Unlike some ancient societies in which for recognition by the man of the paternity it was required to make a simple ceremony (for example, to plant a tree at an entrance to the dwelling), presently establishment of the one who will reckon as the child's father with all from this the following legal consequences, is in details regulated by a set of legal instructions, to understand which artful designs without special preparation not always happens simply.
According to the existing Russian legislation if the child was born from the persons who are married among themselves and also within three hundred days from the moment of , recognition its invalid or from the moment of death of the spouse of mother of the child, the father of the child the spouse (the former spouse) admits swear. This legal phenomenon is called as a paternity presumption. The presumption can be challenged, but to make it it is possible only in a judicial proceeding. Thus, even if the biological father of the child is not the husband of his mother, and all interested persons agree to document this fact as appropriate, it is possible to make it only having appealed to court with the claim for contest of paternity; to demand from the employee of body to make the REGISTRY OFFICE the corresponding record about the true father of the child at registration of the birth of the child – it is useless.
About contest of paternity it will be told below; now it will be a question of other procedure provided in case the child was born at the man and the woman who are not married among themselves and the relations are not complicated by a paternity presumption.
In order that between the child who was born out of marriage, and his father there was a legal communication, the procedure called by paternity proof has to be taken place. Paternity proof is the act of civil status demanding the state registration. Only after that the man has parental rights and duties provided by the current legislation concerning the child which biological father he is, but thus is not married to the child's mother.
Despite the "terrible" name which is often misleading paternity proof registration – procedure which on complexity is comparable to registration of the birth of the child but only in case both mother, and the father of the child agree to her passing. If any of parents of the child expresses disagreement with paternity proof registration, the situation considerably becomes complicated – there is a need for judicial review of a question.
Voluntary order of paternity proof
So, if there is no presumption of paternity and parents of the child have no objections against paternity proof registration, they should address to bodies the REGISTRY OFFICE in a residence of the father or mother of the child or in a place of the state registration of the birth of the child and to submit the listed below documents:
- Joint statement of parents of the child on paternity proof in writing. The application form form of paternity proof is approved by the Resolution of the Government of the Russian Federation of 31.10.1998 No. 1274. The application has to be submitted personally by the child's parents; the representation is not allowed. In case any of parents of the child has no opportunity personally to submit the joint statement, their will can be issued by separate statements for paternity proof. Thus the signature of the person which does not have opportunity to be present at submission of such statement has to be notarially certified. The statement surely has to contain date of its drawing up and to be signed by applicants – the father and the child's mother. Thus, if the statement is handwritten not, and made by means of the printer, it has to be signed in the presence of the expert who is carrying out reception of this statement.
- The documents proving the identity of parents of the child (such document for citizens of the Russian Federation the passport of the citizen of the Russian Federation, as a rule, is).
- The document confirming payment of the state tax (for the state registration of paternity proof duty makes 200 rubles).
Samples of application forms and its fillings, and also requisites for payment of the state duty, as a rule, are placed at information stands in premises of body the REGISTRY OFFICE.
The listed documents are submitted in all cases of the request for the state registration of paternity proof extrajudicially. Except them if the joint statement on paternity proof is submitted after the state registration of the birth of the child, the birth certificate of the child also has to be provided; if parents of the child decided to register paternity proof along with the state registration of the birth – and such the current legislation allows, to them will be to show enough the document which is the basis for the state registration of the birth of the child (as a rule, it is the corresponding certificate of the birth issued by the medical organization in which there was childbirth).
Besides, it is important to future parents who are not assuming to evade from legal registration of paternity to know also that the joint statement on paternity proof can be submitted to time of pregnancy of mother if there are bases to assume that its giving after the birth of the child can be difficult or at all impossible (for example, long business trip in "hot spot", etc. is necessary to the father of the child). In this case the reference confirming pregnancy of mother, issued in the order established by the law has to be attached to three listed above obligatory documents.
Registration of all necessary documents and issue of the certificate on paternity proof is made in day of the address, except for two cases: when the application for paternity proof is submitted till the child's birth (during pregnancy of mother) and when the place of the state registration of the birth and paternity proof do not coincide, and in the birth certificate data on the father are specified. In the latter case time for preparation and the direction of request for dispatch of the copy of a birth statement can be demanded to find out the bases of introduction of such data. Certainly, if data on the father were brought according to the statement of mother of the child, problems with registration of paternity proof will not arise.
And in conclusion of consideration of a question of voluntary paternity proof readers Mirsovetov should pay attention to 3 more moments:
- circulation period behind registration of this act of civil status the law is not limited;
- it is possible to challenge the state registration of paternity proof only in a judicial proceeding, that is other person considering itself as the father of the child, having no right to demand to establish his paternity by the appeal to bodies the REGISTRY OFFICE if concerning the child earlier the paternity was already established;
- the man who gave the consent to establishment of the paternity concerning the child which biological father he is not about what at the time of consent he knew well, the paternity having no right to challenge if only it does not undertake to prove that was agreed by it besides will (as a result of mental or physical coercion).
Paternity proof on the basis of a judgment
If parents of the child of consensus could not reach, without appeal to the court to establish paternity it will not turn out. As most often from voluntary registration of paternity proof the child's father evades, a legal process of definition of paternity will be considered recognizing that the claimant the child's mother, and the respondent – his father is. Though you should not forget that with the claim also the child's father in case from submission of the joint statement on paternity proof his mother evades can address.
Cases on paternity proof are considered as claim production. For excitement of a civil case the woman needs to file the statement of claim in district court in the residence or in a residence of the respondent. The statement of claim is written in a free form, it is necessary to specify in it:
- the name of court to which the application is submitted;
- Full name of the claimant and respondent and their residence;
- circumstances on which the claimant bases the requirements (for example, the woman can specify that with such on such time she consisted in close relations with the respondent, a consequence of that the birth at it of the child was, and to explain that is not married to the respondent, and from paternity proof in a voluntary order the respondent evades);
- requirements of the claimant (it is necessary to ask court to establish that the respondent is the child's father);
- the list of the documents enclosed to the application;
- signature of the claimant.
It is necessary to enclose its copy for the respondent to the application and the document confirming payment of the state duty. It is also possible to attach also the copy of the birth certificate of the child but if difficult to receive it / it is impossible (for example, the child's father appeals to court), the court can request itself the relevant data from body the REGISTRY OFFICE. The state tax makes 200 rubles; information on requisites for its payment is placed at the corresponding stands in court or on its site.
Other documents are provided in court depending on what proofs of "the correctness" the claimant has – for example, as written proofs of stay in close relations with the respondent in the past the corresponding correspondence, etc. can be presented. Anyway it is necessary to consider that though the current legislation does not limit the claimant in a choice of evidentiary facts of "guilt" of the respondent, as "the queen of proofs" on this category of affairs genetic examination acts. Therefore even if all other proofs make against the respondent, but genetic examination does not "recognize" him as the child's father, the claim will almost be for certain refused.
Besides, it is necessary to consider that if there is a desire to change a surname of the child to a surname of the father, it is necessary to specify it in the statement of claim as at registration of paternity proof without positive solution of this question by court body the REGISTRY OFFICE will not have legal basis to change a surname of the child.
If the declared claims are satisfied, after the introduction of a judgment in validity it will be possible to start registration of paternity proof in bodies the REGISTRY OFFICE. For this purpose mother or the father of the child or their representatives (the personal address is optional here) should address to body the REGISTRY OFFICE with the following documents:
- The statement for paternity proof in writing (the form of the form of such statement is also established by the Resolution No. 1274 mentioned above).
- The document proving the applicant's identity (or if the REGISTRY OFFICE addresses to body the representative, the document proving his identity and properly issued power of attorney).
- The document confirming payment of the state duty (the same size, as at voluntary paternity proof).
- Judgment about paternity proof.
Contest of paternity and establishment of the fact of recognition of paternity
If in the statement of claim the question of paternity is raised concerning the child which father is legally recognized – on the basis of a presumption of paternity or by its establishment – actually it is contest of paternity. Thus, if requirements about paternity proof are declared, legal side of a question in comparison with when the father of the child is not specified or specified according to the statement of mother, changes not too. It is clear that the facts of the case stated by the claimant in the petition have to be appropriately corrected; besides, the face which is written down as the child's father will be in that case the codefendant (it is possible to specify at once it as that in the statement of claim but if not to make it, the court itself will recruit the legal father of the child in business).
If dispute on paternity does not raise the question of its establishment – it is just necessary to stop legal communication between the child and the man who is actually not his father, but for one reason or another recognized that it is necessary to consider the following circumstances:
- the statement of claim about contest of paternity needs to be submitted to district court in a residence of the respondent;
- as claimants on such affairs mother of the child or the man brought as the child's father in a birth statement, but who is actually not the child's father can act;
- it is necessary to specify as the respondent: if moves mother of the child, the man marked above, if on the contrary – that the child's mother;
- claim requirements will be here – establishment that the claimant/respondent is not the child's father, and an exception of data on the father of a birth record of the child.
The state duty size on such affairs – 200 rubles.
One more category of the affairs connected with legal recognition of this or that man by the child's father concerns those cases when the person who recognized himself as the child's father, but the paternity was not properly issued, is already not present in the live. In this case it is supposed that dispute on the right is absent, and the current legislation allows to consider such .
So, if the died man recognized himself as the child's father, to that there are sufficient proofs and anybody is not going to argue with it (for such presence of the respondent it is not supposed), the interested person can appeal to court with the statement for establishment of the fact of recognition of paternity. The application is submitted to district court in a residence of the applicant. It is necessary to specify in it:
- the name of court to which the application is submitted;
- Full name of the applicant and his residence;
- circumstances on which the applicant bases the request;
- the purpose for which the applicant needs to establish this fact (surely has to aim legal value, for example, the fact requires to be established acceptance by the child of inheritance, the applicant is the child's grandmother, and she wants to have advantages at appointment to the trustee's child and so forth);
- the list of the documents enclosed to the application;
- signature of the applicant.
Surely it is necessary to enclose the document on payment of the state duty to the application (here it also makes 200 rubles); other documents are brought into court depending on circumstances to which the applicant refers.
The judgments which came into force in the claim for contest of paternity and for the statement for establishment of the fact of recognition of paternity are the basis for the appeal to body the REGISTRY OFFICE: in the first case for modification of a birth record, in the second – for paternity proof registration.
Some notes: stated above assumes that the child concerning whom there was a question of paternity, was born on March 1, 1996 or later; Mother of the child is capable, the place of her stay is known and she is not deprived of the parental rights.