Establishing the fact of recognition of paternity

A study of the cases submitted for summary indicates that the courts do not distinguish between statements on establishing the fact of recognition of paternity and establishing the fact of paternity, in accordance with Chapter 32 of the CPC. By virtue of Article 305 of the CPC, the court establishes the facts on which the emergence, modification or termination of personal or property rights of citizens or legal entities depends. In subparagraph 4) of part 2 of Article 305 of the CPC, cases of establishing facts of legal significance include cases of establishing facts of recognition of paternity, which was not the case in the wording of the previous CPC. Part 3 of this article provides that the court establishes other facts of legal significance, unless the legislation of the Republic of Kazakhstan provides for a different procedure for their establishment.

That is, the possibility of establishing the fact of paternity is based on the provisions of Article 305 of the CPC, which left open the list of legal facts to be established in a special procedure. It should be noted that the national legislation, the Code, and Regulatory Decree No. 6 do not indicate the possibility of establishing this fact and do not prohibit the establishment of paternity in court. For example, the Family Code of the Russian Federation also does not directly indicate the possibility of establishing this fact, but the resolution of the Plenum of the Supreme Court of the Russian Federation on establishing paternity and collecting alimony draws attention to this circumstance. It seems that establishing the fact of paternity as a legal fact is possible in the event of the death of a person who is the biological father of a child, but who did not recognize himself as his father during his lifetime. This fact cannot be established in any other way, therefore it must be established as a legal fact in court. Applications for establishing the fact of paternity and establishing the fact of recognition of paternity are considered in a special procedure, provided there is no dispute about the right. The fact of recognition of paternity by virtue of article 49 of the Code is established in the event of the death of a person who recognized himself as the father of a child, but was not married to the mother of the child. This fact can be established by the court both in the case when the child was dependent on the person at the time of his death, and earlier if this person recognized himself as his father. Such a fact, taking into account specific circumstances, may also be established by the court in respect of a child born after the death of a person who, during the mother's pregnancy, recognized himself as the father of the unborn child. If, when submitting an application or considering a case in a special proceeding, it is established that there is a dispute over the right under the jurisdiction of the court, the court issues a ruling on leaving the application for establishing the fact of recognition of paternity or the fact of paternity without consideration, explaining to the applicant and other interested persons their right to resolve the dispute in a lawsuit (part 2 of Article 304 of the CPC). Cases on establishing the fact of paternity, as well as recognition of paternity, may be initiated at the request of: - the child's mother; - the guardian (trustee); - the person on whom the child is dependent; - the guardianship and guardianship authority; - the prosecutor; - a child who has reached the age of majority. The fact of recognition of paternity is subject to judicial determination if: - the person who recognized himself as the father of the child has died; - there was no marriage between this person and the child's mother in accordance with the procedure established by law; - the child was dependent on this person at the time of death or earlier. The following circumstances should be included in the subject of proof: - the death of a person who recognized himself as the father; - the time of the child's birth; - the absence of a registered marriage between the child's mother and the alleged father; - evidence confirming the recognition of the deceased as the father of the child; - the purpose of establishing the fact (obtaining a certificate of inheritance, registration of benefits, etc.).

When establishing the fact of recognition of paternity, any evidence is accepted, including a death certificate, a birth certificate of the child, reliably confirming that, as well as the subjective attitude of the alleged father to the child: - a public statement about his paternity; - cohabitation, running a common household before the birth of a child, joint upbringing or maintenance of a child, an expert opinion; - witness testimony; - letters, video and photographic materials, questionnaires, applications for registration for housing, kindergarten, school, extracts from the house book and others. The fact of paternity is subject to judicial determination if: - the alleged father of the child has died; - there was no marriage between this person and the child's mother in accordance with the procedure established by law; - the alleged father did not recognize the child. The following circumstances should be included in the subject of proof: - death of the alleged father of the child; - time of birth of the child; - absence of a registered marriage between the child's mother and the alleged father; - evidence that reliably confirms the fact of paternity; - the purpose of establishing the fact (obtaining a certificate of inheritance, registration of benefits, etc.). When establishing the fact of paternity, reliable evidence is taken, including a death certificate, a birth certificate of the child, confirming this. Reliable evidence may be the conclusion of an expert (molecular genetic examination), establishing blood relationship with the relatives of the alleged father (parents of the deceased, children, sisters, brothers). As mentioned above, some courts, when establishing a legal fact, do not distinguish between the concepts of recognition of paternity and the fact of paternity. Upon receipt of applications to the court for establishing the fact of paternity, the courts, without specifying its subject, consider the claim as establishing the fact of recognition of paternity and make appropriate decisions. For example, a civil case on the application of M. (court No. 2 of the city of Uralsk, West Kazakhstan region) for establishing the fact of paternity (indicated in the statement of claim) in respect of a minor child G. The court by its decision established the fact of recognizing V.'s paternity in respect of G. While there was no evidence to prove that the deceased had acknowledged paternity of the child, the applicant referred to the child's biological father, who, as follows from the case file, did not acknowledge paternity. In addition, the court has not clarified why it is necessary to establish a legal fact. It seems that during the preparation of the case for trial, the court should have found out why the applicant needed to establish the fact, which persons might be interested in resolving the case, involve the relatives of the alleged father in order to conduct a genetic examination and, taking into account the comprehensively investigated circumstances of the case, resolve the paternity case.

The court of the city of Kokshetau, Akmola region, considered a civil case on the claim of V. to T., the interested person is a notary of the city of Kokshetau, on establishing paternity (Kokshetau City Court of the Akmola region). The basis for applying to the court was the issue of inheritance. The case of establishing the fact of paternity was considered by the court in the order of claim proceedings in connection with the existence of a dispute over the right to inheritance. The plaintiff is the daughter of the deceased T., the defendant is the father of the deceased, the alleged father. It can be seen from the case file that the other children of the deceased and the ex-wife of the deceased, who were involved in the case as interested parties, objected to the satisfaction of the applicant's claims, disputing the plaintiff's descent from their father. The court has ordered a forensic molecular genetic examination in order to reliably establish paternity in relation to the plaintiff. Based on the expert opinion and the testimony of the deceased's father, the application was satisfied. The court reliably established the origin of the child from the deceased, the claim was satisfied, and the dispute over the right was settled. Thus, as judicial practice shows, the death of the alleged father is not an obstacle to conducting a forensic examination that allows DNA samples to be taken for comparative examination from relatives of the deceased. As was the case in the framework of the examination of the case, during which blood samples were taken from the brother, the children of the deceased, indicating a blood relationship with a probability of 99.9999% and served as the basis for establishing the fact of paternity. A study of judicial acts in cases of establishing the fact of recognition of paternity has shown that women who were in actual marital relations with men who gave birth to children together, as well as children who have reached the age of majority, usually apply to the court to establish the fact of recognition of paternity. Applying to the court with these requirements is conditioned by the need to receive child support benefits, as well as acceptance of inheritance. In most cases, in cases of establishing the fact of recognition of paternity, the courts decide to satisfy such requirements. At the same time, the main evidence is the testimony of relatives, relatives and other persons who had relevant information about the relationship between the parties, photographs, written documents, etc.

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases