Establishing paternity and collecting alimony, establishing the fact of recognition of paternity and the fact of paternity
A generalization of judicial practice has revealed that, in general, courts comply with the requirements of substantive and procedural law when resolving cases related to establishing paternity and collecting alimony, establishing the fact of recognition of paternity and the fact of paternity. At the same time, the generalization showed that judges have difficulties distinguishing between the concepts of "establishing paternity", "establishing the fact of paternity", and "establishing the fact of recognition of paternity". The current legislation does not regulate in which cases the court establishes the fact of paternity and what is its difference from the fact of recognition of paternity. Whereas article 210 of the Code provides for the procedure for state registration of establishing paternity, including on the basis of a court decision on establishing the fact of paternity. In this regard, we consider it necessary to provide the following clarifications. "Establishing paternity" is considered in a lawsuit, where the defendant is a living person, the alleged biological father of the child, who does not recognize his paternity in relation to the child. The court accepts evidence that reliably confirms the child's origin from a specific person, which is the expert's conclusion (molecular genetic examination). "Establishing the fact of paternity" and "establishing the fact of recognition of paternity" are considered in a special procedure, in accordance with the provisions of Chapter 32 of the CPC, as establishing a legal fact.
The legal fact of paternity is established in relation to the deceased, who is the biological father of the child, who did not recognize himself as the father of the child. The legal fact of recognition of paternity is established in relation to the deceased, who recognized himself as the father of the child. In this case, if the deceased is not necessarily the biological father of the child, it is necessary to confirm the recognition of paternity. The courts should take all possible measures to establish the circumstances relevant to the case, in order to exclude cases of unjustified establishment of the facts of paternity and recognition of paternity. In order to exclude violations of someone's rights, freedoms and protected interests, as well as to clarify whether there are any disputes between applicants and interested parties, it is recommended that the courts, at the stage of preparing cases for trial, clarify the entire range of interested parties to be involved in the case. If the establishment of the fact of recognition of paternity is necessary for the applicant to formalize the inheritance, the courts are recommended to request information from the notary chamber on the existence of an inheritance opened after the death of the person, as well as a certificate of registered property rights. Upon receiving a positive response, the circle of heirs should be established and they should be involved in the case as interested parties. If it is established that there is a dispute over the right under the jurisdiction of the court, a ruling should be issued on leaving the application without consideration, explaining to the applicant and other interested persons their right to resolve the dispute through a lawsuit (part 2 of Article 304 of the CPC).
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