If you have lived enough in a family - pay! Why courts charge with the alimony for other people's children

Lawyers explain: everything is so, this is the law.

Yulia Suntsova

The editorial board of Novye Izvestia knows the names of the heroes of this story and has copies of court documents. However, the interlocutors themselves asked to cover their case without personalities, fearing for tougher measures on the part of bailiffs.

This complicated story dates back to 2008. The couple, who tied the knot in 2001, announced their divorce seven years later. The magistrate fulfills their wish and issues a certificate of the end of the marriage.

Two minor daughters are left from the marriage. The woman got married, being pregnant with her first child, both children were born in marriage. The man initially recognized himself as the father of both daughters, which is confirmed by the records in the acts of the registry office.

Upon dissolution of marriage, the father is obliged to pay the former wife 1/3 of all types of his earnings for the maintenance of common children.

After the divorce, the man has a new wife, they are raising a common daughter, who recently turned three years old.

Ten years later, in 2018, the ex-wife appears and demands alimony from the father of the children. All these years, as it turns out, he did not make official payments.

But since the ex-wife did not try to recover them all this time, the senior bailiff - the head of the ROSP department in the Kaluga region imposes a penalty for previous years only within three years before the woman goes to court.

According to the information of the writ of execution dated October 2, 2018 (the court itself took place on September 22), the debt period is set - from June 2015 to June 2018, the amount of debt is determined at 358.6 thousand rubles.

The man does not extinguish the writ of execution, but opens a counter process against his ex-wife, recalling how she repeatedly threw in her hearts during a divorce: "Children are not yours!"

In the stated requirements, the man asks to exclude the names of two daughters from the Book of Births.

Judge Anton Molchanov from the Serebryano-Prudsky Court of the Moscow Region is trying with all his might to find out the biological component of the birth of two children, but in vain. The mother does not appear at the court sessions, evades receiving summons, does not ask for the adjournment of the court session, does not explain her failure to appear in court, and does not file objections to the lawsuits.

Then, in October 2018, “in order to resolve the issue of the origin of children,” the judge appoints a forensic genetic examination. But the organization LLC Center for Molecular Genetics, which was scheduled to carry out this examination, reports: on both possible dates for which the sampling of the material was scheduled, the mother and daughters did not appear.

The idea of genetic testing has reached a dead end.

Then the judge decides: to satisfy the claims of the plaintiff in full. Abolish paternity! ..

The current law, it turns out, makes it possible to resolve disputes even on such sensitive issues unilaterally, if one of the parties interferes with the examination. This is equated to the situation with the refusal of a medical examination for intoxication. Refusal is tantamount to an admission of "guilt", comment the lawyers.

At the same time, the fact that the children are not family members does not in any way affect the obligation for alimony, the law says. It is understood that the parent takes full responsibility for the children the moment they are recognized, adopted or adopted. According to paragraph 2 of Art. 51 of the Family Code of Russia, a person's claim to contest paternity cannot be satisfied later if at the time of recording the person knew that he was not actually the father of the child.

Our hero in court insisted that initially he could not think that the children were not his, suspicions appeared only after his ex-wife had repeatedly told him about it.

“Under such circumstances, and given that forensic genetic examination was ordered in the case to determine the origin of children, and at the same time judicial and expert notices were repeatedly sent to the defendants explaining the consequences of failure to provide the genetic materials necessary for the examination, the court considers the defendants' failure to act as an evasion of the party from participation in the examination, in connection with which the fact of the origin of the children from the plaintiff <father's full name> is considered disproved, the claims of the plaintiff are considered confirmed and subject to satisfaction, ”said Anton Molchanov, judge of the Serebryano-Prudsky District Court of the Moscow Region.

The interdistrict registry office was ordered to correct the records, excluding the plaintiff in the column "father". Similar changes were made to the birth certificates of girls.

This happened in February 2019. Exactly one year later, the "demoted father" again appealed to the same court and asked to be released from paying child support and penalties in connection with the denial of his paternity.

The case fell into the hands of the same judge. But this time, the man's demands were denied. And this is how this decision was explained first by the first and then by the second court of appeal.

The man challenged his paternity only in 2019. Alimony was ordered by the court upon divorce in 2008, when paternity was not refuted by anyone. The court decision on alimony entered into force and was not subsequently canceled, therefore, on the papers, the man will always remain the father from the moment the paternity column is filled in until 2019, even if the genetic examination would prove otherwise.

All paternity alimony arrears accumulated prior to the liquidation of paternity must be paid in full. Such is the collision of common sense, the contradiction between the legal and the factual side of the matter: if you admit the children, pay.

The court released the father from paying alimony for the eldest daughter from July 2017 to the year declared by the mother in 2018 (but upheld payments on her from 2015 to July 2017). But even then, not because she is no longer his daughter, but for the simple reason that on July 29, 2017, the girl came of age, and her father is no longer obliged by law to support her.

“Article 80 of the Family Code of the Russian Federation obliges them to support their underage children.

The plaintiff's claim for exemption from the payment of alimony for the maintenance of minor children since 2015 is not subject to satisfaction, since during the specified period the alimony was payable on the basis of a previously adopted and uncontested judicial act that entered into legal force. There is no possibility of releasing the plaintiff from paying alimony without canceling a previously adopted judicial act. Alimony accrued since 2015 is subject to consideration as the resulting debt, "- confirmed in its decision in 2020, the Judicial Collegium for Civil Cases of the Moscow Regional Court, composed of judges Shmelev, Gulina and Paramonova.

While his father was challenging his paternity in court, his debt for alimony, penalties and bailiffs' duties multiplied by two.

By order of the bailiff of March 23, 2021, the total debt now stands at 856 thousand rubles and continues to grow.

The saddest thing in this story is that children have become a bargaining chip in the confrontation between two adults, mom and dad.

Real father or not real? It seems impossible to get a reliable answer to this question. And is it really necessary? But the medical facts remain: 1. a man with all his might refuses in court from children whom he raised for a long time and called his daughters; 2. the judge annuls paternity only on the basis of the mother's refusal to undergo an examination; 3. Articles of the law prescribe judges to act in this manner.

Lawyers explain: judges in this situation, for the most part, correctly interpret the current law.

Family lawyer Yuri Gorbushin:

- The man says that he has a debt of over 850,000 rubles for child support, but at the same time he himself proves through the court that he is not a father to these children. I will disappoint everyone at once - he will still have to pay, regardless of whether he is a father or not.

And here are the nuances.

Currently, we have established by law that even if a parent in the future proves that he is not a biological parent, but by that time he has a debt for the prescribed alimony, then paternity will be written off, but the accumulated debt will not go anywhere from him. Judicial practice believes that if the father initially recognized paternity and entered himself into the documents, then there is no deception on the part of the woman, and it does not matter whether he is a biological father or not.

In addition, even if there is no debt, and it turns out that the man kept not his children all the time, he cannot demand back the alimony paid from his ex-wife or cohabitant who actually deceived him.

To date, the provisions of the law, Article 114 of the Family Code of the Russian Federation and judicial practice have established that alimony debt can be released only if there is a valid reason . But the courts do not include the fact that the father of the children did not know that in fact he was not their real father.

It is extremely rare that such a debt can be exempted, but the father of the children must be provided with evidence of the following:

• the child's mother was dishonest;
• the child's mother deliberately misled the spouse (cohabitant) that he is the father of the children.
• the child's mother deliberately submitted to the registry office fake paternity documents.

In practice, in 2021, only 1 out of 100 court decisions are made in favor of the fathers of the children to write off the debt, since it is almost impossible to prove that the mother of the children deliberately cheated.

Lawyer of the Association of Lawyers of Russia for Human Rights "Ekaterina Shakurova:

- Unfortunately, the described situation is not uncommon. Many faced the problem of paying alimony for the maintenance of children, such a problem in our state is a systemic one. More often we see and hear about how one of the parents, after a divorce, leaves children with another parent and, in fact, does not provide any assistance in their upbringing. In some cases, this problem is directly related to the economic situation in the country. With the onset of the pandemic, in addition, many people simply do not have the opportunity to pay decent alimony due to the lack of stable earnings. The second parent is forced to resort to protecting the interests of children with the help of the country's judicial authorities.

This case is unique in that the court, as expected, awarded alimony to the legal father at that time. But, as it turned out many years later, the children were not his. The rights of men are violated. It took time to prove that he was not the father of these children, and while he disputed his paternity, a huge debt was accumulated on alimony. A man to this day bears the burden of paying alimony for the maintenance of not his children and will continue to bear it until he pays in full - not only the body of the debt, but also the penalty and the costs of bailiffs. In such a situation, it is important to get qualified legal assistance in a timely manner, since the legislator, in addition, in these categories of cases severely limits citizens in terms of filing applications to the court to restore their violated rights.