Challenging paternity in court. The procedure for challenging the fact of paternity in court

As you know, information about the mother of the child is entered into the birth record on the basis of a certificate from the maternity hospital, confirming the birth of the child from this particular woman.

Information about the father of the child, if if he is not married with the mother of the child, are recorded on the basis of the voluntary establishment by the man of his paternity in relation to this child. As a result, the registry office issues two certificates: on the establishment of paternity and on the birth of a child. If a man does not acknowledge his paternity voluntarily, perhaps according to the rules of Article 49 of the Family Code of the Russian Federation.

The situation is different when, at the time of the birth of the child, a man and a woman are in a registered marriage, as well as at the birth of a child during three hundred days from the date of divorce between them. In these cases, information about the father of the child is entered in the birth record. automatically on the basis of a marriage certificate. This is the essence of the presumption of paternity. Therefore, no additional procedures for establishing paternity are required in this case.

As you can see, if in the first case, to enter information about the father of the child into the birth certificate, a personal statement of the alleged father of the child or a court decision is required, then in the second case, the man cannot influence the entry / non-inclusion of information about him into the birth certificate of the child as about the father of the child, since information about his paternity is entered into the documents on the fact that at the time of the birth of the child there was a registered marriage relationship between him and the mother of the child, and for this the consent of the man is not required.

Moreover, the registry office will indicate him as the father of the child even if he objects against this, because the challenge of paternity is possible only in court.

A man who voluntarily acknowledged his paternity also has the right to challenge it if at that time he was mistaken about his paternity, but since the recognition of paternity is an irrevocable declaration of will, after the corresponding entry is made, challenge given fact he can also only in court.

So, the topic of this article is challenging paternity.

We will tell you in detail about the procedure for contesting paternity, how to properly prepare and file a claim with the court, what evidence must be presented in court, in what cases the court may refuse a claim to challenge paternity, what happens to maintenance obligations after the court cancels the record of paternity and whether it is possible to return already paid alimony.

Grounds for contesting paternity

In life, it happens that a man recorded as the father of a child is not in fact his biological father. Such circumstances can become clear at any time after the birth of the child.
In judicial practice, cases of contesting paternity are most often encountered for the following reasons:

• A man registered as the father of a child on the basis of registered marital relations with the mother of the child, having found out that he is not the biological father of the child, goes to court to challenge his paternity in relation to the child born by his wife (ex-wife).
• The man, who is actually the biological father of the child, goes to court to challenge the paternity of the man, recorded as such by virtue of the presumption of paternity.
• The mother of a child disputes the paternity of her husband ( ex-husband), who is not in fact the biological father of the child born to her, in order to terminate the legal relationship between a man and a child. It is also possible to challenge the paternity of a man if he is recorded as the father of the child on the basis, but the claim can only be satisfied if at the time of making the record about him as the father of the child, he was sure of his biological paternity.

Procedure for contesting paternity

Recall that you can challenge paternity only in court even with the consent of both parties. Disputes about challenging paternity are considered by the court in the order of action proceedings. The procedure for contesting paternity is regulated by Article 52 of the Family Code of the Russian Federation.

When challenging paternity, you should be aware of the following aspects:

• If a man at the time of the voluntary establishment of paternity knew that he was not in fact the biological father of this child, the claim to challenge paternity will be denied (paragraph 2 of Article 52 of the Family Code of the Russian Federation).
• If a man acknowledged his paternity under the influence of threats, violence, or in a state where he was not able to understand the meaning of his actions and manage them, he can challenge the record of his paternity precisely on the grounds of a violation of the will (paragraph 10 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated October 25, 1996, No. 9 “On the application by the courts of the Family Code of the Russian Federation when considering cases of establishing paternity and collecting alimony”).
  The above list of grounds for challenging the record of paternity is not closed, which is why we believe that the recognition of paternity under the influence of deceit can also be regarded as an action committed in the absence of the will of the person.
• If the conception occurred by artificial insemination or by implantation of an embryo, as well as at the birth of a child by a surrogate mother, the law prohibits the spouses, as well as the surrogate mother who agreed to carry out the relevant procedures, to refer to these circumstances when contesting paternity as a justification for their claims.
• In a paternity dispute, the plaintiff may also file a request to change the child's personal data, i.e. giving him the surname and patronymic of the biological father (for example, the biological father requires that the child be given his surname and patronymic by his own name). New data in the registration information about the child is entered by the registry office on the basis of a court decision. In the absence of the actual father, the new surname and patronymic of the child can be recorded by the registry office from the words of the mother.
• If at the time of the consideration of the case on disputing paternity, the child in respect of whom paternity is disputed has reached the age of 10, he has the right to express his opinion and must be heard by the court during the trial, taking into account his opinion is mandatory, as provided for in Article 57 of the Family Code of the Russian Federation . The Plenum of the Supreme Court of the Russian Federation pointed out the need for the courts to comply with this rule in its decision No. 9 of October 25, 1996.

Who Can Contest Paternity

The provisions of Article 52 of the Family Code of the Russian Federation, in contrast to the previous Code of Civil Defence of the RSFSR, expand the circle of persons who can challenge the entry of parents in the birth register. Under the previous legislation, these could only be persons recorded as parents, i.e. there was no direct indication of such a right of other persons in the law. Now the plaintiffs can also be persons who are the actual father and mother, but not registered as such in the registry office.

So, the plaintiff in the case of disputing paternity can be:

• Person listed as the father of the child
• The person who is actually the father of the child
• child's mother
• Guardian or custodian of a child
• Guardian or custodian of a parent under the age of 16 or declared legally incompetent by a court
• The child himself after reaching the age of majority

The specified circle of persons is exhaustive. For example, grandparents cannot go to court to challenge paternity of their grandchild, even if the child's parents are minors. They are vested with such a right only if they act as guardians of a child whose minor parents have not reached the age of 16.

How to dispute paternity

The first stage is paternity claim.

Of course, you need to know how to file a paternity dispute.
A claim to the court is drawn up with the obligatory observance of the requirements of Articles 131-132 of the Code of Civil Procedure of the Russian Federation, otherwise there will be grounds for the court to take such procedural actions as leaving the claim without movement, returning the claim or refusing to accept it.

At this stage, it is recommended to use the services of a qualified lawyer who will quickly and competently draw up a statement of claim, correctly form the evidence base and file a claim in court.
The statement of claim must contain: the name of the court in which the claim is filed, information about the parties (full name, addresses, phone numbers), data of the child in respect of which paternity is disputed.

The plaintiff must clearly substantiate his claims: set out in detail the circumstances that were the basis for filing a claim, and provide evidence confirming these circumstances. If the plaintiff in his claim refers to the testimony of witnesses, then the contact details of these persons should be indicated.

It is also necessary to specify list of documents, which the plaintiff applies to the claim.

These are the following documents:

• Receipt for payment of state duty
• Copies of the claim for the defendant and third party
• Copies of certificates of marriage, divorce, birth of a child
• Other available written evidence

All copies of documents that are annexes to the claim must be submitted according to the number of persons participating in the case.

The civil registry office (ZAGS) must be indicated as a third party in the case, since a positive court decision on contesting paternity is the basis for this body to amend the child's birth record (clause 1 of Article 69 of the Law of November 15, 1997 No. 143-FZ ).

Evidence in a paternity dispute

The subject of proof in court in a paternity case is the absence of biological relationship between the child and the person indicated as the father of this child.

• One of the main evidence is the result of a genetic study for the presence of such a relationship. If the defendant's side in court does not recognize the requirement to challenge paternity, the plaintiff must file a petition for the appointment of a forensic genetic examination to establish kinship with the child.
  Results of genetic fingerprinting(DNA analysis) confirm the relationship between people with certainty up to 99.9%. Such evidence, as a rule, decides the outcome of the case in court.
• It is possible that the defendant refuses to participate in the genetic fingerprinting, for example, the mother refuses to bring the child to an expert institution for analysis, or the legal father of the child refuses to take the appropriate analysis. In this case, the court may, on the basis of paragraph 3 of Article 79 of the Code of Civil Procedure of the Russian Federation, recognize as established the fact that the person is not the father of the child and make a positive decision on the case.
• In addition to the results of a genetic study on the subject of kinship, evidence in the case can also be: witness statements, correspondence of the parties, photographs and video materials and other written evidence. The court evaluates all the evidence presented by the parties in their entirety.
• Sometimes a genetic examination is not necessary, because the plaintiff disputing his paternity can confirm the circumstances he refers to using expert opinion on his inability to conceive a child.
• If the defendant admits the claim, the court makes a positive decision without examining the case materials on the basis of such a confession.
• As mentioned above, when challenging paternity after its voluntary recognition, the plaintiff must first of all prove to the court that at the time of making the record of establishing paternity, he did not know that he was not the father of the child, i.e. he conscientiously erred in believing himself to be the biological father of the child. It will be up to the defendant to prove otherwise.

As an example of the assessment by the court of evidence when challenging paternity by a person who voluntarily acknowledged his paternity in relation to a child, we will cite an excerpt from the decision on civil case issued by the Frunzensky District Court of St. Petersburg in 2015

According to the case file, Smirnov A.A. voluntarily established his paternity in relation to his daughter Matveeva S.V. - Smirnova A.A., born in 2012, about which the registry office made an act record, in which, as the father of Smirnova A.A. specified plaintiff – Smirnov A.The.

From the explanations of the plaintiff, it followed that on October 5, 2014, he learned from the defendant that he was not the real father of Smirnova A.A., before that he considered himself the father of the child, since, according to his calculations, the time of conception of the child coincided with the period of the beginning of their intimate relationship, and he had previously had no reason to doubt his paternity.

According to the genetic study, conducted in the course of the proceedings at the request of the plaintiff, Smirnov A.The. really was not the biological father of Smirnova A.A. The defendant's allegations that at the time of making the act record the plaintiff knew that he was not the real father of the child were confirmed only by the testimony of the defendant's parents and girlfriend.

These testimonies were not accepted by the court as the only reliable ones, since they were not supported by other types of possible evidence (letters from the parties, etc.), and also did not refute the directly opposite testimony of witnesses from the plaintiff.

The court also critically assessed the defendant's explanations that, when entering into an intimate relationship with the plaintiff, the latter told her about the trauma of the genital organ received in childhood, as a result of which he allegedly cannot have children, and allegedly for this reason the plaintiff did not object to his registration father in relation to a child born by her from another man.

Plaintiff refuted these arguments by presenting a medical report based on clinical trial, according to which the pathology that prevents the reproductive function of Smirnov A.A. no, therefore, he can have children.

As a result, the court came to the conclusion that due to the contradiction of the evidence presented, if it is impossible to reliably establish the circumstances of the plaintiff's awareness of his indication in the act record as the father of not his child at the time of its commission, the court cannot consider it established that at the time of registration of the birth of Smirnova A. A. the plaintiff knew that he was not her biological father.

As a result, the claim to challenge paternity was satisfied, information about Smirnov A.V., as the father of Smirnova A.A. were excluded from the last birth record.

Disputing paternity jurisdiction

When filing a claim, it is necessary to comply with the rules of civil procedure legislation on territorial and tribal jurisdiction.

• Family jurisdiction: paternity disputes jurisdiction of the district courts.
• Territorial jurisdiction: these disputes are considered by the courts defendant's place of residence, i.e. according to the rules of common jurisdiction. As you can see, unlike disputes related to the establishment of paternity, when challenging paternity, the rules of the Code of Civil Procedure of the Russian Federation on alternative jurisdiction do not apply.

The statute of limitations for challenging paternity

According to current family law Claims to challenge paternity are not subject to the statute of limitations..

Attention: The exception is when paternity is disputed in respect of a child born before March 1, 1996(date of entry into force of the Family Code of the Russian Federation). In this case, the man can challenge his paternity within one year from the day he found out that he was not the biological father of this child. This is due to the fact that the one-year limitation period was applied to claims to challenge paternity in accordance with the provisions of the former Code of Administrative Offenses of the RSFSR.

Alimony after paternity dispute

Of course, many are wondering if it is possible to return when paternity is disputed.
This topic is very relevant, the payment of alimony for the maintenance of a child in the absence of biological relationship is simply unacceptable for many.

Here it is necessary to understand the difference between the return of alimony and the release from the maintenance obligation in the future.

Cancellation of child support after paternity is disputed

If a man who disputed his paternity of a child is a payer of alimony for the maintenance of this child, then after the entry into force of the court decision about the exclusion of the record about him as a father from the birth record of this child, he can apply to the court with a separate claim to release him from further payment of alimony.

A positive decision to challenge paternity with a mark of entry into force is the basis to satisfy the court's claim for the release of this person from the payment of alimony.

Important: It should be borne in mind that despite the fact that the court satisfied the claim to challenge paternity, the withholding of alimony will stop only after the court decision on exemption from paying alimony comes into force.

Thus, if measures are not taken, then the alimony will continue to be accrued and withheld even during the period when the court is considering the case on exemption from the payment of alimony, and this may take several months.
In order to avoid this, it is initially advisable to negotiate with the alimony collector (mother or guardian of the child). Perhaps the creditor will voluntarily return the alimony paid during the period of the claim.

If the exactor refuses to voluntarily return the amount of alimony, the plaintiff, when presenting a claim for release from the alimony obligation, should declare to the court motion to secure a claim, namely, suspend alimony by writ of execution until the dispute is resolved.

Based on the results of consideration of such a petition, the court will issue an appropriate ruling, a copy of which must be submitted to the accounting department at the place of work.

Child support refund after paternity dispute

In law alimony claims are not allowed. This is expressly provided for in Article 116 of the Family Code of the Russian Federation.

But there is exhaustive list of exceptions when you can claim a refund of child support:

• If the decision to recover alimony is canceled due to the establishment of the fact that the alimony was collected on the basis of false information or false documents submitted by the alimony claimant
• In the event that the agreement on the payment of alimony was recognized by the court as invalid, as concluded under the influence of deceit, threats or violence on the part of the recipient of the alimony
• If the alimony was paid on the basis of a forged court decision, an agreement on the payment of alimony or a writ of execution, and this is established by a court verdict.

Please note that in the case when it comes to alimony collected for the maintenance of a minor child, then the law assumes non-reverse collection of alimony, and the recovery amounts of alimony paid from the alimony claimant whose guilt in committing the above acts is established by a court decision or verdict, at the suit of the alimony payer who disputed his paternity.

The procedure for challenging paternity in court is quite complicated., takes a significant amount of time, and of course requires competent approach of a lawyer. In addition, it is necessary to take into account the complexity of considering such disputes from a moral point of view. Considering all the features of the consideration of these disputes, it is advisable entrust the preparation of procedural documents and the conduct of the case to a qualified lawyer.

The Legal Center "PetroYurist" employs procedural lawyers, specializing in family law who, based on their knowledge and experience, will help you to correctly build a legal position, and, if necessary, competently protect your interests in court.

Disputing paternity is understood as challenging the entry about the father of the child, which the registry office makes in the birth register.

The record of the father of the child can only be challenged in court. You will have to go to court even when both persons recorded as the mother and father of the child agree to change the record about the father.

Note!

In cases of disputing paternity, the opinion of a child who has reached the age of ten is required to be taken into account ( Art. 57 RF IC; item 9 Decrees of the Plenum of the Supreme Court of the Russian Federation of May 16, 2017 N 16; item 8 Review of the judicial practice of the Supreme Court of the Russian Federation N 1 (2016)).

Only a person registered as the father or mother of the child, or a person who is actually the father or mother of the child (biological parent), as well as the child himself upon reaching the age of majority, the guardian (custodian) of the child, the guardian of the parent recognized by the court incompetent. This right also belongs to a child under the age of 18 who has acquired full legal capacity as a result of emancipation or marriage (clause 1, article 52 of the RF IC; clause 25 of Decree No. 16).

If the child's parents were unmarried at the time of the child's birth and the father was recorded at the joint application of the child's father and mother, at the request of the child's father, or by court order, and the child's father subsequently intends to challenge his paternity, the following must be considered. If, at the time of making the entry, the father of the child knew that he was not actually his father, the court will refuse to satisfy the claim. In this case, the child's father will only be able to contest paternity if he proves that he did not really want to be recorded as the child's father. For example, that he filed an application to establish paternity under the influence of threats or violence, or in a state where he was not able to understand the meaning of his actions or manage them (clause 2, article 52 of the RF IC; clause 27 of Resolution No. 16).

Step 1. Prepare documents

To dispute paternity, you will need:

• a statement of claim to challenge paternity (Article 131 of the Code of Civil Procedure of the Russian Federation);
• a copy of the child's birth certificate;
• receipt of payment of state duty in the amount of 300 rubles. (clause 3 clause 1 article 333.19 of the Tax Code of the Russian Federation);
• evidence confirming that the person recorded as the father of the child is not his biological father (Article 55 of the Code of Civil Procedure of the Russian Federation).

Such evidence can be obtained from the explanations of the parties and third parties, the testimony of witnesses, written and material evidence, audio and video recordings, expert opinions (clause 19 of Resolution No. 16). With the help of examinations, the time of conception, the ability of the defendant to have children, the presence (absence) of family ties with the child can be established. During the examination, medical documents can also be examined, for example, an individual card of a pregnant woman, a history of childbirth, an individual card of a newborn.

Step 2. Apply to the district court with the claim and the documents attached to it and take part in court hearings

The claim is brought to the district court at the place of residence of the defendant (Article 28, Code of Civil Procedure of the Russian Federation).

Requests for the appointment of an examination, the inclusion of additional evidence, the court satisfies during the meeting.

If a party evades participation in the examination, fails to provide the experts with the necessary materials and documents for examination, and in other cases, if, due to the circumstances of the case and without the participation of this party, it is impossible to conduct an examination, the court makes a decision based on all the previously presented evidence. At the same time, the court, depending on which party evades the examination and what significance it has for it, has the right to recognize the fact, for the clarification of which the examination was appointed, established or refuted (part 3 of article 79 of the Code of Civil Procedure of the Russian Federation; clause 21 of the Resolution No. 16).

If the claim to challenge paternity is satisfied, the court makes an appropriate decision. In the operative part of the decision, the court indicates which entry is incorrect (which registry office made it, the number and date of the entry, in respect of which persons it was made), what changes or corrections need to be made to it.

Step 3. Prepare Required documents to make corrections to the record of paternity and submit them to the registry office

The basis for making corrections and changes in civil status records is a court decision (clause 1, article 69 of the Law of November 15, 1997 N 143-FZ). In addition, it is necessary to attach an application for making corrections or changes to the civil status record and the following documents:

• applicant's passport;
• birth certificate of the child;
• receipt of payment of state duty in the amount of 650 rubles. (clause 5 clause 1 article 333.26 of the Tax Code of the Russian Federation).

Documents must be submitted to the registry office at the place of residence or at the place where the birth registration record is kept (clause 1, article 71 of Law N 143-FZ).

The corrected certificate must be issued in month from the date of application. If there are good reasons, the head of the registry office may extend the period for consideration of the application by no more than two months (clause 1, article 72 of Law N 143-FZ).

Challenging paternity is pretty difficult process requiring the study of a large amount of information on the very institution of contesting paternity, as well as knowledge of judicial practice in this area. In this article, we will try to describe in more detail the mechanism for establishing paternity, both voluntarily and through the courts, based on judicial practice to dispute paternity.

It is possible to challenge not only paternity, but also maternity, although in practice in court the challenge of maternity is much less common than the challenge of paternity, this phenomenon is caused by the nature of childbearing: it is much easier to establish the mother of the child than the father. The reverse side of the coin leads to the fact that there are many cases when a person is entered as the father of a child, who in fact is not such.

When can paternity be challenged?

Disputing paternity and, as a result, an act recording of information about the father of the child is allowed if the parent is a man who is not actually one.

There are many reasons why paternity is disputed. For example, the presence of a registered marriage is the basis for the automatic entry of registry office employees about the father of the child, the husband of the mother of the newborn, even without his consent.

There are cases when a person who is not married to the mother of the baby is recorded as the father of the child, in this situation the couple jointly submits an application to the registry office (clause 3 of article IC RF). Subsequently, the ability to challenge paternity under these circumstances is made dependent on whether the man knew that he was not actually the father of the child or not. If it is proved that he knew at the time of filing an application with the registry office that he was not the father of the child, then the court would refuse to satisfy his claim. If at the time of the joint application he did not possess this information, then, if there is sufficient evidence, the court may satisfy the claim to challenge paternity.

An application to challenge paternity can be filed with the court at any time. There is no statute of limitations on contesting paternity.

Who Can Contest Paternity?

The following entities may initiate paternity proceedings:

• a person recorded as the father of the child, but in fact not being such, if at the time of the recording he did not know about it;
• a citizen who, for some reason, is not recorded as the father of the child, but considers himself a parent;
• other persons authorized by law (the mother of the child, his legal representatives, the child himself when he reaches the age of majority).

Family law has described situations where the persons concerned do not have the right to dispute paternity:

• a man who was not married to the mother of the child, who agreed to make a record that he was the father of the child, knowing in advance that he was not such (clause 2 of article IC RF);
• in the event of the birth of a child by parents who are married, who consented to the birth of a child by using the method of artificial insemination or implantation of an embryo (clause 1, clause 4, article of the RF IC);
• an entry about the child's parents was made after his birth by implanting an embryo to another woman for the purpose of carrying him, who subsequently agreed to the inclusion of spouses as parents of a newborn (clause 2, clause 4, article of the RF IC);
• a person trying to dispute paternity has no procedural right to do so.

In these cases, the court does not have the right to satisfy the claim to challenge paternity.

Procedure for contesting paternity

The procedure for contesting paternity consists of several stages:

• collection of necessary evidence;
• drawing up, on the basis of the evidence obtained, a statement of claim to challenge paternity;
• filing a claim with attached documents to the court;
• litigation to challenge paternity;
• if the court decision is not in favor of the applicant, then it must be challenged in a higher court;
• obtaining a court decision and a writ of execution.

Challenging paternity in court

Requests to change the record of the father of the child by entering the relevant data is possible only by a court decision. To do this, it is necessary to initiate a trial in this case. The legislator did not provide other ways to challenge paternity.

Disputing paternity is a complex legal procedure that requires a lot of time and nerves. It is extremely important to collect the maximum amount of evidence on the basis of which the court will make a positive decision.

According to Article 55 of the Code of Civil Procedure of the Russian Federation, evidence includes: explanations of the parties, third parties, testimony of witnesses, written evidence, audio and video recordings, expert opinion. Depending on the situation, taking into account the above, it is necessary to collect evidence to challenge paternity. From our practice, we see that the most appropriate evidence in these lawsuits is the result of a genetic examination.

After obtaining the necessary evidence, you should draw up a statement of claim to challenge paternity, in which claims are made that are substantiated by the collected evidence with reference to the current norms of the law.

A genetic examination is appointed by the court in the event of receiving a request for this from the participants in the process; the court, on its own initiative, does not appoint a genetic examination. When drawing up a claim to challenge paternity, the plaintiff may ask the court to conduct an appropriate examination.

After collecting evidence, drawing up a claim, it is necessary to send the entire package of documents to the district court according to the number of participants in the process and for the court itself. Most often, the participants in the process of contesting paternity are the recorded father of the child, the actual father, sometimes guardianship and guardianship authorities, representatives of the registry office.

Documents can be sent to the court by sending them through the court office (in this case, we recommend making a copy of the claim for yourself, on which you should ask the office worker to put down “incoming” and sign), or send the documents by mail (in this case, you need to make an inventory of the attachment and acknowledgment of receipt).

After receiving the documents, the court makes one of the following rulings:

• on the acceptance of the claim for proceedings. This definition is adopted by the court if the claim satisfies all the requirements of the law for its content;
• to dismiss the claim. The specified ruling is issued if the claim contains a defect and the court proposes to eliminate it within the allotted time;
• for the return of the claim. The said ruling is issued by the court, for example, if the case is beyond the jurisdiction of this court.

If a ruling is issued on accepting the statement of claim to challenge paternity for proceedings, the court sends copies of the ruling to the participants in the process indicating the time of the first court session.

We recommend that the defendant in the case, after receiving the appropriate ruling, draw up a response to the statement of claim, in which he indicates the reasons for disagreeing with the claim and provides relevant evidence. The defendant's statement of his position orally during court hearings is often ineffective because they are reflected in the court record in a distorted form or are not entered there at all.

At the appointed time, the first court session takes place, during which the parties state their position on the merits of the case, present arguments and counterarguments, referring to the relevant evidence.

During the process, the parties need to petition the court to collect evidence that they could not obtain themselves, including the conduct of a genetic examination.

Based on the result of consideration of the case, the court makes a decision to satisfy the claims or to dismiss the claim. The decision of the court may be challenged within one month from the date of its issuance. At the end of the month, if none of the parties appeals against the court decision, it enters into force.

Genetic expertise in paternity dispute

Genetic examination in the case of disputing paternity occupies a leading role among the evidence. It should be requested by the plaintiff when filing a claim or during the process, the defendant must indicate its implementation in a response to the claim or also during court hearings.

In the application for a genetic examination, it is necessary to indicate the expert institution in which the applicant requests to conduct an examination.

If one of the parties submits a petition for a genetic examination, the court issues a ruling to satisfy the petition or to refuse to satisfy it, which is extremely rare and only if all the evidence in the case indicates that it is pointless to conduct it.

For the duration of the genetic examination, as well as any examination, according to Article 216 of the Code of Civil Procedure of the Russian Federation, the court has the right to suspend the proceedings, which it most often does. The commission of this action by the court is primarily due to the fact that the two-month period established by law for the consideration of a case on disputing paternity is very short, since such cases are usually complex and, in order not to violate the allotted time, the court suspends the proceedings.

The court cannot oblige the parties to come to the appropriate institution to conduct a genetic examination, but if the party refused to conduct it, the court will consider that the refusal confirms the arguments of the counterparty in the case.

Initially, the cost of the genetic examination is paid by the party applying for it, if it wins the case, the court will charge the losing party payment to the expert institution.

Challenging paternity in court at the request of the mother

The mother of a child can initiate a paternity dispute if she finds out that another man is the father of the child.

During the trial, she is not required to prove that she did not have information about the biological father of the child at the time of his birth. The court needs to establish the fact of the relationship between the biological father and the child, and not the reason for hiding the truth.

The participation of the mother of the child in the trial to challenge paternity is an extremely difficult situation, not only from a legal, but also from a psychological point of view, since both the registered father of the child and the man claiming his role are most often present at the court, and both are trying in every possible way to humiliate the woman , insulting her. If there are reasons to believe that the process will go this way, we recommend that the mother of the child send her authorized representative to the process.

Challenging paternity in court at the request of the father

Challenging paternity in court is allowed at the request of the biological father of the child or a man who considers himself such.

Since there is no statute of limitations for challenging paternity, you can file a claim at any time, but you need to remember that if the child reaches the age of majority, you must obtain his consent to the trial. The filing of a claim does not depend on the time when the man found out that he was the father of the child or began to guess about it.

Legal Consequences of Disputing Paternity

If the court satisfies the claim for disputing paternity, then the entry in the registry office about the former father of the child is removed and a new entry is made about the actual father of the baby. The registered father of the child is recognized as a full-fledged parent with all the ensuing rights and obligations in relation to the child: the right to educate (at the same time, the obligation) the obligation to maintain, including the payment of alimony, the right to inheritance (both the child for the father and the father for a child), etc.

In case of refusal to satisfy the claims, the plaintiff re-file a claim against the defendant to establish paternity, according to Clause 2, Part 1, Article 134 of the Code of Civil Procedure RF can't. In addition, the losing party will have to reimburse the winning party's legal costs.

Challenging paternity in Kazan

If you need to challenge paternity in Kazan, our lawyers are always at your service. Extensive experience in dealing with family disputes will allow us to achieve results in the shortest possible time and without nerves.

In contact with

Having a record of paternity, a man bears a certain moral and material responsibility to his offspring. There are situations when, at the birth of a baby, the “father of the child” column is written down not at all by the man who really is his biological parent. Throughout life, people try to correct this mistake and file lawsuits to challenge their parenthood.

Why dispute paternity?

Paternity is disputed in order to document the absence of family relations between the father and the child and to remove from the man all legal obligations for the upbringing and maintenance of the minor, including material ones. The termination of official relations between the father and the child implies the annulment of all maintenance payments in favor of the latter. To dispute paternity, the birth certificate must contain a record of the father.

Disputes about who is actually the father arise for various reasons:

• the biological father wants to restore the rights to the baby, born of a woman in a marriage union with another man;
• the child was born by the mother after a long absence of the spouse;
• ex-husband-alimony wants to get rid of maintenance payments;
• a woman files for alimony, and a man wants to prove that he is not obliged to pay them.

Where to apply?

The norms of the procedural legislation establish the jurisdiction of questions of contesting paternity and determine that the claim is filed with the court office at the place of actual residence of the defendant. All issues related to the establishment and contestation of paternal rights, as well as the introduction of appropriate amendments to the documents, are resolved by the district court. The application is accepted by the office of the court together with a check for payment of the state duty on non-property claims.

Principles for determining the relationship between father and child

Legal relations between children and parents begin from the moment of documentary confirmation of family ties. The right of motherhood is established on the basis of an extract - a document from the maternity hospital about the birth of a child by a woman. Paternity is more difficult to establish, especially if the baby's parents are not registered spouses.

The principles by which the relationship between father and child is established:

• The baby was born in an officially registered marriage. In the column "father" they write down a man who is in a marriage union with the mother of a newborn. This principle applies to the entire marriage and continues to apply for 300 days after the divorce.
• The marriage is not legal, but the father voluntarily acknowledges paternity. The basis for registration is a joint application of the parents of the child to the registering bodies of the registry office. If a man knew at the time of filing that he was not the biological father, it would be next to impossible to challenge paternity in the future.
• Establishing kinship by court decision in case of refusal of a man to submit a voluntary application to the registry office at the birth of a baby. The court considers the claim and makes a decision.

How do I file a parenthood dispute?

Cases to deny paternity are very common in legal practice: women try to involve the biological parent in the legal payment of alimony for the maintenance of the baby, and men seek to free themselves from their father's obligations to support and raise the child. Both parties can initiate paternity issues and file a paternity dispute with the District Court.

A lawsuit seeking to contest paternity may be filed by the mother or father. The application should reflect the full picture of the current situation: how and on what basis the man's name was recorded in the children's birth certificate. The male plaintiff must describe in detail the relationship between the mother and the "father" and state the reasons why he disputes the fact of paternity, provide supporting facts. If the real biological father is known, his information should be indicated in the application. Sample claim for contesting parental rights by a man and exclusion of a record of paternity:

Presentation of evidence

The most important thing is the evidence base that confirms or refutes the fact of paternity of a particular person. Taking into account all the evidence given to the court, after listening to the testimony of witnesses and considering the conclusions of medical (and other) institutions, the judge may decide to recognize paternity or cancel parental rights and duties of a man. Evidence can be:

• medical documents on the state of reproductive health of parents, certificates from doctors, an individual map of the course of pregnancy;
• results of genetic examination (the most significant evidence);
• testimonies of witnesses about the moments of the personal life of the spouses;
• personal correspondence and any written evidence.

Required documents

The cognizance of cases on claims for paternity rights is determined by Art. 29 of the Civil Code: a package of documents and a statement of claim is submitted to the district court at the place of residence of the plaintiff. To challenge and annul paternity, the claim must be accompanied by:

• certificate of registration of the marriage union or its termination;
• birth certificate of the child (copy);
• fiscal document confirming payment of the state duty;
• any documentary evidence supporting the claims (the results of a genetic examination, extracts from medical documents).

DNA testing: with or without it?

The Civil Code provides for the possibility of conducting a DNA examination - this is the most accurate way to find out if a man is the blood father of a child. It can be carried out in advance, before the court, by attaching to the claim already finished results genetic test. To do this, contact a specialized medical institution. The second option is to request a DNA test during the trial. The judge will take into account the petition and make an order for genetic testing. Sample request for the appointment of an examination:

The court cannot force a man to take a DNA test; the judge only recommends that this procedure be performed on the basis of the plaintiff's petition. If the defendant refuses genetic research, the court considers this fact not in favor of the man. The costs of a refutation with an examination are divided in half between the two parties or are assigned in full to the person who applied for the study.

It is possible to challenge paternal rights and obligations without DNA testing. In some cases, people do not have the opportunity to conduct genetic research: for example, if there is no money to pay for an expensive procedure or if they live separately from the child (the test will require biomaterial of the parent and baby).

Consequences of a claim

The burden of alimony payments is removed from the man, and he receives financial independence from his ex-wife - unscrupulous fathers often want to take advantage of this opportunity, so they file lawsuits to renounce paternity in the hope of getting rid of financial obligations to support the child.

If the application is submitted by the mother

A woman can apply for paternity in two cases:

• she wants to bring to liability a man who is the biological father of the child, but for some reason is not recorded in his birth certificate;
• she wants to challenge the rights of the man recorded in the documents to the child and prove that he is not the biological parent.

In both cases, the procedure is approximately the same and is similar to the procedure discussed above, when a man disputes paternity. The documents and the statement of claim from the mother are sent to the district court, the judge takes into account all the testimonies and the supporting base, if necessary, can initiate a DNA test and, based on the totality of evidence, makes an appropriate decision.

In accordance with the family legislation of the Russian Federation, there is such a thing as the presumption of paternity. A child born in an officially registered marriage is by default considered the child of a husband and wife. However, in practice, there are often cases when a man, according to the documents, is listed as the father of a child, in reality he is not. As a result, there is a need to challenge the fact of paternity.

Before starting the procedure for refuting the fact of paternity, one important circumstance must be taken into account: the Family Code in 52 Art. of its text says that it is possible to challenge paternity only if, at the time the child was recorded in the birth book, the person did not and could not know about the fictitious fact of his paternity.

paternity dispute process

Contestation of the fact of paternity occurs strictly in court, and the statute of limitations for categories of cases on this issue does not apply, that is, you can apply and make claims at any time.

Litigation on this issue is a rather complicated procedure and has many nuances. One of the main roles in the process of proving the stated claims is played by DNA expertise. This examination can be carried out both by the applicant himself and by the judge during the trial of the case.

DNA examination is a comparison of sections of the gene chain for the correspondence of the child's genes to the genes of the father and mother. This study according to the Order of the Ministry of Health of the Russian Federation dated April 24, 2003, it can be carried out only in institutions that carry out forensic genetic examinations, as well as in organizations that have the appropriate license to carry out such activities.

For the examination, the blood of the examined persons or other objects is used. For example, smears from mucous membranes or saliva, as well as any objects containing DNA fragments in the proper state and suitable for research, can serve as material for examination.

According to the Order, a result of 99.90% or 99.75% is sufficient to challenge the fact of paternity. The average cost of an examination is 25,000 rubles. If the examination showed that the person is not the father of the child, then this circumstance is already quite a weighty argument for going to court with a statement of claim.

A package of necessary documents

To start a paternity case in court, you will need to provide the following documents:

1. A statement of claim containing the essence of the claims, as well as their justification.
2. A copy of the statement of claim according to the number of persons participating in the case.
3. A copy of the child's birth certificate.
4. Certificate of state registration of marriage (if any), as well as a certificate of its termination (if the marriage was concluded and subsequently dissolved).
5. Documents confirming the stated requirements.

Such documents are the results of a DNA examination, as well as documents confirming the fact of the impossibility of paternity, threats or the fact of misleading a person. It is worth noting that the Family Code in the case of disputing paternity prohibits referring to the procedure of artificial insemination or surrogate motherhood as evidence.

Consequences of satisfying a claim to contest the fact of paternity

After the statement of claim is accepted for proceedings, the court begins consideration of the case on the merits, during which it examines and analyzes all the evidence presented. Based on the evidence presented, a decision is made to satisfy or refuse to satisfy the stated requirements.

If the court establishes that the plaintiff is indeed not the biological father of the child, then, on the basis of a court decision, the registry office will change the entry about the biological father in the birth book, where the person was recorded as the father of the child. A court decision that a person has no genetic connection with a child completely annuls the obligation to support and educate this child.