Recognition of paternity, which is always relevant in the legal sphere, today acquires special importance in the conditions of general mobilization. This process has long served an important social role, ensuring the rights of the mother and the child, but in modern realities it is often seen as a possible tool for men to avoid military service. The legal status of parenthood creates additional guarantees for the woman and the child, opening access to financial support, custody and other social benefits. For a man, recognition of paternity can serve as a basis for exemption from mobilization if he is the sole breadwinner or takes care of minor children. This causes a heated debate in society, because the process often encounters cases of abuse, when the motives are not related to creating a full-fledged family, but to obtaining legal benefits.
Lawyers of the “Repeshko and Partners” Bar Association comment on current trends and legal consequences of this phenomenon, tell how legal practice affects the use of paternity status in the context of mobilization.
There were many single mothers in Ukraine who sometimes had more than one child. But recently, their number began to decrease, and very quickly. The fact was that the “single” mothers were not single at all. Few of such mothers really did not have a husband and the father gave up his child. For many years it was one of the means to “spin” the state with extra funds. That is why a significant number of women began to exist in the country, who on paper were single mothers, but in fact had a husband who lived together with children and an unregistered marriage with a woman, but the marriage was not registered and when registering the child, the man did not submit a joint application with the woman until RATS
What amounts are we talking about? Assistance is awarded only to families in which the monthly income per person is less than the subsistence minimum. It is calculated as difference between this income and the subsistence minimum per child. That is, on the condition that the family has no income at all, the maximum payment per child as of July 2021, for example, for children under 6 years of age was UAH 2,013, 6-18 years — 2,510 UAH, 18-23 years — 2,379 hryvnias per month, which at the exchange rate of the US dollar is 2,700 hryvnias for 100, which was quite a significant amount, especially for two children.
However, military actions on the territory of Ukraine changed everything. The situation among single mothers also began to change. Sometimes women wanted to receive alimony from the military “father’s” salary, which under the condition of being at zero amounts to about 110 thousand. hryvnias per month, which makes it possible to receive alimony in the maximum amount, which as of 2024 cannot exceed 10 subsistence minimums: 25,630 hryvnias for children under 6 years old and 31,960 hryvnias for children from 6 to 18 years old. Sometimes recognition by the father was needed in case the husband died at the front so that the children could receive 15 million. hryvnias, which the state pays for those who died on the battlefield, and sometimes, when the total number of children is three or more, this is an option to avoid mobilization.
We have received many requests for such a category of cases as establishing paternity. Sometimes clients simply said – “adopt their own children”. But in this case, the adoption procedure cannot be applied, because it is not easy to adopt someone else’s child – it is necessary to prove to the court and the children’s service that the man who wants to become a father:
- can really perform these functions, taking into account his state of health (this is a complete medical examination),
- material wealth (you need to be employed, have an income and preferably some property),
- does not have any obstacles to adoption (does not have a criminal record, has not been deprived of parental rights, has a positive character at work),
- must be liked by the children’s service in order for it to provide a positive opinion for the court agreeing to the adoption.
Recognizing paternity with regard to native children, all that is listed above is not necessary, moreover, the service for children’s affairs does not take any part in such a case.
Therefore, as a general rule, a child conceived and/or born in marriage comes from the spouses. The origin of the child from the spouse is determined on the basis of the marriage certificate and the document of the health care institution about the birth of the child by the wife. A child born before the expiration of ten months after the termination of the marriage or its declaration of invalidity comes from the spouses.
A little more difficult in another case. If the child’s mother and father are not married to each other, the origin of the child from the mother is determined on the basis of the document of the health care institution about the birth of the child by her.
If the child’s mother and father are not married to each other, the origin of the child from the father is determined:
- upon the joint application of the child’s mother and father;
- by court decision.
The origin of the child from the father is determined by the application of a woman and a man who are not married to each other. Such an application can be submitted both before and after the birth of the child to the state civil status registration body.
Sometimes lawyers interpret the legislation in such a way that nowhere seems to deny the fact that the father and mother of the child can come to the RAC after 10 years with a joint application and ask to make changes to the record of the child’s birth in terms of paternity. But we remember the one-year statute of limitations – the RAC is not a court, it will not find out who and when found out or should have found out about paternity. He does everything according to the documents provided – registration of the child at birth. In our practice, there are already such clients who, in response to such a statement, were told where they should go to the RAC… to the court.
In the absence of a joint declaration of the husband and wife regarding the child, paternity of the child may be recognized by a court decision. The basis for recognition of paternity is any information certifying the origin of a child from a certain person, collected in accordance with Civil Procedure Code of Ukraine.
And now we come to the most interesting part. A claim for the recognition of paternity can be brought by the mother, the guardian, the custodian of the child, the person who maintains and raises the child, as well as the child who has reached the age of majority. A claim for recognition of paternity can be filed by a person who considers himself the father of a child.
A claim for recognition of paternity is accepted by the court, only if the entry about the father of the child in the Birth Registration Book is made in accordance with part one of Article 135 Family Code of Ukraine.
Part 1 of Article 135 of the Family Code of Ukraine specifies that when a child is born to a mother who is not married, in cases where there is no joint statement of the parents, a statement of the father or a court decision, an entry about the father of the child in the Birth Registration Book is made by surname and citizenship mother, and the name and patronymic of the child’s father are recorded at her direction.
But all this has one very important point! The claim for recognition of paternity is subject to a one-year statute of limitations, which starts from the day a person learned or could have learned about his paternity. That is, the deadlines for applying to the court do not start from the day of the child’s birth, but from the date when the person found out that he might be the father. Many will say that this is the end of the matter, because if the child is 14 years old, how come I, the father, did not know when I have been living with the child’s mother all my life without registering a marriage?! Very simple! Only witnesses are warned of criminal liability for giving false testimony and can be prosecuted! And neither the plaintiff nor the defendant (namely, these parties will be the child’s mother and father in the case of recognition of paternity) bears no responsibility for giving their explanations in court.
The law gives the right to prove one’s right or wrong by any means, and other evidence provided by the parties to the case and the testimony of witnesses act as a kind of control system in this case. Therefore, if the plaintiff (father of the child) says in court that he met the defendant (mother of the child) his first love a year ago after 12 years of separation, and they realized that they cannot live without each other and started living together six months ago, and the defendant is confirms, then no one can prove otherwise. This is the line of behavior chosen in court in many cases when a single mother wants to stop being so officially.
Therefore, the case of recognition of paternity will be considered by the court of general jurisdiction at the defendant’s place of residence. Not just accommodation, but at the place of registration (registration). The court fee for this category of cases for 2024 is UAH 1,211.20.
What evidence must be presented to the court to prove paternity? Of course, you can submit to the court:
– evidence that the mother and father of the child live together, that they run a joint household before the birth of the child, or that they jointly raise or maintain the child, as well as evidence that confirms the recognition of paternity by the person (certificate on the composition of the family, extracts from household and household books , personal letters, family photos, court decisions in other cases, etc.);
– testimonies of witnesses who know about the relationship of the parties and about their parentage of the child.
However, as our practice shows, no one needs all these “dances with tambourines”, because in court there will be only one question – where is the expertise? It is the conclusion of the forensic genetic or forensic immunological examination that is the basis for a categorical conclusion for the recognition of paternity in court. There is only one caveat. Of course, it is possible to do this analysis before submitting an application to the court, but in this case you will have to pay twice. The fact is that everything done outside the court case is not an examination, but only a specialist’s opinion, even if it is done by an expert from an expert institution. The nuance is that when an examination is ordered by a court order, the expert is warned by the court of criminal liability for a false examination. Therefore, only a forensic examination is 100% proof of who exactly is the father of the child.
It is necessary to note the other side of the forensic examination. Experts do not have the right to forcefully take samples of saliva, blood or hair for examination. The examination will not be carried out due to the absence of the father for the collection of samples. In this case, the court will make a decision in favor of the mother (plaintiff), because the refusal of the defendant (the child’s father) to provide his samples is considered as confirmation of the claim of paternity. This is directly provided for by the Civil Procedure Code. If a person refuses to provide his samples, it means that there is something to hide and the court takes it into account. There is also the opposite situation – if the father wants to confirm his paternity, and the child’s mother is against it, then the procedure is approximately the same and the consequences will be the same.
Note that in the event of the death of a man who was not married to the child’s mother, the fact of his paternity can be established by a court decision. This is a very relevant category of cases in relation to the military. In this case, the case will not be considered in legal proceedings, but in a separate procedure, based on the applicant’s place of residence.
In relation to the same soldiers, court practice currently follows the path that the Ministry of Defense of Ukraine must be indicated as an interested party in the application, because the recognition of paternity will entail payments from the state in favor of the child for the deceased soldier. At the same time, the Ministry of Defense of Ukraine is always and in everything against, denying and contesting everything. The only way not to involve them in the case is to justify to the court that establishing the fact of paternity is necessary to establish a survivor’s pension, receiving an inheritance, etc. and to convince the judge that the ministry has nothing to do in this case. Sometimes lawyers manage to do this – it all depends on the judge and the perseverance of the participants in the process.
It is necessary to know that an application to establish the fact of paternity is accepted by the court, if the entry about the father of the child in the Birth Registration Book is also made in accordance with part one of Article 135 of this Code.
For this category of cases, it is also possible to provide all the same evidence listed above, but a hundred percent guarantee will again only be the appropriate examination. The best option is DNA samples taken from military personnel. But situations are different, because if such a sample is not available, the mother can establish paternity through relatives of the deceased, taking samples from the mother, father, brother, sister, etc. of the deceased. But there is also a rule that a person must voluntarily appear for DNA sampling. Whether blood relatives will want to recognize the child depends on many factors in each life situation.
On the basis of the court’s decision, the body of state registration of civil status acts makes appropriate changes to the act record of birth, compiled by the state registration of civil status acts of Ukraine, and issues a new Birth Certificate. Usually, the authorities of the RACC involve a third party in paternity cases, because it is they who make changes to the legal record after the decision enters into force. That is, the column, where information about the father is usually entered from the words of the mother, will be changed based on the court’s decision to the information specified in it.
It must be remembered that after receiving a court decision both on the recognition of paternity and on the establishment of paternity, the child for whom paternity has been established has the full right to receive alimony from the father or mother. Also, she has the right to inherit not only from her father or mother, but also from other blood relatives in accordance with the order of inheritance, and parents can demand that the child provide maintenance in old age.
Therefore, in all these matters, it is important to maintain a balance between individual rights and responsibility to society. Acknowledging paternity is primarily an act of caring for the family, and any decision in this area must be based on honesty and responsibility.
We urge citizens to use this legal instrument for its intended purpose – to protect the rights of the child and support the family, and not as a way to evade obligations. A legal system works best when its mechanisms promote social justice.
