her ability to prove. However, by virtue of Article 49 of the RF IC, it is she who must provide “any evidence that reliably confirms the origin of the child from a specific person.”

What evidence of paternity can the mother attach to the claim (request through a judicial request)?:

1. Outpatient cards from gynecology and maternity hospital. Because these documents (according to the mother) indicate the father’s details. As we see, this is indirect evidence.
2. General photographs (if available).
3. Testimony of witnesses. Which, at most, can confirm the fact of meetings/cohabitation, but not the fact of paternity. By the way, the testimony of witnesses, in principle, cannot be indisputable evidence of the origin of a child from a specific person (clause 14 of the Generalization of judicial practice of the Chelyabinsk Regional Court for the third quarter of 2021, Case No. 11-9475/2017, Resolution of the Presidium of the Chelyabinsk Regional Court dated 09/04/2002., supervisory proceedings N 44g-02-276).
4. Correspondence on social networks (if not deleted).
5. I believe that the conscientious procedural behavior of the mother: appearing for the examination with the child and willingness to finance it should also be taken into account as evidence of the validity of her claims.

All of the above evidence is indirect in nature - there is no need to talk about “reliability” required by the RF IC. Moreover, pregnancy can also arise from a casual relationship - then the mother will be able to provide the court only with her outpatient records, where, in her own words, the father’s details are indicated. That's all! Hypocritical assessments like: “it’s my own fault”, “I should have thought”, etc., which people in power and wearing black robes (mostly women too!) sometimes allow themselves in such situations, let’s leave aside: we are talking about about the interests of the child, and not about the moral character of his mother.

Let's imagine a situation where a mother goes to court with copies of outpatient records and a couple of general photographs. She asks to schedule a paternity examination, comes to take it with the child (and money) and receives a certificate about it. The “father” does not come to the examination or to the court (but is duly notified at the registration address). Is this enough to rule in favor of the mother? It turns out not.

Quote from the judicial act: “..failure to appear at the expert institution of the defendant, who was not personally notified of the need to provide material for genetic research to a medical institution, cannot be regarded as evasion of the examination (Part 3 of Article 79 of the Code of Civil Procedure of the Russian Federation).”

This is how you abuse your procedural rights: by not appearing in court and for a genetic examination, you can get a court decision to refuse to establish paternity. Moreover, it also violates the rights of the child, which in theory should be protected as a priority.

Taking into account the above, I believe that in cases of establishing paternity there should be a “lowered” standard of proof for mothers:

1. When applying to the court, it is enough for the mother to provide a minimum set of documents confirming the origin of the child: an outpatient card from the antenatal clinic (maternity hospital) containing information about the father; birth certificate indicating the father's name in the "Patronymic" column. When this evidence is presented, it is the father who bears the burden of refuting it. How to refute?: by passing an examination!
2. Failure to appear for the examination of the alleged father should be qualified as evasion from participation in it, with consequences in accordance with Part 3 of Article 79 of the Code of Civil Procedure of the Russian Federation. Moreover, no one is obliged to personally run after the father and notify him of the consequences; it is enough to send a court ruling ordering an examination to the registration address (which must be sent by virtue of Article 227 of the Code of Civil Procedure of the Russian Federation). Since the court ruling on the appointment of an examination would be considered delivered, and the defendant – familiar with it, even if it was received by the defendant, but the latter did not receive it personally (Part 1 of Article 165.1 of the Civil Code of the Russian Federation, paragraph 67 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated 06/23/2015 No. 25), the defendant’s failure to appear for the examination could be interpreted as a basis for applying Part 3 of Article 79.

Who can request paternity verification?

Usually, the question of how to prove paternity is dealt with by the child’s mother. She also usually demands the collection of alimony. However, this does not mean that only she can file a claim. In fact, judicial establishment of paternity can also be carried out at the initiative of other persons:

• The man himself. If the woman does not give consent, he has the right through the court to demand recognition of himself as the father of the child;
• A guardian or trustee who is dependent on the child. This is practiced if the mother has died or been deprived of parental rights, and her son or daughter has been placed in foster care;
• Guardianship authority. This is allowed if paternity is established in relation to a person who, although he has reached 18 years of age, is recognized as incompetent;
• The child himself. Having reached the age of majority, he has the right to demand that the court consider the issue of his father.

USEFUL INFORMATION: Does the father's abandonment of the child exempt him from child support?

Why recognition of paternity is important

There are several main reasons that motivate people to acknowledge paternity.

On the child's side, the advantages are as follows::

1. The child has the right to count on support from his father. This is especially important if the father lives separately, the marriage between the parents is dissolved or was not concluded at all (alimony).
2. The right to claim the inheritance of your father (along with other children, if the father has them from other marriages).
3. The father will be listed on the birth certificate.

Fathers are also often interested in recognizing paternity of their children. Motives may be :

1. The opportunity to exercise parental rights in relation to your child, that is, to act as a legal representative in government bodies, kindergarten, school. This means taking a full part in the life and upbringing of your child on an equal basis with the mother.
2. The right to determine the child’s place of residence (if the parents live separately). The father can apply for the child to live with him. In Russia, a practice has developed where in 90% of cases children are left with their mothers, but if the mother suffers from alcoholism or leads an antisocial lifestyle, the father has the right and duty to take the child. Under such conditions, the court will side with the father: the child must grow up with a parent who will provide him with a healthy and prosperous future.
3. Acquiring inheritance rights in relation to your child. Parents inherit first from their children.
4. The right to give consent for a child to travel abroad (or to prohibit it). After recognition of paternity, the mother will not be able to take the child out and hide him from the father.
5. The right to indicate the child among the children in the passport.

However, in legal practice, most often the issue of recognition of paternity is associated either with the need to collect alimony, or with the desire to apply for an inheritance (especially if the father was a rich man).

The difference between establishing paternity and establishing the fact of acknowledgment of paternity

It should be noted that for the court to consider a claim, there is a certain difference between whether paternity will be established or whether the court will establish the fact of recognition of paternity. The latter is practiced if the intended parent has already died without having time to complete the necessary documents during his lifetime.

The difference here is that paternity is established according to the rules of claim proceedings. In this case, the court hears both interested parties, making a decision based on the results of the consideration of the dispute.

If the fact is established that the deceased recognized himself as the father of the child during his lifetime, the code provides for the use of special proceedings that have certain procedural features. There is no dispute here - the court only examines the evidence and makes a decision based on the results of its consideration. In this case, the applicant is obliged to indicate for what purpose he needs to establish the fact - without this, the court will not consider the case.

You also need to remember: if there is a dispute about rights (for example, establishing a fact is necessary in order to receive a share in the inheritance - and the relatives of the deceased actively object to this) - the court will consider the case not in a special proceeding, but according to general rules.

How does Art work? 50 of the Family Code of the Russian Federation

The situation with an inheritance and an unrecognized child can be illustrated by a high-profile case between the relatives of opposition politician Boris Nemtsov and his partner. She claimed that after the birth of the child, Nemtsov was going to recognize him as his own, but did not have time - the tragic death prevented his plans. The court decision established the fact of recognition of paternity after the death of the father. Nemtsov was recognized as the father, and the child as the heir. Genetic testing and the provisions of Article 50 of the RF IC helped.

This article states that the fact of official registration of marriage is not important . The only important thing is that the father officially recognized the child as his own before his death. The court establishes this fact according to the rules of special proceedings in a simplified manner. If doubts arise regarding the circumstances of the confession, the court may seek help from science, including genetic testing.

Interesting things on the site:

Who is recognized as the father if the child is born out of wedlock?

How paternity is established in the registry office

Statement of claim to establish paternity and collect alimony

How to prove paternity in court?

In order to obtain a court decision to establish paternity, the following actions must be taken:

1. Prepare an application. If it is necessary to recognize a living person as the father, it is necessary to prepare a statement of claim; if the person is already deceased, a statement of fact must be prepared.
2. Collect the necessary evidence.
3. Pay the fee. Its size can be found out in the current version of the tax legislation, or directly in court - usually reference information is posted there on stands.
4. Submit documents to court.
5. Present evidence during the trial.
6. Receive a court decision.

USEFUL INFORMATION: Does the father's abandonment of the child exempt him from child support?

Such step-by-step instructions look simple - and indeed, there are no particular difficulties here if there is reliable confirmation that the man is the father of the child. However, each stage has its own characteristics that you need to know.

Procedure for filing and deadlines for consideration of the application

They can apply:

• one of the parents;
• guardian (trustee) of the child or a person who is dependent on the child;
• he himself is an orphan upon reaching adulthood.

If a representative will go to court, a power of attorney is drawn up . A judicial power of attorney from an individual must be in notarized form.

After submitting the application, the date of the appointment of the meeting is tracked. The court will notify you with a summons, but just in case, the case is monitored by your last name on the court website.

Further consideration of the case depends on the position of other relatives of the father , if we are talking about a deceased father, or the father himself, if he is alive. If they do not take part in the process, the case will end quickly: the court will send requests to the registry office, review the evidence and satisfy the application.

If all interested parties take part in the process, the matter will drag on. Researching evidence is a long process, and ordering a genetic examination significantly increases the time.

After a court decision to establish the fact of recognition of paternity after the death of the father or while the father is alive, they apply to the registry office with the document received in court. This body will make the necessary changes to the register and also issue a new birth certificate - with the father included in it.

How to prepare and submit an application?

If there is a question about how to prove paternity, an application to the court is necessary. It can be made according to a sample that can be found in court, or ordered from a lawyer. The last option is more reliable.

The statement should set out the facts that the mother and the alleged father lived together, ran a common household - or had a casual relationship. You should also indicate here how you can prove what is stated in the application. The practice of court cases shows that the more evidence, the better for the plaintiff or applicant.

If the issue of collecting alimony is raised, it should be indicated in the text of the statement of claim.

The application must be submitted to the district court. The Procedural Code allows filing a claim both at the place of residence of the plaintiff (applicant) and at the place of residence of the defendant.

How to write an application correctly

The structure of the application will not differ between a living father and a deceased father . But since an application for recognition of paternity in relation to a living citizen is submitted if the latter disagrees, it is assumed that he will argue in court.

In practice, in cases with a living father, it is recommended to file a claim for recognition as the father immediately - this way you will save time and prevent the process from being delayed for bureaucratic reasons.

Sample and structure of an application for a deceased father

It is not difficult to draw up an application if you use the attached sample . The court is indicated in the header (you can correctly identify it on the portal of courts of general jurisdiction by entering your address). The application can be submitted at the address of residence or at the address of the deceased father.

The text indicates the child's date of birth and birth certificate number. Then - the alleged father and date of death. It is advisable to attach supporting documents. If they are not available, the court will request them from the registry office.

Indicate the reasons why it is necessary to recognize the father of a deceased citizen . For example, for inheritance of property by a newborn orphan.

In the petition part they state that they are asking to recognize the citizen (full name) as the father of the child (full name).

Sample and structure of a claim when the father is alive

To correctly draw up a claim, follow the structure of the application . However, the standards of proof in lawsuits are higher.

The claim contains a header, which includes the name of the plaintiff (mother) and the defendant, as well as the name of the court to which the application is being filed. The court is determined by the place of residence of the defendant.

It is not necessary to refer to the rules of law under the Code of Civil Procedure of the Russian Federation , but the case file must describe in detail all the evidence of a joint life and provide the full names of witnesses.

Note! It is advisable to attach a petition for genetic testing to the claim.

How to prove paternity?

The following may be used as evidence:

• medical documentation, primarily DNA analysis. Its result does not automatically give you a win during the consideration of the case, but the probability of an error in the analysis is extremely small - approximately 1 chance in 200-300 million. In addition to DNA, the result of a blood test can be used: there are certain features in the inheritance of parental blood groups. For example, if both parents have group I, the son or daughter will only have the same group, but in a couple where someone has group IV, a child with group I will never be born;

• witness statements. Of course, conceiving a child is usually done without outsiders. But if acquaintances confirm that the intended parents lived together or at least met often, and the man called the child his own in front of them, this will greatly facilitate the proof. Witness testimony can be presented in writing in the form of explanations, but it is better to find those people who agree to speak in court. Practice shows that in this case the chances of winning the case are much greater;
• letters from parents to each other, videos of them together, etc.

USEFUL INFORMATION: What is needed to establish paternity in the registry office?

It is impossible to compile a complete list of all possible ways to prove paternity - each specific situation has its own characteristics. Therefore, the Code and other procedural acts of legislation do not indicate what exactly can be used in court. Everything that can be used to confirm the arguments of the applicant or plaintiff during court proceedings is taken into account.

Evidence of paternity

In accordance with Art. 55 of the Code of Civil Procedure of the Russian Federation, any information in a wide variety of forms and expressions can be recognized as evidence. The most common are the following:

1. Written documents – extracts from the antenatal clinic, certificate from the maternity hospital, extracts, etc.
2. Testimony of witnesses - this can be both neighbors and employees of a kindergarten, school, other educational institutions, hospital, etc.
3. Physical evidence – photographs, video recordings or correspondence, this also includes phonograms.
4. Expert opinion.

Regardless of what form of evidence is presented to the court, it must be obtained without violating the current legislation. If the rights or interests of any person are violated in the process, the evidence is considered insignificant and is not taken into account by the court.

Judicial procedure

It’s not enough to file a lawsuit—you also need to win the case in court. Instructions for all occasions are hardly possible here, but there are some tips that will help the plaintiff or applicant.

First of all, it is best to take professional legal help. It is not enough to read the Family Code or the Civil Procedure Code - you also need to know the features characteristic of conducting different categories of cases. If it is not possible to hire a lawyer or legal representative, it is better to prepare in advance a plan for the speech that will be made in court, as well as a list of what will be used to prove it.

If before the trial it was not possible to obtain anything that proves the stated claims, you can file a petition with the judge for assistance in securing proof. For example, if the defendant voluntarily refuses to undergo a genetic examination, forced sampling may be ordered by the court. The losing party will pay for the examination.

If we are talking about collecting alimony, then it is impossible to demand it for the past: until the court established paternity, there were no reasons for payments. However, as soon as the decision comes into force, alimony obligation also arises. If it is not fulfilled voluntarily, forced collection is possible in the future.

After the decision has entered into force, all court costs are recovered from the defendant - state fees, examination fees, attorney fees, etc.

Expenses

Applicant's costs of litigation

Sources

• https://allo-urist.com/otlichiya-ustanovleniya-ottsovstva-i-ustanovleniya-fakta-priznaniya-ottsovstva/
• https://prorazvod.org/deti/fakt-priznaniya-ottsovstva.html
• https://stSKRF.ru/50
• https://allo-urist.com/kak-usynovit-svoego-rebenka-ot-grazhdanskoj-zheny/
• https://pravoved.ru/journal/ustanovlenie-fakta-priznaniya-otcovstva/
• https://ros-nasledstvo.ru/otlichiya-ustanovleniya-ottsovstva-i-ustanovleniya-fakta-priznaniya-ottsovstva/
• https://law-divorce.ru/otlichiya-ustanovleniya-ottsovstva-i-ustanoraznitsa-mezhdu-vleniya-fakta-priznaniya-ottsovstva/
• https://vseiski.ru/zayavlenie-ob-ustanovlenii-fakta-priznaniya-otcovstva.html

[collapse]