Recognition of paternity of a child through the court

Recognition of paternity of a child through the court

According to the Family Code and the Constitution of Ukraine, every child has the right to a first name, patronymic and last name, the right to know their parents and communicate with them, as well as to receive care and protection of their legitimate interests from them, just as each parent has the right to communicate with the child and participate in his life and upbringing.

Accordingly, guarantees of the above-mentioned rights are impossible in full without the institution of recognition of paternity, which in the modern world has become very important and necessary due to the increase in cases of children being born out of wedlock — in order to preserve their rights and legitimate interests.

Recognition of paternity is a legal procedure in which one of the parents (or guardian) establishes the fact of the child’s (sometimes adult) descent from a specific person by his voluntary expression of will in the civil registry office, or by applying to the court.

The procedure for recognizing paternity of children in court

It is important to remember that this procedure entails different legal consequences for each of the parties:

• for the father — the obligation to support his son/daughter, and in the event of failure to do so – legal measures to coerce them;
• for the child — the acquisition of inheritance rights and the right to support from the father, and in the event of the father’s death — the right to receive a survivor’s pension;
• for the mother — assistance from the father in maintaining the child, but also the need to subsequently obtain his consent, for example, for the child to travel abroad, change his surname, grant the right to communicate with his son, etc.

Methods of establishing the fact of paternity of a child

The initiator of the procedure may be:

• father (biological father);
• mother;
• guardian;
• the child himself, who has reached the age of 14.

Depending on who and in what life situation establishes paternity, this can be done in two ways:

• voluntary installation;
• installation by court order.

Each of them should be considered in detail.

Voluntary recognition of paternity of a child

The name “voluntary” itself indicates that the father independently, without coercion, recognizes his child, confirming his readiness to raise and support him, give him his last name and patronymic, and grant him inheritance rights.

Voluntary paternity is also established in two ways and has some of its own characteristics:

By joint application of both parents (i.e., by joint expression of will of the father and mother), the following conditions are met:

• absence of a registered marriage between the parents;
• mutual confirmation by the parents of the child’s origin from a specific person;
• filing an application with the civil registry office (on the established form submitted to the civil registry office);
• the possibility of applying to the civil registry office both before the birth of the baby (if there are valid reasons and a pregnancy certificate from a medical institution is presented) and after the birth (upon presentation of a birth certificate from the maternity hospital).

Example

The future parents of a child did not formalize their marriage when they became pregnant. After the birth of the child, the Father and Mother filed a joint application in their presence to the Civil Registry Office to establish paternity in relation to the child they had just born, since they had come to this decision voluntarily. – In this case, the father can give his last name and patronymic in the birth certificate.

Judicial practice of establishing the fact of paternity of a child

Upon a separate application by the interested father (i.e., sole expression of will), the following conditions are met:

• absence of a registered marriage between the parents;
• death of the mother, or her incapacity, deprivation of parental rights or unknown whereabouts after the birth of the child;
• filing an application with the guardianship and trusteeship authorities (in order to obtain consent to recognize paternity due to the absence of the mother for the above-mentioned reasons);
• filing an application with the civil registry office (in a personal capacity with the consent of the guardianship authorities, as well as documents confirming the absence of the mother, a certificate of the child’s birth).

Example

The expectant Mother and the Father of the child did not formalize the marriage when they became pregnant, but wanted to legitimize the baby after its birth. The child was born, but the Mother died during childbirth. The biological father of the child (having a personal desire and confirmation of the mother’s absence – a death certificate) applied to the guardianship and trusteeship authority to obtain consent to establish paternity, and, having received it, registered the child with the civil registry office.

If the guardianship and trusteeship authorities do not give consent to the father’s sole submission of an application to the civil registry office, paternity can only be established through court proceedings.

Contents of a voluntary statement of recognition of paternity of a child

Usually, the application form itself (including a sample of how to fill it out) is provided by employees of the Civil Registry Office. It is filled out by the father (one or both at the same time) in his own handwriting and contains:

Information about the parents:

• Full name;
• Date and place of birth;
• Passport details (series, number, date of issue, issuing authority);
• Nationality;
• Confirmation of independent expression of will (for the father — the desire to establish paternity, for the mother — confirmation of the identity of the child’s father);
• Receipt for payment of state duty.

Child details:

• Full name;
• date of birth;
• gender;
• place of registration of the child’s birth;
• indication of his last name and patronymic after paternity has been established.

Recognition of paternity of a child in court

Often citizens have to resort to recognizing their relationship with the involvement of judicial authorities. This happens if:

• have a minor against voluntary recognition of the biological father of the child (in this case, the biological father acts as the plaintiff in the lawsuit, and the mother as the defendant);
• the father is against voluntary recognition of his child in the civil registry office (in this case, the mother acts as the plaintiff, and the biological father as the defendant);
• the mother is legally married, but actually gave birth to a child from another spouse (here, the procedure for establishing paternity is preceded by the procedure for appealing paternity);
• the mother is absent (deceased, incapacitated, whereabouts unknown, deprived of parental rights), and the guardianship and trusteeship authority does not give the father’s consent to register the child in his own name in the civil registry office (the plaintiff is the biological father, the defendant is the guardianship and trusteeship authority).
• the father died, but during his lifetime he recognized the child as his own, but did not have time/could not establish paternity (in this case, the plaintiff may be the father/guardian of the child, the claim is filed to recognize the fact of paternity and is established with the aim of the child receiving an inheritance and a pension in connection with the loss of a breadwinner).

Statement of claim to establish the fact of paternity of a child

Naturally, if we are talking about the court, it becomes clear that it is necessary to file a corresponding claim “On recognition of paternity” in court. This action can only be performed after the birth of the child (unlike the voluntary method).

This category of cases has no statute of limitations, meaning that a claim can be filed at any time, up until the child reaches the age of majority (with his or her consent).

When writing a statement of claim to the court, it is necessary to take into account the differences in the specifics of its preparation, depending on who is filing it:

father:

• the plaintiff is the father, the defendant is the mother of the child;
• the claim is filed at the place of residence of the defendant, i.e. the mother;
• various pieces of evidence are attached to the statement of claim (witness testimony, general photographs, letters, printouts of calls and text messages, Internet correspondence);
• it is possible to petition the court to conduct a genetic examination.

Mother:

• the plaintiff is the mother, the defendant is the child’s father;
• alternative jurisdiction is used (i.e. have the right to choose and can file a lawsuit either at their place of residence or at the place of residence of the defendant-father);
• various evidence is attached to the statement of claim (witness testimony, general photographs, letters, printouts of calls and text messages, online correspondence);
• it is possible to petition the court to conduct a genetic examination.

If the court grants a petition for a genetic examination with one parent, and the party refuses to undergo it, the court will consider this refusal in favor of the applicant for this procedure.

Legal consequences of recognizing paternity of a child

The consequences of recognition of paternity are the same both when it is established voluntarily and when a court decision is approved. Moreover, they concern all parties to this act (father, mother, child) and are as follows:

For the father:

• obtaining the right to give the child one’s surname and patronymic;
• confirmation of kinship (morally obtaining the status of a father);
• the right to participate in the upbringing, education, and treatment of one’s child;
• the obligation to provide support (and in case of evasion – forced execution in the form of alimony obligations);
• granting the son/daughter inheritance rights in relation to the existing property.

For the mother:

• obtaining the right to give the child the father’s surname and patronymic;
• obtaining the right to demand the father’s participation in the financial support of the son (including, in the event of evasion, by assigning alimony);
• granting the child inheritance rights to the father’s property;
• the obligation to provide the opportunity for the father to participate in the upbringing of the child (and
• in the event of the mother’s evasion, the possibility of demanding meetings with the minor through the courts);
• the obligation to obtain consent from the father in the event of the minor’s departure abroad;

For a child:

• obtaining the right to know one’s parents (kinship);
• obtaining the right to abstinence from the father;
• granting inheritance rights;
• in the event of the father’s death – the emergence of the right to a survivor’s pension.

Alimony obligations when recognizing the paternity of a child

The specified obligation of parents when recognizing a son/daughter should be reflected separately. If paternity is established on the initiative of the mother of the minor (and this is the case in most cases of judicial practice), then the claim with the requirement to establish paternity simultaneously states the requirement to assign alimony from the person who is the biological father.

Alimony in accordance with the Family Code of Ukraine is assigned:

• for one child – in the amount of 1/4 of income;
• for two children – in the amount of 1/3 of income;
• for three or more – in the amount of 1/2 of income.

In this case, the court decision on the collection of alimony is subject to immediate execution, and the person is vested with alimony obligations from the moment paternity is established, without taking into account the previous period of the child’s life.

Reasons for filing a lawsuit to recognize the paternity of a child

The main reason for recognizing paternity is the need to respect the rights and legitimate interests of the child. The procedure can be carried out voluntarily (submitting a joint or individual application to the Civil Registry Office) or with the help of judicial authorities.

With any of the above methods of establishing paternity, each party has certain legal consequences (kinship, alimony obligations, inheritance rights), which apply both to the child and to both of his parents.

When resorting to the norms of morality and ethics, raising the younger generation as parents, it is necessary to always emphasize the importance and priority of the birth of a child to parents in a registered marriage in order to avoid additional protracted legal procedures later.