Statement of claim to establish the fact of recognition of paternity after the death of the father

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To automatically enter data about the father into children's documents, the parents must be in a registered marriage. Otherwise, a procedure to establish paternity will be required. Sometimes a man dies before he has time to submit an application to the registry office. In such a situation, the child is deprived of the right to be officially called his son or daughter. In addition, he loses all property rights associated with the death of his father. The law provides for the possibility of entering data about the father into children's documents in the event of his death. To do this, it is necessary to apply to the court with a statement of claim to establish the fact of recognition of paternity after the death of the father.

Procedure for establishing the fact of recognition of paternity

The emergence of paternal rights and responsibilities is tied to the moment paternity is established. The law provides for the following ways of establishing paternal rights:

• the mother and father were married at the time of the child's birth;
• the child was born within 300 days after the divorce;
• the citizen submitted an application to the civil registry office to establish paternity (with the consent of the district guardianship department);
• mother and father submitted a joint application to the district registry office;
• the court made a decision to establish paternity at the request of the interested party;
• the court established the fact of recognition of paternity by the deceased citizen (Article 50 of the RF IC).

Expert opinion

Stanislav Evseev

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

The last option applies if a citizen died before he was able to apply to the registry office with an application to recognize the child. The procedure is carried out exclusively in court.

The applicant independently decides whether to change his surname to his father's surname. However, the patronymic name must be brought into line with the father’s data.

Important! If the decision is made in relation to a child aged 10 years or older, then to change the surname it is necessary to find out his opinion (Article 59 of the RF IC).

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).

Why is it necessary to establish the fact of recognition of paternity?

A feature of the statement of claim is the need to indicate the reasons for which this legal fact is required. The applicant must directly and openly state why he needs information about the father in the children's documents.

In practice, the following options are possible:

• in memory of my father;
• to apply for a survivor's pension;
• to obtain inheritance rights.

Thus, as a result of establishing the fact of paternity, the child receives not only family ties formally, but also legally. The son or daughter receives all property benefits due to official children.

Proof

Direct evidence is genetic testing. It is carried out at the initiative of the plaintiff or defendant, in some cases - at the request of the court, if other evidence provided is not enough to make a decision.

Other evidence may be used.

If DNA testing is carried out

When prescribing a DNA test, the following may serve as additional confirmation:

• Joint photographs of the deceased father and the child;
• Correspondence between a man, mother, minor;
• Witness statements;
• Video and audio recordings.

Legal advice: when filing a claim, it is better to immediately file a petition for the appointment of an expert examination. Biomaterials from close relatives of the deceased whom you want to recognize as the father will be examined.

If relatives refuse a DNA test

Relatives of the deceased have the right to refuse the test, which the judge may interpret not in their favor. When a case is denied, other facts will be used to make a decision.

If there are no relatives

In the absence of relatives, for obvious reasons, an examination is not carried out. To resolve the issue, any evidence presented by the plaintiff and defendant is used.

Proper plaintiff

The law limits the list of persons who can go to court.

Proper plaintiffs

The authority of the plaintiff must be documented. For example, the mother provides the child’s birth certificate and her civil passport. If the minor has reached 14 years of age, then his passport is additionally attached.

Submitting an application

An application to establish the fact of recognition of paternity provides for the presence of evidence, based on which the judge will make a decision. The evidence base includes:

• general photographs;
• correspondence;
• printout of phone calls and messages;
• voice recordings of conversations;
• testimony from neighbors and friends.

Direct evidence indicating the fact of paternity is a genetic examination (DNA test) and a voluntary statement from the father. The request for an analysis is submitted by the plaintiff; the court will not deal with this. It only takes into account the facts and evidence presented by the parties to the litigation.

Algorithm of actions

In practice, the procedure can be divided into the following stages:

1. Collection of documents.
2. Preparation of a statement of claim.
3. Payment of duty.
4. Sending documents to court.
5. Trial.
6. Obtaining a court decision.
7. Making changes to the birth record.

Collection of documents

List of documentation for applying to court:

• the applicant's civil passport;
• an extract from the house register;
• father's death certificate;
• child's birth certificate;
• fee payment receipt;
• petition to bring witnesses;
• photos and videos of the deceased and the child;
• correspondence (letters, SMS, screenshots from instant messengers);
• bank account statement showing the receipt of funds for child support from the deceased.

One of the indisputable proofs is the result of a DNA study. However, in the case of establishing the fact of recognition of paternity, the study can be carried out with other relatives (parents, brothers, sisters, aunts, uncles, grandparents of the father).

If the applicant has the results of a DNA test in hand, then it can be attached as evidence. Otherwise, you can prepare a petition to appoint an examination.

Features of preparing a statement of claim

Regardless of the method of consideration of the application, the plaintiff must prove the paternity of the deceased. The burden of proof rests with the approver. Therefore, it is necessary to pay special attention to preparing the evidence base.

An important condition is the presence of witnesses on the part of the deceased. The relative must:

• recognize the child as the son of the deceased;
• confirm that the deceased recognized the child as his own;
• refute the fact of the confession.

If relatives live in another country or refuse to attend the court hearing, the court will proceed from the evidence provided by the plaintiff.

Payment of duty

Often, posthumous paternity determination is a claim to protect the interests of a minor child. Therefore, an applicant acting on behalf of a minor is exempt from paying the fee.

If the application is submitted by a child who has reached 18 years of age, or by a guardian of an incapacitated citizen, then a fee of 300 rubles must be paid. The original receipt is attached to the claim.

Referral to court

The procedure for establishing the fact of recognition of paternity differs slightly from the option for considering an application. The review period varies depending on the option.

Depending on the situation, the issue can be resolved:

1. In the procedure of claim proceedings (Section 2 of the Code of Civil Procedure of the Russian Federation). Applicable when there is a dispute. For example, relatives of the deceased refuse to recognize a family connection. As a rule, the new relative is the priority heir. Therefore, other recipients of property do not want a competitor to appear. The procedure may take a long time.
2. By way of special legal proceedings (Section 4 of the Code of Civil Procedure of the Russian Federation). Applies if other relatives are absent or have no objections. This option is often used if there is no inherited property left after the deceased. The application is considered in one meeting. The applicant's request is satisfied.

Trial

The legal process varies depending on the order in which the application is processed.

When considering the application, the plaintiff must prepare a short speech. It should contain the following information:

• about the cohabitation (close communication) of the mother of the child and the deceased;
• information about pregnancy;
• about the deceased man’s attitude towards his girlfriend’s pregnancy;
• whether he met her from the maternity hospital;
• whether he gave money for the maintenance of a minor,
• did you buy him gifts?
• whether publicly recognized as a son/daughter.

In addition, the court hears witnesses (neighbors, friends, relatives).

Specialists from district guardianship departments and registry offices are invited to participate in the process. A specialist from the guardianship department gives an opinion if the application is submitted to protect the interests of a minor.

If there is insufficient evidence, the court may order a DNA test. Comparative material is taken from a relative of the deceased and from the child. Payment for the examination is borne by the plaintiff. In accordance with the results of the analysis, a decision is made.

Obtaining a court decision

If the court has satisfied the plaintiff's request, then it is necessary to obtain a court decision. The document is issued on the day of announcement, but comes into force only after 30 days.

Preparation of documents

When preparing an application, it is necessary to find out the position of the relatives of the deceased regarding the recognition of his paternity. You should also clearly define the rationale for going to court and take care to collect the appropriate evidence.

An important point for going to court is that there is no dispute about the law. If there is a dispute about the right between relatives, heirs and other interested parties, there is no point in filing such an application. Having found out that there is a dispute about the right, the court will leave the application without consideration. And he will invite the applicant to go to court through a claim proceeding.

By way of action, you should go to court if the alleged father denied his paternity during his lifetime. The defendants in this case will be the heirs of the deceased.

Interested parties in the application must indicate citizens and organizations whose rights and interests may be affected by the court decision. These could be the parents of the deceased, his other children, or heirs. The Pension Fund, social security authorities, etc. are indicated as interested parties. It is to these organizations that, after the decision is made, the applicant will apply to receive some benefits or payments.

Correspondence, video and photographic materials, checks and receipts, and other documents can be used as evidence of recognition of paternity. From the contents of the documents presented to the court it should be clear that the deceased considered himself the father of the child. And he did not hide this from those around him, showed concern for the child and acted as a legal representative.

In cases of recognition of paternity, one cannot do without the testimony of witnesses. Witnesses can be relatives, neighbors, friends and co-workers (interested persons indicated in the application cannot be witnesses in the case). Witnesses must be eyewitnesses of how the deceased cared for the child, talked about the fact that this was his child, and shared plans for the future related to his son or daughter. Perhaps the witnesses will be asked questions about why during his lifetime the father did not take measures to recognize his paternity.

When preparing the application, it is necessary to decide whether it is necessary to change the child’s surname and patronymic (according to his father) or leave the mother’s surname.

What to do if during his lifetime the potential father of the child did not recognize this fact

The algorithm of actions is the same: the mother files a statement of claim in the established form. The second party to the lawsuit will be the relatives of the deceased person, if any.

When submitting an application, enterprises and people whose interests may be affected by the decision made by the judge are indicated as interested parties. Organizations include:

• pension service department for citizens;
• social insurance and population protection authorities.

Citizens whose interests must be taken into account by the court: children of the deceased, parents, brothers and sisters. The list may include other relatives who may claim the inheritance.

What is the evidence base?

The mother can provide the court with receipts for purchases confirming the father’s participation in the heir’s life. Evidence may include videos and joint photographs, which indicate that the deceased did not hide from others the fact of communication with the child and advertised his presence in his life.

Evidence from neighbors about living together and living together is important if the marriage was not legally registered. It is important to note that interested citizens cannot act as witnesses during the trial. When they appear in the courtroom, testimony is not taken into account.

Witnesses can share information about how the father cared for the child and that they saw care from an adult. It is important to indicate information if the man told them about joint plans, cared about the child’s education, and was involved in his moral and physical development. Colleagues of the deceased can also act as witnesses if they had a confidential relationship with the deceased and he told them about his child.