✅ Contesting paternity

Contesting paternity in Ukraine

Scriabin Alexey Nikolaevich

family lawyer

Our family lawyers are often asked the following questions: How to challenge paternity? How is the paternity court proceeding? How do I cancel a paternity record?

On our website advokat-skriabin.com you can familiarize yourself with the topic: “Contesting paternity” and, if you have any questions, seek legal advice from our family lawyers and lawyers who will provide you with legal services in family matters.

Contestation of paternity by a person recorded by the child’s father in Ukraine

A person registered as the child’s father in accordance with Articles 122, 124, 126 and 127 of the Family Code of Ukraine has the right to challenge his paternity by filing a claim to exclude the record of him as a father from the child’s birth certificate.

In case of proof of the absence of consanguinity between the person registered as the father and the child, the court shall make a decision to exclude information about the person as the father of the child from the record of his birth.

Contestation of paternity is possible only after the birth of a child and before the child reaches the age of majority.

Contestation of paternity is not possible in the event of the death of the child.

A person registered as the child’s father has no right to dispute paternity if at the time of his registration as the child’s father he knew that he was not her father, as well as a person who gave consent to the use of assisted reproductive technologies in accordance with part one of Article 123 of the Family Code of Ukraine.

The limitation period for the exclusion of the father’s record in Ukraine

The limitation period is not applied to the man’s claim to exclude the record of him as a father from the record of the birth of a child.

Paternity Contest in Ukraine

In life, there are times when a person recorded as the father of a child finds out that he was misled, but in fact the biological father is another person. In this case, this person is not deprived of the right to judicial protection by filing a claim for challenging paternity. Such a claim can only be filed by a person registered as the father of the child in accordance with Articles 122, 124, 126 and 127 of the CK, that is, in the following cases:

• the origin of the child from the mother and father who are married to each other;
• the origin of the child from the father in case of registration of remarriage with her mother;
• the origin of the child from the father at the request of a woman and a man who are not married to each other;
• the origin of the child on the statement of a man who considers himself the father of the child.

Part 1 of Article 123 of the UK is a reference rule that gives a person the right to challenge paternity by filing a claim to exclude the entry about him as a father from the birth certificate, provided that such an entry is made in accordance with the above Articles of the Code.

Moreover, special attention should be paid to the fact that the Law of Ukraine “On state registration of acts of civil status” excluded clause 2 of part 2 of Art. 125 SK and Art. 127 of the UK, which provided for the possibility of the child’s descent from the father at the request of a man who considers himself the father of the child.

In this regard, the legislator should more clearly regulate the issues of the specifics of contesting paternity, if the person was registered as the father in accordance with Art. 127 SK, which ceased to operate on July 27, 2011.

Obviously, the legislator proceeded from the fact that the person who was recorded by the father in accordance with Art. 127 UK prior to its expulsion.

Part 2 of Article 127 provides that in case of proof of the absence of consanguinity between the person registered as the father and the child, the court makes a decision to exclude the information about the person as the father of the child from the record of his birth.

Grounds for satisfying a claim in Ukraine

The basis for the satisfaction of the claim is the proof of the absence of consanguinity between the person registered as the father and the child.

These data can be established on the basis of explanations of the parties, third parties, their representatives interrogated as witnesses, testimony of witnesses, written evidence, material evidence, in particular sound and video recordings, expert opinions.

Examinations for determining paternity in Ukraine

An expert opinion is important in the proof process.

Based on the results of a forensic biological (genetic) examination using genotyposcopy (DNA analysis), experts can determine paternity with a probability of up to 99.9 percent or come to a conclusion about its exclusion.

It is also possible to draw a conclusion about the exclusion of paternity on the basis of a forensic immunological examination (blood examination), or a forensic medical examination, which would determine the person’s ability to conceive a child.

However, DNA examination, today, is the most effective evidence confirming the presence or absence of paternity of a person in relation to a child.

Conditions for filing a claim in Ukraine

It should be noted that the subject of proof in cases of challenging paternity is the absence of consanguinity, and in cases of recognition of paternity – the presence of consanguinity, that is, in fact, the same circumstances. Due to the fact that in the commentary to Art. 128 SK this issue is considered in more detail, we recommend that you additionally look at the corresponding commentary.

The law clearly establishes the period during which a claim to contest paternity can be brought: after the birth of the child and until the child reaches the age of majority.

A person is deprived of the opportunity to file such a claim during the pregnancy of the mother of the child, due to the impossibility of establishing the absence of a biological connection between the fetus and the father and in connection with the need to provide the woman with normal conditions for bearing and giving birth to a child.

Grounds for refusal to satisfy the claim in Ukraine

After the child reaches the age of majority, such a claim cannot be filed, and if at the time of the consideration of the case the child is 18 years old, then the court leaves in this case the claims without satisfaction.

The death of a child excludes the possibility of challenging paternity, since this is a suspensive legal fact, with the onset of which the parental relationship ceased, and there is no longer any need to refute its existence.

The person registered as the father of the child does not have the right to dispute the paternity if at the time of registering himself as the father of the child he knew that he was not his father, as well as the person who gave consent to the use of assisted reproductive technologies in accordance with Part 1 of Art. 123 SK.

The consolidation of such legal guarantees for the protection of the rights of the child is quite logical and reasonable.

If a person voluntarily acknowledged his paternity, knowing that he is not a biological father, then his rights are not considered violated.

By analogy, the emergence of legal relations on the use of assisted reproductive technologies was also agreed by the person recorded as the father of the child.

In both the first and second cases, the person made an informed decision and it is already deprived of the opportunity to change it.

The limitation period does not apply to a man’s claim to exclude the record of him as a father from the child’s birth certificate.

The introduction of this rule is the right step in protecting family rights and interests and corresponds to their essence and the general provision of the IC, according to which, as a rule, with the requirements arising from family relations, the statute of limitations does not apply (Article 20 of the IC).

When considering cases on challenging paternity, the courts must take into account the provisions of the resolution of the Plenum of the Supreme Court “On the application by courts of certain norms of the Family Code of Ukraine when considering cases concerning paternity, motherhood and the recovery of alimony.”

The child’s mother’s right to challenge the paternity of her husband in Ukraine

• A woman who gave birth to a child in marriage has the right to challenge the paternity of her husband by filing a claim to exclude the record of him as the child’s father from the record of the child’s birth.
• The mother’s demand to exclude the record of her husband as the child’s father from the child’s birth certificate can be satisfied only if another person submits a statement of his paternity.
• A limitation period of one year is established for the mother’s request to amend the birth certificate of the child, which begins from the date of registration of the child’s birth.
• The law gives the mother the right to challenge her husband’s paternity.

This right is a way of rebutting the presumption of marital paternity by the mother of the child. In this regard, the UK has equalized the rights of the mother and father to refute the presumption of paternity, because in the event of a child being born in marriage, the mother’s husband is automatically recorded as the father, regardless of whether he is the biological father of the child or not.

It should be noted that the previous family legislation, namely the KBS, did not give the mother of the child the right to challenge the paternity of her husband.

This was evidently due to the principles of communist morality, which generally excluded any intimate relationships outside of marriage.

Part 1 of Article 138 defines the right of a woman who has given birth to a child in marriage to challenge the paternity of her husband by filing a claim to exclude the entry about him as the father of the child from the record of the child’s birth.

Consideration of a case on contesting paternity in Ukraine

Thus, the dispute is considered in the course of action in accordance with the requirements of the Code of Civil Procedure, since we are talking about the existence of a dispute about the right.

The subject of proof in this case is, accordingly, the absence of consanguinity between the child and his father (on the peculiarities of the application of the legislation on the recognition and contestation of paternity (see the Commentary to Art. 128, Art. 136 of the UK).

Part 1 of Article 138 was supplemented with the words “by filing a claim to exclude the record of him as the father of the child from the record of the birth of the child” by the Law of Ukraine dated 23.02.2006, No. 3497-IV “On Amendments to the Family Code of Ukraine”.

Such an addition is justified, since the content of the original wording of the legal norm did not directly see how a woman who gave birth to a child in marriage has the right to challenge the paternity of her husband and with what type of claim it is possible to do this.

With the aim of protecting the interests of the child and realizing his right to paternity, the law, foreseeing the possible consequences of satisfying such a claim in the form of excluding the record of the father, requires another person (biological father) to submit a statement of his paternity.

That is, the main task of the legislator in these legal relations is to provide the child with the presence of a father.

In this regard, the mother’s demand to exclude the record of her husband as the child’s father from the child’s birth certificate can be satisfied only if another person submits a statement of his paternity.

Such an application is submitted to the court by a person who considers himself the father of the child, and the court is obliged to verify the true reasons for filing such an application and establish the paternity of such a person on the basis of appropriate and admissible evidence.

A limitation period of one year is established for the mother’s request to amend the birth certificate of the child, which begins from the date of registration of the child’s birth.

The law assumes that the mother of the child has real information about the father, and therefore limits her time in filing a claim challenging the paternity of her husband.

Such a requirement of the law is legitimate and is aimed at ensuring the stability of the parental relationship.

When considering this category of cases, the courts should take into account the provisions of the resolution of the Plenum of the Supreme Court of Ukraine “On the application by courts of certain norms of the Family Code of Ukraine when considering cases concerning paternity, motherhood and the recovery of alimony.”

Family Paternity Dispute Lawyer in Ukraine

To effectively resolve a paternity dispute, you should contact professional family lawyers.

Children’s lawyer:

• provide legal advice on family matters;
• will help to determine the best option for solving a family case;
• prepare all the necessary documents;
• accompanies the course of the entire trial.

Our family lawyers will do everything necessary for a quick and high-quality completion of a legal case!

Scriabin Alexey Nikolaevich

family lawyer

Contacting us is a way to save time and money in resolving the issue of challenging paternity.

If you do not know how to do the right thing to decide the case in your favor – write or call our family lawyers!

The first step on the road to success in resolving a paternity challenge is to contact good family lawyers!

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Frequently asked questions to a lawyer in Ukraine

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3. Removing a young child
4. Adoption of a child
5. Dispute over paternity