“Standard of Evidence” in Paternity Establishment Cases

Civil marriages have led to an increase in disputes about paternity, which makes a claim to establish paternity relevant.

Maternity is quite easy to establish. It is enough to present medical documents (if they are missing, in court by filing an application to establish the fact of maternity, which is considered in a special manner). With fathers, when they do not intend to acquire such status legally, the situation is more complicated.

The presence of a registered marriage between the parents means that a record of the father will be made automatically by the civil registry office. Moreover, even if the child is born within 300 days from the date of divorce. The disagreement of the child's father in an unregistered relationship to file a joint application can only be overcome by going to court. With an application to establish the fact of recognition of paternity or a claim to establish paternity. and providing sufficient information for the court to make a positive decision.

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Statement of claim to establish paternity

Statement of claim to establish paternity from father

When might it be necessary to establish paternity?

According to Art. 48 of the RF IC, the father of the child is recognized as the person with whom the mother is married, even if he is not biologically related. If the parents divorced, for 300 days after that the ex-husband is also included as the father.

If the parents are not legally married, the man can be recognized as the father by submitting a joint application to the registry office, but this requires his consent. If he agrees to this, but later decides to challenge paternity, this will be problematic.

Establishing paternity may be necessary in several situations:

• the child wants to receive the inheritance of the biological father, who is not listed as such according to the documents;
• a woman wants to collect alimony from a man;
• the mother died, was deprived of rights to the child, or was declared incompetent if a man wants to establish paternity;
• the mother does not take part in raising the child, who lives with the father, but the latter is not listed as such according to the documents.

The main reason on which the court can accept a statement of claim is the lack of records of the paternity of a particular man and his disagreement to resolve this issue pre-trial. The exception is when he submits an application himself, and this is possible even in the event of disagreement, death or incapacity of the mother.

Underwater rocks

Few people think about the possible disadvantages in the event of a positive decision and forcing the biological father to take legal responsibility for the child. Before filing a lawsuit, you need to carefully weigh the pros and cons.

Possible difficulties in connection with establishing paternity:

• the amount of alimony and financial benefits for a single mother can differ significantly for the worse;
• the defendant acquires equal parental rights to the child;
• the need for permission from the father to take the child abroad;
• emergence of rights to inheritance.

Important! To avoid the emergence of controversial issues, it is recommended to draw up an agreement between the plaintiff and the defendant in advance. Such a document does not require legal participation; it is sufficient to describe in detail the rights and obligations regarding the child and secure it with the signature of both parties.

The procedure for establishing paternity is a rather complex and costly undertaking. Before going to court, you should try to resolve the issue peacefully. Perhaps the defendant will cooperate and the matter will end in a mutual agreement. Otherwise, you should consult with a lawyer and get competent advice for a successful outcome of the case.

Claim form

Litigation on family issues is regulated not only by the RF IC, but also by the Civil Code and the Code of Civil Procedure of the Russian Federation. The form of the statement of claim is described in Art. 131 of the Code of Civil Procedure of the Russian Federation, according to which it must contain the following information:

• the name of the court in which it is filed;
• Full name, residential address of the plaintiff and defendant;
• passport details of the defendant (if known);
• the essence of the problem that should be considered in court;
• claim;
• list of attached documents;
• date of compilation and signature of the plaintiff.

Important! If the claim does not meet the established criteria, it will be returned to you. You can correct the deficiencies indicated in the court ruling and resubmit the documents.

Voluntary establishment of paternity

Claim to challenge paternity

Samples and forms of claims

When drawing up a claim, you need to rely on the requirements specified in Art. 131 Code of Civil Procedure of the Russian Federation. Let us consider in more detail the features of document design depending on the specific situation.

Statement of claim to establish paternity and collect alimony

At the same time as paternity is established, you can collect alimony from the defendant, but only if the court recognizes him as the father. The amount and form of payments for a child depend on the specific situation:

Sample claim to establish paternity simultaneously with the collection of child support:

alt: Statement of claim to establish paternity and collect alimony

Statement of claim to establish paternity for acceptance of inheritance

If your child has not reached the age of majority and the biological father has died, you file a claim to accept the inheritance. If the child is already an adult, his consent is required to resolve this issue.

Evidence will be required to establish the relationship between mother and child and to indicate that the deceased man is the biological father. The case is considered within the framework of one proceeding, but the decision to include the child in the circle of heirs is made only after paternity has been established.

Consideration is possible through a lawsuit, but if you want to immediately challenge the inheritance according to the law, other heirs may act as defendants if there are disputes.

Important! If the deceased left a will, it will be difficult to challenge it. This is due to the fact that it reflects the last will of the deceased, and annulment is possible only in exceptional cases.

alt: Statement of claim to establish paternity and accept inheritance

Statement of claim to establish paternity after the death of the mother

According to Part 3 of Art. 48 of the RF IC, in the event of the death of the mother, the biological father can enter information about himself into the documents of a minor child with the consent of the guardianship authorities, or in the absence of such, in court.

If your requirements are satisfied, you will be able to legally take your child and raise him. There is no defendant here, even if guardianship is established over the minor.

alt: Statement of claim to establish paternity after the death of the mother

Statement of claim to establish paternity from mother

You can file a lawsuit to establish paternity if the biological father refuses to acknowledge paternity. This right is guaranteed to you by Art. 48 RF IC. If the requirements are satisfied, you will be able to collect alimony from the man, and your child will have the right to inherit in the event of his death.

alt: Statement of claim to establish paternity from mother

Statement of claim to establish paternity from father

If you are the father of a child born in an unregistered marriage, and the mother refuses to make an entry about you in the documents, you can achieve this through the court, and at the same time determine the order of communication with the child. Without them, you will not have the right to raise or even see him.

alt: Statement of claim to establish paternity from father

Alimony

Alimony payments usually become the cause of a claim in most cases. The most common claims are against alleged fathers who either did not know about their paternity or refuse to acknowledge it. There are also counterclaims from men who were awarded alimony incorrectly.

The right to alimony is, first of all, the right of the child, which is why the state protects it with a powerful legislative framework. Proving paternity of a young child is easier for the plaintiff-mother and more difficult for the plaintiff-father.

The court's decision to award alimony payments to the child (sometimes to the child and mother) ends most processes where paternity on the part of a man is denied. Failure to pay alimony is punishable by fines and restrictive sanctions (for example, you will not be allowed to cross the border).

How to establish paternity in court: step-by-step instructions

If you want to establish paternity in court, you need to do the following:

1. Prepare evidence and documents.
2. File a claim.
3. Submit a claim along with documents to the court.
4. Wait for a determination on acceptance of materials for production - it is issued within 5 days after the plaintiff’s application.
5. Come to the court hearing at the appointed time or file a petition for consideration without your participation.

The proceedings can last 2 months. Based on the results, the court makes a decision that comes into force in another month. If you or the defendant do not agree with it, it is disputed through the appellate authority.

An extract from the decision is sent by the court to the registry office automatically within three days after it gains legal force. Based on this, all changes are made to the child’s documents.

If you are the defendant and do not want to admit that you are the father, you have the right to file a counterclaim and present evidence confirming the impossibility of a biological relationship.

Who can act as plaintiff and defendant?

The plaintiff in the case of establishing paternity can be the mother of the child. If she is declared incompetent, the documents are submitted by the guardian. When a mother is deprived of parental rights, the matter is handled by the minor's guardian or trustee.

The defendant can only be the biological father, whose paternity needs to be established. If we are talking about establishing paternity at the same time as entering into an inheritance, if there are disputes with other heirs, they are indicated as defendants.

Where to apply?

The application is submitted to the district court on the basis of Part 3 of Art. 29 of the Code of Civil Procedure of the Russian Federation both at the plaintiff’s residence address and at the defendant’s address. The right to choose is given to the initiator of the proceedings.

Documentation

When going to court you will need:

• statement of claim;
• passport;
• documents for the child: birth certificate or passport;
• results of the examination (if conducted before the trial);
• proof.

State duty

Before going to court, a state fee for establishing paternity of 350 rubles is paid. If the decision is positive, you need to pay 650 rubles for making changes to the registration documents.

Proof

The following can be used as evidence:

• photographs taken together with the defendant;
• bank statements if the defendant transferred money to you;
• witness's testimonies;
• results of DNA testing - you can conduct it yourself, before going to court;
• any other documents confirming your connection with the defendant.

If the child is over 10 years old and you do not object to his presence at the hearing, the judge can interview him and attach the interview to the case.

Arbitrage practice

In 99% of cases, when plaintiffs provide a full set of evidence, the requirements to establish paternity are satisfied. Let's consider this using the example of several real solutions:

Is it possible to challenge paternity?

After a court decision is made, men can challenge it within 30 days before it comes into force. They also have the right to file an objection to a claim to establish paternity if there is evidence confirming the lack of biological relationship:

• DNA testing results;
• travel checks and other documents confirming that at the time of conception the man could not be near the child’s mother;
• testimony indicating that the mother led an antisocial lifestyle or the man did not maintain contact with her at the time of conception.

Counterclaim to establish paternity

A counterclaim is filed if the mother filed a claim to establish paternity, and you want to simultaneously determine the child’s place of residence or the order of communication with him, or deprive her of parental rights. If you do not agree to recognize yourself as a father, it is enough to send an objection.

Sverdlovsk District Court

Ekaterinburg, st. Severnaya, no. 11.

Plaintiff: Mateev N.E.

Ekaterinburg, st. Dlinnaya, no. 15.

Defendant: Evdoshenko O.D.

Ekaterinburg, st. Kazanskaya, 22.

Counterclaim to determine the order of communication with the child

I lived with the defendant O.D. Evdoshenko. in the period from 05/20/2016 to 05/04/2018. in an unofficial marriage. On July 17, 2017, our daughter was born - Evdoshenko D.Yu., I am not listed as a father in the documents.

06/04/2019 Evdoshenko O.D. filed a lawsuit with the Sverdlovsk District Court to recognize me as the father of D.Yu. Evdoshenko.

Guided by Art. 137 Code of Civil Procedure of the Russian Federation, Art. 55 RF IC, please:

- determine for me the order of communication with the child and allow me to see her on weekends and holidays from 10.00 to 19.00. on my territory.

Application:

— a copy of the claim for recognition of paternity;

— a copy of this statement of claim;

- receipt of payment of state duty.

Date and signature:

Lawyer's answers to questions about establishing paternity in court

Is it possible to withdraw a claim to establish paternity?

Yes, based on Art. 173 of the Code of Civil Procedure of the Russian Federation, you can withdraw your application before a court decision is made.

Can a mother establish paternity if she has been deprived of parental rights?

No, in this case the issue must be dealt with by a guardian or trustee.

Is it possible to establish paternity if the child is against it?

Until the age of 18, the interests of the child are represented by the mother, but if he is over 10 years old, his opinion may be taken into account by the court when establishing paternity. The decision is made individually. If the child is over 18 years old, his consent will be required.

Is it possible to indicate in a claim the need for an examination?

Yes, in your claim you can indicate a request for an examination.

Is it possible to recognize a man as the father without evidence?

If there is no evidence, the court orders a DNA examination, on the basis of which a decision is made.

Is it possible to establish paternity if the child is registered with the first husband?

Yes, based on Art. 52 of the RF IC, you or the first husband can challenge paternity, and only then establish it in relation to another man.

Who pays for DNA testing?

The initiator of the examination must pay. Subsequently, its price is included in legal costs and can be recovered from the other side. If the examination is carried out by court order, money for it is allocated from the local budget.

Is it possible to establish paternity of an adult child?

If a child is over 18 years old, paternity can only be established with his or her consent.

How to file for paternity if I only know about the father’s full name? and date of birth?

It is enough to apply to the court at your place of residence and indicate all the circumstances under which the child was born. Courts based on Art. 120 of the Code of Civil Procedure of the Russian Federation makes a determination to search for the defendant and sends it to government agencies for execution.

Who can file such a claim?

According to the Family Code of the Russian Federation, the following may file a claim for recognition of paternity:

• mother or father of the child;
• the child himself (adult son or daughter) upon reaching adulthood (over 18 years old);
• official guardian;
• a person who has taken a dependent child.

Attention! If a claim is filed against an adult child, his written consent is required. If the child is incapacitated, such consent is given by the guardian.