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, a completely different man is recorded in the “father of the child” column, who is actually his biological parent. Throughout life, people try to correct this mistake and file lawsuits to challenge their parentage.
Why challenge paternity?
Paternity is disputed in order to document the absence of a relationship between the father and the child and to relieve the man of all legal obligations for the upbringing and maintenance of the minor, including financial ones. Termination of the official relationship between father and child implies the cancellation of all alimony payments in favor of the latter. To challenge paternity, the father must be listed on the birth certificate.
Disputes about who the real father is arise for various reasons:
- the biological father wants to restore the rights to the baby born by a woman in a marriage with another man;
- the child was born by the mother after a long absence of the spouse;
- the alimony-paying ex-husband wants to get rid of alimony payments;
- a woman files for alimony, and a man wants to prove that he is not obligated to pay it.
Where to apply?
The rules of procedural law establish the jurisdiction of issues of challenging paternity and determine that the claim is filed in the court office at the place of actual residence of the defendant. All issues related to establishing and challenging paternal rights, as well as making appropriate amendments to documents, are resolved by the district court. The application is accepted by the court office along with a check for payment of the state fee for 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 the relationship. The right of maternity 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 “father” column, a man who is in a marital union with the mother of the newborn is recorded. This principle applies throughout the marriage and continues to apply for 300 days after the divorce.
- The marriage is not legalized, but the father voluntarily acknowledges paternity. The basis for registration is a joint application of the child’s parents to the registration authorities of the Civil Registry Office. If at the time of filing the application the man knew that he was not the biological father, it will be almost impossible to challenge paternity in the future.
- Establishing kinship by court decision in the event of a man’s refusal 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 to file an application to challenge the fact of parenthood?
Cases to disprove paternity are very common in legal practice: women try to involve the biological parent in the legal payment of child support, and men seek to free themselves from paternal obligations for the maintenance and upbringing of the child. Both parties can initiate a paternity issue and file a claim in district court to challenge paternity.
A lawsuit seeking to challenge paternity may be filed by the mother or the father. The application must reflect the full picture of the current situation: how and on what basis the man’s name ended up being recorded on the child’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, and provide supporting facts. If the real biological father is known, his information should be indicated in the application. Sample claim for challenging parental rights by a man and expunging the record of paternity:
Presentation of evidence
The most important thing is the evidence base confirming or refuting the paternity of a particular person. Taking into account all the evidence presented to the court, after listening to the testimony of witnesses and considering the conclusions of medical (and other) institutions, the judge can decide to recognize paternity or revoke the parental rights and responsibilities of the man. I can provide evidence:
- medical documents on the state of the reproductive health of parents, certificates from doctors, an individual chart of the course of pregnancy;
- results of genetic testing (the most significant evidence);
- testimony of witnesses about moments in the personal lives of spouses;
- personal correspondence and any written evidence.
Required documents
The jurisdiction of cases on claims for paternal rights is determined by Art. 29 of the Civil Code: a package of documents and a statement of claim are submitted to the district court at the place of residence of the plaintiff. To challenge and annul paternity, the following must be attached to the claim:
- certificate of registration of the marriage union or its dissolution;
- child's birth document (copy);
- fiscal document confirming payment of state duty;
- any documentary evidence confirming the claims (results of 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 whether a man is the blood father of a child. It can be carried out in advance, before the trial, by attaching ready-made genetic test results to the claim. To do this, you should contact a specialized medical institution. The second option is to request a DNA test during the trial. The judge will take into account the request and order a genetic test. Sample application for appointment of an examination:
The court cannot force a man to undergo a DNA test; the judge only recommends this procedure based on the petition of the plaintiff. 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 assigned in full to the person who requested the research.
It is possible to challenge paternal rights and obligations without DNA research. 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 a child (the test will require biomaterial from the parent and the child).
Consequences of satisfying the claim
The man is relieved of the burden of alimony payments, and he gains 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 the financial responsibilities of supporting the child.
If the application is submitted by the mother
A woman can apply to establish paternity in two cases:
- she wants to bring to financial responsibility a man who is the biological father of the child, but for some reason is not recorded on 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 testimony and supporting evidence, if necessary, can initiate a DNA test and, based on the entire body of evidence, makes an appropriate decision.
Challenging paternity (maternity) in court is a long and unpleasant operation for all parties involved in it. However, such lawsuits still remain a fairly common occurrence in society.
What is challenging paternity (maternity)
According to Art. 50 of the RF IC, this procedure means canceling or questioning the entry of a specific person in the child’s birth certificate in the father (mother) column. As a result, the legal relationship between parent and child, as well as mutual rights and obligations, are annulled. This aspect is reflected in Art. 52 IC RF.
Only a court can satisfy the requirement to make changes in the records of the father (mother) of the child.
To do this, the applicant must initiate litigation, which is the only possible legally established method of challenging paternity (maternity).
Reasons for contestation
- The biological father of the child, notified that another man is listed as the father of his child, wishes to acknowledge his paternity.
- The subject, who, for certain reasons, was registered by the father, wishes to exclude himself from the birth certificate of someone else's child. The main issue at trial will be to clarify the circumstances under which it was recorded.
- Persons who have the right to legally initiate legal proceedings (a child after adulthood or his guardian) who do not want to have further legal relationships with the man who is listed in the document. Important clarification: the man must not be the biological father of the child.
However, certain restrictions are imposed on interested parties to challenge in the following situations:
- If a man who did not have an official relationship with the mother of a minor, but, for a number of reasons, voluntarily agreed to recognize himself as the father, finds out that he is not one. It is important to prove to the judge that the man was informed about the lack of relationship after a voluntary application submitted to the registry office.
- The child is the result of artificial insemination or surrogacy. At the same time, the parents must be married and have a legally confirmed basis for such medical operations.
- If the person wishing to file a claim does not have the legal right to do so.
Thus, the initiators of legal proceedings on the issue of challenging paternity may be:
- citizens who are officially registered as the child’s parents;
- citizens who are actually parents;
- a child who has reached the age of majority;
- guardian of a minor citizen.
Step-by-step instructions for challenging paternity in court
STEP 1. Challenging paternity is a type of litigation, for the successful completion of which it is necessary to collect maximum evidence. These include:
- witness statements;
- written materials, videos and photographs of incriminating evidence confirming that the fact of paternity is false.
You can count on a positive outcome in challenging paternity by conducting a genetic examination.
This procedure can only be carried out at the request of the parties. The court does not initiate its implementation.
IMPORTANT: a judge does not have the legal right to force citizens to undergo genetic testing if they do not give voluntary consent. Moreover, if the father, seeking to annul the fact of paternity, refuses to conduct such an examination, the judge has the right to recognize the grounds that the other party refers to during the judicial investigation, even if the arguments could be refuted based on the results of the examination.
STEP 2. After collecting evidence, it is compiled.
It must indicate the plaintiff’s demands, justified by the evidence provided and the norms of current legislative acts.
STEP 3. After the procedure for collecting data and writing a claim, the collected package of documents should be sent to the district court office. Often, the parties to the proceedings are the current legally recognized father and biological, mother, and less often - guardianship authorities and representatives of the registry office.
The second possible option is the post office. In this case, it is necessary to attach an inventory (list) and a notification of delivery to all documents.
STEP 4. After the court has received the documents, the following options for further developments are possible:
- the claim has been accepted for proceedings;
- the claim was accepted, but the review is not moving forward. This verdict is issued when there is a defect in the claim.
- the claim was not accepted. The reasons must be indicated in a corresponding letter sent to the plaintiff's address.
If the claim is officially accepted, the court sends notifications to the participants in the process about the date of the first hearing.
The second party (defendant) is strongly recommended to prepare a response to the claim in the form of a response or letter, which will indicate the reasons for disagreement. It is important to provide adequate evidence for the allegations, since during the trial, the defendant's oral statements may be entered into the record in an inaccurate form, or not at all.
Time limit for challenging paternity
Upon completion of the investigation, the judge announces his decision: either satisfies the claim or notifies of refusal. A court decision must be contested within 30 days from the date of its issuance. After a month has passed and both parties have no objections, the decision is given legal force.
After the trial and a positive decision on the challenge, the registry office issues the child a new birth certificate.
Conclusion
Challenging paternity (maternity) is a very painstaking process that requires both parties not only to be patient, but also to collect a lot of evidence, prepare for a difficult legal battle and, possibly, challenge the court decision.
Challenging paternity means challenging the entry about the child's father that the civil registry office makes in the birth register.
The record of the child's father 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 challenging paternity, taking into account the opinion of a child who has reached the age of ten years is mandatory ( Art. 57 RF IC; clause 9 Resolutions of the Plenum of the Supreme Court of the Russian Federation dated May 16, 2017 N 16; clause 8 Review of judicial practice of the Supreme Court of the Russian Federation No. 1 (2016)).
Only the following persons have the right to challenge paternity: the person registered as the father or mother of the child, or the 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 (trustee) of the child, the guardian of the parent recognized by the court incompetent. This right also belongs to a child under 18 years of age who has acquired full legal capacity as a result of emancipation or marriage (clause 1 of article 52 of the RF IC; clause 25 of Resolution No. 16).
If the child’s parents were not married at the time of his birth and the father’s record was made at the joint application of the child’s father and mother, at the request of the child’s father, or by court decision, and subsequently the child’s father intends to challenge his paternity, the following must be taken into account. If at the time of making the entry the child’s father knew that he was not in fact his father, the court will refuse to satisfy the request. In this case, the child's father will be able to challenge paternity only if he proves that he did not actually 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 of article 52 of the RF IC; clause 27 of Resolution No. 16).
Step 1: Prepare your documents
To challenge paternity you will need:
- 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 child’s father is not his biological father (Article 55 of the Code of Civil Procedure of the Russian Federation).
Such evidence can be obtained from explanations of the parties and third parties, 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 defendant’s ability to have children, and the presence (absence) of a family relationship 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 birth history, 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 filed in the district court at the place of residence of the defendant (Article 28, Code of Civil Procedure of the Russian Federation).
The court satisfies requests to order an examination or to include additional evidence during the hearing.
If a party evades participation in the examination, fails to provide the experts with the necessary materials and documents for the study, and in other cases, if, due to the circumstances of the case and without the participation of this party, the examination cannot be carried out, the court makes a decision on the basis of all previously presented evidence. In this case, 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 as established or refuted (part 3 of article 79 of the Code of Civil Procedure of the Russian Federation; paragraph 21 of the Resolution N 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 body made it, the number and date of the entry, in relation to which persons it was made), what changes or corrections need to be made to it.
Step 3. Prepare the necessary documents to correct the paternity record 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, you must attach an application for correction or change in the civil status record and the following documents:
- applicant's passport;
- child's birth certificate;
- a receipt for 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 civil registry office at the place of residence or at the place where the child’s birth registration record is kept (Clause 1, Article 71 of Law No. 143-FZ).
The corrected certificate must be issued within one month from the date of submission of the application. If there are good reasons, the head of the civil registry office may increase the period for consideration of the application by no more than two months (Clause 1, Article 72 of Law No. 143-FZ).
Paternity can only be challenged in court, even if the mother wishes to change the registration record of the child’s father. In order to challenge paternity, the interested person must file a lawsuit in court.
Who has the right to file an application to challenge paternity?
An application to challenge paternity may be filed by the following persons:
- persons registered as the father or mother of the child;
- persons who are actually the father (mother) of the child, including a surrogate mother;
- by the child himself upon reaching the age of 18;
Guardian (trustee) of the child;
- guardian of a parent declared incompetent by the court.
Filing an application to challenge paternity is subject to a state fee of 200 rubles. The person registered as the child’s father must be involved in the consideration of the case, since if the stated requirements are satisfied, the previous information about the child’s father is canceled.
A copy of the child’s birth certificate (or an extract from the child’s birth certificate) is attached to the application, and if the application to the court is submitted before the birth of the child, then a medical certificate confirming the mother’s pregnancy. If the parties were married, then a copy of the marriage certificate or divorce certificate. If the defendant has the child’s birth certificate and does not want to provide it to the plaintiff, then the plaintiff can take an extract from the registry office or ask the court to request the certificate from the defendant.
The descriptive part of such a statement sets out the circumstances that gave the applicant grounds to challenge his paternity. In practice, information about adultery is most often indicated, the child does not look like the parent, the other parent stated that the plaintiff is not the father.
In what cases is the paternity record contested?
- when the persons registered as the mother and father of the child are in a registered marriage;
- when the parents are not married and the mother’s entry was made at the request of the mother, and the father’s entry was made at the joint request of the mother and father of the child or at the request of the child’s father with the consent of the guardianship and trusteeship authorities in the event of the death of the mother, her recognition as incompetent, or the impossibility of establishing the place the presence of the mother or in the event of deprivation of her parental rights, by court decision.
Limitation period for claims to challenge paternity
The CoBS of the RSFSR provided for a one-year limitation period for mating paternity (maternity) from the moment when the person registered as the father became aware of the recording made. According to the current legislation, the statute of limitations does not apply to these claims if the child was born after 03/01/1996.
The ECHR, in its decision No. 74826/01 of March 25, 2004, indicated that the one-year period for challenging paternity established by the Code of Laws violates the rights to respect for private and family life.
However, here it is necessary to take into account clause 10 of the Resolution of the Plenum of the Supreme Court No. 9, which states that the courts must take into account clause 2 of Article 51 of the RF IC, according to which the court cannot satisfy the requirements for challenging paternity if, at the time of making the registration record, father of the child, the plaintiff knew that he was not the father of the child, except in cases where such an application to the registry office was submitted under the influence of violence, threats, or it was submitted by a person incapable of understanding the meaning of his actions or managing them.
Evidence in a case challenging paternity
The evidence used in such cases is the same as when establishing paternity. Currently, in such cases, as a rule, a forensic molecular genetic examination is prescribed, which is described in the article “Establishing paternity.” If the expert opinion most likely confirms that the applicant cannot be the father of the child, and the father did not know about this when submitting the application to establish paternity to the registry office, the courts satisfy the claims and, by their decision, cancel the entry about the father in the birth certificate of the child. If the examination concludes that with a high degree of probability the plaintiff is the father of the child, or if the court establishes that the plaintiff, at the time of filing the application to the registry office to establish paternity, knew that he was not the father, the court refuses to satisfy the claim and recovers the applicant's all legal costs.
In practice, it happens that women, offended by the submitted application, declare in court their recognition of the claim or themselves assert that the plaintiff is indeed not the biological father of the child. Often the reason for filing such claims is the father’s unwillingness to pay child support after a divorce. In this case, the court may satisfy the claims, or may not accept the recognition of the claim and order a molecular genetic examination. The decision is made by the court depending on the circumstances of the case and the availability of certain evidence.
If we take the moral and ethical side of such disputes, it is often difficult to understand citizens who make such demands, after they have raised and raised a child for several years, considered him their own, and having learned that he may not be the biological father, lose everything your parental feelings!!! How can you explain to a child that his dad is no longer his dad and that his former dad doesn’t love him anymore?
Court decision in cases of challenging paternity
If the claims are satisfied, the court makes a decision to cancel the legal record of the father. Based on such a court decision, the registry office makes changes to the register book.
