Acknowledgement of Paternity in Ukraine: Legal Aspects
Modern development of the world is marked by active human migration. People are actively moving around the world, start new relationships, sometimes contract formal marriages, give birth to children etc. These trends are also common for Ukraine. With active migration there are some cases when a father is not present in the country when the child is born, and a mother cannot always register child’s father at birth. What do parents have to when they are not registered in the birth certificate? The answer is: to recognize his paternity.
Acknowledgement of paternity is the expression of person’s will. This person considers himself as a father of the child and it is one of the most pressing issues in the family law of Ukraine. After all, the fact of the child’s origin from this man makes it necessary to perform the duties, established by Ukrainian legislation, of his father. As a general rule, when the father and mother are together in a registered marriage, it is determined that the child comes from spouses. If the mother and father are not married, in accordance with Part. 2 of Article 125 of the Family Code of Ukraine, the origin of a child from his father is determined by the general application from mother and father of the child or by a court decision.
Application for recognition of paternity may be filed by the father of the child or through a representative with notarized authorities. In the case when it is not possible to file the parents’ joint application, the only solution is a trial, including the case when one of the parents denies paternity, or when the mother has already stated the absence of the father in birth certificate. In court, the basis for recognition of paternity can be any information which confirms the origin of the child. It must be collected in accordance with the Civil Procedure Code of Ukraine. For example, this can be proved with evidence of a close long-term relationship of parents, genetic tests, etc. Except the father, a claim of paternity may be brought by the mother, guardian, trustee of the child, a person who raises the child as well as by the child of the age of majority age.
It should be understood that apart from the child’s paternity recognition in law of Ukraine there is a specific procedure for establishing paternity in court, and it is different because it is used when there is no dispute regarding the paternity of the child or in the case of the actual death of the father of the child at the time of birth. The court also may state the fact of motherhood, this procedure is usually applied in the case of death of the woman before the child’s registration, when during the life the woman considered herself as a mother of the child, and in case of absence of a dispute about the maternity of the woman (usually these are cases of birth and upbringing of children in pairs who deliberately refuse to register the child for religious or other beliefs).
But in most cases in courts are disputes about the recognition of paternity. And the most important piece of evidence becomes the result of forensic biological (genetic forensic) examination, which is appointed by the court on the basis of the statements of the persons’ participating in the case. At the same time the current procedural law introduces mandatory provisions in case when the party refuses to conduct such examination, the court will consider such actions as those that would be in the disfavor of this person. It helps to avoid abuses, for example, when the mother refuses to recognize a certain man as a father of the child and prevents the selection of biological material of the child, or the father does not recognize his paternity and does not provide biological material for research.
Court may acknowledge the paternity at any time after the child is born. This is due to the fact that current legislation of Ukraine on recognition of paternity does not set the limitation period. The exception is when a person considers himself the father of the child but at the time of conception or birth of the child woman was married to another man. He has the right to sue to her husband within one year from the day when he learned or could have learned about his paternity. This norm is a novelty in the Ukrainian law. The specificity of these cases is that the paternity of woman’s husband is presumed, and therefore it is not obliged to prove his paternity. Thus, the burden of proof of his paternity, that is a denial of the presumption of paternity in the marriage, is on the plaintiff, and the child’s mother can be engaged as a third party on the side of the defendant.
The divergent procedure is a procedure of challenging of paternity which can be initiated only after the registration of the child’s birth until the age of majority, and in case of death of the child is not allowed. This right has a person recorded as the father of the child in the Book of registration of births by bringing an action to delete the information about him as the father or a woman who has given the birth to the child in marriage by submitting a claim to exclude her husband from the record as the father of the child. At the same time the Family Code of Ukraine establishes a list of individuals who do not have the right to challenge his paternity: in particular, persons who gave his consent to record himself as the father of the child, knowing that the child comes from another man, as well as those who gave consent for reproductive health technologies.
This article shows that disputes over paternity are serious challenges for parents. Special complexity such cases acquire when one of the parents is a foreigner, and the international couple are not in a registered marriage. In such cases some pieces of advice and consultation of lawyers will be essential.
Author: Kydalov Igor