What is the procedure for posthumous paternity determination?

Author of the article: Anastasia Ivanova Last modified: January 2021 14710

Not all couples strive to formalize their relationship. They live in a civil marriage, creating a strong family and having children. The sudden death of a man who did not have time to register as a father leaves the child unprotected in a material and formal sense. In order to correct this situation, the law provides for posthumous establishment of paternity.

Goals and reasons for the procedure

Carrying out this procedure is not uncommon in our country, as it allows you to obtain social support from the state or receive an inheritance. In fact, such a measure has to be taken because without proven paternity the following is impossible:

• apply for and receive a survivor's pension;
• in the event of a violent death, have the right to compensation for damages;
• receive an inheritance;
• fill out the column about the father in the registry office in the birth registration book.

There are 2 main reasons why paternity is established posthumously:

• when the child was born, the parents were not officially married, and at the time of death the father either did not recognize the child or died before his birth - in this case the proceedings concern the establishment of direct paternity;
• the child was recognized, but the father did not have time to register this through the registry office (the court considers the fact of recognition of paternity by the father himself).

Most often, such a procedure is sought precisely because of problems with inheritance.

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.

Procedure

Establishing paternity is used to discover the relationship between the deceased and a child who was born out of wedlock.

Where to contact?

The legislation provides for 2 types of grounds for filing an application with the court.
And depending on which of the grounds your particular situation relates to, the procedure for legal proceedings will differ. The following people can file a claim:

• mother of the child;
• guardian of a child under 18 years of age;
• a person who provides for a minor;
• the child himself upon reaching adulthood.

When considering a claim, the court is obliged to study and take into account all the evidence presented.
The establishment process itself is practically no different from the judicial procedure that is appointed during life. The main difference is that there is no opportunity to hear the arguments of the father himself. Applications can be submitted to the district courts at your place of residence. According to the civil procedural legislation, these cases are classified as special cases and have the following features when considered:

• the subject of the dispute is the interests of the person who filed the claim;
• the case is considered with the participation of only the plaintiff, as well as citizens who can testify in the case.

Required documents

To prove paternity in court, you need to collect a package of documents, namely:

• statement;
• a copy of the death certificate;
• a certificate from the registry office confirming the absence of official marital relations;
• original and copy of birth certificate;
• a certificate from housing and communal services, which confirms joint residence;
• receipt of payment of state duty;
• written witness statements.

All title documents are attached to the statement of claim. The testimony of a child is also heard if he is over 10 years old.

How to file a statement of claim in court?

The application must be drawn up as competently as possible.
It needs to set out all the available evidence and explain why it was not possible to prove paternity using other methods, and for what purpose this is being done. The application must include the following information:

• name of the court chamber and location details;
• applicant's passport details;
• surname, name, patronymic of the defendant;
• identification data of the child;
• a detailed description of the reason for going to court;
• plaintiff's claims;
• statement of the fact of cohabitation of former spouses;
• reference to legislative acts;
• a list of the personal property of the deceased that the child may claim;
• information about witnesses who can confirm the fact that the child was adopted by the deceased father;
• signature and date of the application.

sample application in .doc (Word) format The court accepts the following as evidence of the existence of a family relationship between the father and the child:

• photographs and videos;
• Greeting Cards;
• testimony of the man’s family acquaintances or colleagues from work;
• letters;
• correspondence on networks where a man calls a child son or daughter;
• receipts from children's clothing or toy stores.

Is it possible to object to the claim?

Situations are also possible when the court considering this statement of claim receives a more complex case - objections from the direct relatives of the deceased, including his official wife, are possible.
In such cases, it will not be possible to prove the fact of kinship with photographs and correspondence alone - such materials are used when the deceased did not have an official family. In the opposite situation, if the man lived in another family, the court may request a DNA test.

Practice shows that if there is a counterclaim, in 95% of cases a DNA test is required.

DNA test

Such an examination is irrefutable evidence that confirms or denies the presence of a biological relationship between father and child.
Once the results are received, the plaintiff does not have to worry about the results of the court hearing, even if there is a counterclaim. To carry out the analysis, biological material is required. Samples are taken from the child, as well as from relatives on the father's side, which may include his parents, brothers or sisters, or other children.

If there are no such relatives, then material for analysis can be taken from the remains (for example, teeth). The comparison does not take place across all DNA, but at certain markers (loci).

The confirmatory wording almost always sounds like “paternity has actually been proven.” If we consider the option of a negative test answer, then it will have an accuracy of 100%, since a mismatch at 2 loci is not a random mutation, therefore it is considered that there is no family relationship.

Also, the court may insist that the child’s mother also provide biological material, as this helps to obtain a more accurate result.

Such an analysis will show reliable results even after a person’s death, because genetic information does not change in a person throughout his life, despite lifestyle and other factors.

There is a special procedure for conducting laboratory tests to establish paternity:

• DNA molecules of the desired type are isolated from biological material;
• These molecules are then broken down into enzymes;
• sections taken for comparison are copied many times using the chemical method of polymer chain reaction - this is necessary to increase the concentration of the desired fragments;
• the material is analyzed for coincidence of locus variations;
• a conclusion is made about confirmation or denial of paternity.

Total cost and duration of the procedure

Since the procedure for establishing paternity does not relate to property issues, the state fee is 200 rubles.
It should be understood that the plaintiff is required to pay the fee. In each of the courts there are stands with examples of filling out forms for paying fees, and some courts even have special terminals. You can file a claim to establish paternity at any time from the moment the child is born, right up to the moment he comes of age, but in this case his consent will be required, although it is possible that he himself will decide to initiate judicial intervention.

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.

The legislative framework

When considering cases of this nature, the following articles and laws are most often referred to:

1. Article 49 of the Family Code – determination of paternity in court.
2. Article 50 of the Family Code – the court establishes the fact of recognition of paternity.
3. Article 264 of the Code of Civil Procedure of the Russian Federation – cases of establishing facts of legal significance.
4. Article 55 of the RF IC – the child’s right to communicate with parents and other relatives.
5. Federal Law No. 73 “On State Forensic Expert Activities”.
6. Article 246 of the Code of Civil Procedure of the Russian Federation – the procedure for considering and resolving cases that arise from public legal relations.

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.

Legal consequences when establishing paternity

The procedure is primarily aimed at protecting the legal rights and interests of the child. As soon as he has an official father, this provides additional opportunities:

• Alimony payments. The child’s mother may demand to collect alimony (or resolve the issue voluntarily), which will be aimed at ensuring a decent standard of living for the minor.
• An entry in the birth certificate when information about the real father appears instead of a dash. This is rather a psychological moment, but it is also for the benefit of the child.
• Inheritance rights. The child receives the legal right to enter into the father’s inheritance in the future, to claim pension rights, and payments from the state in the event of the man’s sudden death.
• Help in education. In practice, children, after reaching adulthood, feel gratitude to their mother, who actually and legally did not leave them without a father, and took all measures to ensure that their father took the same part in their upbringing.

List of documentation

The law places the onus on the applicant to prove the facts. Therefore, the plaintiff must provide irrefutable evidence of a family relationship between the deceased and the child.

Main evidence options:

• child's birth document;
• medical papers on pregnancy and childbirth;
• joint photos;
• family video shooting;
• correspondence (letters, messages);
• bank statements on funds transfer;
• other evidence of paternity;
• witness statements.

Expenses

Applicant's costs of litigation

Cancellation of paternity

In legal practice, there are often times when a man who is not officially married voluntarily recognizes himself as a father, without doubting this fact. The child's mother is also sure of this. Time passes and it turns out that the person is not the biological father.

In this case, it is necessary to resort to the procedure of challenging paternity. Both the mother and the man who was mistakenly recognized as the father can file a claim in court.

Important! If a man, when voluntarily establishing paternity, knew that he was not the biological father, this deprives him of the right to challenge the fact in court in the future! To restore justice, you need to reach an agreement with the biological father or mother, the guardian of the child or mother (if she is declared incompetent by a court decision).

Special order

A special procedure applies if there is no dispute about the right. The absence of a dispute about the right means the consent of the relatives of the deceased to recognize the child as a blood relative. As a rule, this is possible if the deceased does not have large assets.

If the deceased had financial wealth and left a large inheritance, then relatives often oppose recognition of the relationship. Since the child is endowed with the rights of the first-priority heir. In such a situation, the issue is resolved through legal proceedings.