What is the procedure for posthumous paternity determination? How to establish paternity after the death of a father in court

Establishing the fact of recognition of paternity

In accordance with domestic norms of family law, if a child was born in marriage, then the existence of paternity is assumed by itself. However, in other cases, things are much more complicated. At the same time, the procedure for establishing paternity may entail a number of legal consequences: a change in the child’s surname and patronymic, the emergence of additional rights and obligations.

Find out more about the reasons, methods and consequences of establishing paternity.

Possibility of establishing paternity after the death of the father

There are situations when a man died before his child was born or before the latter was officially registered. When determining whether paternity can be established after the death of a father, let us turn to Russian legislation. It says that this can only be done in court. In this case, you will need to indicate the reason why paternity needs to be established. Having such a decision in hand, the mother of the child and the baby himself receive certain rights.

But in order to get the desired result and a court decision in your favor, you will have to prove that the deceased was really the father of the child. This falls on the shoulders of the interested party who goes to court. In this case, the following facts must be present:

the child was born during a relationship that was not officially registered;
the man acknowledged paternity before death;
directly the fact of the father's death.

Recognizing paternity if the father has died is very important for the subsequent life of the child, both legally and morally.

Grounds for determining paternity and possible difficulties in doing so

Legal proceedings to recognize the paternity of a deceased person can be initiated at any time.
A child, already an adult, can file a claim to recognize a specific person as his father. The grounds for the claim are specific reasons for which the court hearing will be held. These are both material and moral-psychological grounds.

The specific course of the proceedings, the range of witnesses summoned to court and the required evidence depend on the purpose for which paternity is established. Therefore, the issue of indicating the grounds for a claim must be taken seriously and responsibly.

The difficulty when applying to establish the paternity of a deceased person lies in the methods of proof (collection of evidence) and the timing of court proceedings. It is the difficulty of proof that leads to the fact that such cases are delayed for a long time. In some cases, genetic testing is required; we will discuss this in more detail below.

Court cases in this category can be divided into two types:

Cases when the father recognized the child, exercised parental responsibilities in relation to him, but did not have time to officially recognize his paternity;
Cases when the father did not recognize the child during his lifetime, or died without knowing about his presence (or before his birth).

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Depending on this, a court hearing will be held. In the first case, it will be shorter and simplified. In any case, only the plaintiff and witnesses participate in the hearings; defendants and third parties are not involved in the process.

An article of the Family Code of the Russian Federation states that the establishment of paternity in the event of the death of the father is carried out in court, in compliance with the requirements of the civil process.

Article 50 of the Family Code of the Russian Federation “Establishment by the court of the fact of recognition of paternity”

Reasons for establishing paternity

As already noted, when going to court, the interested party must indicate why he needs it. Otherwise, the application may be returned without consideration. Some of the most common reasons for filing a paternity claim include:

the need for the mother to receive a survivor's pension;
the possibility of obtaining benefits and other social payments;
making changes to the child’s documents;
receiving an inheritance by a child as a direct heir.

Who should go to court

An application to the court is submitted by the mother of the child or the guardianship and trusteeship authorities acting in the interests of the minor. In addition to them, a person who is dependent on a child can also go to court. As a rule, this is one of the immediate family or the institution where the minor lives. In addition, the child himself can submit an application to establish the fact of recognition of paternity upon reaching 18 years of age.

Types of legal proceedings

Posthumous paternity determination may be required in two cases:

when a citizen recognized himself as the father of a child, but did not have time to submit documents to the registry office to establish this fact officially;
when a man refused paternity or died before the birth of the child.

In both cases, it is necessary to go to court, but the procedure for considering the case will differ. The first case will be considered in a special proceeding, but the second will deal with a dispute that is resolved in a lawsuit.

Establishing paternity in a special manner

A special procedure is a simplified type of production, which is characterized by certain features:

the subject of judicial protection here will not be a violated right, but a legitimate interest;
in such cases there is no defendant, the parties are only the applicant and interested parties;
in this category of cases it is impossible to abandon the claim or file a motion to secure it.

In the case under consideration, a fact will be established that has legal significance, i.e. fact of recognition of paternity.

Consideration of the case in litigation proceedings

If a man died before the birth of a child, then there will be a dispute about the right, which means it must be considered according to the rules of litigation. The legislation does not clearly define the period during which one can file a claim in court in such a case. Based on this, it should be understood that this can be done at any time.

Also, the case will be considered through the claim procedure if there is any dispute (inheritance, restoration of rights, and so on). This procedure will take much longer, because it requires establishing a relationship.

Arbitrage practice

Often, an application for recognition of paternity posthumously is submitted in conjunction with a request to recognize a citizen as deceased. However, each of the facts must be proven independently.

Example. Citizen P. appealed to the court with an application to recognize her cohabitant as deceased and to establish the fact of acknowledgment of paternity in relation to her son. In the statement, the woman explained that they met in Turkey, where he was on a work visa and she was living illegally. Three years later their son was born. A year later, the man left home in the evening and did not return. She could not put her on the wanted list because she was in the family illegally. 5 years have passed since then. However, the court refused to satisfy the demands because it did not see enough evidence that the man was dead.

When going to court, the applicant must pay special attention to the evidence base. In addition, the court usually satisfies the requirements if the relatives of the deceased recognize the relationship

Example. Citizen R. applied to the court in a special proceeding to establish the fact of recognition of paternity. The reason for going to court was the death of a cohabitant. The man could not apply to the registry office to establish paternity, since after giving birth, he was treated at a tuberculosis dispensary. The cause of death was tuberculosis. The mother of the deceased was invited to the trial. The woman confirmed that her son recognized the child. Amendments to the documents were necessary to establish paternity. The court satisfied her demands.

USEFUL INFORMATION: Owner of non-privatized apartments

The procedure for recognizing paternity after the death of the father is complex and confusing. To establish a family connection between a child and a deceased man, you need to prepare the maximum amount of evidence. To properly file a claim, especially if there is a dispute between the mother of the children and the relatives of the deceased, it is advisable to invite a lawyer. In addition, a specialist will help during the trial. To receive complete information about establishing the fact of recognition of paternity, leave a request in the feedback form.

Procedure for establishing paternity

In order to know how to establish paternity after the death of the father in court, you must first decide in what manner your case will be considered. After this, the applicant must prepare an application and a package of documents attached to it.

Which court should I go to?

To establish the fact of recognition of paternity, an application is submitted to the district court at the place of residence of the person wishing to establish such a fact.

List of required documents

It is necessary to submit the following documents to the court to establish the fact of recognition of the paternity of a deceased citizen:

a copy of the person's death certificate;
a certificate from the registry office confirming the absence of officially registered marriage relations;
a copy of the child's birth certificate;
certificate of cohabitation with a minor (issued by housing and communal services).

You can also attach other documents that will be considered evidence in this case in court.

In addition to the package of documents, it is necessary to file a claim for recognition of paternity. It is this that will serve as the basis for starting the procedure for establishing kinship.

The application must set out all the available evidence, explain why paternity could not be established in another way and for what purposes this is needed. Along with this, the application may indicate a request to change the child’s surname and patronymic, make adjustments to the vital record and other documents.

Proof

It is important to collect all possible evidence in this case, because on their basis the final decision will be made. Such evidence may include:

various documents;
written materials in which the deceased mentioned that he had a child;
joint photographs and video shooting;
information obtained from witness testimony.

None of the evidence can be recognized by the court as priority over the others; all of them must be considered in their entirety. Before the start of the court hearing, it is also necessary to determine the list of persons who can act as witnesses in the case (friends, relatives, neighbors, and so on).

Appointment of genetic examination

If a case is being considered as part of a lawsuit, a genetic examination may be ordered. If the case is considered in a special manner, then its implementation is impossible.

Often, genetic testing is prescribed if the father died as a result of violent acts or in cases where monetary compensation is possible for his heirs.

In such cases, donors will be persons who are blood relatives of the deceased. However, the examination is voluntary, so if such persons refuse to participate in it, it will be impossible to conduct it.

State fee for filing an application

In accordance with the Tax Code of the Russian Federation, in the event of paternity being established posthumously, the applicant is exempt from paying the state fee for filing a statement of claim in court, since he applies to protect the legitimate interests of the child.

The process of considering a case in court

Regardless of whether the case is being considered in a claim or special proceeding, it goes through the same stages. The court listens to all witnesses and examines all evidence provided.

As noted earlier, there is no defendant in special proceedings. The applicant, as well as interested parties who can give some evidence, must be present at the court hearing. In claim proceedings, interested parties can also submit their objections.

As a general rule, the case is considered within 2 months. A reasoned court decision to establish paternity posthumously enters into legal force one month after it is made. In the future, you need to contact the registry office at your place of residence with this decision, since it is the basis for making changes to the birth certificate of the child. A new birth certificate is also issued there, which includes information about the father.

Judicial practice on issues of establishing paternity

Judicial practice shows how important such type of evidence as witness testimony is in this category of cases. Thus, more often a positive decision is made in cases where the widow is supported by the relatives of her late husband. If there is an unfriendly attitude, trials take much longer and are more complicated.

The outcome of a case usually depends on its size and the amount of evidence provided. As practice shows, the testimony of witnesses alone, despite all their importance, or written materials alone are not enough for the court to make a positive decision. It is necessary to have various types of evidence, and the more there is, the better for the applicant.

Preparation for trial

Many people wonder how to legalize the fact of establishing paternity after the death of the father. In other words, what to do if there is direct evidence that a certain man is the parent of a specific child? This fact can only be legitimized in court. So, if a parent has died, the issue of establishing paternity after the death of the father can be resolved if the following conditions are met:

the plaintiff proves that the alleged person recognized the child during his lifetime;
the applicant refers to the fact that the minor is a relative of the deceased, if he did not know him;
the plaintiff and the child’s father were not married (cohabitation is not taken into account by the judge);
This type of legal proceedings is carried out within the framework of a special procedure - the establishment of facts of legal significance (Article 264 of the Code of Civil Procedure of the Russian Federation).

See also:
What rights does a child have if his parents divorce?

To understand the essence of such a procedure, a woman or other applicant needs to clearly understand that the subject of protection will not be a violation of any right, but rather the legal rights of the child. In cases of special (declaratory) proceedings there is no defendant, since he died. There are only the applicant (plaintiff) and the persons participating in the case. If for some reason you refuse this procedure, having already begun it, then your appeal will still be considered on its merits, since the law obliges the judge to always conclude cases of this category by issuing a verdict.

Who can act as a plaintiff?

In addition to the person who has a legal interest in the fact of establishing kinship after the death of the father-child, there are a number of categories of citizens and officials who can initiate this procedure:

The mother of the child, if the latter has not reached the age of 18 at the time of filing the application.
Guardians and trustees of the child, since they are persons whom the law has assigned with the duty of representing the interests of the minor and protecting him from abuse by any persons.
Guardianship and trusteeship authorities, as well as their territorial institutions and services. Orphanages, if the mother of a child who did not have a father was deprived of parental rights and died.
A person who is raising or dependent on a child. The main thing is that an applicant of this category has a direct interest in establishing paternity and has no self-interest. The court carefully checks these circumstances.

The family law does not explain who exactly is the person who is raising or dependent on the child. But in cases of establishing paternity after the death of the father, there is numerous judicial practice. And it follows from it that such persons can be: brothers or sisters (even if they are half-blooded), who are dependent on the child, uncles, aunts, grandmothers, grandfathers, stepmothers, stepfathers.

Preparation of evidence

Of course, irrefutable evidence in court of a child’s origin from a specific parent is the entry about the father in the child’s birth certificate and in the registry office in the register of facts of legal significance. Today the law allows any type of evidence in this category of cases. They must have a special property - confirm the origin of the child from a specific person, and also be reliable.

What facts can become such confirmation in a statement of claim to establish paternity after the death of the father? The list of such evidence has been developed by judicial practice and is the following list:

Joint photographs and video materials, recordings from audio media, which can confirm the fact of a warm relationship between the child and the deceased man, as well as between his parents.
Certificate of death of the father - it will serve as the basis for initiating legal proceedings.
An extract from the civil registry office confirming the absence of marriage between the applicant and the deceased father of the child.
The birth certificate of the child, in which there is a dash in the “
father
”
.
Documents confirming the residence of the applicant and the deceased citizen in the same residential premises (certificate from the Housing Office).
Receipts confirming the purchase of property for mutual use.
Documents indicating the mutual care of the deceased father and mother of the child (applicant).
Statements from the deceased father's accounts confirming the fact of providing financial assistance to the child.
Outpatient cards from a gynecology or maternity hospital, since primary data about the baby’s father is indicated from the mother’s words.
Testimony of witnesses who can confirm the fact of meetings or cohabitation of the deceased father and child.
Correspondence on social networks is considered evidence if it has not been deleted. It may indicate a warm relationship, a sexual relationship between the mother and the child’s deceased father.
Letters, postal orders, parcels, as well as receipts for their receipt.
Petitions or applications submitted by a deceased citizen in support of a child’s application for placement in a kindergarten, school, or in clubs or sections.

Genetic examination

Of course, the strongest evidence in cases of establishing kinship is the results of genetic testing.

An expert’s conclusion about the origin of a child from a specific father is carried out using the method of “genetic fingerprinting”. However, this is only possible when the body is not buried and is in a hospital or morgue. If there is no genetic material of the deceased father, the court decides to conduct an examination by taking DNA samples from relatives of the potential parent of the child, who is no longer alive. This situation is extremely rare.