The establishment of paternity in the courts in the Russian Federation is a fairly frequent phenomenon. The need for it arises when a citizen who is not officially married to a woman does not want to bear an obligation to support a child. Let us further consider the features of establishing paternity in a judicial proceeding. A sample appeal to the court will also be described in the article.
Grounds
Among the necessary conditions for establishing paternity in court, the IC of the Russian Federation considers the absence of:
- Marriage between parents registered with the registry office.
- A joint application of the mother and father or only the father to the registry office.
- The consent of the guardianship authority to the recognition of the citizen by the parent in the event of recognition of the mother's incompetence, her death, the inability to establish her location or the deprivation of her parental rights.
Subjects of law
The legislation enshrines a list of persons who have the opportunity to apply to the court. Among them, in addition to parents, there are guardians (trustees) of the child. At the same time, the procedure for establishing paternity in a judicial proceeding can be initiated by citizens on whose dependency the child is. However, they may not be his trustees / guardians. As a rule, such people are grandparents, aunt / uncle and other relatives. Meanwhile, one cannot exclude the possibility of a child being dependent on outsiders.
It is worth saying that a child can go to court on their own, but after reaching adulthood.
The timing
The law does not provide for statute of limitations for cases of establishing paternity in a judicial proceeding. After the death of the parent, an interested person from the list enshrined in the SC may well turn to the authorized authority.
However, the provisions of paragraph 4 of paragraph 48 of Article SK should be taken into account. By virtue of the norm, the establishment of paternity in a judicial proceeding with respect to a subject who has become an adult is possible only with his consent. If he is recognized as incompetent, then permission must be obtained from his trustee / guardian or guardianship authority.
Process specifics
Cases related to the establishment of paternity in a judicial proceeding are considered in the framework of the lawsuit. Typically, the defendant is the alleged father. Moreover, he himself may be a minor or legally incompetent. In such cases, a representative (trustee or guardian) will participate in the proceedings on his behalf.
The establishment of paternity by the father in court is quite rare. This situation occurs if the mother refused to submit a joint application to the registry office. The establishment of paternity in court by the father can also take place if the mother died, if it is impossible to determine her location, recognition of her incompetence, etc.
Additional requirements
Judicial paternity and child support are closely related. As mentioned above, not all parents are ready to bear material obligations to their children. This forces the mother or other interested person to go to court.
It should be said that it is possible to file a claim for the collection of alimony if the child is a minor. The application is sent to the place of residence of the plaintiff or defendant at the choice of the first.
If the location of the citizen to whom the lawsuit is filed is unknown, he is put on the wanted list. This procedure is initiated by the court on the basis of the provisions of Article 120 of the Code of Civil Procedure.
Nuances
Many experts rightly point out that cases involving the establishment of paternity in the courts are among the most complex. Often the process is delayed for a sufficiently long time, it takes a lot of effort from all participants.
The record of the father, made by the registry office, acts as evidence of the origin of the child from a particular citizen. In this regard, when considering the requirement to establish paternity in a judicial proceeding with respect to a minor whose parents' information is entered in the birth certificate, both of these persons should be involved in the hearing. The fact is that if the application is satisfied, the previously entered information about the father will be canceled (deleted) from the record.
If during the proceedings the defendant expressed a desire to file an application with the civil registry office, the court needs to find out if this means recognition of paternity by this person. In such a situation, recognition of the stated requirements should be discussed. It must be said that an amicable agreement in the case on the establishment of paternity in the courts is not provided.
Terms of Satisfaction
Previous legislation provided for a list of circumstances, the presence of at least one of which could lead to the recognition of the person as the father of the child in court. These included:
- The fact of housekeeping and living together father and mother until the birth of the child.
- Availability of data reliably certifying the recognition of paternity as a citizen.
- The fact of parenting and keeping the child together.
After the adoption of the UK, the establishment of paternity in the courts is carried out according to other rules. Currently, the procedure is not bound by any formal restrictions. Now consideration of the claim for the establishment of paternity in a judicial proceeding in each specific case is carried out taking into account all the evidence presented by the parties. As a result, the court needs to state one fact - the origin of the child.
Features of law enforcement
Prior to the adoption of the modern UK, questions on the establishment of paternity were regulated by 48 articles of the CoBS. Today they are governed by the provisions of Art. 49 SK. Often, in practice, difficulties arise when choosing which norm should be guided by.
As the Supreme Court explained, the courts should consider the date of birth of the child when considering cases. In particular, if it was born after the introduction of the modern IC (after 01.03.1996), any information that reliably certifies the origin of the child from a particular citizen is taken into account. With regard to children born before the indicated date, the courts should proceed from the provisions of article 48 of the CoBS.
However, it is worth noting that the application of these rules in practice is very flexible. The fact is that, according to the provisions of Article 362 of the Code of Civil Procedure, the formal motives that guide the court in choosing the rules of family law do not entail the abolition of the court order if it is substantiated and true in essence, which is confirmed by reliable evidence.
Judicial paternity: a step-by-step scheme
The whole process can be divided into several stages. A step-by-step instruction on establishing paternity in a judicial proceeding looks like this:
- The definition of the subject who will become the plaintiff.
- Evidence collection.
- Drafting and filing a lawsuit in court. The evidence collected is attached to it.
- The consideration of the case.
- The provision of a court ruling by the registry office to amend the birth record.
- Obtaining a new child certificate.
Sample court paternity application
Some citizens have difficulty compiling a lawsuit. Meanwhile, this step in the step-by-step instruction on establishing paternity in the courts is of great importance. If the applicant is not confident in his abilities, it is advisable to seek the help of a qualified lawyer. If for some reason this is not possible, you should be guided by the procedural rules.
The procedure for filing a claim is regulated by 131 articles of the Civil Procedure Code. The statement shall indicate:
- The name of the court.
- Information about the applicant and the defendant (full name, addresses, contact details).
- The name of the document is "Paternity Claim."
The content shall indicate the circumstances that compelled to file a claim, links to evidence of the position of the plaintiff. In conclusion, the requirements for the defendant are indicated.
The list of applications, date and signature must be present.
The lawsuit may contain different contact information of the applicant or his representative: e-mail, fax, etc. Also, the plaintiff can notify the court of important, from his point of view, circumstances of the case, and file petitions.
If a representative is involved in the process on behalf of the plaintiff, he must have a power of attorney, in which his specific powers are indicated.
Genetic examination
Evidence of paternity can serve as various documents and materials. For example, these may be letters in which a citizen recognizes himself as a parent, joint photos with a child, etc.
Meanwhile, DNA testing can be considered as practically undeniable proof of kinship. Judicial paternity is much faster when the results of a genetic study are available.
Examination may be initiated:
- One of the parents. In this case, the results of the study should be attached to the lawsuit.
- Court. The purpose of the study is advisable in the case when the evidence presented by the plaintiff is insufficient.
As a rule, genetic examination is performed for a fee. Payment is usually made by the applicant. However, in some cases, the costs of the study can be offset from the budget. The court decides on this, taking into account the material situation of the plaintiff.
In practice, any participant in the proceedings can initiate a study. In addition, the parties may submit a joint application for an examination. In this case, the costs will be divided between them in half.
Special cases
In practice, it happens that a citizen who wanted to recognize himself as a father died before he realized his intention. In such situations, you should be guided by the provisions of the Code of Civil Procedure and the UK.
According to the legislation, such cases are considered in a special order only in relation to children born after 03/01/1996. The applicant must at the same time have an evidence base sufficient for the posthumous establishment of paternity.
If the child was born before the entry into force of the UK, kinship is established if at least one condition is provided for in article 48 of the CoBS. In any case, however, it is necessary to have evidence that in life a citizen recognized himself as a father. If there is a dispute, for example, about the right to a hereditary share, the application should indicate the purpose of establishing paternity.
Additionally, it may be necessary to provide evidence of the inability of the plaintiff to present the necessary documentation or recover lost papers.
Parents sharing
This fact can be confirmed by information about:
- The presence of one living space at the mother and father.
- Co-nutrition.
- Acquisition of common property.
- Mutual care for each other.
Joint management of the economy implies that the means and labor of the parents or one of them are allocated to meet common needs. It is, in particular, about cooking, cleaning, washing, purchasing food, etc.
All this confirms the existence of an actual stable relationship between the defendant and the mother of the child. However, the law does not establish the requirement that cohabitation and housekeeping continue until the moment of birth. There is no indication in the norms of the minimum duration of such relations.
The termination of cohabitation and housekeeping before the birth of a child is not a basis for refusing to satisfy the application for establishing paternity. The exception is cases when these relationships ended before the mother's pregnancy. From this it follows that the fact of cohabitation and housekeeping during a certain period from the moment of conception to birth is important for the court.
In practice, circumstances may be taken into account in which a man and a woman did not live together (due to the lack of housing, for example), but the family can be considered established (they conducted the household in specific forms and conditions). So, if it is established that the defendant regularly visited the plaintiff, spent the night with her (or vice versa), they ate together, bought common property, wanted to legalize relations, the court may have the right to conclude that there are grounds to satisfy the application for recognition of paternity. If we talk about the facts of mutual visits by citizens to each other for leisure activities, sharing meals (not for common means), cases of intimacy, they cannot serve as grounds for establishing paternity. They do not prove cohabitation, housekeeping in terms of law.
Participation in the maintenance or upbringing of a child
Article 48 of the CoBS does not stipulate that these circumstances take place simultaneously. At least one of them is enough to satisfy the application to the court. In practice, the father may well participate in the upbringing and maintenance of the child.
The financial assistance of the defendant should be permanent, and not episodic (or one-time) in nature. At the same time, the child may also be on the maintenance of close relatives of the father, if for one reason or another he cannot afford it. For example, the defendant is on a long foreign business trip, suffers from a serious illness, and his grandparents (his parents) provide financial assistance.
Child support may be supported by written evidence. This can be payment documents, certificates, invoices for payment for services, etc. In addition, testimonies of witnesses (neighbors, friends) can also become evidence.
Evidence of Recognition of Paternity by the Respondent
The circumstances discussed above are objective. If the defendant acknowledges paternity, then on this basis is expressed the subjective attitude of the person to the child.
In this case, the citizen’s letters, questionnaires, statements, other materials may serve as evidence. The subject could recognize paternity both during the pregnancy of the woman and after the birth of the child. As in the previous case, evidence can serve as confirmation.
Conclusion
It must be said that the circumstances provided for in article 48 of the CoBS do not always serve as indisputable evidence of paternity. The court must take into account and be sure to check the arguments of the defendant, refuting the information provided by the plaintiff.
If during the course of the proceedings it is established that at least one circumstance is enshrined in Article 48 of the Code of Administrative Offenses, but the defendant does not acknowledge himself as a father, a forensic medical examination may be assigned to clarify issues regarding the origin of the child. During it, the time of conception, the physiological ability of the defendant to have children, etc. are established.