Sample statement of claim to challenge paternity - Lawyer in Samara and Moscow - representation in court and legal services

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Sometimes men have doubts about raising their biological children. Especially often such doubts come to their minds after the marriage with the child’s mother is dissolved. Unfortunately, situations where doubts about the relationship between the father and the baby are not groundless are not so rare. There are other precedents when the mother of a minor declares that the official father included in the minor’s documents is not his biological father.

In both the first and second cases, only the court can resolve the issue of paternity. You will have to file a claim to challenge paternity.

How is paternity determined?

First you need to understand how paternity is determined.

If the child’s parents are officially married, then at the birth of the baby, an entry in the “father” column is entered automatically. The father does not even need to visit the registry office; the entry will be made on the basis of the marriage certificate. The same will happen if the marriage breaks up no earlier than 300 days before the birth of the baby.
In cases where a man and a woman are not officially married, or a family as such did not exist at all, but was simply an open relationship, but both parents expressed a desire to enter the father’s name on the birth certificate, they can visit the registry office and draw up a joint application for recognition of paternity. There is one important nuance here: if a man, when visiting the registry office, already knew that the biological father of the child is another man, then challenging paternity in the future is impossible.
If a man or the child’s mother is against entering information about the father into the minor’s documents, then paternity can be established through the court. In this case, an entry about the father is made on the baby’s birth certificate on the basis of a court decision that has entered into force on a claim for recognition of paternity. In the same way, data about the father is entered if he died at the time of registration. The only difference is that changes are made on the basis of a claim to establish the fact of recognition of paternity.

Thus, rights, as well as obligations, between fathers and their children arise only in cases where their relationship is documented.

Please note: if information about the father was entered only from the words of the mother, and not on the basis of any documents, even if this information concerns the biological father of the newborn, then this fact is not the basis for the official recognition of paternity by this citizen. In this case, challenging paternity will not be necessary.

How to cancel paternity determination?

As mentioned above, the registry office cancels the record of paternity only by court decision. The court will satisfy the claim only if the mother or father can prove that the father and child are not related. The court will also evaluate whether there is a conflict with the interests of the child in the claim to cancel the establishment of paternity.

After the court makes a decision to annul paternity, the registry office will make changes to the child’s documents.

Procedure

For a successful court decision in this case, you need to follow the following algorithm:

Consult a lawyer.
File a claim.
Collect documents and evidence of the absence of a relationship between the father or the child, as well as fraudulent means of establishing paternity or forcing a man to recognize himself as the father of the child.
Pay the state fee.
Apply to the court.
Attend the court hearing at the specified time. The time and place will be announced in a special notice.
Receive a court decision and submit it to the registry office.
Receive a new birth certificate for the child, with the father’s information changed.

In this algorithm, special attention should be paid to drawing up a statement of claim.

Claim for annulment of paternity establishment

From the application to the court during the consideration of the case, basic data about the reasons and grounds for the abolition of paternity will be gleaned. Therefore, it is important to present all the facts in a reasoned manner, and compose the text itself in accordance with the requirements for the preparation of official statements. The structure of the claim is defined in Article 131 of the Code of Civil Procedure of the Russian Federation. The header of the statement states:

Name of the court.
Details of the plaintiff and defendant, their places of residence.

When filing a claim by a trusted person, you must also indicate his data.

After the title there is a description of the circumstances of the case, among which you need to indicate:

The circumstances of the development of relations between father and mother (marriage, its dissolution, etc.).
Date of birth and details of the child.
Grounds for establishing paternity (voluntary or forced).
The plaintiff’s grounds for canceling paternity or doubting family ties with the child.
Links to evidence confirming the absence of family ties between father and child.

Further in the text of the application you must indicate:

Requests for an examination, calling witnesses, etc.
Links to legal norms.
Claim.
List of attached documents.

At the end, put the date of filing the claim and the signature of the applicant.

Sample claim to revoke paternity for download

Required documents

According to Article 132 of the Code of Civil Procedure of the Russian Federation, the court considers only those claims whose content is documented. Each circumstance described in the text of the application must be based on a specific document.

The list of main documents includes:

Passports of the plaintiff and defendant.
Marriage and divorce certificates.
Child's birth certificate.
Receipt of payment of state duty.

Other documents depend on the circumstances of the case. Among them may be:

Testimony of witnesses.
Correspondence between the parties to the case.
Audio and video recordings of their conversations.
Medical documents that relate to the essence of the case (for example, about infertility or artificial insemination).
Evidence of the separation of a man and a woman at the time of conception of a child (business trip order, rental agreement, imprisonment or hospital treatment).
Results of genetic testing.

The more supporting documents the plaintiff collects, the higher the chance that his application will be satisfied by the court.

Who has the right to challenge paternity in court?

The right to challenge paternity is vested in:

Legal father of a minor.
Mother of the child.
Guardians, if guardianship is officially established.
The child himself after reaching the age of majority.
A man who considers himself the biological father if another man is listed on the minor's birth certificate.

Under no circumstances will the court accept the claim for consideration, or the claim will be refused if the following persons apply to the court with a claim to challenge paternity:

Any other relatives other than father or mother. The exception is potential adoptive parents.
Any participant in the surrogacy program.
A person who, at the time of entering information about the father, knew that he was not related to the newborn, but agreed to enter his name in the “father” column. That is, if a man obviously knew that he was not the biological father of the baby, but was ready to fulfill his duties, then challenging paternity is impossible.
A married couple who, when conceiving a child, used artificial insemination or implantation of someone else's embryo.

Expertise doesn’t solve everything

Judicial practice in cases of this kind is very ambiguous, and a decision in favor of the plaintiff is not always made, which is due to the fact that the current legislation is primarily designed to protect the interests of children. This is especially true for issues of the child’s financial well-being.

Despite the fact that in most cases the court decision is based on the conclusion of a genetic examination, there are cases of refusals to satisfy the claims of men even with a positive expert conclusion. Everything is decided by the evidence provided to the court in the case.

Most often, disputes of this kind represent a rather lengthy and very multi-stage process.

Legal practice in cases of challenging paternity shows that for citizens who do not have special knowledge in the field of family and civil law, who decide to independently achieve a positive decision in the case, the first problems due to non-compliance with a number of requirements arise already at the stage of filing a claim.

How to challenge paternity in court

The initiator of the procedure for challenging paternity must follow a certain algorithm:

have grounds to initiate legal proceedings;
prepare a statement of claim to challenge paternity;
collect the necessary documents;
prepare an evidence base;
send a statement of claim to the court at the defendant’s place of residence;
take part in court hearings;
wait for the court decision to enter into legal force;
obtain a court decision that has entered into legal force.

As evidence of the absence of a relationship between the official father and the child, the court will accept:

written testimony of witnesses (they will have to confirm their testimony orally in the trial);
any written or other evidence on the basis of which the court can conclude that the man is not the biological father of the baby;
if other evidence is insufficient, the plaintiff may additionally write a petition to order a genetic examination.

Also, as evidence, the court may request an exchange pregnancy card from the medical institution in which the woman gave birth.

Which court should I go to?

Claims to challenge paternity are under the jurisdiction of district or city courts; the magistrate's court does not have the right to resolve such disputes. It is also necessary to take into account the jurisdiction of the claim: challenging paternity is always considered at the place of residence of the defendant.

But there are some exceptions. The plaintiff may file a claim to challenge paternity at his place of residence in cases where:

he is raising a young child on his own, that is, he cannot leave him to travel to another region to participate in court hearings;
the plaintiff is in the care of another incapacitated person;
the defendant could not be located.

Is evidence needed?

As with any other claim, the court will need to present evidence of what the plaintiff is alleging. The most reliable evidence will be the conclusion of experts when conducting a genetic examination between a man and a child.

Moreover, if both parties agree to conduct a DNA examination, then they do not need to wait for a court decision to order a DNA examination; they can undergo it in advance, even at the stage of preparing the statement of claim. The only condition without which the court is unlikely to take the expert’s conclusion into account is that the laboratory in which the research will take place must have special accreditation.

In cases where the other party refuses to hand over biological material, the court does not have the right to force it to do so.

In such cases, it will be necessary to present to the court other evidence that can confirm that the man is not the biological father of the child. It can be:

Any documents indicating that at the time of the alleged conception the official father and mother of the baby did not have the opportunity to meet.
A document from a medical institution stating that a man cannot have children.
Testimony that the other man takes an active part in raising the child and recognizes him as his own.
Other evidence, including audio, video or photographic materials.

Documentation

Along with the claim to challenge paternity, the applicant must submit to the court the following package of documents:

several copies of the claim (according to the number of participants in the process, but not less than three);
photocopy of passport;
marriage or divorce certificate (if available), but a statement of claim can also be filed by plaintiffs who have never been married to the defendant;
birth certificate of a minor;
receipt of payment of state duty;
petition for DNA testing.

What to write in a statement of claim to challenge paternity

In the statement of claim, the plaintiff must indicate how and on the basis of what documents the paternity record was made in the child’s documents.

You will also need a detailed description of the circumstances that preceded the entry of information about the father into the baby’s birth record.

Then it is necessary to list all the reasons and circumstances why this man cannot have a relationship with the child, listing the evidence confirming the stated fact of the absence of biological relationship.

The next point is the claims made by the plaintiff. Lawyers recommend formulating claims in such a way that subsequently there will be no problems with re-registration of the child’s documents.

For example, if a mother wants to change the surname and patronymic of a minor, then this must be stated in the statement of claim, so that subsequently she does not have to submit an additional application to the registry office.

Grounds for challenging paternity at the request of the mother

There are often cases where men raise children other than their own and for a long time do not suspect that they are not their biological fathers. In this case, the father needs to go through the procedure of challenging paternity in order to terminate all family ties with someone else’s child and not have any financial or moral connection with him.

The reasons for challenging paternity by a mother are considered to be:

The mother challenges the paternity of her husband, who in fact is not the biological father of her child, in order to terminate the legal relationship between him and the child.

If another man claims paternity (biological father, if the woman is married to another)

Important:
It is worth understanding that if paternity is revoked, the man is no longer required to pay child support.

Sample claim to challenge paternity from mother

Sample statement of claim to challenge paternity from mother

If a claim to challenge paternity is filed by the child’s mother, then in the statement of claim she must indicate:

the name and address of the court in which she is filing the claim;
last name, first name and patronymic of the applicant and her place of residence;
information about the defendant (the address of his actual residence is required; the court will subsequently send a subpoena and a copy of the statement of claim);
the name of the guardianship and trusteeship department in whose territory the minor lives;
information about the reasons on which information about the father was included in the birth documents;
references to legislative acts on the basis of which the plaintiff has the right to satisfaction of his claims;
direct claims;
list of evidence in the case;
date of document preparation and signature.

As a claim, the applicant may indicate a request for:

cancellation of the birth registration of her baby;
exclusion of information about the father from the birth certificate;
changing the child’s surname to one’s own (in cases where, when registering the baby’s birth, he was given the father’s surname).

Sample claim to challenge paternity from father

Sample statement of claim to challenge paternity from father

In addition to the mother, the following may initiate a claim to challenge paternity:

a citizen included in the birth record as the child’s father (his official father);
the biological father of the baby, if he wants to challenge the paternity of another man.

As mentioned above, a person can be included in the “father” column of the baby’s birth certificate in the following cases:

on the basis of the presumption of paternity (if the child’s mother is with him, or was officially married no earlier than 300 days before the birth of the baby);
on his own initiative, being confident of paternity;
by misleading the mother of the newborn.

In addition to those listed above, the statement of claim to challenge paternity from the child’s father must contain the following information:

About the relationship with the baby's mother . Here the plaintiff must state whether he and the woman were in an official or civil marriage, and whether this marriage was dissolved. If the man did not live together with the woman, then he must indicate during what period and for what duration their relationship was.
Information about the child . Here the plaintiff indicates the surname, first name and patronymic of the minor and his date of birth.
Was the plaintiff informed of the lack of biological relationship ? It is necessary to indicate in cases where the baby was born in marriage, or within 300 days after its dissolution, when the presumption of paternity applies.
The presence or absence of DNA testing results . Here you can voice a request for its appointment.

What do you need to know when filing a claim?

When filing a claim, you must consider the following nuances:

If a man is married, then the court can recognize paternity even in the absence of the man. In this case, the information will be entered from the words of the child’s mother.
If after the divorce a child is born within 300 days, then the former spouse can be recorded as the father.

It is also necessary to understand that the procedure for depriving parental rights and the procedure for challenging paternity are completely different procedures.

In the first case, the legal status of the parent is deprived, and in the second, the court establishes the fact of biological paternity.

The reason for challenging paternity is the desire to relieve responsibility from the man. Most often, responsibility refers to the payment of alimony.

At the same time, in accordance with the provisions of Art. 52 of the RF IC and Resolution of the Plenum of the Supreme Court of the Russian Federation dated October 25, 1996 No. 9, a claim can be filed not only by the legal father, but also by:

mother of the child;
trustees (guardians);
by the child himself upon reaching adulthood.

But grandparents do not have such rights, except in cases where they are guardians of a child due to the minority of his parents, due to the fact that the exclusion of an entry from the Book is a personal matter for the persons indicated as parents.

One of the important things to know when filing a claim is the concept of the statute of limitations.

If previously it was one year from the moment the entry was made in the Children’s Registration Book (which was regulated by the Code of Children’s Law), now Art. 52 of the RF IC abolished this rule. Currently, the process can be started at any time upon application by the plaintiff.

Guardians, the biological father, and the civil registry office may be involved as third parties to participate in the process.

When considering claims, the court determines whether the entry made by the civil registry office corresponds to the true state of affairs. Those. it is established whether the person recorded in the Book as the father of the child is his biological father.

In this case, the court is obliged to take into account any evidence presented that confirms the positions of the parties. If the child has reached the age of 10, the court is obliged to take into account his opinion on this issue. This right of the child is enshrined in Art. 57 RF IC.

However, in the current legislation there are cases when the exercise of the right to challenge paternity is unacceptable. These cases are specified in paragraphs 2-3 of Art. 52, RF IC.

Thus, the claims of a citizen who is not legally married to the child’s mother will not be satisfied if, when submitting an application to be registered as the child’s father, he knew that he was not actually such.
The same will apply in the case where the record of paternity was made by court decision in connection with the application of the parent and without the permission of the guardianship and trusteeship authorities.

Expenses

As a rule, no state fee is charged for claims related to the protection of the interests of minors. But claims to challenge paternity in no way protect the interests of the child, so the applicant will need to pay a state fee, which in 2020 is 300 rubles.

Payment of the state fee may not be the only expense for the applicant. If he turns to a lawyer for help, he will have to pay additionally:

Costs for drawing up a statement of claim. The cost of the service, depending on the region, will be from one to three thousand rubles.
Costs of representing the applicant's interests in court. The participation of a lawyer in one court hearing will cost the plaintiff from five to ten thousand rubles.

If a genetic examination is required, the plaintiff will have to pay from 12 to 25 thousand rubles.

Remember: if the plaintiff wins the case in court, the court may recover all legal costs from the defendant. But for this, it is necessary to indicate this point as one of the claims when drawing up the statement of claim.

Consequences of challenging paternity

Just as in any other legal dispute, a court decision to challenge paternity that has entered into force carries with it some consequences (positive or negative) for each of the parties to the process.

The father, in relation to whom paternity has been challenged: receives a ban on communication with the minor;
excluded from heirs in the event of the death of a child;
loses the opportunity to use the benefits and allowances that he was entitled to for his minor children;
his alimony obligations are removed.

Mother of a child whose paternity has been disputed:

receives the status of a single mother with all the benefits and types of social support entitled to her;

from now on she does not need to obtain the man’s consent to take the child abroad;

she loses the right to receive child support;

Previously paid alimony is not refundable.

A child whose paternity has been disputed:

loses the right to inherit property after the death of a man who has protested paternity;

loses the obligation to support the disabled father after reaching the age of majority.

Arbitrage practice

Blood relationship with a minor is not directly dependent on the presence or absence of an official marriage of the child’s parents. Therefore, a citizen who doubts that he is the biological father of a child, even if he is officially married to the mother of a minor, can file a lawsuit to challenge paternity and cancel the birth record.

Example

Nikita Kalinin was married to Lydia Kalinina for ten years, and they had a daughter in their marriage. Then the couple divorced, Lydia filed a claim for alimony for the maintenance of her daughter. Immediately after the divorce, Lydia married a man whom she had dated before she met Nikita; her new husband adored the girl and constantly walked with her.

The girl grew up, and Kalinin began to notice that she was strikingly similar to her stepfather. Nikita secretly took the child’s biological material and did a DNA test, which showed that he is not the girl’s biological father.

The man filed a lawsuit to challenge paternity. He also asked the court to exclude the record of the father from the minor’s documents and cancel the collection of alimony. As evidence, he presented genetic testing data. The court satisfied the applicant's claims.

Of course, the plaintiff and defendant do not always agree with each other’s opinions. Often, the trial takes place when the defendant agrees with the plaintiff’s claims. In such cases, a genetic examination is not required, the trial ends quickly, and its decision satisfies both parties.

So, paternity can only be challenged with the help of a court decision. To do this, you need to draw up a statement of claim and prepare the necessary evidence. It is good if the defendant agrees with the claims, but if not, then the plaintiff must be prepared for a long and complex process.

In this case, a competent family law attorney can come to the rescue. He will help you draw up a claim correctly, prepare a petition for genetic testing, and, if necessary, represent the interests of the principal in court.

You can also use the services of specialists on our website. To do this, you need to call the indicated numbers, or contact the site’s lawyer online.

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