Contesting paternity

Contesting paternity in Ukraine

Contestation of paternity by a person recorded by the child's father in Ukraine

Contestation of paternity by a person recorded by the child’s father in Ukraine

A person registered as the father of a child in accordance with Articles 122, 124, 126 and 127 of the Family Code has the right to challenge his paternity by filing a claim to exclude the record of him as a father from the child’s birth record.

In case of proof of the absence of consanguinity between the person registered as the father and the child, the court makes a decision to exclude information about the person as the father of the child from the record of his birth.

Contestation of paternity is possible only after the birth of a child and before the child reaches the age of majority.

Family lawyer in Ukraine

Family lawyer in Ukraine

Our lawyers are often asked the question: How to challenge paternity without examination? When can a paternity challenge be filed? Who is the defendant in a paternity contested case by a person recorded as the child's father?

On our website advokat-family.com.ua you will find all the answers to your questions in the field of family law in Ukraine.

When it is impossible to challenge paternity in Ukraine

When it is impossible to challenge paternity in Ukraine

Contestation of paternity is not possible in the event of the death of the child.

A person registered as the child’s father has no right to dispute paternity if at the time of registering himself as the child’s father he knew that he was not his father, as well as a person who gave consent to the use of assisted reproductive technologies in accordance with part one of Article 123 of this Code.

The limitation period is not applied to a man’s claim to exclude the record of him as a father from the birth certificate of a child.

Grounds for challenging paternity in Ukraine

Grounds for challenging paternity in Ukraine

In particular, if a person with whom the mother was married and who is registered as the child’s father has reasonable doubts about his paternity, he has the right to challenge his paternity on the basis of Art. 136 SK.

Here it is believed that the question should be precisely about contesting paternity, since the exclusion of the record of a person as a father from the record of the birth of a child is only a consequence of the consideration of the case, and when disputing paternity, there should also be a question of annulling the rights and obligations of such a father, which he acquires in the order of Art. 121 UK, and not just “about the exclusion of the record of the person as a father” – this is only the formal side of the issue.

Therefore, we must agree with the opinion that when considering such a case there is a dispute about the right that arises from family relations, but it is believed that the basis of such a claim is certain circumstances related to the birth of a child, which affects the subsequent registration of the child.

In general, the trial of such a case should be aimed at clarifying such a circumstance – whether the person specified in the child registration act is really the child’s father and, in particular, that he is blood related to the child.

But the question of the procedure for considering such a case cannot be considered correctly posed.

In Art. 136 SK indicates that the case will be considered in the action, while the father must prove the absence of consanguinity between him and the child.

In fact, such a claim can be qualified as a claim for recognition of paternity, but it is impossible to find an answer who should be the defendant in the case either in the law or in the comments of leading experts to the Investigative Committee.

Therefore, a careful consideration of the grounds for registration of a person by the father of the child is necessary, which indicates the various characteristic circumstances of such registration.

According to Art. 122 of the SK, the law presumes the origin of the child from persons who are married, but it is allowed to submit an application for non-recognition of the husband as the father of the child (part 3 of Article 122 of the SK), then it can be assumed that the wife plays the main role in recording the face of the father or she did not inform her husband about the true origin of the child, therefore she should be the defendant in such a case.

If we are talking about Art. 124 SK, the role of the wife in this norm is minimized, therefore, the way back from establishing paternity to challenging it should take into account two features:

  • when only a joint application of two men was submitted and the mother did not take part in this process, then only the man should be the defendant, and if the wife participates in the filing of such an application, then in a dispute about paternity, she will be an interested person;
  • when the entry of paternity was made on the basis of a court decision, then until its cancellation in the manner prescribed by law, any case on the origin of paternity cannot be considered, since this issue was already the subject of the court’s consideration and the court decision entered into legal force. Therefore, such a court decision can be revised not in a claim proceeding, but in the procedure for proceeding on the basis of newly discovered circumstances. Another option, when the decision has not entered into legal force, then the appeal and cassation appeal of the court decision can be applied.

Determination of the Defendant in Paternity Challenge Cases in Ukraine

Determination of the Defendant in Paternity Challenge Cases in Ukraine

The origin of the child, established on the basis of Art. 126 of the UK, also predetermines the special role of women, so we can say that a woman should be a defendant in a case under these conditions.

Determine the defendant in the case if the established paternity is disputed on the basis of Art. 127 SK, in general, it is very difficult, since according to the conditions given in the norm under consideration, the entire initiative of the child’s origin lies with the plaintiff, and only a record from the mother’s words testifies to his paternity. Therefore, it is difficult or practically impossible to involve a “deceased” or “declared deceased” mother in the case, and therefore the question of who should become the proper defendant in such a case will be presented to the court. It seems that under such conditions, with a minor child, such a claim is practically impossible, therefore, we should talk about the establishment of a legal fact in a special procedure, and not about a claim.

The latter provision indicates that in the absence of proper defendants, for example, in the case of the death of the wife (paragraph 1 of the listed) or the death of the second (new) husband of the mother (paragraph 2), the case can be considered in a special procedure on the basis of the Code of Civil Procedure.

It should also be considered that a child who has reached the age of 14 may be attracted by the father to participate in the proceedings as a defendant, but it seems that in this case, in the absence of the child’s mother, the guardianship and guardianship authorities should take part in the case in order to protect the interests of the child.

In general, a claim to contest paternity can be brought only after the birth of a child and before he reaches the age of majority, therefore, as indicated in Part 6 of Art. 136 SK, to such a requirement (to exclude the record of a man as a father from the record of the birth of a child) the limitation period does not apply.

Here there is not a limitation of actions, but we can talk about a procedural period during which such a statement can be submitted to the court, that is, only after the birth of a child and until he reaches the age of majority.

In our opinion, the provision of Part 3 of this provision on the possibility of challenging paternity by a person who is recorded by the child’s father only before the child reaches the age of majority raises doubts, since it affects the inheritance rights of this child.

That is, this child, like other heirs, can claim an inheritance after the death of the person recorded by her father.

Since the case where the person recorded as the child’s father learned that he is not, if the child has already reached the age of majority, is not covered by the conditions for challenging paternity provided for in Art. 137 SK.

Contesting paternity is impossible in the event of the death of a child (part 4), as well as by a person who is recorded as the father of the child, if at the time of his registration as the father of the child, he knew that he was not the father, as well as the person who gave written consent to the use of assisted reproductive technologies to his wife, in accordance with Part 1 of Art. 123 SK.

Therefore, if the court receives such an application, the judge must refuse to open proceedings on the case on the basis of the norms of the Code of Civil Procedure.

If the claim is satisfied, the decision taken in the case to contest paternity after entry into force in accordance with the Civil Procedure Code will be the basis for the registry office to exclude (annul) the record about him as a father from the child’s birth record.

The child's mother's right to challenge the paternity of her husband in Ukraine

The child’s mother’s right to challenge the paternity of her husband in Ukraine

  1. A woman who gave birth to a child in marriage has the right to challenge the paternity of her husband by filing a claim to exclude the record of him as the child’s father from the record of the child’s birth.
  2. The mother’s demand to exclude the record of her husband as the child’s father from the child’s birth certificate can only be satisfied if another person submits a statement of his paternity.
  3. A limitation period of one year is established for the mother’s request to amend the birth certificate of the child, which begins from the date of registration of the child’s birth.

The commented rule regulates the mother’s right to challenge the paternity of her husband.

A woman who has given birth to a child in marriage has the right to challenge the paternity of her husband.

The requirement to contest the paternity of her husband (excluding the record of her husband as the child’s father from the child’s birth record) can only be satisfied if another person submits an application for acknowledgment of his paternity.

An example of challenging paternity in court in Ukraine

An example of challenging paternity in court in Ukraine

In our law practice, there was a case when a woman wanted to challenge the paternity of her husband and filed an application to the court about it, because she was in a de facto marriage relationship with another man and believed that the child was born from him.

When she applied to the court to challenge her husband’s paternity, she was first returned the application because she had not submitted the other spouse’s consent to his paternity.

Such a case speaks of the incorrectness of the perception of the norms of the material law (SC) and their not quite clear presentation and interrelation with the norms of the Code of Civil Procedure.

The law does not say that such an application is submitted to the court together with another person’s statement of his paternity, but only in part 2 of Art. 138 UK notes that “the mother’s demand can be satisfied only if another person submits a statement of his paternity.”

The plaintiff did not add such a statement to the case file, since the person with whom she was in a de facto marriage relationship was on a long business trip abroad in Germany.

In addition, she and her representative believed that such an application could be made at any stage of the proceedings, but before a decision was taken.

If such a statement is regarded as evidence, then it could be presented both before and during the preliminary court session, or a person during the preliminary court session has the right to inform the court about the presence of such evidence and present it at any stage of the process before the decision is made.

In particular, this is evidenced by a fragment of Part 2 of Art. 138 SK “demand … can only be satisfied in the event …”.

That is, there are no prohibitions on the adoption of such a statement by the court in the law. In addition, in the Code of Civil Procedure, there is no such basis among the grounds for returning the application.

Therefore, upon resubmission of the application, the proceedings were opened, the case was scheduled for consideration in a preliminary court session, in which the actual husband of the plaintiff was supposed to participate as a third party without independent claims on the side of the plaintiff, but, returning from a business trip, he died in a car accident …

The court closed the proceedings due to the fact that the case was not within the jurisdiction of the court and reasoned in the ruling that such a case could be considered on the merits only if there was a statement by the plaintiff’s actual husband about his paternity.

But the consequence of such actions of the court was an incorrect perception of the legislation, since in this case the court must refuse to satisfy the claim to the plaintiff based on the content of Part 2 of Art. 138 SK.

In our opinion, the court under such conditions should have considered the case on the merits in accordance with the constitutional principle enshrined in Art. 124 of the Constitution of Ukraine, that the jurisdiction of the courts extends to all legal relations arising in the state, since such a case, as a general rule, is subject to the jurisdiction of the court.

And to confirm the fact that the person recorded as the child’s father is not his biological father, conduct a forensic genetic examination.

As for the conditions that take place in Part 2 of Art. 138 SK, such a statement, in our opinion, should be regarded as evidence of the person’s acknowledgment of his paternity.

But the basis for a person’s recognition of the fact of paternity may be other evidence that will enable the court to draw a likely conclusion that it is he who is the father of the child.

When considering a case, the judge must check the actual will of the person who claims his paternity, whether it was done as a result of pressure, deception, and the like.

In addition, in part 2 of Art. 138 UK does not specify that such a statement must be made in writing or orally.

Therefore, in addition to the application, the judge must examine any factual data (evidence) that will enable him to satisfy the application of the child’s mother to challenge the paternity of her husband.

The presence in Part 2 of Art. 138 SK of the requirement for a person to file an application for his paternity, in our opinion, is a limitation of the mother’s procedural rights, namely, the right to apply to the court for judicial protection when another person does not agree to acknowledge his paternity.

In the title of Art. 138 of the Family Code provides for the mother’s requirement to challenge the paternity of her husband, and in Part 2 of Art. 138 SK notes another requirement of the wife – to exclude the record of her husband as the father of the child from the record of the birth of the child, and in Part 3 of Art. 138 SK – a requirement to amend the record of the birth of a child, for which a limitation period of one year is established, starting from the date of registration of the child’s birth.

So, in one norm the legislator names the same requirement three times, but each time in a different way. It is believed that such a requirement is inherently concerned with establishing the paternity of another man.

This provision is considered a logical combination of the interests of the biological father, whose status in the civil process should be recognized as a co-plaintiff, which is due to his independent interest in annulling the paternity of another person.

This conclusion is based on a step-by-step analysis of the civil process: when a wife makes a claim against her husband, in fact, the biological father is a third party with an independent claim on the subject of the dispute – parental rights and responsibilities.

If his interests coincide with the interests of the plaintiff, then he can obtain the status of a co-plaintiff if he goes to court together with the plaintiff.

It also appears that in the case where the will of the biological father at the time of filing the claim is unknown, the wife’s application may be accepted by the court for consideration, but in such an application the biological father may be indicated as a third party without independent claims on the side of the plaintiff.

And when a copy of the statement of claim challenging paternity is sent to him, he can apply to the court for recognition of his biological paternity after familiarizing himself with the materials of the relevant civil case.

In this statement, he expresses the stipulated part 2 of Art. 138 SK consent to the recognition of their paternity.

Family attorney for paternity disputes in Ukraine

Family attorney for paternity disputes in Ukraine

In resolving a case when challenging paternity, the most optimal is to contact a family divorce lawyer, who will help you quickly and efficiently resolve the case in your favor.

Our lawyers specialize in solving family law cases, so they know the subtleties and nuances that will help speed up the process.

The advantages of going to family law lawyers are:

  • the efficiency of the decision of the case when the paternity is contested;
  • quick preparation of documents for their submission to the court;
  • saving material and time resources in solving the case;
  • the ability to resolve issues online.
Daria Sergeevna Scriabin
Family lawyer
The best way to save time and money when challenging paternity is to seek the advice of a good family lawyer!

Please contact our family lawyers if a positive result is important to you when challenging paternity.

To resolve the case, you need to call or write to our family lawyers and they will provide you with all the necessary information as soon as possible!

Frequently asked questions to a lawyer in Ukraine

Frequently asked questions to a lawyer in Ukraine

Who is the defendant in a paternity contested case by a person recorded as the child's father?
When can a paternity challenge be filed?
What is the main requirement for satisfying the claim for the disputing of paternity by the wife of her husband and excluding the record of her husband as the father of the child from the record of the child's birth?
Do you need a personal presence of the client in court?
What is your experience in family affairs?
What is the cost of legal services in your company?

If the article “Contesting paternity” was useful for you, please like it. We will provide you with the most relevant and useful information in the field of family law, as well as on current changes in the legislation of Ukraine.

Useful site materials advokat-family.com.ua:

  1. Acknowledgment of paternity
  2. Paternity dispute
  3. Establishing paternity
  4. Determination of the child’s place of residence
  5. Taking away a young child
  6. Deprivation of parental rights
  7. Adoption
  8. The order of communication, meetings with the child
  9. Departure of the child abroad
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