Article 48 of the RF IC. Establishing the origin of a child

Options for the origin of children

There is not as much information about this issue as we would like. It is quite easy to understand and remember important information. Even a schoolchild can understand the peculiarities of the ongoing process. The Family Code of the Russian Federation determines the specifics of establishing the origin of children.

Everyone knows that a child can only be born from two people. For this reason, the upcoming procedure comes in different types:

Recognition of motherhood;
Recognition of paternity.

In real life, it is much easier to prove that a woman is the biological mother of a child. Establishing paternity always involves additional difficulties.

Social and biological factors in the recognition of parental rights

The legislation of the Russian Federation requires the recognition of a person’s identity immediately after birth. The Family Code provides for the need to recognize maternal and paternal rights.

Establishing the origin of a child guarantees respect for his rights. In addition, parents have the opportunity to document parental responsibilities.

The origin of the child is certified in compliance with the current legislation of the Russian Federation. To protect children's rights and the emergence of parental responsibilities, it is necessary to take into account legislative grounds. The procedure can be carried out in the registration authority and in court.

Identification of a newborn child is possible on the basis of documents provided by the mother. Documents must confirm the fact of the birth of the child (Article 48 of the RF IC).

The marital status of a woman who has just given birth to a child does not play any role. A woman can be recognized as a single mother if she gives birth to a child out of wedlock.

Determining the origin of a child from the mother

Paragraph 1 of Article 48 of the Family Code of the Russian Federation defines aspects of recognition of motherhood in relation to a newborn:

Medical certificate of a certain form. The document must confirm that it was this woman who gave birth to the child whose rights and interests are being considered. The certificate must indicate the details of the child and parent;
A certificate with the testimony of the doctor who delivered the child;
Witness testimony, ambulance certificates or other official documents confirming the birth of a child (such documentary requirements appear if the baby was born outside the hospital).

The general procedure for registering a newborn child is mandatory if the person was born in a maternity hospital or private clinic. Such requirements are determined by Article 51 of the Family Code, Article 35 of the Fundamentals of Legislation on Health Protection.

Medical documentation, certificates and even witness statements can confirm the fact of the birth of a child. Such documentary requirements to confirm maternity remain important even if conception did not take place naturally, but through in vitro fertilization or artificial insemination. However, in addition, documented consent of the husband or at least the woman may be required if a child is born out of wedlock.

When conceiving a child in a test tube, to establish the origin, it is necessary to determine the presence or absence of consanguinity, but also take into account additional factors:

The presence of an official marriage between the future parents of the child;
Consent of husband and wife to artificial insemination;
Consent to embryo implantation;
Drawing up a surrogacy agreement.

The issue of motherhood can be considered according to a special scheme if a woman plans to adopt a child, but at the same time imitates pregnancy and birth.

Confirmation of maternity is possible by providing additional evidence, but legislative acts do not offer a list of documents. It is possible to use various types of evidence, including witness statements and documents that were compiled after discharge from the hospital.

If a child was born on a sea or river vessel, plane, train, the captain or head of the vehicle must draw up a birth certificate indicating all reliable information.

What benefits are available to single mothers?

Read here how to adopt a child from an orphanage.

Read about benefits for parents with a disabled child at the following link:

Maternity rights are determined according to a simplified scheme. Establishing paternity requires taking into account additional nuances. It all depends on the status of the man. If the child’s parents were married, it is easier to resolve the existing issue. A man's voluntary acknowledgment of paternity may also be helpful.

Article 48 of the RF IC. Establishing the origin of a child (current version)

1. To register the birth of a child, the registry office must make sure that these persons are the parents of the child. To do this, the documents specified in the law must be submitted. According to paragraph 1 of Art. 14 of the Law on Civil Status Acts, information about the child’s mother is entered into the child’s birth certificate on the basis of the following documents:

a document in the established form about birth, issued by a medical organization regardless of its organizational and legal form (hereinafter referred to as the medical organization) in which the birth took place;

a document in the established form about birth, issued by a medical organization whose doctor provided medical care during childbirth or to which the mother turned after childbirth, or by an individual entrepreneur engaged in medical activities - in case of childbirth outside a medical organization;

a statement from a person present during the birth about the birth of a child - during childbirth outside a medical organization and without medical assistance.

Information about the child's father is recorded on the basis of the parents' marriage certificate.

Thus, the mother of the child is recorded in the registry office books in accordance with the document confirming the birth of the child in the relevant medical organization. If the child was born outside a medical organization, then maternity is established on the basis of medical documents, testimony or other evidence. When resolving cases related to establishing maternity, the court also has the right to take into account any evidence that reliably confirms the origin of the child from this woman (clause 4 of Article 14, clause 2 of Article 21 of the Federal Law of November 15, 1997 N 143-FZ). For these purposes, the court should, in particular, examine medical documents indicating the fact of the birth of a child, medical documentation about the origin of the child from a specific woman (birth history), explanations of persons participating in the case, testimony of witnesses, including those present at the birth (when a child is born outside a medical organization), expert opinions.

The application must be accompanied by a document confirming the fact of the birth of the child, issued by: the medical organization in which the birth took place; medical organization whose doctor provided medical care; a doctor in private practice. Documents confirming the identity of the parents (or confirming the authority of the applicant) are also required. If the child was not born in a medical institution, a statement from the person (witness) present at the birth must be submitted. This application must be certified by the organization in which the specified person works or studies, a housing maintenance organization, a local government body, or the administration of a hospital medical institution (if the witness is undergoing treatment there).

The requirements for medical documentation certifying cases of birth of a child are contained in Order of the Ministry of Health and Social Development of Russia dated December 26, 2008 N 782n “On the approval and procedure for maintaining medical documentation certifying cases of birth and death.”

In the absence of these grounds, state registration of the birth of a child is carried out on the basis of a court decision establishing the fact of the birth of a child by this woman.

It should be borne in mind that according to paragraph 1 of Art. 32 of the Code of Inland Water Transport of the Russian Federation, in each case of the birth of a child on a ship or in each case of death on a ship, the captain is obliged to draw up an appropriate report with the participation of two witnesses and a doctor, if there is one on the ship, and also make an entry in the ship’s log. The same obligations are provided for in Art. 70 of the Merchant Shipping Code. For some unknown reason, nothing is said about this in the Air Code of the Russian Federation, although in practice such cases do occur.

The application is submitted to the registry office at the place of birth of the child or at the place of residence of the parents (one of them); at the birth of a child on a ship, on an airplane, on a train while traveling - to the registry office along the route or at the place of residence of the parents. According to paragraph 2 of Art. 15 of the Law on Acts of Civil Status, the birth record indicates the actual place of birth of the child or the name of the place where the child was found (name of the state, subject of the Russian Federation (administrative-territorial entity of a foreign state); name of the urban, rural settlement or other municipal entity ).

If the parents (one of the parents) live in a rural settlement, at their request, instead of the actual place of birth of the child, the place of residence of the parents (one of the parents) may be indicated.

If a child was born on a ship, on an airplane, on a train or in another vehicle during its journey, state registration of birth is carried out by the civil registry office at the place of residence of the parents (one of the parents) or by any civil registry office located along the route of the vehicle. The place of birth of the child indicates the place of state registration of the child’s birth.

State registration of the birth of a child born on an expedition, at a polar station or in a remote area in which there are no civil registry offices is carried out by the civil registry office at the place of residence of the parents (one of the parents) or in the body closest to the actual place of birth of the child civil records.

As a rule, there are no difficulties when registering a mother as a parent. Only in rare cases does the problem of establishing maternity arise: for example, if the mother abandoned the child and he was registered without indicating who his mother was, or as a result of abuse or error by the mother, another woman was registered. In this case, the record of maternity can be challenged only in court at the request of the person registered as the child’s mother, the person who is actually the mother, the child himself upon reaching the age of majority, the child’s guardian (trustee), the guardian of a parent recognized by the court as incompetent ( see commentary to paragraph 1 of Article 52 of the UK).

2. If the parents were married to each other, there is a presumption that the father of the child is the mother's husband. Therefore, if a child was born from persons who are married to each other, and also within three hundred days from the moment of dissolution of the marriage, its recognition as invalid or from the moment of death of the spouse of the child’s mother, the father of the child is recognized as the spouse (former spouse) of the mother, unless otherwise proven . Thus, the state of marriage is a sufficient basis for the husband of the child’s mother to be recognized as the father of the child, even at the unilateral application of the mother.

The period specified in paragraph 2 of the commented article is the maximum period during which a child can be born.

The issues of recognition of paternity are regulated in a special way in cases where the parents are not in a registered marriage. In this case, paternity can be established voluntarily by submitting a joint application to the registry office by the man and woman. The procedure for filing such an application is regulated by Art. 50 of the Law on Civil Status Acts.

By its legal nature, voluntary recognition of paternity is a legal act in the form of a joint expression of the will of a man and a woman, as a result of which certain legal consequences arise. These consequences are that mutual rights and obligations arise between the man who submitted such an application and the born child.

The mother's consent to submit a joint application for recognition of paternity is intended to prevent recognition of paternity by a person who has nothing to do with him. At the same time, situations are possible when the mother refuses to submit a joint application (for example, due to hostile relations with the child’s father). In such cases, the biological father can establish his paternity only in court by filing an appropriate claim.

As a general rule, a joint application is submitted after the birth of the child, but in some cases the application is submitted even before the birth of the child. The legislator mentions special circumstances without specifying exactly what circumstances are being discussed. Examples of such circumstances include a foreign assignment or military conscription.

In some cases, specified in paragraph 3 of the commented article, paternity is recognized only upon the application of the child’s father with the consent of the guardianship and trusteeship authority, in the absence of such consent - by a court decision.

The legal consequence of the statement referred to in part 2, paragraph 3 of the commented article is that regardless of whether the alleged father of the child is alive at the time of the birth of the child, he will be listed as the father of the child. In addition, the filing of such an application will be taken into account by the court as one of the evidence in the judicial establishment of paternity if the application is subsequently withdrawn.

3. In accordance with Federal Law No. 140-FZ of November 15, 1997, paragraph 4 of the commented article mentioned in this article is considered paragraph 3 of this article.

According to this paragraph, voluntary recognition of paternity is also possible in relation to an adult child. However, establishing paternity in relation to an adult child depends on the will of not only the father, but first of all the adult child himself. Moreover, if an adult child does not consent to establishing paternity, a reasoned justification for the reason for the refusal is not required. The consent of an adult child to establish paternity is given in writing and can be expressed in a separate application or in his signature under a joint application of the father and mother (father's application).

The legal requirement to obtain the consent of an adult child, and if he is declared incompetent, the consent of his guardian or guardianship authority for the voluntary establishment of paternity, is also valid when establishing paternity in court (clause 3 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of October 25, 1996 No. 9 “On the application by courts of the Family Code of the Russian Federation when courts consider cases of establishing paternity and collecting alimony”).

Comment source:

“ARTICLE-BY-ARTICLE COMMENTARY TO THE FAMILY CODE OF THE RUSSIAN FEDERATION” UPDATED

S.P. Grishaev, 2017

Resolving the issue of parental rights with the involvement of the court

In what situations is it necessary to go to court? If the parents were not married at the time of the child’s birth and the man did not fill out a special application regarding paternity, the issue must be resolved in court.

In addition, the court is involved in the following situations:

Initiative of guardianship authorities;
Decision of the second parent, guardian or adoptive parent;
The need for documentary confirmation of paternity by a man;
Initiative of a son or daughter over 14 years old;
The need to resolve issues related to alimony or inheritance;
Death of a parent or unknown location.

Establishing paternity.

If the parents were married to each other, there is a presumption that the father of the child is the mother's husband. Therefore, if a child was born from persons who are married to each other, and also within three hundred days from the moment of dissolution of the marriage, its recognition as invalid or from the moment of death of the spouse of the child’s mother, the father of the child is recognized as the spouse (former spouse) of the mother, unless otherwise proven . Thus, the state of marriage is a sufficient basis for the husband of the child’s mother to be recognized as the father of the child, even at the unilateral request of the mother.

If the parents are not married

In some cases, paternity is recognized only upon the application of the child’s father with the consent of the guardianship and trusteeship authority, or in the absence of such consent, by a court decision.

The legal effect of the declaration is that whether or not the child's putative father is alive at the time of the child's birth, he will be listed as the child's father. In addition, the filing of such an application will be taken into account by the court as one of the evidence in the judicial establishment of paternity if the application is subsequently withdrawn.

Voluntary recognition of paternity is also possible for an adult child. However, establishing paternity in relation to an adult child depends on the will of not only the father, but first of all the adult child himself. Moreover, if an adult child does not consent to establishing paternity, a reasoned justification for the reason for the refusal is not required. The consent of an adult child to establish paternity is given in writing and can be expressed in a separate application or in his signature under a joint application of the father and mother (father's application).

The requirement of the law on the need to obtain the consent of an adult child, and if he is recognized as incompetent, the consent of his guardian or guardianship authority for the voluntary establishment of paternity is also valid when establishing paternity in court (clause 3 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of October 25, 1996 No. 9 “On the application by courts of the Family Code of the Russian Federation when courts consider cases of establishing paternity and collecting alimony”).

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How does the process of establishing paternity work?

State authorities are not interested in recognizing paternity if the child’s parents were married or no more than 300 days have passed since the divorce process. In both cases, the woman's husband is recognized as the father of the child. To determine paternity, you only need to present a marriage certificate.

If the child’s parents are out of wedlock, but agree on determining the identity of the newborn, the “father” column in the child’s birth certificate is filled out on the basis of a common statement. The completed application is submitted to the registry office. If the father is known, but he has not agreed to the prospect of confirming parental rights, judicial intervention is required.

The court is also approached in the following situations to determine paternity:

With the consent of the father and the initiative of the guardianship authorities, if the mother is missing, declared incompetent or deprived of parental rights;
On the initiative of a child who has already acquired the ability to make appropriate decisions;
At the request of the official guardian or person who is responsible for providing for the child.

The court has the right to consider any documentary evidence if it reliably confirms the birth of a child from a certain person. If the guardianship authorities do not want to help the potential father, the court will not be an obstacle to resolving existing issues.

Article 48 of the RF IC defines the following nuance: if a citizen has previously failed to confirm the status of the father, he cannot repeat the procedure to obtain parental rights.

What does Family Law say about establishing paternity?

Proving or challenging the fact that a person is a parent is required in court and only in certain aspects:

The child's mother was not married to the potential father;
There is no joint statement from the parents;
The Board of Trustees did not contribute to the successful resolution of the existing issue.

Paternity can be confirmed at any time after the child is born. At the legislative level, there is no limitation period for such situations.

The court considers all important evidence:

Similarities in appearance;
Witness statements;
The correspondence that took place between the child’s mother and the potential father;
Video or audio materials;
General photos;
A request for financial assistance to the accounting department of the enterprise where the potential father of the baby works.

The applicant may file a claim for assignment of paternal status or a claim for alimony.

Conducting medical and biological examination

Issues related to examination are not so easy to resolve. In addition, you need to understand that even medical and biological examination will not give a 100% guarantee and will be limited to 99.9%.

The test can be carried out using blood type or DNA.

The court may ignore the argument if the examination was not carried out as a result of a court decision. Only the court will decide whether to take into account the results of the examination or not. In some cases, the results of the examination may be taken into account.

A DNA or blood test to determine the relationship determines whether a certain person is or is not 100% likely to be the father of a child. There can be no other results.

In many situations, a statement from the child's mother is not enough. DNA testing requires the consent of the potential father, as he may refuse the examination. If the court forces DNA or blood donation, the refusal of the papal candidate is not allowed.

If the parents were unable to independently agree on raising the child and determining their rights and responsibilities, it is advisable to consult a family law lawyer.

After a positive court decision, the child’s documents can be changed. The birth certificate contains the information of the man who was recognized as the father. At the same time, the issue related to the payment of alimony is being resolved.

Recognition of the father of a deceased man

Article 50 of the RF IC determines the possibility of recognizing a deceased person as the father. The statute of limitations still does not apply. However, you need to understand that the process is quite lengthy and can take several years. In addition, it is not always possible to achieve the desired result.

When considering such cases, genetic material is collected. In addition, additional evidence confirming the relationship between the child and the deceased father is assessed.

A post-mortem examination is required only in situations where the possibility of granting an inheritance is determined. The legislation of the Russian Federation allows the granting of an inheritance only if a family connection is confirmed. For example, an entrepreneur left a direct descendant, but according to documents he was not the father. A post-mortem examination will determine the possibility of providing property to the child.

Judges will focus on the following aspects:

The man could consider himself the father of the baby, but at the same time did not have time to resolve documentary issues;
The person refused to acknowledge paternity or died before the birth of a son or daughter.

In this case, the child’s parents did not have to be legally married.

This issue is regulated at the legislative level:

The basic Law;
Codes: Family, Tax, Civil Procedure;
Federal Law No. 73-FZ “On the State Court of Expert Activities”.

The application is submitted to the court at the place of residence or registration of the applicant. The decision depends on the validity of the claims, the presence or absence of significant evidence on the issue under consideration.

The possibility of conducting a forensic medical examination is provided. Providing genetic material is required if there is insufficient documentary evidence of a family relationship.

Evidence can be provided by the testimony of witnesses if the deceased man was in a relationship with the child’s mother, maintained a common household and announced the pregnancy of his beloved or the birth of a baby.

If a woman proves the fact that the deceased man provided financial assistance, the court will not consider this to be confirmation of a paternal relationship. Family ties and financial issues are not related to each other.

Substantial evidence that the deceased father was indeed the child's parent will be equally weighted.

Establishing the origin of children.

The rights and obligations of parents and children are based on the origin of the children, certified in the manner prescribed by law. Establishing the origin of children means establishing the origin of the child from the mother and from the father. The origin of children is certified by the registry office.

Establishing the origin of children Establishing the origin of children means establishing the origin of the child from the mother and from the father. The origin of the child from the mother is usually established on the basis of documents confirming the birth of the child by the mother in a medical institution. If a child was born from persons who are married to each other, then the mother’s husband is recognized as the father of the child, unless otherwise proven. The paternity of a person who is not married to the child’s mother is established either by submitting a joint application to the registry office - by the father and mother of the child (and in some cases - only an application by the child’s father), and in the absence of such an application, paternity is established in court. If paternity is established in the manner prescribed by law, children born out of wedlock have the same rights and obligations as children born within wedlock. The birth of a child is subject to state registration with the civil registry office. Based on the birth record, a birth certificate is issued.

Establishing the origin of a child from the mother The origin of the child from the mother (maternity) is established: • usually - on the basis of documents confirming the birth of the child by the mother in a medical institution, Certificate from the maternity hospital. • and in the case of a child being born outside a medical institution - on the basis of medical documents, witness testimony or other evidence. For example, when a child is born at home - on the basis of honey. a certificate issued by an emergency doctor at the birth of a child in transport (train, plane, ship, etc.) - on the basis of an act drawn up by the head of this vehicle with the participation of two witnesses and a doctor or paramedic, if there is one, etc.

ESTABLISHING THE ORIGIN OF A CHILD FROM THE FATHER If a child was born in marriage, then the mother’s spouse is recognized as the father. If a child was born from persons who are married to each other, then the mother’s husband is recognized as the father of the child, unless otherwise proven. The so-called presumption of paternity - the father of a child born in marriage is assumed to be the mother's husband. The presumption of paternity appeared in Roman law and is included in the family law of our country and other countries. If proven otherwise in court, the record of paternity will be annulled.

Establishing paternity in relation to an adult Establishing paternity in relation to a person who has reached 18 years of age (the age of majority) is permitted only with his consent. If this person is declared incompetent, with the consent of his guardian or guardianship authority.

Establishment of origin in a judicial proceeding Usually, establishment of origin in a judicial proceeding is carried out when establishing paternity. When establishing paternity, the court takes into account any evidence that reliably confirms the origin of the child from a specific person. There are cases when the mother of a child files a claim to establish paternity against the evading father, but it happens the other way around - the mother refuses to file a joint statement and the claim to establish paternity is filed by the father. However, there are also cases when it is necessary to establish in court the origin of the child from the mother. For example, if you lose all documents about the birth of a child. Or when children go missing in criminal proceedings. Or if another woman is registered as the child’s mother without any reason. Forensic testing is often used to establish the parentage of a child. The court may order an expert examination at the stage of preparing the case, as well as at any time during the process - at the request of the parties, interested parties, the prosecutor, or on its own initiative.

Forensic medical examination The origin of a child can be determined using a forensic medical examination (gynecological, biological, genetic, etc.). Genetic examination (method of genomic fingerprinting) can currently answer the question with 100% probability - whether a given person is the parent of a child. It is not always advisable to use expensive genetic examination - simpler types of examination can answer questions such as: • is a given person capable of childbearing, • is the child’s origin from these parents excluded by his blood composition, • could a child be conceived from this person , if he left a given locality at a certain time, • etc.

If one of the parties avoids conducting an examination If one of the parties avoids conducting an examination, then the court has the right to recognize the fact for the establishment of which the examination is appointed as established or refuted, depending on the reasons for which this examination is appointed. For example, a claim from the child’s mother to establish paternity against a person who denies his paternity. If this person (defendant) evades conducting an examination, the court has the right to recognize the defendant as the father of the child.

Artificial insemination and embryo implantation Every adult woman of childbearing age has the right to: • artificial insemination • and embryo implantation. These methods can only be used with the written consent of the spouses (single woman). Artificial insemination of a woman and implantation of an embryo are carried out in institutions that have received a license for this type of activity.

Illegal artificial insemination and embryo implantation entails criminal liability. Information about artificial insemination and embryo implantation, as well as the identity of the donor, constitutes a medical secret. Right to information A woman has the right to information: • about the procedure of artificial insemination and embryo implantation, • about the medical and legal aspects of its consequences, • about the data of a medical genetic examination, external data and the nationality of the donor, provided by the doctor performing the medical intervention

9. Establishment of paternity (maternity).

Legal relations between a child and his mother arise due to the fact of their blood relationship. To certify the origin of a child from the mother (maternity), it does not matter whether the child was born to her in marriage or not.

In accordance with paragraph 1 of Art. 48 of the Family Code, the origin of the child from the mother (maternity) is established on the basis of documents confirming the birth of the child by the mother in a medical institution, and in the case of the birth of a child outside a medical institution, on the basis of medical documents, testimony or other evidence.

In practice, maternity certification is carried out by the registry office, as a rule, on the basis of a document confirming the birth of a child by a specific woman.

This is a document in the established form about birth (medical certificate), issued by a medical organization, regardless of its organizational and legal form in which the birth took place, or a document in the established form about birth, issued by a medical organization whose doctor provided medical care during childbirth or to which the mother contacted after childbirth (Article 14 of the Civil Status Act).

In cases where a child is born outside a medical institution without providing the mother with medical care, the law provides for other grounds for recording his mother, that is, establishing maternity. We are talking about witness testimony. Maternity can be confirmed and registered by the registry office on the basis of an application from a person present at the birth outside a medical organization about the birth of a child. Such a statement can be made by the person present during the birth, orally or in writing to the employee of the registry office conducting the state registration of the birth.

The law does not exclude the establishment of maternity when other evidence is presented, a list of which is not provided. In particular, if a child was born while the mother was on a ship, river or aircraft, as well as on a train, then the captain (ship commander, head of a passenger train) can draw up a birth certificate for the child.

It is possible that there are no documents in the established form about birth or other documents confirming the fact of the birth of a child, as well as evidence of maternity. In such cases, in accordance with paragraph 4 of Art. 14 of the Law on Acts of Civil Status, state registration of the birth of a child and, accordingly, certification of maternity is carried out only on the basis of a court decision establishing the fact of the birth of a child by this woman.

Establishing paternity

The procedure for establishing the origin of a child from a given father depends on the marital status of the child’s mother: whether she is married (married) or not.

1. At the birth of a child from persons who are married to each other, the father of the child in accordance with clause 2 of Art. 48 of the Family Code is recognized as the husband of the child’s mother, unless otherwise proven in court. The paternity of the spouse of the child's mother is certified by the record of their marriage, and therefore no additional evidence of paternity is required from either the child's mother or the child's father. This rule continues to apply at the birth of a child within three hundred days from the moment of divorce, recognition of its invalidity or from the moment of death of the spouse of the child’s mother. In the listed cases, the father of the child is recognized as the former spouse of the child’s mother (clause 2 of article 48 of the Family Code).

The basis for the registry office to enter information about the child’s father into the child’s birth certificate is the parents’ marriage certificate. If the marriage between the child’s parents is dissolved, declared invalid by the court, or if the spouse of the child’s mother has died, but accordingly, no more than three hundred days have passed from the date of dissolution of the marriage, recognition of it as invalid, or from the date of death of the spouse to the day of birth of the child, then information about the father the child’s birth record is entered on the basis of the parents’ marriage certificate or other document confirming the fact of state registration of the marriage, as well as a document confirming the fact and time of termination of the marriage (clauses 1-2 of Article 17 of the Law on Civil Status Acts) .

2. Voluntary establishment of paternity.

When a child is born to an unmarried mother, paternity can be established by submitting a joint application to the registry office by the father and mother of the child (clause 3 of article 48 of the Family Code). In this case:

a) a man (the child’s father) expresses his will aimed at recognizing the child as born of him, that is, as his son (daughter);

b) the child’s mother gives consent to recognition of his paternity.

Establishing paternity as a legal act presupposes that the subject performing it has an appropriate level of consciousness and will. It follows that a person declared incompetent by a court due to a mental disorder cannot voluntarily recognize his paternity. The restriction on voluntary recognition of paternity on the part of incompetent persons does not apply to minor citizens and citizens limited by court in their legal capacity.

The procedure and basic rules for voluntary establishment of paternity are determined by the Civil Status Act (Articles 48-53).

In accordance with Art. 49 of the Law on Acts of Civil Status, a joint written application for registration of paternity is submitted to the registry office at the place of residence of one of the child’s parents or at the place of state registration of the child’s birth. A joint application by the father and mother to establish paternity can be submitted both during state registration of the child’s birth and after state registration of the child’s birth. A joint application for establishing paternity confirms the acknowledgment of paternity by a person who is not married to the child's mother and the mother's consent to establish paternity.

The Family Code provides for the possibility of preliminary submission by unmarried parents of a future child of a joint application to the registry office at their place of residence to establish paternity during the mother’s pregnancy (clause 3 of Article 48). To submit such an application you need:

a) the presence of circumstances that give reason to assume that filing an application to establish paternity after the birth of a child may be impossible or difficult (serious illness of one of the parents, an upcoming long business trip or expedition, moving for permanent residence to another area, etc.);

b) confirmation of pregnancy with a medical certificate issued by a medical organization or private practitioner.

A record of the child’s parents on the basis of such an application is made after the birth of the child, therefore, until this moment, the preliminary application for establishing paternity can be withdrawn by the father or mother of the child at any time before the registration of the child’s birth by the registry office.

The Code also allows for the establishment of paternity based on an individual application from a father who is not married to the child’s mother at the time of the child’s birth, but only if certain conditions are met (clause 3 of Article 48 of the Family Code).

1) this is possible in strictly defined cases by law, namely:

mother's death,
declaring her incompetent,
impossibility of establishing her whereabouts
deprivation of her parental rights.

2) to establish paternity in relation to a child who has not reached the age of majority, the consent of the guardianship and trusteeship authority is required.

The consent of the guardianship and trusteeship authority to establish paternity is expressed in the appropriate document, which is submitted by the father to the registry office when submitting an application to establish paternity. If the consent of the guardianship and trusteeship authority is not obtained, then the decision to establish paternity at the request of the child’s father can be made by the court.

In accordance with clause 4 cm. 48 of the Family Code, a man has the right to recognize himself as the father of his adult child. However, the law establishes a certain requirement for such a situation, according to which the establishment of paternity in relation to a person who has reached 18 years of age (the age of majority) and, accordingly, full civil capacity, is allowed only with his consent. If this person is declared incompetent, the consent of his guardian or guardianship authority is required to establish paternity.

The consent of an adult child to establish paternity is given in writing and can be expressed in a separate statement or in his signature under a joint statement of the father and mother (statement of the father) (Article 52 of the Civil Status Law).

10. Challenging paternity (maternity).

Proof of the origin of a child from specific persons is the entry of parents in the birth register made in accordance with the procedure established by law (Article 47 of the Family Code). However, such an entry in accordance with paragraph 1 of Art. 52 of the IC can be challenged in court.

Challenging paternity, or, less commonly, maternity, is possible in cases where the person recorded in the birth register as the father (mother) is not the person who actually is him (her).

The Family Code grants the right to challenge the record of paternity (maternity) to a strictly defined circle of persons:

the persons themselves registered as the father or mother of the child;
the actual father or mother of the child;
guardian (trustee) of the child;
guardian of a parent declared incompetent by a court.
the child himself upon reaching adulthood (Article 52 of the Family Code).

The court, when considering claims to challenge paternity (maternity), must establish whether the record of the parents made by the registry office corresponds to the actual origin of the child, that is, whether the person recorded as the father (mother) of the child is his biological father (mother). In this case, the court will take into account any evidence provided by the parties that reliably confirms the origin of the child from a specific person.

The law introduces some restrictions on the exercise of the right to challenge the record of paternity (maternity).

1) according to clause 2 of Art. 52 of the Family Code, demands to challenge the paternity of a person who is not married to the child’s mother, but registered by the child’s father on a joint application with the mother or his own, or by a court decision cannot be satisfied (in the absence of the consent of the guardianship and trusteeship authority to establish paternity at the request of the father child - clause 3 of Article 48 of the Family Code), if at the time of recording this person knew that he was not in fact the father of the child.

2) clause 3 art. 52 of the Family Code prohibits a spouse, when challenging paternity, from referring to the fact of using artificial insemination or implantation of an embryo, if he has previously given written consent to perform such an operation on his wife.

3) the law does not allow a dispute about the actual origin of a child carried and born by a surrogate mother after his parents have been recorded in the birth register. Hence in paragraph 3 of Art. 52 of the IC states that spouses who have consented to the implantation of an embryo into another woman, as well as a surrogate mother, do not have the right to refer to these circumstances when challenging maternity and paternity after the parents have been recorded in the birth register.

When considering a case challenging a record of paternity (maternity), the court is obliged to take into account the rule of Art. 57 of the Family Code on the child’s right to express his opinion when resolving an issue affecting his interests.

If the court satisfies the request to challenge paternity (maternity), the previous information about the father (mother) of the child must be excluded by the registry office from the birth certificate of the child.

Previously, the legislation in force (Part 2 of Article 48 of the Criminal Code) provided that when establishing paternity, the court takes into account only the following circumstances:

a) joint residence and management of a common household by the mother of the child and the defendant before the birth of the child;

b) joint upbringing or maintenance of a child;

c) evidence reliably confirming the defendant’s recognition of paternity.

For the court to establish paternity, the presence of one of these circumstances was sufficient.

With the adoption of the IC, the court is not bound by such formal restrictions when deciding the issue of establishing paternity. Now, in each specific case, a decision on a claim to establish paternity will be made by the court, taking into account any evidence that reliably confirms the origin of the child from a specific person (Article 49 of the Family Code). Thus, the court must establish one single fact - the actual origin of the child.

Due to the significant difference between the grounds for establishing paternity provided for by current legislation and those provided for in Art. 48 KoBS, and the provisions of paragraph 1 of Art. 168 and paragraph 1 of Art. 169 of the IC on the application of the norms of the Code to family relations that arose after its entry into force, it should be borne in mind that the court, when deciding which norm should be followed when considering a case on establishing paternity (Article 49 of the IC or Article 48 of the Code ), should be based on the child’s date of birth.

Thus, in relation to children born after the entry into force of the IC (that is, on March 1, 1996 and later than this date), the court must take into account any evidence that reliably confirms the origin of the child from a specific person. In relation to children born before the entry into force of the IC (that is, in the period from October 1, 1968 to March 1, 1996), the court, when deciding the issue of paternity, should be guided by Part 2 of Art. 48 CoBS, taking into account the joint residence and management of a common household by the mother of the child and the defendant before the birth of the child or joint upbringing or maintenance of the child or evidence reliably confirming the defendant’s recognition of paternity. Therefore, Part 2 of Art. 48 COBS will continue to be used in judicial practice in the future.

When establishing paternity for children born after March 1, 1996, the court takes into account any evidence (factual data) that reliably confirms the child’s origin from a specific person. For example, evidence of the paternity of a particular person may include various documents (letters from the defendant, statements at the place of work for financial assistance, oral statements from the defendant, appropriate behavior of the defendant during the mother’s pregnancy and after the birth of the child (caring for the mother, visiting her in the maternity hospital , meeting a mother with a newborn, congratulations on a newborn, choosing a name for a child, etc.) They may directly or indirectly indicate that the father of the child is the defendant.

The court's decision may also be based on other evidence. Moreover, none of them can have priority and should be considered only in conjunction with other evidence confirming or refuting the data presented by the persons participating in the case.

In necessary cases, to clarify emerging issues related to the origin of the child, the court, taking into account the opinions of the parties and the circumstances of the case (for example, requiring special knowledge in the field of medicine or biology), may order an examination.

A blood test carried out using the method of “genomic or genetic fingerprinting” makes it possible to establish with a very high degree of probability whether the defendant is the biological father of the child. At the same time, the conclusion of an examination on the issue of the origin of the child, including one carried out using the method of “genetic fingerprinting”, by virtue of Art. 78 of the Code of Civil Procedure, is only one of the pieces of evidence that must be assessed by the court in conjunction with other evidence available in the case, since in accordance with Part 2 of Art. 56 of the Civil Procedure Code, no evidence has pre-established force for the court.

It should be borne in mind that the child in respect of whom paternity is being established was born in the period from October 1, 1968 to March 1, 1996. The conclusion of the genetic examination will not have legal significance, in the absence of others provided for by law (Part 2 of Article 48 of the KoBS ) evidence.

The appointment of a genetic examination by the court must be based both on the requirements of the law and stem from the circumstances of a particular case, when it was not possible to resolve certain issues related to the origin of the child with the help of other evidence and the defendant insists on such an examination.

The court has the right, in a special proceeding (Article 246 of the Code of Civil Procedure), to establish the paternity of a person who is not married to the child’s mother in the event of the death of this person. This fact can be established in relation to children born on March 1, 1996 and later, if there is evidence reliably confirming the child’s origin from a given person (Article 49 of the Family Code), and in relation to children born from October 1, 1968 before March 1, 1996, - in the presence of evidence confirming at least one of the circumstances listed in Art. 48 KoBS RSFSR.

In the event of the death of a person who recognized himself as the father of the child, but was not married to his mother and for some reason did not submit an application to the registry office for voluntary recognition of paternity, the court, in accordance with Art. 50 of the IC has the right to establish the fact of recognition of paternity. The fact of recognition of paternity is established by the court according to the rules of special proceedings (Articles 245-251 of the Code of Civil Procedure). In this case, the court may take into account any evidence that reliably confirms the fact that a person recognizes his paternity, expressed orally or in writing, including witness testimony. However, the fact of recognition of paternity can be established by the court only on the condition that there is no dispute about the law. If such a dispute arises (for example, regarding inherited property), the application to establish the fact of recognition of paternity is left by the judge without consideration and the interested parties are explained their right to bring a claim on a general basis.

In most cases, the applicant in the case of establishing the fact of recognition of paternity is the mother of the child or his guardian (trustee). It is possible that the child himself may file a similar application with the court upon reaching adulthood. Interested citizens and organizations should be involved in the case, for example, educational institutions that house minor children left without parental care, heirs of a deceased citizen.

State registration of paternity establishment on the basis of a court decision to establish paternity is carried out upon the application of the mother or father of the child, the guardian (trustee) of the child, the person who is dependent on the child, or the child himself who has reached the age of majority (Article 54 of the Law on Civil Status Acts). These persons may, in writing, authorize other persons to make such a statement.

Which organizations should I contact to resolve the issue regarding paternal rights?

Issues related to the determination of parental rights are resolved with the mandatory involvement of the following organizations:

Medical institutions;
Medical examination institutions;
MARRIAGE REGISTRY;
Court.

If the parties to the proceedings reach a certain agreement regarding parental rights and responsibilities, the involvement of the court can be avoided. In situations where judicial intervention is required, it is necessary to contact a family law lawyer.

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