In Ukraine, litigation for appealing or recognizing paternity is not uncommon. And although these cases most often become quite unpleasant for all participants in the procedure, however, the number of appeals to the court is growing.
Traditionally, it was established and legislated that the parents of the child automatically recorded a man and a woman who are in a registered marriage. That is, after the birth of a child in his birth certificate, a father is recorded by the person who is in registered marriage with the mother of the child, although the biological father may be another person. If the mother and the father of the child are not married to each other, the origin of the child from the mother is determined on the basis of the health facility’s document on the birth of her child, and the origin of the child from the father is determined by a joint application of the mother and the father of the child or by court order. The current legislation in this case gives both mothers and men the right to challenge paternity. Often there are cases when the mother establishes the fatherhood of the biological father of the child, or the father sues the mother of the child for establishing his paternity. First of all, it is necessary to indicate what legally affects the establishment or contestation of paternity:
Claims for the recognition of paternity can be made both at the place of registration or residence of the defendant, and at the place of residence or residence of the plaintiff.
Expertise in establishing or challenging paternity.
If the fact of paternity is in doubt, then you can contact the specialized agencies for genetic examination and solve this issue privately. However, such a difficult issue can be finally resolved only in the legal plane. The procedure for the recognition of paternity is established by the family code and of course follows from the existing judicial practice. The court decides on the origin of the child on the basis of any evidence of this. The participant of the case has the right to bring an expert’s opinion, drawn up according to his order, to court. In this case, the expert’s conclusion notes that the report was prepared for submission to the court, and that the expert was notified of criminal liability for knowingly false imprisonment. In this case, the court will assess the conclusions of the examination, including the forensic-genetic assessment, proceeding from the principle that no evidence has a predetermined value for the court, it estimates the evidence in their totality, and displays the results of the assessment in a decision indicating the motives for their adoption or deviation. The basis for the recognition of paternity is any information that confirms the origin of the child from a particular person, collected in a legal manner. This can be information about a long trip during the possible date of conception, testimony of witnesses, text, photos and video materials. In other words, there is a practice according to which judges make positive decisions, are guided by other evidence and arguments of the party, in the absence of the withdrawal of forensic expertise.
In the event of a party’s avoidance of this category of cases from participation in the examination or from the submission of the necessary materials, which makes its conduct impossible, the court may recognize the fact for which it was determined, or refuse to recognize it. Depending on which party is evading, and also how important for them is this examination. If the defendant in such a case evades participation in the forensic-biological (forensic-genetic) examination, the court has the right to issue a resolution on his compulsory drive. However, it should be borne in mind that some categories of persons are not subject to compulsory driving (for example, minors and minors, pregnant women, I and II disabled persons, persons caring for children under six years of age or children with disabilities).
It should be noted that for the category of cases for challenging and establishing paternity, the statute of limitations is of great importance. As you know, limitation of actions is the time within which a person can apply to the court with a demand to protect his civil law or interest. In this case, the consequences of limitation of actions are the refusal of the court to satisfy the requirements. The consequences are applied by the court only upon the application of the party to the dispute made before the decision is made.
According to the provisions of the family law, a person who considers himself the father of a child born by a woman who, at the time of conception or the birth of the child, was married to another man, has the right to bring an action to her husband, if he is recorded by the father of the child, a claim for the recognition of his paternity. If this claim is satisfied, family legal relations do not arise between the husband of the mother of the child and the person who considers himself to be his father, but between this person and the child whose father he will be recognized. Therefore, we can assume that the defendant for this claim is a child, represented by the legal representative who should participate in the case – the husband of her mother, recorded by the father of the child. The claim for the recognition of paternity applies a statute of limitations in one year, which begins with the day when the person learned or could learn about his paternity.
It should be noted that in courts there is also a position according to which the consequences of the delay of limitation of actions apply to the recognition of paternity when the biological father was not married to the woman who gave birth. If the spouses were not married and the father of the child, knowing about his birth, did not make a corresponding statement about his paternity, then the claim for the recognition of paternity applies the statute of limitations in one year, which begins with the birth of the child. So in their decisions the courts note that it is necessary to take into account the interests of the child, which are subject to protection from unscrupulous parents. Parents who do not want to register their paternity within a certain period of time, take care of their children, engage in their upbringing and support them, and in the future will demand that their child keep their content. When the advocate protects the interests of the mother of the child from the claims of the biological father, family lawyers successfully use the fact of missing the statute of limitations. Obviously, this is true, since, knowing about the birth of a child, such a father appeared after several decades.
To the request of her husband to exclude the record of him as a father from the act of recording the birth of a child, the statute of limitations is not applied.
A woman who has given birth to a child in marriage has the right to challenge the paternity of her husband. But, in defending the interests of the child, the legislator establishes a mandatory claim for bringing a suit in this case. Such contestation of paternity is possible only if there is another person’s application for recognition of his paternity with respect to this child. To the demands of a woman to challenge her husband’s paternity, a special statute of limitations is applied in one year. However, the beginning of the countdown period starts from the date of birth registration of the child, that is, from the day when the person was recorded as the father of the child.
The novels of family legislation provide for the possibility of challenging paternity after the death of the person recorded by the child’s father. If this person has died before the birth of the child, the heirs are entitled to challenge the paternity, provided they provide the notary with a lifetime notice to them about the non-recognition of their paternity. In the event of the death of a person after challenging his paternity in court, his heirs can support the statement of claim, taking into account the requirements for procedural succession in civil cases. When the deceased did not know that he was recorded by the father of the child, his heirs of the first stage according to the law, that is, his wife, parents and children, have the right to challenge paternity.
In these cases, paternity is disputed by filing a lawsuit to exclude information about the deceased person – the father of the child from the birth record of the child. For these requirements, there is no statute of limitations.
We draw your attention to the fact that the European Court of Human Rights has called upon the countries parties to the Convention for the Protection of Human Rights and Fundamental Freedoms to individually examine each case of challenging paternity and, if necessary, not to apply strict time limits. And, as is known, ratified international norms of law stand above national norms.
When challenging paternity is impossible.
Limitations on the establishment and challenge of paternity is not only in the limitation period, but also in other cases. Has no right to challenge paternity of a person recorded by the child’s father, if at the time of registering himself as a father he knew that he was not.
The court will also deny the suit, in the following situations:
Adult children are also not subject to claims for challenging paternity, because by law they already bear full responsibility for themselves, and no legal consequences such a decision of the court actually will not bear. However, the claim for the recognition of paternity can be brought by the mother, guardian, guardian of the child, a person who contains and brings up the child, as well as the child himself who has reached majority.
Separately, it should be noted that after appealing blood relationship, it will be possible to return unsubstantially paid alimony. It is necessary to file a claim for compensation of improperly received benefits in the form of alimony and to cancel the decision on the basis of which alimony was transferred (in case the decision was not canceled earlier).