Establishing paternity in court: step-by-step instructions

Case plot:

A woman asked for legal assistance, explaining that she had a young child, whose father during his lifetime did not have time to formalize paternity in the prescribed manner with the registry office. The child's alleged father has died, and accordingly the latter has inheritance rights, which he can exercise if the relationship is confirmed. In addition, if paternity is established, the child who was dependent on the deceased will receive the right to receive a survivor's insurance pension.

Cancellation of paternity establishment

There are situations when a man has established paternity without knowing that he is not actually the father of the child, and the child’s mother certainly did not know this. It was subsequently discovered that the man listed as the child's father was not in fact his biological father. What to do? In this case, the man or the child’s mother has the right to file a lawsuit to challenge paternity.

ATTENTION: if a man, when establishing paternity, knew that the child was not his, i.e. that he is not the biological father of the child, he will not be able to challenge his paternity.

However, a person may file a lawsuit to challenge the paternity of a person:

• biological father of the child,
• the child himself, who has reached the age of majority,
• guardian (trustee) of the child,
• guardian of a parent declared incompetent by a court.

Taking into account the above, you cannot simply go to the registry office and cancel established paternity, and it is not always possible to cancel paternity by challenging it in court.

A little theory:

Current legislation provides two ways to resolve this situation.

1. In a special proceeding, by filing an application, to establish a fact of legal significance, namely, the establishment of the fact of lifetime recognition of paternity.

2. By way of a statement of claim, by filing a statement of claim to establish paternity (the fact of paternity).

The peculiarity of the first way is that it is necessary to prove that the deceased recognized his paternity during his lifetime, but for one reason or another did not have time to formalize it, and there is no dispute about the right (for example, a dispute between heirs). It is the category of “dispute about law” that distinguishes special proceedings within the framework of the Code of Civil Procedure of the Russian Federation from claims.

The second way is applied if a dispute about the right arises or may arise between the parties (heirs in this case), in which case paternity must be established within the framework of legal proceedings.

The complexity of the situation is that in judicial practice there is no consensus on what claim should be brought to protect the violated right. Is a claim to establish paternity (the fact of paternity) sufficient or is it necessary to add a requirement to recognize property rights through inheritance? There is also no consensus among legal practitioners on this matter. Only on this portal this issue has been repeatedly discussed in articles by respected colleagues “Establishing paternity when the testator has died,” “You have a dad...” The case about establishing paternity when the child’s father has died.”

By analyzing a large amount of judicial practice, I concluded for myself what kind of claim is necessary to protect the violated right in the specific case under consideration; this claim was fully satisfied, the rights of a minor child were protected. But first things first.

Briefly about confirming family ties

The procedure for acknowledging paternity is required to give a man paternal rights to children. It is required if the mother and father were not in a registered marriage union.

Expert opinion

Stanislav Evseev

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

If the mother and father are married, then information about the father is entered on the basis of the marriage certificate. If the union is dissolved, but the child was born within 300 days from the date of registration of the divorce, then the information is entered based on the stamp in the mother’s passport and the document on dissolution of the union.

The procedure is carried out both with the consent of the parents and against the will of one of them. The law regulates the possibility of recognizing paternity even in the event of the death of one of the parents.

Regardless of the method of establishing paternity, the initiator must prepare a certain list of documents. Let's consider what a citizen must provide in order to recognize a family relationship with a child.

The state of things at the “start” of the case:

The situation in the case developed in such a way that before turning to me for legal assistance, the trustee approached the notary with an application to accept the inheritance; in addition, two children of the deceased and his mother also approached the notary with the said application.

The notary explained to the trustee that in order to receive an inheritance it is necessary to provide documents confirming the relationship of the deceased and the child.

To obtain these documents, the trustee applied to the district court with an application to establish the fact of recognition of paternity during the lifetime of the deceased. The court, having considered this application, made a decision according to which the legal fact was established that the deceased during his lifetime recognized himself as the father of the child of the trustee.

If this decision had entered into legal force, the child would have received the inheritance, but other heirs filed an appeal, in which they indicated that they did not agree that the deceased recognized paternity and a dispute about the right arose between them and the child, represented by the legal representative. The appellate instance overturned the court's decision, leaving the application without consideration, explaining to the trustee the right to go to court in the manner of claim proceedings.

Procedure for establishing paternity

Paternity can be established voluntarily, so-called extrajudicially, and in court.

Establishing paternity through the registry office

Paternity can be established voluntarily if the child's father agrees to be listed as the father. In this case, both parents draw up one joint application and submit it to the registry office, or each separately draws up an application and submits it to the registry office, if one of the parents cannot submit an application together with the other parent.

In a situation where the child’s mother has died, been declared incompetent, her whereabouts are unknown, or she has been deprived of parental rights, the child’s father submits an application to the registry office to establish paternity, but in this case the consent of the guardianship and trusteeship authority is still required, which must be attached to the application.

The law also provides for the possibility of submitting a joint application to establish paternity to the civil registry office when the child has not yet been born, i.e. during the woman’s pregnancy, if there are circumstances due to which it may be impossible or difficult to submit such an application after the birth of the child.

When contacting the registry office:

• appropriate applications are drawn up and submitted by the father and mother of the child with the provision of passports and the child’s birth certificate, as well as receipts for payment of state fees. In other cases, the consent of the guardianship and trusteeship authorities, an adult child, medical documents about pregnancy, etc., are also provided, depending on the circumstances;
• the civil registry office issues a certificate of paternity establishment

ATTENTION: watch also the video on the topic of establishing paternity and ordering a DNA examination and do not forget to subscribe to the YouTube channel to be able to get free legal advice in the comments of the video:

Establishing paternity through court

Paternity is established in court if the child’s mother refuses to submit a joint application to establish paternity, the child’s biological father does not recognize his paternity or refuses to submit an application to the registry office, as well as in a situation where the guardianship and trusteeship authorities do not give the child’s father consent to establish paternity .

1. An application to establish paternity can be submitted by the mother, the father of the child, the guardian (trustee) of the child or the person who is dependent on the child. Also, an application to establish paternity can be filed in court by the child himself if he has reached the age of majority. If paternity is established not at the request of the child and after he reaches the age of majority, in this case the consent of the child is required.
2. DNA examination. In a situation where the defendant (the child’s father) categorically does not recognize his paternity, as a rule, the court orders a molecular genetic examination, since the conclusion of such an examination is in fact the only sufficiently reliable evidence confirming or refuting the defendant’s paternity.
3. A request to order an examination can be filed by the plaintiff, the defendant, or the examination can be ordered on the initiative of the court. The law office “Katsailidi and Partners” will help you draw up everything correctly and on time.
4. The court makes a ruling on the appointment of an examination, entrusting it to a specific organization, and indicates what actions the parties must perform, for example, the child’s mother must bring him to take samples for analysis, and the child’s father must come to the expert institution also to take samples for comparative analysis . Next, the expert will conduct a study based on the samples taken and prepare a conclusion on the likelihood of the person’s paternity in relation to the child. Next, the conclusion will be sent to the court.

The sad thing about conducting an examination is its cost, which must be paid by the person who filed the request for the examination, most often the plaintiff. In judicial practice, there are cases when the examination is paid for from budget funds, in particular by the Office of the Judicial Department, but these are very rare cases.

When going to court:

1. ♦ a claim to establish paternity is prepared and filed;
2. ♦ the plaintiff and defendant participate in court hearings;
3. ♦ if the court orders an examination to establish paternity, the plaintiff and defendant must follow the court’s instructions set out in the ruling on ordering the examination, in particular, appear before the expert together with the child. ATTENTION! if one of the parents evades participation in the examination, in this case, when making a decision on the case, the court recognizes one or another fact as established or refuted, taking into account which party evaded, i.e. if the child’s father does not appear for the examination, the court will consider it established that he is the child’s father;
4. ♦ if the court satisfies the requirements for establishing paternity, the plaintiff receives a court decision that has entered into legal force and registers paternity with the civil registry office.

Claim proceedings:

After the application to establish the fact of recognition of paternity was left without consideration, a claim was filed to establish paternity (the fact of paternity) of the deceased in relation to the trustee’s minor child. The defendants were the heirs (two children and the mother of the deceased), the registry office acted as a third party.

Simultaneously with the claim, an application for securing the claim was filed, according to which the court prohibited the notary from issuing a certificate of the right to inheritance in ¼ of the inheritance mass, thus preserving the property that would be due to the child in the event of establishing the paternity of the deceased.

There is a lot of talk about the need to file claims for recognition of ownership of inherited property, that paternity cannot be established if the alleged father has died, and that such a claim is the wrong way to defend. I do not think so. I believe that if (as in the case under consideration) the child’s share in the inherited property is preserved by securing a claim, then if the requirements are satisfied, the notary will issue a certificate of the right to inheritance in the specified part upon presentation of the corresponding court decision, and there is no need to make demands for recognition of ownership rights in the order of inheritance, since there is no violation of the right in this part. Looking ahead, I will say that this is what happened in this case.

I believe that the opportunity to establish the paternity of a person after his death in relation to his child is provided for by the current legislation of the Russian Federation as an independent way of protecting one’s right (Article 49 of the Family Code of the Russian Federation, paragraph 24 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 16, 2017 N 16 “On the application of legislation by courts when considering cases related to establishing the origin of children”).

Peculiarities of document preparation, joint statement and statement of claim

Regarding applications submitted by parties to the registry office, strictly regulated legislation applies. This means that all forms and forms are clearly reflected in the Order of the Ministry of Justice dated October 1, 2018 No. 201; deviation from them is strictly prohibited. In this regard, it is recommended to download the forms attached in the text of this article, they are officially recognized.

The statement of claim does not have the same strict form as statements, but it is also drawn up according to the rules established by law. The attached claim form will help you navigate and write the correct statement.

Proof process:

Separate attention should be paid to the process of proof in the case under consideration. Proof was complicated by the fact that the potential father of the child had died, which in turn complicated the forensic molecular genetic examination. The expert’s conclusion, although it is serious evidence in this category of cases, is not the only one possible.

During communication with the trustee, it was established that we will be able to present to the court a body of evidence confirming the paternity of the deceased, and if the examination cannot be carried out, we will be able to operate with the specified evidence.

Expenses

In cases where a statement of claim is filed by an adult child, he will have to pay a state fee in the amount of 300 rubles. If paternity is established in relation to a minor, the plaintiff is exempt from paying state duty.

Also, the plaintiff may incur other expenses when establishing a relationship between the child and the father:

1. Drawing up a statement of claim in a legal consultation will cost from one to three thousand rubles.
2. The participation of the plaintiff’s legal representative in court will cost from five thousand rubles per court hearing.
3. For DNA testing you will have to pay from twelve thousand rubles.
4. Full support of the claim by a legal representative will cost the applicant from thirty thousand rubles.

Legal proceedings related to the establishment of family ties rarely go smoothly; usually such legal disputes are complicated by the difficult process of proving paternity, the need to collect many documents, and attract witnesses. It is quite difficult for an ordinary person to understand all the procedural features.

That is why lawyers advise seeking help from experienced lawyers specializing in family disputes. You can not only get an initial consultation. A competent specialist will suggest the optimal algorithm for your actions, help you draw up a statement of claim, tell you what documents will be needed in your particular case, and, if necessary, represent your interests in court.

You can also contact our website lawyers for help.

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The second group of evidence consisted of appeals to government agencies.

It was established that the deceased, during his lifetime, submitted an application to the Pension Fund of the Russian Federation for the distribution of his pension savings in the event of his death. In this application, he asked to transfer his pension savings in the event of his death to his children, including his youngest son, the trustee’s child. There were also statements from the deceased to various administrative authorities, in which he also indicated that he had a child, indicating his full name. These documents were also requested by the court at my request.

Definition and legal implications

Acknowledgment of paternity is a legal action consisting of drawing up a state record of the father in:

• the child's birth document;
• book maintained by government agencies dealing with such issues (registry office).

Attention!
When a child appears in a complete family, the spouses are automatically included as parents in his documents, regardless of biological relationship. The real parent can challenge the record through the court. In the absence of registration of marriage ties, recognition of a man as a father is carried out on the basis of:

• his will;
• consent of the woman who is the mother of the child or the official guardian;
• permission from government agencies dealing with issues of guardianship and trusteeship (in some cases);
• consent of the child himself (if he is over 18 years old).

The fact of legal recognition of paternity leads to certain legal consequences. After making the appropriate entries in the documents, the participants in legal relations receive rights and are assigned responsibilities in relation to each other.

Namely:

• a man and his family can freely communicate with the child, take care of him, and participate in all his affairs;
• the father becomes obligated to support his recognized son or daughter;
• the mother agrees to provide the opportunity for other persons to communicate with her child;
• The minor himself is given the obligation to provide assistance to the parent when he grows up.

Forensic molecular genetic examination:

Despite the presence of a body of evidence, I considered that it was necessary to apply for a forensic molecular genetic examination. By sending a number of legal requests, it was established that such an examination can be carried out in two ways: 1) using the preserved biological material of the deceased 2) by collecting material from his relatives (parents, children, brothers, sisters).

In the case described, during the autopsy of the deceased, biological material was preserved, packed in paraffin blocks, which, according to the response of the expert institution, could be used for examination.

Also in the case were defendants - relatives of the deceased, from whom the biological material necessary for the examination could also be obtained.

Taking into account the available initial data, a request was made to conduct a forensic molecular genetic examination, the production of which was entrusted to a state expert institution.

For the examination, biological material of the deceased was sent, and biological samples of his relatives were also taken.

According to the conclusions of the examination, it followed that the deceased was the biological father of the trustee’s child.

Summary of the case:

Based on the available evidence, the court decided to satisfy the claims in full. Subsequently, with this decision, the trustee turned to a notary and received a certificate of the right to inheritance in ¼ share of the inherited property due to the child of the deceased, and the child was also assigned a survivor's pension.

I do not have a court decision on this case at my disposal, so for your study I will attach the text of the debate and the court’s ruling on securing the claim.

Required documents

According to the law, the burden of proving the facts stated in the claims rests with the applicant. The main evidence in the case may be:

1. Birth certificate.
2. Medical documents on pregnancy and childbirth.
3. Joint photographs of the father with the baby’s mother and himself.
4. Family videos.
5. Paper or email.
6. Bank statements.
7. Testimony of witnesses.
8. Other evidence.