Determination of the origin of the child

Services of a lawyer in Kyiv: determination of the origin of the child

Family lawyer (Kyiv) deals not so often with disputes about the determination of the origin of the child as with the issues of recovery of alimony, changing the amount of alimony, deprivation of parental rights, etc., but it is such a case. It does not affect the willingness to work, on the contrary, it is additionally motivating.

Let’s consider the main legal provisions:

According to part 1 of Article 121 of the Family Code of Ukraine (general grounds for arising of rights and duties of mother, father and child),

The rights and obligations of the mother, the father and the child are based on the origin of the child from them, certified by the state registration body of acts of civil status in the order established by the articles:

• 122 (determining the origin of a child by a mother and a father who are married to each other) and
• 125 (determining the origin of a child whose parents are not married to each other) of the Code.

According to Article 122 of the Family Code of Ukraine:

• A child conceived and (or) born in wedlock is originated by the spouses.

A child’s spousal origin is determined on the basis of the Marriage Certificate and the Birth Certificate.

• A child born before the expiration of ten months after the termination or annulment of the marriage is derived from the spouses.
• Spouses, as well as the wife and the husband, whose marriage is terminated, in the case of the birth of a child before ten months after the termination of their marriage, have the right to submit a joint application to the state civil registration authority for non-recognition of the husband (former husband) as the father of the child. Such a claim may be satisfied only if the other person and the mother submit a statement on the recognition of paternity.

If the child was born before the expiration of ten months from the date of termination of marriage as a result of the death of the husband, the origin of the child by the father may be determined by a joint application of the mother and the man who considers himself the father.

According to Article 125 of the Family Code of Ukraine:

1. If the mother and the father are not married to each other, the child’s origin from the mother is determined on the basis of the child’s birth certificate from the health care institution.
2. If the mother and the father are not married to each other, the origin of the child from the father shall be determined:

• on the application of the mother and the father of the child;
• on the basis of a court decision.

Claims to determine paternity in Ukraine

Now let’s look at what claims (lawsuits) or applications (individual proceedings) can be in this case:

1. The claim about determination of paternity of the previous spouse, when the child was born before the expiration of ten months from the date of termination of the marriage or the recognition of the marriage as invalid, but after the registration of the second marriage of his mother with another person (paragraph 2 of part 1 of Article 124 of the Family Code).
2. Statement of claim about the acknowledgement of paternity in the absence of the mother and the father of the child, the right of representation which is established by Article 126 of the Family Code of Ukraine ( p. 3 part 2 of Article 125, part 3 of Article 128 of the Family Code of Ukraine).
3. Statement of claim for the recognition of the paternity of a person who considers himself the father of the child born of a woman who at the time of conception or birth of the child was married to another man (part 1 of Article 129 of the Family Code).
4. Statement on the establishment of the fact of paternity in the case of death of a man who was not married to the mother of the child (part 1 of Article 130 of the Family Code). An application to establish paternity may be filed by the child’s mother, guardian or custodian, the person who supports and raises the child, or the child himself or herself, who has reached the age of majority.
5. Statement on recognition of maternity when a person considers herself the mother of the child (Part 1, Article 131 of the Family Code).
6. An application to establish maternity in the case of the death of a woman who considered herself the mother of the child (part 1 of Article 132 of the Family Code). An application to establish maternity may be filed by the child’s father, guardian, custodian, the person who supports and raises the child, as well as by the child himself or herself, who has reached the age of majority.
7. Statement of claim about exclusion of a record about a person as a parent from the record on the birth of a child (part 1 of Article 136 of the Family Code of Ukraine).
8. Claims to challenge paternity after the death of the person recorded as the child’s father (Article 137 of the Family Code of Ukraine).
9. A claim for exclusion the record of identity as the father of the child from the record on the birth of the child when the woman, who gave birth to a child in marriage, intends to challenge her husband’s paternity (part 1 of Article 138 of the Family Code of Ukraine).
10. Claim for recognition of maternity when a woman, who considers herself the mother of the child, intends to bring a claim against the woman, registered as the mother of the child, for recognition of her maternity (part 2 of Article 139 of the Family Code).

According to paragraph 1 of Article 140 of the Family Code of Ukraine, the recovery from the person recorded as the father, mother, child support is not an obstacle to the recourse to a court claim for removal of information about him as the father, mother of the child from the register of his birth.

For the formulation of legal positions appropriate to be guided by the explanations in the Resolution of the Plenum of the Supreme Court of Ukraine № 3 dated May 15, 2006 “On the application of certain provisions of the Family Code of Ukraine in cases of paternity, maternity and recovery of alimony by the courts” (paragraphs 4-14).