Legal status of a child born out of wedlock
In accordance with Russian legislation, a child born out of wedlock has exactly the same rights as children born in an officially registered relationship. In Art. 53 of the Family Code of the Russian Federation (hereinafter referred to as the RF IC) it is noted that children out of wedlock have the same rights and responsibilities in relation to their parents as children born to citizens who are not married to each other.
So if a child was born in an official marriage, then his mother’s husband is automatically his father. In a situation where the marriage relationship has not been formalized, a man can be recognized as a father - only with his consent. If a man does not recognize himself as the father, then paternity can be recognized by a court decision. In this case, the child's mother must file an application to establish paternity .
In this case, the woman will have to prove in every possible way that this particular man is the father of the baby. Evidence in this situation will be testimony of witnesses, joint photographs, purchases, etc. If the evidence presented to the court is not enough, then a DNA examination .
Example
Citizen Simonova went to court to collect alimony for their child, born out of wedlock from her common-law husband. As evidence, she provided available photographs of them together, receipts for payment of utility bills, the owner of which is the plaintiff. She also brought several witnesses to the court who confirmed that citizen Simonova and the defendant, the child’s father, lived together for about four years. As a result, a child was born.
The defendant, citizen Prikhodko, denied paternity. At the request of citizen Simonova, the court ordered a DNA examination. The defendant refused.
The court reasonably came to the conclusion that the fact of paternity of citizen Prikhodko was proven in accordance with Art. 79 of the Civil Procedure Code. The court decided to collect alimony for a minor child in the amount of 1/4 of citizen Prikhodko’s monthly earnings.
Features of the trial
So, in order to prove paternity forcibly in court, it is necessary to file a statement of claim.
Along with it, you need to provide a copy of the application itself for the defendant, a copy of the baby’s birth certificate and proof that the person is the father. In addition, the package of documents also includes a check, which indicates payment of the state duty.
The court has 5 days to consider the case. During this time, the evidence base is being studied. If necessary, the court orders additional examinations or requests the results of those already carried out. Clear evidence that the plaintiff is right is a genetic DNA test.
If she confirms that the man is the father, then it will be quite difficult to get out. Of course, it is best to have additional evidence, which includes:
- messages and letters;
- witness statements;
- joint photos of father and baby.
The presence of numerous evidence will allow paternity to be established as soon as possible. Here the father's voluntary confession will no longer matter.
As a result, this makes it possible to file an application to court to recover alimony from the biological father. In this case, a trial will also be held. It won't take long. Often such claims are resolved within a few days.
If at this stage the father changes his mind and stops denying his responsibility, then this issue can be resolved much faster. So, the optimal solution would be to conclude a settlement agreement.
You may be interested in an article about what is the amount of child support for two children. You can read about how to receive alimony outside of marriage here.
In it, the spouse indicates that he is ready to pay alimony in a certain amount or in a specified portion of income. Collection in the latter case is carried out in accordance with the law. Such an agreement is certified by a notary, which gives it legal force.
Amount of alimony for a child out of wedlock
Since a child born out of wedlock has the same rights as a child born in a legal relationship, the amount of the parent’s child support obligations is calculated according to the general rules. The only difference is that you can apply for child support payments only when paternity has been established .
If paternity is established, then there may be two options for fulfilling the obligation to support a minor:
- Agreement on payment of alimony , which will fix the amount of alimony obligations, the timing of their fulfillment, the procedure for transferring, and responsibility for failure to fulfill the terms of the agreement;
- By court decision in accordance with Art. 81 IC RF. It states that 1/4 of a parent’s income goes to one child, 1/3 to two children, and if there are more than two children, then 1/2.
Also, in some cases, both the agreement and the court may provide for alimony obligations in a fixed monetary amount. In this case, it is necessary to comply with the requirement that the fixed amount cannot be less than the amount of obligations required by law.
However, the court may, in exceptional cases, reduce or increase the amount of alimony. In this case, the financial and marital status of the parties, as well as other circumstances, are taken into account.
So, if a parent does not have a permanent place of work or the salary is not fixed, etc., then the court may order payments for alimony obligations in a fixed amount (Article 83 of the RF IC). In this case, the calculation will be made taking into account the cost of living for a minor and the minimum wage in the region in which the parent lives.
The parent's child support obligations are paid until the child reaches the age of majority . If a child enters a university for full-time study, the support may last until he turns 23 years old.
Example
Citizen S.O. filed a claim for alimony for her maintenance, since after the divorce her ex-husband does not help her financially. At the time of the divorce, the woman was pregnant. At the moment, the plaintiff and defendant have a common child who is under three years old.
In court, citizen S.O referred to the fact that she was forced to constantly look after her child and was unable to go to work. She presented a certificate from her place of work stating that she was on maternity leave.
Based on the evidence presented, the court reasonably came to the conclusion that the claims were satisfied and alimony was collected for the maintenance of the ex-wife in a fixed monthly amount. When assigning the amount of alimony, the court relied on the minimum wage in K.O.
Forced confession through court
If the father wishes to prove his paternity of his own free will, he must file a claim. A package of documents is attached to this application:
- Passport of the person filing the claim.
- Birth certificate of the baby, in relation to which the relationship is proven.
- Evidence of a person's relationship with the child. It is best if these are the results of a DNA test. At the same time, testimony of witnesses and photographs in which the applicant is depicted with the baby can be attached to the documents.
It is important to know: if paternity is established as a result of the death of the mother or when she is declared incompetent, then the relevant documents must be included in the package.
Of course, most often it is fathers, not mothers, who abandon their babies, especially if he was born in an unofficial marriage. The reason for this is that refusal will allow him to avoid paying alimony.
In this case, the common-law wife must prove the relationship. She files a lawsuit to establish paternity. The following list of documents is provided along with the application to the court:
- Passport.
- Information about the defendant who is the alleged parent.
- Documents that prove the relationship of a person with a teenager. So, this could be the testimony of witnesses, photographs in which the defendant is captured with him, and more.
- Child details.
Both parties must be present at the trial. Also, if necessary, the court may call witnesses. Most often this happens in cases where their testimony is attached to the case. If the teenager is 10 years old, he can also be summoned to trial.
Good to know: a child is called to a trial only if he can accurately express his attitude to the current situation. This takes into account not only his age, but also his psychological state.
In cases where the father refuses the baby, a genetic examination is carried out. If an examination has not been carried out at the time of the start of judicial proceedings, it is appointed by a court decision and the defendant must undergo it without fail.
The trial will be temporarily suspended. The process will be restored after receiving the research results. The costs of establishing paternity in this way are borne by the applicant.
If as a result it turns out that the common-law husband is the father of the child, then he will reimburse the plaintiff for all the money that was spent on the DNA examination. A positive result of the examination gives every chance that the court will satisfy the mother’s claim.
You might like this article on how to file for child support online. You can read about how to apply for alimony during marriage here.
You may also find this article useful about the percentage of alimony for one child.
If a person has a small income or is completely unemployed, then the amount of alimony payments will be negligible. It is also worth considering that if the paternity of the defendant is established in court, then the woman loses her status as a single mother, and, accordingly, the social payments and benefits due to this status.
Alimony for the mother of a child out of wedlock
From Art. 89 of the RF IC it follows that the spouse has the right to alimony during pregnancy and for three years from the birth of their common baby . The ex-wife also has this right in accordance with Art. 90 RF IC. Thus, only the woman who was in a legal relationship with the man has the right to alimony obligations.
This type of alimony obligation is intended to protect the interests of the mother and child under the age of three. This is due, first of all, to the fact that a woman during this period is not able to financially provide for herself and her baby, since she is forced to constantly care for him.
In order for a mother to apply for alimony, several conditions must be met:
- The common child is under three years old.
- The fact of paternity must be established (by the court or the man does not dispute).
- The woman is pregnant.
When the ex-husband refuses to voluntarily fulfill his obligations to support the child’s mother (that is, there is no agreement), the woman has the right to go to court.
If there is no agreement on alimony obligations between the former spouses, the amount of alimony is determined based on the minimum wage. Payments must be made monthly in a fixed amount.
Also, the ex-husband will pay alimony only if the mother proves that she really needs financial assistance. In addition, the court will also examine the position of the father, since he may, for example, be unemployed and also unable to pay child support. A man is obliged to pay child support obligations until the child turns 3 years old, but in the case when a woman’s financial situation changes (remarried, went to work, etc.).
But the court may refuse to pay alimony if the following circumstances exist:
- A woman drinks alcohol.
- The divorce occurred due to the fault of the woman (for example, infidelity, drunkenness).
- A woman lies about not working or hiding her income.
- Other circumstances indicating a woman’s negative intention.
At what point do parental responsibilities begin?
A man's parental rights arise from the moment information about paternity is entered into the child's birth certificate. The registry office makes an entry with his consent or by force.
A citizen voluntarily becomes a parent on the basis of a personal application. It is submitted together with the mother at the time of registration of the fact of birth.
The mother provides an individual application along with a medical certificate, passport and marriage certificate. Based on the documents received, the specialist issues a certificate with a record of the father.
Collection of alimony for a child out of wedlock
It is much simpler when an agreement is concluded between the father and mother, certified by a notary . This means that the child’s parents were able to come to an agreement and both parties are happy with everything. Even if a situation occurs when a parent ceases to fulfill the obligations provided for by the agreement, there is no need to go to court, since it has the force of a writ of execution .
The procedure for collecting alimony through the court depends on whether the man recognizes himself as the father and whether he is included in the birth certificate as the father. If the man does not deny that he is the father, then it is enough to simply apply for a court order. The only condition is that there should be no dispute about the fate of the child.
In cases where there is a dispute about children and it is not possible to peacefully agree on child support obligations, it is necessary to go to court with a civil claim .
Next, a writ of execution , which in turn is issued to the bailiffs. If the debtor refuses to voluntarily fulfill the obligation, the bailiff may foreclose on his income or existing property.
Thus, a child born out of wedlock has the same rights to his maintenance as a child born in a legal relationship. Accordingly, the procedure for collecting alimony obligations differs only in that before the obligation arose it is necessary to establish the fact of paternity.
Grounds for challenging paternity
It happens in life that the man recorded as the father of a child is not actually his biological father. Such circumstances can become clear at any time after the birth of the child. In judicial practice, cases of challenging paternity most often occur for the following reasons:
- A man, registered as the child's father on the basis of a registered marital relationship with the child's mother, having found out that he is not the biological father of the child, applies to the court to challenge his paternity in relation to the child born by his wife (ex-wife).
- A man, who is in fact the biological father of the child, goes to court with a claim to challenge the paternity of the man, recorded as such by virtue of the presumption of paternity.
- The mother of the child challenges the paternity of her husband (ex-husband), who is not actually the biological father of the child born to her, in order to terminate the legal relationship between the man and the child. It is also possible to challenge the paternity of a man if he is recorded as the father of the child on the basis of voluntary establishment of paternity, but the claim can be satisfied only on the condition that at the time of making a record of him as the father of the child, he was sure of his biological paternity.
Challenge paternity in court. Tel. 7 (812) 989-47-47 Telephone consultation
In what cases can paternity be challenged?
The provisions of Article 52 of the Family Code of the Russian Federation, in contrast to the previously existing Code of Laws of the RSFSR, expand the circle of persons who can challenge the entry of parents in the birth register. According to previous legislation, these could only be persons registered as parents, i.e. There was no direct reference to such a right of other persons in the law. Now plaintiffs can also be persons who are the actual father and mother, but are not registered as such with the civil registry office.
We suggest you read: How to protect the property of a rented apartment from bailiffs
So, the plaintiff in a case challenging paternity can be:
- Person recorded as the child's father
- The person who is actually the father of the child
- Child's mother
- Child's guardian or custodian
- Guardian or trustee of a parent who has not reached the age of 16 or has been declared incompetent by a court
- The child himself after reaching adulthood
The specified circle of persons is exhaustive. For example, grandparents cannot go to court to challenge the paternity of their grandchild, even if the child’s parents are minors. They are granted this right only if they act as guardians of a child whose minor parents have not reached the age of 16.
Family lawyer in St. Petersburg. Tel. 7 (812) 989-47-47 Telephone consultation
The first stage is a statement of claim to challenge paternity.
Of course, you need to know how to file a paternity challenge. A claim in court is drawn up with mandatory compliance with the requirements of Articles 131-132 of the Code of Civil Procedure of the Russian Federation, otherwise there will be grounds for the court to perform such procedural actions as leaving the claim without progress, returning the claim or refusing to accept it.
At this stage, it is recommended to use the services of a qualified lawyer who will quickly and competently draw up a statement of claim, correctly formulate the evidence base and file a claim in court. The statement of claim must contain: the name of the court to which the claim is filed, information about the parties (full names, addresses, telephone numbers), details of the child in respect of whom paternity is being disputed.
The plaintiff must clearly substantiate his claims: set out in detail the circumstances that gave rise to the claim, and provide evidence confirming these circumstances. If the plaintiff in his claim refers to witness testimony, then the contact information of these persons should be indicated.
It is also necessary to indicate a list of documents that the plaintiff attaches to the claim.
These are the following documents:
- Receipt for payment of state duty
- Copies of the claim for the defendant and third party
- Copies of marriage, divorce, and birth certificates
- Other available written evidence
All copies of documents that are annexed to the claim must be submitted according to the number of persons participating in the case.
The third party in the case must indicate the civil registry office (ZAGS), since a positive court decision to challenge paternity is the basis for this body to make changes to the birth certificate of the child (clause 1 of Article 69 of the Law of November 15, 1997 No. 143-FZ ).
If it turns out that a citizen who is not a biological parent is registered as the father, paternity can be challenged.
In practice, challenge occurs for the following reasons:
- the man learned that he is not the biological parent of the child;
- the biological father intends to exclude information about the husband of the minor’s mother from the birth certificate;
- the woman files an application in the interests of the child.
It happens that paternity is disputed in order to evade parental obligations. For example, a man files a lawsuit with the intention of later canceling alimony. To get a positive decision, he will have to provide solid evidence.
The RF IC protects the interests of children, therefore it provides for cases in which paternity cannot be challenged:
- at the time of submitting the application to the registry office, the man knew that he was not a biological parent;
- the spouse has given consent to the use of artificial insemination methods;
- the child was born from a surrogate mother into whom the embryo was implanted.
○ Establishment of paternity voluntarily
Establishment of paternity in the registry office is the establishment of this fact on a voluntary basis. This is a legal act of a man - a father who is not registered with a woman - the mother of a child, aimed at creating family legal relations between him and the latter - clause 3 of Art. 48 RF IC.
Cannot claim paternity:
- Incompetent person.
- Guardian of an incapacitated person, since establishing paternity is a personal legal act.
Establishment of paternity by a minor parent or a parent with limited legal capacity is permitted (I wrote in more detail about guardianship and guardianship in this article).
