Posthumous establishment of paternity
With the growing popularity of civil marriage, certain troubles are increasingly emerging. Since children are born in such marriages, it often becomes difficult to establish paternity. Particular difficulties arise when the future father dies. A young mother sometimes has a need to prove the relationship of the baby with the deceased person. For example, a girl wants to issue a child benefit on the loss of a breadwinner or claims the inheritance of her civil husband.
Methods of establishing paternity
There are three ways to establish kinship when the spouses are not married. They differ in the conditions and sequence of the procedure. You can establish paternity in the following ways:
- voluntary recognition;
- with the help of a court decision;
- posthumous paternity establishment by court.
Voluntary recognition of kinship
It is established in the case of unregistered relations of civil spouses. They together submit an application to the Civil Registry Office for the recognition of paternity (motherhood is automatically recorded). If the mother of the child either died, or was deprived of parental rights after the trial, or she was found incapacitated by the conclusion of specialists, then the father can apply only with the consent of the relevant authorities. It is important to take permission from the guardianship authorities.
Sometimes after the birth of a baby, due to any circumstances, parents can not together submit an application. Then it is provided for his submission to the Civil Registry Office before the birth of the child.
When the child reaches the age of majority, the process of establishing paternity is carried out only with the permission of the first.
Judicial establishment of paternity
Often there are situations that the alleged father does not want to recognize his minor child. Here the mother can achieve justice only in the courts.
The Family Code was amended in March 1996. Therefore, if the child was born after making changes, the establishment of the fact of paternity is regulated by Article 49 of the Criminal Code of the Russian Federation. The court accepts and considers all submitted evidence, which confirm the birth of the baby from the person indicated in the application. All possible evidence is listed in Article 55 of the Criminal Code of the Russian Federation.
For older children, the procedure is carried out on other aspects. In this case, the court will be guided by Article 48 of the Criminal Code of the Russian Federation in making its decision. Here the plaintiff proves the general management of the household, as well as the joint residence of civil spouses at the time of pregnancy, followed by the birth of a joint child. In the establishment of paternity, the statute of limitations is not provided for by law. The court can be contacted at any time after the birth of the baby.
Establishing paternity after death
Posthumous establishment of paternity is carried out only in a judicial order. Here, the fact of recognition of a born baby as a deceased person during life is not important. Also, the establishment of paternity after the death of the father begins only after the provision of evidence that certifies the fact of birth from the deceased person. This case only applies to children born before March 1996.
The court also deals with longer disputes. If the child was born before October 1, 1968, the court recognizes the paternity of the deceased person, if there is evidence that the minor was completely dependent on the alleged father before his death.
Reasons for establishing kinship
There are only two reasons that lead to the posthumous establishment of paternity.
- When the child's parents were not in an official marriage, and at the time of death the alleged father did not recognize his own child.
- If a man acknowledged paternity to death, but at the time of the birth of the baby, the spouses are already or not yet officially married.
Submission of statement of claim in court
For the establishment of kinship, the required claim to the court, in addition to the mother, may be filed by some more persons. To apply to the court have the right:
- guardian, officially confirmed when the child has not reached adulthood;
- if the baby is dependent on someone, then the person suing the minor will sue;
- upon reaching the age of 18, the child himself can file a lawsuit in court.
The evidence that the court takes into account when making its decision
Article 55 of the Criminal Code of the Russian Federation specifies all admissible evidence that the plaintiff can submit to the court when establishing paternity. These include:
- Letters that the alleged father wrote to both the mother of the child and the minor himself.
- Written statements of the deceased person, which indirectly prove paternity. These may be entries in circles or sections that the alleged father carried out.
- Witness's testimonies. The court will listen to the views of neighbors and relatives of the mother, who will talk about the relationship of the couple. Also here, if possible, will be involved and government agencies that can provide important evidence on this issue.
- Medical evidence. An important aspect in the postmortem establishment of paternity is the results of DNA analysis. Of course, this procedure is possible only if the deceased person has close relatives, for example, parents, sisters or brothers.
Conducting DNA analysis for paternity
How is this done? Postmortem establishment of paternity is often carried out only after the test. To date, such cases are quite popular and more effective. The test for paternity is carried out only after the court decision and in a certain clinic, which will be indicated. DNA analysis is carried out with strict observance of all sanitary and legal norms. In connection with the death of his father, specialists use the biomaterials of their immediate relatives. Parents or siblings can act as a source for collecting biomaterial for DNA analysis for paternity. Also, specialists can use the analysis of the blood of the deceased person that he passed during his lifetime.
The paternity test gives a probability of 99%, which will significantly increase the chances of a positive outcome for the plaintiff. After passing this procedure, the results are sent to the court, and a new date is appointed for the consideration of the case. With a positive decision, the mother or other representative of the minor child writes an application to the registry office, attaching copies of all the necessary documents. These include the birth certificate of the child and the court's ruling. On the basis of a court decision, in a few days the mother receives a new certificate of establishment of paternity. With this document, a woman can claim payment of survivor's benefits, as well as inheritance.
Conditions for applying for deceased paternity
The application for the establishment of the fact of paternity, submitted to the court, must be drawn up according to all legislative norms. If the mother or guardian of a minor does not know about the whole procedure, it is better to consult a lawyer or a lawyer for advice. Because, in addition to the statement, it is necessary to attach copies of some documents. With proper filing, the court will soon take into account your situation and begin work. In the application, the mother must indicate all the data about the deceased alleged father and the joint minor child.
List of copies of documents required for consideration in court:
- Death certificate of the alleged father.
- Certificate of birth of a joint minor child.
- Certificate of joint residence (if any).
- Receipt of payment of the required state duty.
- Evidence of paternity of the deceased person (photographs, letters, etc.).
Objections on the application of the establishment of kinship of the deceased person
Sometimes it happens that the submitted application of the mother to the paternity of the deceased civil spouse is considered more seriously in connection with certain specific circumstances. They may become counterclaims, more often lawsuits. Such a lawsuit may be filed by close relatives or, worse still, by his official wife.
In the event that the deceased alleged father did not have an official marriage with another woman, the fact of kinship is confirmed by evidence in the form of photographs or letters, and also with the help of witnesses. If a man was in an official marriage, then to prove justice is much more difficult. Despite all the evidence and testimony provided, the court will require a DNA test. According to experts in the legal field of activities, if a counterclaim occurs on the application, the court is guided only by the results of the analysis when making the decision.
Summarize. Establishing paternity after the death of the father is a rather troublesome business, and sometimes it requires large financial costs. Therefore, to establish the relationship of unregistered pairs should be treated more responsibly. Because the judicial practice marks the moments when the establishment through the court has failed. It is not easy for a young mother to survive the situation one by one.