On the application of legislation by the courts in the consideration of cases related to the establishment of the child's origin
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 29, 2018 No. 16.
In order to ensure the uniform application of legislation by courts when considering cases related to the origin of a child, the plenary session of the Supreme Court of the Republic of Kazakhstan decides to provide the following clarifications.
The child's origin, certified in accordance with the procedure established by the law of the Republic of Kazakhstan, is the basis for the rights and obligations of parents and the child (paragraph 2 of Article 46 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" (hereinafter – the Code)).
In the event of a dispute over the paternity (motherhood) of a child, the issue of the child's origin, in particular, disputes on establishing paternity; on challenging paternity (motherhood) and excluding information about the child's father (mother) from the record of the child's birth certificate, are resolved by the district (city) court and equivalent courts (hereinafter referred to as the district court) in the order of claim proceedings in compliance with the requirements of Chapter 14 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter – CPC).
The issue of the child's origin, the establishment of the fact of the birth of a child by a particular woman, the establishment of the fact of recognition of paternity or the fact of paternity is resolved by the district court in a special procedure according to the rules established by Chapter 32 of the CPC.
Courts should take into account that disputes related to the establishment of the origin of children can be resolved by the court only after the birth of the child.
In the event that an application related to the establishment of the child's origin was submitted before the birth of the child (for example, challenging paternity), the judge refuses to accept it on the basis of subparagraph 1) of the first part of Article 151 of the CPC. Such a refusal does not prevent a second appeal to the court with the specified statement after the birth of the child.
Since the law does not establish a statute of limitations in cases of this category, paternity (motherhood) may be established by a court at any time after the birth of a child (paragraph 1 of Article 8 of the Code).
By virtue of part three of Article 27 of the CPC, cases of establishing paternity and collecting alimony are assigned to the jurisdiction of the specialized interdistrict juvenile court. This rule also applies in the case of an independent claim for establishing paternity.
In accordance with part four of Article 30 of the CPC, claims for establishing paternity and for collecting alimony may be filed, at the plaintiff's choice, either to the court at his place of residence or to the specialized inter-district juvenile court at the defendant's place of residence.
Other claims related to the child's parentage that are not within the jurisdiction of the specialized interdistrict juvenile court are considered at the defendant's place of residence.
In accordance with article 307 of the CPC, cases related to the establishment of the child's origin, which are subject to consideration in accordance with Chapter 32 of the CPC, are considered by the court at the applicant's place of residence.
If the defendant's actual place of residence is unknown, the court proceeds to consider the case in compliance with the requirements of the first part of Article 133 of the CPC.
In the event that the defendant in the case of establishing paternity and collecting alimony is a foreign citizen residing in the territory of a foreign state, by virtue of subparagraph 3) of the second part of Article 466 of the CPC, such a case may be considered by a court of the Republic of Kazakhstan, provided that the plaintiff's place of residence is the Republic of Kazakhstan (if there are other rules for determining the jurisdiction of the said dispute are not established by an international treaty ratified by the Republic of Kazakhstan).
When considering cases related to establishing the origin of children, courts should take into account the provisions of article 12 of the Convention on the Rights of the Child (New York, November 20, 1989, Resolution of the Supreme Council of the Republic of Kazakhstan dated June 8, 1994 "On Ratification of the Convention on the Rights of the Child" (hereinafter - the Convention on the Rights of the Child)) and articles 62 of the Code, according to which a child, regardless of age, has the right to freely express his or her opinion when resolving any issue affecting his or her interests in the family, as well as to be heard during any judicial or administrative proceedings. In this regard, in the case of establishing the fact of recognition of paternity of a child who has reached the age of ten, the right arises to be heard during the trial on the circumstances relevant to the proper resolution of the case.
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 child's father, the issue of the child's descent from a particular person (paternity) is resolved by the court in the order of claim proceedings at the request of one of the parents, guardian or trustee of the child or at the request of the person who is dependent on the child, or at the request of the child himself upon reaching the age of majority.
The court has the right, by way of claim proceedings, to establish paternity at the request of the father of a child who is not married to the child's mother, in the event of the mother's death, deprivation of her parental rights, recognition as incompetent or inability to establish her location, if the body performing the functions of guardianship or guardianship has not consented to establish paternity during out of court (paragraph 5 of Article 47 of the Code).
In this regard, when accepting a statement of claim, the judge should check whether the plaintiff has applied to the body performing the functions of guardianship or guardianship for consent to establish his paternity by the state registration authorities of acts of civil status.
If it is established that the plaintiff has not applied for such consent, the judge, on the basis of subparagraph 1) of the first part of Article 152 of the CPC, returns the statement of claim, and if the case is initiated, leaves the statement of claim without consideration on the basis of subparagraph 1) of Article 279 of the CPC and explains to the plaintiff his right to apply on this issue to the appropriate body responsible for guardianship or trusteeship functions.
The courts should keep in mind that if a child was born within two hundred and eighty days from the date of the dissolution of the marriage (matrimony), its invalidation, or from the moment of the death of the spouse of the child's mother, the former spouse of the mother may be recognized as the father of the child, unless proven otherwise (paragraph 3 of Article 47 of the Code).
The paternity of the spouse of the child's mother is based on the marriage record. If a joint application is filed to establish the paternity of another person (the actual father) and the mother of the child, and if the state registration authorities refuse to register him as the father of the child, the issue of establishing the paternity of this person is resolved by the court in a lawsuit after the registration of the child's birth in accordance with the procedure established by law.
When considering a claim for establishing paternity, evidence should be taken into account that reliably confirms the child's descent from a particular person. Such evidence may include, in accordance with the second part of Article 63 of the CPC, explanations of the parties and third parties, witness statements, expert opinions, physical evidence, protocols of procedural actions, minutes of court sessions, audio, video recordings, data obtained through the use of videoconferencing systems, reflecting the course and results of procedural actions, and other sources.
One of the proofs reliably confirming the child's origin from a specific person is the expert opinion (molecular genetic examination).
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 information about the samples, their quantity, information about the persons from whom the samples are being taken, about the entity carrying out their selection, the time and place of sampling, and information about the person to whom the samples should be submitted after receiving them.
Courts should take into account that the expert opinion is not binding on the court. The court's disagreement with the conclusion must be motivated (part seven of Article 92 of the CPC).
The question of the application of the eighth part of Article 82 of the CPC is resolved by the court in each specific case, depending on which of the parties, for what reasons did not appear for the examination or did not present the necessary research subjects to the expert(s), as well as what significance the expert's conclusion has for the party, based on the evidence available in the case in their entirety.. To this end, the court should check whether there were circumstances that objectively prevented the appearance of a parent with a child, the alleged father, for examination, whether the provisions of part eight of Article 82 of the CPC were explained to this person, whether a new deadline was set for the examination, what other evidence was presented by the parties to the court to confirm (refute) the stated claim, whether there is evidence confirming doubts about paternity (in cases of contesting paternity).
Courts should distinguish the requirement to establish paternity from the requirements to establish the fact of recognition of paternity and the establishment of the fact of paternity, which are subject to special proceedings, provided there is no dispute about the law.
In the event of the death of a person who recognized himself as the father of the child and the child was dependent on the person at the time of his death or earlier, but he was not married to the child's mother, the court has the right to establish the fact of his recognition of paternity.
The fact of recognition of paternity may also be established in relation to a child born after the death of a person who, during the mother's pregnancy, recognized himself as the father of the unborn child.
The fact of recognition of paternity can be established if there is evidence confirming that the child is dependent on the deceased, recognition of the child both during pregnancy and after birth, or if the person died at the time of the child's birth, if there is evidence of recognition of the child during the mother's pregnancy (cohabitation, caring for a pregnant woman, etc. others).
In the event of the death of a person who did not recognize himself as the father of the child or did not know about the conception and birth of this child, the court has the right to establish the fact of paternity, that is, the fact of the child's origin from this person. Such a fact can be established only if there is reliable evidence confirming the child's descent from the deceased. For these purposes, the courts have the right to involve the relatives of the alleged father in order to conduct a genetic examination.
Courts should take into account that evidence in this category of disputes cannot be considered sufficient without first interviewing the parties and clarifying their legal positions on the case. In order to establish the child's descent from a specific person, the judge should prepare the case for trial with mandatory notification of the parties about the preliminary court session.
When preparing for the trial of cases on establishing the fact of recognition of paternity or the fact of paternity, the judge should find out why the applicant needs to establish the fact, which persons and organizations may be interested in resolving the case, or the decision may affect their rights and interests, and are subject to summons to court.
According to paragraph 1 of Article 51 of the Code, the entry of parents in the register of birth certificates may be challenged only in court by a person registered as the father or mother of the child, a person who is actually the father or mother of the child, the child himself upon reaching the age of majority, the guardian or trustee of the child, the guardian of the parent recognized by the court as legally incompetent. This right also belongs to a child under the age of eighteen who has acquired full legal capacity as a result of emancipation or marriage.
Marriage and family legislation is based on the inadmissibility of arbitrary interference by anyone in family affairs, and therefore this list of persons is exhaustive and cannot be interpreted broadly.
If a statement of claim for challenging the entry about the father (mother) of a child in the register of birth certificates is filed by a person who does not belong to the list of persons specified in paragraph 1 of Article 51 of the Code, the judge refuses to accept the statement of claim on the basis of subparagraph 1) of the first part of Article 151 of the CPC, and if proceedings are initiated, the court terminates the proceedings in accordance with subparagraph 1) of Article 277 of the CPC.
In accordance with paragraph 2 of Article 51 of the Code, the claim of a person registered by the father of a child on the basis of a joint statement from the father and mother, at the request of the father of the child or according to a court decision on the revocation of paternity, cannot be satisfied if at the time of recording this person was aware that he was not actually the father of the child.
When considering such cases, courts should keep in mind that the plaintiff has the right to challenge the recording based on a violation of his will (under the influence of threats, violence, or in a state where the plaintiff was unable to understand the meaning of his actions or direct them). In case of presentation of evidence indicating a violation of the expression of will, the claim is subject to satisfaction.
The court's decision to satisfy a claim in cases of contesting paternity cannot be based solely on the recognition of the claim by the mother or guardian (trustee) of the child, since this may entail abuse by parents or other legal representatives, violation of the rights and legitimate interests of the minor, including the right to know his parents, the right to their care (part two of Article 171 of the CPC, Article 60, paragraphs 1 and 2 of Article 67 of the Code). The court is obliged to examine all the evidence presented in order to resolve the dispute correctly.
Courts should keep in mind that conciliation procedures are possible only in cases of claim proceedings (part three of Article 174 of the CPC).
At the same time, based on the subject of the dispute, in cases of contesting paternity, where the subject of the relationship is a minor child, the approval by the court of a settlement agreement, an agreement on dispute settlement through mediation, an agreement on dispute settlement through a participatory procedure is unacceptable.
If during the trial it is established that the person identified as the father (mother) of the child is not his biological parent, the court decides to satisfy the claim to challenge the entry about the father (mother) of the child in the record of the child's birth certificate.
The court's decision to satisfy the claim for challenging the record of the child's father (mother) is the basis for the cancellation of information about the child's father (mother) in the record of the child's birth certificate.
In exceptional cases, based on the priority protection of the rights and interests of the child established by article 3 of the Convention on the Rights of the Child, as well as taking into account the objective circumstances of the case, the court may dismiss a claim to challenge paternity if the child's mother or the child's guardian (trustee) has not simultaneously filed a claim to establish paternity in respect of the child's biological father. (or such a claim is not made by the biological father of the child), and the person registered as the father of the child objects to the claim.
A court decision on the establishment of paternity or on the establishment of the fact of recognition of paternity, the fact of paternity, which has entered into legal force, is the basis for the state registration of the establishment of paternity.
The entry of information about the father, as well as the change of the surname, first name, patronymic of the child are carried out in accordance with the data specified in the court decision.
When satisfying the requirement to establish paternity or to establish the fact of recognition of paternity or the fact of paternity, or to challenge the entry about the child's father in the record of the child's birth certificate, the information necessary for recording paternity in the civil registration authority and (or) making appropriate changes to the record of the civil status act must be stated in the operative part of the court decision.
On the basis of registration of the act of establishing paternity, information about the child's father is also entered in the record of registration of the child's birth certificate.
Information about the child's father is entered in the record of the act on establishing paternity in accordance with the data specified in the court decision on establishing paternity, as well as on establishing the fact of paternity and the fact of recognition of paternity (paragraph 1 of Article 210 of the Code). On the basis of the record of the act on establishing paternity, information about the child's father is also entered in the record of the child's birth certificate (paragraph 1 of Article 215 of the Code).
When resolving a case, the court is obliged to find out the opinion of the parents regarding the surname and (or) patronymic of the child after the establishment of paternity, if they do not coincide with the surname and (or) the name of the person whose paternity has been established (paragraph 2 of Article 211 of the Code).
If there is a dispute between the parents on this issue, the court resolves it based on the interests of the child, involving the bodies performing guardianship and guardianship functions in the case. The name, patronymic (if any) and/or surname of a child who has reached the age of ten may be changed only with his consent.
The operative part of the court's decision on the satisfaction of the claim to challenge paternity indicates the introduction of appropriate changes to the record of the child's birth certificate (on the exclusion of information about the child's father from the record of the birth certificate) and the cancellation of the record of the paternity certificate.
Invalidate them:
1) normative Resolution of the Supreme Court of the Republic of Kazakhstan dated September 30, 1971 No. 7 "On judicial practice in cases of establishing paternity and the fact of recognition of paternity";
2) Resolution No. 3 of the Plenum of the Supreme Court of the Kazakh SSR dated March 29, 1983;
3) regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 18, 2004 No. 6 "On Amendments and Additions to the Resolution of the Plenum of the Supreme Court of the Kazakh SSR dated September 30, 1971 No. 7 "On judicial practice in cases of establishing paternity and the Fact of recognition of paternity";
4) Paragraph 1 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated May 31, 2012 No. 2 "On Amendments and additions to certain regulatory Resolutions of the Supreme Court of the Republic of Kazakhstan";
5) paragraph 2 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated March 31, 2017 No. 2 "On Amendments and additions to certain normative Resolutions of the Supreme Court of the Republic of Kazakhstan on civil and civil procedural legislation".
According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, is generally binding and enters into force from the date of the first official publication.
Chairman of the Supreme Court of the Republic of Kazakhstan
J. Asanov
Judge of the Supreme Court of the Republic of Kazakhstan, Secretary of the plenary session
G. Almagambetova
© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan
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