Cases on establishing paternity and collecting alimony (establishing paternity)

In accordance with article 48 of the Code, in the case of the birth of a child to parents who are not married (married) to each other, and in the absence of a joint statement from the parents or the father of the child, the child's origin from a particular person (paternity) is established in court at the request of one of the parents, guardian or trustee of the child, or at the request of a person who who the child is dependent on, as well as at the request of the child himself upon reaching the age of majority. In doing so, the court takes into account evidence that reliably confirms the child's descent from a particular person. Judicial practice shows that the initiative to establish paternity most often belongs to the mother, but the legislator provides for the possibility of filing lawsuits by other persons (article 48 of the Code). These may be: - the child's father; - the guardian (trustee); - persons with whom the child is dependent; Since the law does not set a statute of limitations for cases in this category, paternity can be established by the court at any time after the birth of the child. It should be borne in mind that, by virtue of paragraph 7 of Article 47 of the Code, the establishment of paternity in respect of a person who has reached the age of 18 is allowed only with his consent, and if he is declared legally incompetent, with the consent of his guardian or the guardianship authority. To file a claim for establishing paternity, it is necessary: - the absence of a registered marital relationship with the father of the child; - the absence of a jointly submitted application to the registration authorities for voluntary consent to the recognition of paternity. A study of judicial practice has shown that disputes about establishing paternity are initiated by the child's mother, in most cases with a claim for alimony (in 2016 – 2,417 lawsuits, in 2017 – 2,905). There are significantly fewer cases of establishing paternity without claims for alimony (682 in 2016, 680 in 2017). When studying the cases of this category, it was found that the courts generally consider cases related to establishing paternity in a timely and correct manner, and take into account the clarifications contained in Regulatory Decree No. 7.

Cases on establishing paternity and collecting alimony (establishing paternity)

The cases were considered with the participation of the parties, in some cases when the defendant did not appear at the trial for reasons unknown to the court, although he was notified of the place and time of the court session in a timely manner, in absentia. At the same time, the study showed that the courts, when considering cases of this category, do not take into account the following circumstances leading to an incorrect resolution of the case. When accepting a claim, judges must check the absence of a registered marriage between the child's parents, the absence of a joint statement on voluntary recognition of paternity, and the absence of an entry about the child's father in the child's birth certificate. For example, by the decision of the Zhelezinsky District Court of the Pavlodar region of September 4, 2017, B.'s claim against I. for establishing paternity was satisfied. The case established that the parties had been living in an unregistered marriage since 1993. On June 2, 1999, a son, S., was born together, which the defendant did not dispute. Since the plaintiff was married to K. at the time of the child's birth, the child was registered with the surname "K.". Then K., who was registered by the child's father, notarized the application for renunciation of parental rights and gave consent to his adoption. The defendant in the case I. recognizes himself as the father of the child. In this case, the claim was filed by the child's mother for establishing paternity and considered by the court, whereas in accordance with part 3 of Article 192 of the Code, in the case of written recognition by a person who is not the spouse of the woman who gave birth, and with the written consent of her husband, the father of the child, when registering paternity and birth registration, this person (i.e. I.) is recorded. In this case, the court should have returned the application, explaining to the parties about the need to contact the RAGS authorities. The study showed that when considering cases, the defendants, without confirmation of a forensic genetic examination, recognize the statement of claim, the courts accept the recognition of the claim and the case is considered at a preliminary court hearing without preparing the case for trial. Courts need to take into account that the evidence in this category of disputes is specific, and without first interviewing the parties and clarifying their legal positions on the case, it is often difficult to conclude that the evidence is sufficient. Therefore, in order to establish a valid relationship between the parties, the judge should definitely prepare the case for trial, summon the plaintiff and the defendant to a conversation. At the stage of preparing the case for trial, the parties should explain the provisions of articles 50, 192 of the Code, find out whether the defendant recognizes himself as the father of the child, and, if agreed, provide the parties with a deadline for registration of paternity by submitting a joint application to the RAGS authorities. So, in a civil case on the claim of G. to Sh. on establishing paternity and collecting alimony during the conversation, the defendant admitted the claim, which was withdrawn from his statement (Juvenile court of the Karaganda region). It follows from the statement that it was explained to the defendant that when a claim is recognized by the court, a decision is made without examining the evidence. Whereas the court should have explained the need to submit an application to the RAGS authorities and provide the parties with a deadline for registration of paternity on a voluntary basis. The court of the Khromtau district of the Aktobe region on the basis of the statement of claim of H. on the establishment of paternity in relation to the child born out of wedlock by her, he issued a ruling on the initiation of the case and its preparation for trial, appointing a preliminary court hearing. The case was not prepared for trial, and the right to establish paternity by submitting an application to the RAGS was not clarified. At the said meeting, defendant O. acknowledged the claims. The claim was satisfied on the basis of the defendant's recognition of paternity. Similarly, without preparing the case for trial, when the defendant recognizes the claims, cases are considered in almost all regions. Meanwhile, the courts, accepting the recognition of the claim by the defendant (the child's mother or the person recorded as the father), must find out whether these actions correspond to the interests of the child, whether they contradict the law, whether they violate the rights and legally protected interests of others. One of the proofs reliably confirming the child's origin from a specific person is the expert's conclusion (molecular genetic examination).

At the same time, the courts should keep in mind that a violation of the procedure for obtaining samples for examination is the basis for the cancellation of judicial acts. Blood and (or) epithelium samples from the alleged father and child are obtained in accordance with Articles 83, 84 of the CPC on the basis of a court ruling, which specifies from whom, which samples, in what quantity should be obtained, when and to whom it is necessary to appear to receive samples and to whom the samples should be submitted after receiving them. Thus, in connection with the violation of these provisions of the procedural law, the judicial board of the Supreme Court annulled the judicial acts of the Sairamsky District Court and the Court of Appeal of South Kazakhstan Region on establishing paternity and collecting alimony in a civil case against S. A. In rejecting the claim, the courts took into account the acts of molecular genetic examination and repeated molecular genetic examination. According to experts, defendant A. is not the biological father of minor child B. However, the board found that during the first examination, there were violations of the provisions of the Instructions on the Organization and Conduct of a forensic medical examination in force at the time of the case (expired on April 27, 2017, No. 484), which provided for the need to take blood from the examined persons in a laboratory to resolve the disputed origin of children (disputed paternity/motherhood). in the amount of 0.5 - 1.0 milliliters from a vein or from a finger. The protocol attached to the case file on the collection of blood samples, which were obtained not by an expert, but by a specialist, does not indicate the amount of blood samples taken. There were also violations of the Instructions during the re-examination. The envelopes containing the blood samples received repeatedly and attached to the case file lacked the signature of the medical professional who took the blood and the seal of the institution. In addition, in violation of the requirements of Part 2 of Article 83 of the CPC, a ruling on the repeated collection of blood samples was not issued. The protocol on blood sampling has not been attached to the case file. In these circumstances, the judicial acts adopted in the case could not be considered legitimate and justified. A molecular genetic examination was ordered by the court of first instance in the civil case of H.'s claim against P. for establishing paternity and collecting alimony. However, the court did not issue a ruling on the receipt of buccal epithelium samples, and therefore the court of appeal of the Almaty City Court ordered a second molecular genetic examination.

Based on the results of the examination, a decision was made to satisfy the claim. The alleged father's refusal to provide samples for research does not prevent the case from being considered. According to part 9 of Article 73 of the CPC, if a party retains the evidence required by the court and does not submit it at the request of the court, it is assumed that the information contained therein is directed against the interests of this party and is considered recognized by it. Also, according to part 8 of Article 82 of the CPC, if a party evades participation in the examination or obstructs its conduct (does not attend the examination, does not provide experts with the materials necessary for the study and the possibility of examining objects belonging to it that are impossible or difficult to submit to the court), and in the circumstances of the case, without the participation of this party, the examination should be conducted If this is not possible, the court, depending on which side evades the examination and the level of its significance, has the right to recognize the fact for which the examination was appointed., established or refuted. Example: a civil case on the claim of U. to B. for the establishment of paternity and the recovery of alimony. During the preparation of the case for trial, a molecular genetic examination was appointed with the participation of the plaintiff, her representative and the representative of the defendant. However, the defendant, who was notified three times to appear in court to receive samples for examination, did not appear, nor did he attend court sessions. The court, referring to subparagraph 8) of part 5 of Article 82 of the CPC, found it established that the defendant is the biological father of the child. At the same time, the court examined other evidence, joint photographs, correspondence, and witness testimony. When studying the cases of this category, it was found that in some cases, when the defendant did not appear at the trial for reasons unknown to the court, although he was notified of the place and time of the court session in a timely manner, the cases were considered in absentia or at the last known place of residence. The grounds for consideration and the procedure for absentee proceedings are regulated by Chapter 21 of the CPC.

According to part 1 of Article 254 of the CPC, in the event of a defendant's failure to appear at a court hearing, who was duly notified of the time and place of the court session, did not inform about the valid reasons for non-appearance and did not ask for consideration of the case in his absence, the case may be considered in absentia, if the plaintiff does not object to this. In accordance with article 257 of the CPC, when considering a case in absentia, the court examines the evidence presented by the persons involved in the case, takes into account their arguments and makes a decision in absentia. By virtue of paragraph 2 of Regulatory Decree No. 7, courts should take into account evidence reliably confirming the child's origin from a specific person (cohabitation, running a common household before the birth of the child, co-parenting or maintenance of the child, expert opinions, etc.). These circumstances must be established using the means of proof listed in the second part of Article 63 of the CPC. That is, when establishing paternity, the court, in addition to the expert opinion, may take into account other evidence that reliably confirms the origin of the child from the alleged father. However, some courts do not comply with these provisions of the law. On January 5, 2017, the Juvenile Court of Astana issued a decision in absentia to establish the paternity of M. in relation to the minor child A., born on March 11, 2016.

At the same time, in the case file, apart from the explanations of the plaintiff A., there is no other evidence confirming M.'s paternity. There is also no notification of the delivery of a copy of the absentee decision to the defendant in the case file, which violates the requirements of Article 259 of the CPC that a copy of the absentee decision be sent to the defendant no later than five days from the date of its final issuance. The situation is similar in civil cases in the claim of H. to J. (No. 7130-16-00-2/480), in the claim of T. to B. (No. 7130-16-00-2/447). If the defendant's place of residence is unknown, the court, when filing claims for establishing paternity at the same time as demanding alimony, may, on the basis of part 2 of Article 133 of the CPC, declare him wanted through the territorial bodies of internal affairs. In this regard, it seems appropriate for the court to use the right to search for the defendant in order to find and locate his place of residence. 

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