Recognition of paternity: legal procedure in case of discrepancies in the records in the documents

The entry about the father in the birth certificate of a child entails specific legal consequences – from the right to alimony and inheritance to the possibility of traveling abroad and social guarantees. In Ukrainian practice, there has long been a tendency to register children under Article 135 of the Family Code of Ukraine – according to the mother, without officially establishing paternity. Today, the situation is changing: biological parents are increasingly seeking to legally consolidate their status, and in some cases, the initiator is a man who is not a blood relative of the child. At the same time, the procedures for recognizing paternity and adoption differ significantly in terms of grounds, evidence and terms of consideration.

Lawyers of the law association “Repeshko and Partners”, to whom our editorial office contacted, commented on how to act in the event that the father is biological and both parties agree to make changes to the act entry. They explained in which situations the DRACS body refuses and refers to court, how the one-year statute of limitations applies in cases of recognition of paternity, what evidence is decisive, and what to do if the mother or another registered father objects to establishing the child’s origin.

Quite often, women contact us with a question about how to officially enter information about the biological father of a child into the birth certificate. In previous years, many mothers deliberately registered a child without indicating the father, using the status of a single mother. The legislation provided for social guarantees and state financial assistance for such women, so sometimes this option was chosen for practical reasons.

However, in real life it was not always about the actual absence of a father. In the documents, the woman had the status of a single mother, while the child grew up in a complete family. In our practice, there was a case when a woman was registered as a single mother three times, but at the same time lived with her husband and three children, and for those around her it was an ordinary family with both parents. Subsequently, the question of legal regulation of such a situation arises, because the entry in the birth certificate is important for the rights of the child and the obligations of the father.

The war significantly influenced family decisions and attitudes towards the legal registration of paternity. Today, more and more men are seeking to officially consolidate their status as a father of many children. At the same time, the number of cases is increasing when women who previously registered a child as born to a single mother want to enter real data about the father into the birth certificate. The initiators of such changes are both biological parents and men who are actually raising the child, although they are not her blood relatives.

These are situations where information about the father was entered into the birth certificate from the mother’s words in accordance with Part One of Article 135 of the Family Code of Ukraine. In this case, the child is legally considered born to an unmarried mother, and the father is recorded without confirming his origin. The birth certificate has already been issued, but paternity has not been officially established, and this requires further legal regulation.

It is worth immediately distinguishing between the situations. If the man who wants to be recorded as the child’s father is not his biological father, even if he is married to the mother and is raising the child with her, the paternity recognition procedure in this case does not apply. The presence of common children in the spouses also does not change the legal nature of the issue.

When the man is not a blood relative of the child, we are talking exclusively about the adoption procedure. This is a separate legal mechanism that has different grounds, a different procedure for consideration, and a much wider list of documents. Adoption involves a verification of the circumstances, an assessment of the child’s best interests, the involvement of child welfare services, and a court hearing, after which full parental rights and responsibilities arise between the man and the child.

When registering an adoption, the following documents will be required:

• notarized consent of the child’s mother to the child’s adoption by a specific man;
• a complete medical examination of the man in accordance with the established form;
• certificate of the absence/presence of a criminal record of the man;
• certificate from a narcologist regarding the man’s registration;
• certificate of the man’s non-registration due to mental illness;
• documents on the man’s property status (certificates of salary/income, available real estate and vehicles, other valuable property)
• documents on the man’s personal characteristics (diplomas of secondary and higher education, characteristics from the place of work, place of residence, etc.)
• other documents taking into account the specific case.

In addition, the children’s service of the relevant territorial community must provide its opinion, which determines whether it is appropriate to entrust the child to a specific man as the father. The procedure is carried out in court and takes into account all the necessary documents that need to be obtained, but the workload of the courts can easily last up to a year.

A completely different issue is when the biological father of the child intends to officially register paternity. In this case, the law provides for a much simpler mechanism if there is no dispute between the man and the woman and both parties agree to make changes. According to Article 126 of the Family Code of Ukraine, the origin of the child from the father is determined by a joint application of the mother and the man, who are not married to each other. Such an application can be submitted both before the birth of the child and after that – to the state registration of civil status acts. Based on this application or court decision, the relevant authority makes changes to the birth certificate and issues a new birth certificate, which already contains reliable information about the father.

That is, in the event that the father recognizes his paternity, he and the mother submit a joint application to the DRACS department. If the application for recognition of paternity cannot be submitted in person, it can be submitted through a representative or sent by mail, provided that it is notarized. The representative’s powers must be notarized. The application for recognition of paternity can be submitted both at the place of residence of the parents and at the place where the birth certificate is stored.

In practice, if the parents apply with a joint application after a short period of time from the birth of the child – several months, a year, then the CACS authorities usually make changes to the child’s birth certificate.

In this case, the following documents must be submitted:

• passport of both parents (or other identity documents);
• medical certificate of the child’s birth if the birth certificate has not yet been received or the child’s birth certificate;
• joint application of the mother and father to acknowledge paternity in the established form. The application is accepted by the DRACS department by forming and registering it using software for maintaining the State Register of Civil Status Acts of Citizens. The formed application is printed out by an official and, provided that there are no comments on the information specified in it, is signed by the applicant.

Practice shows that most parents apply to the Civil Status Acts shortly after the birth of the child, but there are cases when people try to formalize their rights even after 10–15 years. In such situations, the Civil Status Acts authorities refuse to make changes to the birth record, since there is no direct mechanism for this anymore. In such cases, it is necessary to undergo a judicial procedure for the recognition of paternity, which allows officially establishing the origin of the child and making appropriate changes to the documents.

A claim for the recognition of paternity may be filed:

• by the mother, guardian, custodian of the child, the person who maintains and raises the child, as well as by the child himself who has reached the age of majority;
• by a person who considers himself the father of the child.

Claims for the recognition of paternity are filed in the civil procedure with the district, city district, city and city district courts at the registered place of residence or stay of the plaintiff.

We draw your attention to the fact that the law clearly stipulates the following point – a one-year statute of limitations applies to the claim for the recognition of paternity, which begins from the day the person learned or could have learned about his paternity. That is, in practice it looks like this – you cannot come to court and declare: “Your honor, this is my child, I have loved her for five years, raised her, supported her financially, I know that she is mine”. In no case, because in such a case the judge must refuse the claim, because not a year, but a whole five years have passed since the man knew for sure that this was his child.

In such cases, clear cooperation between the mother and father and the lawyer is required, because taking into account the specific situation and circumstances of the child’s birth, it is the specialist who will help to overcome the situation in such a way that everything looks within the framework of this very one-year term established by law.

Unlike adoption, in cases of recognition of paternity, the main evidence is that which confirms the biological relationship between the child and the father, in particular molecular genetic examination. Previously, this procedure was expensive and available mainly to wealthy families, but now many laboratories conduct it specifically for court needs – both forensic experts and licensed medical institutions.

In order not to waste time, we advise you to undergo an examination before submitting documents to the court, because the presence of such a conclusion greatly simplifies the consideration of the case. At the same time, it is important to carefully choose the institution, having previously informed that the examination is needed specifically for the court procedure. The cost of the study depends on the laboratory and the time of execution, usually it costs from 6–7 thousand hryvnias and can last from several days to several months. Sometimes the cost of the study also depends on the time of its execution.

Why is this examination necessary? Because it is the one that indicates the kinship of the father and the child with a 99.9% guarantee. If it is available, you can already submit nothing to the court from the evidence.

The situation becomes more complicated when the mother of the child prevents the establishment of paternity even in court. In such cases, it is imperative to request the appointment of a molecular genetic examination as part of the court case and by court order. According to current regulations, if a person evades the examination, the court may issue a decision without conducting it, considering the evasion as an actual admission of the circumstances.

If the father applies to the court and requests an examination, but the mother refuses to bring the child or provides other obstacles, the court may issue a decision in favor of the father even without conducting the examination. At the same time, it is important for the father to provide as much additional evidence as possible that confirms his paternity: an act of a deputy or other official on joint residence at a certain address and period of time, joint photographs, checks and other documents about purchases for the child, as well as testimonies of people who could observe the relationship between a man and a woman. Such evidence helps the court form a complete picture and increases the chances of a positive decision.

Based on the court decision, the Civil Registry Office makes changes to the birth certificate of the child, entering the information about the father specified in the court decision. Thus, with the decision that has entered into force, it is necessary to go to the Civil Registry Office department.

According to paragraph 2.1 of section II of the Rules for making changes to civil status records, their renewal and cancellation, approved by the order of the Ministry of Justice of Ukraine dated 12.01.2011 No. 96/5, an application for recognition of paternity, which is the basis for making changes, may be submitted to the Civil Registry Office department at the place of storage of the first copy of the birth certificate (except for cases when the birth certificate was drawn up by a diplomatic mission or consular institution of Ukraine) or at the place of the court decision on recognition of paternity.

In conditions of martial law, an application for amendments to the civil status record is submitted to any department of the Civil Status Administration located in the territory controlled by the Ukrainian authorities. In addition, an application can be submitted by contacting the administrative services center. Abroad, you can contact diplomatic missions and consular offices of Ukraine.

At the same time, the following documents are submitted to the Civil Registry Office based on the results of the court hearing:

• application;
• court decision (in this case, changes to civil status records upon the applicant’s request are made exclusively on the basis of a copy of the court decision in electronic form, obtained as a result of information interaction between the Unified State Register of Court Decisions and the State Register of Civil Status Acts of Citizens. That is, in addition to the paper version, the Civil Registry Office must necessarily receive a copy of the decision from the court);
• passport of a citizen of Ukraine, passport document of a foreigner or a document certifying the applicant’s statelessness. In the event of an application being submitted by a citizen of Ukraine permanently residing abroad, a passport of a citizen of Ukraine is presented for travel abroad. In the case of presenting an e-passport, an e-passport for traveling abroad, as well as receiving their electronic copies, or individual data contained in the specified electronic copies, their verification or formation is carried out in accordance with the Procedure for Formation and Verification of an e-passport and an e-passport for traveling abroad, their electronic copies, approved by the Resolution of the Cabinet of Ministers of Ukraine dated August 18, 2021 No. 911;
• child’s birth certificate (as provided by the child’s mother).
• other documents necessary for considering the application and resolving the issue on the merits.

The judicial procedure described by us applies not only in cases where the child is registered as born to a single mother. The same procedure must be followed by a man who considers himself the father of the child if the birth certificate indicates another man – either the mother’s official husband, or another person recorded at the joint request of the mother and husband. In such a case, only a court decision allows for the official establishment of paternity and the introduction of appropriate changes to the child’s birth record.

Therefore, we advise you not to delay the legal registration of paternity, timely assess the deadlines for applying to court and prepare appropriate evidence in advance, including molecular genetic examination, in order to avoid refusals and delays in the procedure.