It is well known that when one of the parents of a child doubts whether is really a biological parent, then the status can only be challenged in court. According to the procedure, the court in such cases appoints an examination.
But the Judicial Collegium for Civil Disputes of the Supreme Court had to face a situation when one of the parents refused to participate in it. Having reviewed such a dispute, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation gave important advice on what to do in such a very difficult life situation. Sergei Surikov was married for a year and a half. In the first two months of marriage, a child was born to him and his wife, whose father was registered as Surikov. But as the child grew older, the father noticed that the child was not at all like him, and doubted that his child. When the couple divorced, Surikov challenged paternity in court. Two instances refused him. The courts noted that he did not submit indisputable evidence that would indicate that he was not the father of the child. At the same time, the court ordered a genetic examination with the participation of the mother of the child, to which she did not appear.
Interestingly, the local courts decided that the refusal of the mother from the examination does not change the matter. The courts said: the main thing is to protect the interests of the minor, "the realization of his fundamental right - the right to a family, the right to know his origin, to know his parents and to receive care from them." In addition, judging by the materials of the case, they did not try to conduct an examination again. The doubting father did not agree with such conclusions in his lawsuit and appealed the decisions of local courts to the Supreme Court of the country.
But the judicial board in civil matters listened to his arguments. The Armed Forces Civil Disputes Board, chaired by Alexander Klikushin, canceled the decisions (case No. 39-KG 19-6) and explained how to act in such a situation. The Supreme Court began by recalling that the married father and mother of the child are recorded as parents at the request of any of them. Each of them can challenge this in court. The same parents have the right to do the actual parents, the child himself after adulthood, his guardian or guardian of the parent, if he is recognized as legally incompetent. In this case, the party to the case must prove the circumstances to which it refers.
As the Supreme Court of the Russian Federation emphasized, one of such evidence may be a molecular genetic study. Saying this, the high court referred to the materials of its plenum (dated 2017 N16) “On Cases Relating to the Origin of Children”. The materials of the plenum say that the court may order a genetic examination taking into account the views of the parties and the circumstances of the case. In our case, the district court did just that. But the mother of the child did not come at the appointed time, and the examination was not carried out. About what to do in the event of a party evading the examination, it is said in article 79 of the Civil Procedure Code. It is called “Appointment of Expertise”.
Depending on who exactly decided to avoid it, and on the significance of the results for the party, the court has the right to recognize as established - or, on the contrary, refuted - the fact for which the examination was ordered. The question of this is resolved each time separately, depending on the circumstances.
In our case, the court should have checked whether there were circumstances that objectively prevented the defendant, that is, the mother of the child, from being examined, and whether a new term was set for the investigation.
For some reason, no one asked the question: “Why didn’t the respondent come to the examination?” The local court did not find out the reason for the failure to appear. As a result, paternity was not established in the case. But it was not refuted. This error was also not noticed and the appeal did not correct. As a result, the Supreme Court sent the case for a new trial. From the point of view of the trial, the absence of such evidence is a denial of the claim. But only in the case of a full and comprehensive consideration of the case by the court of first instance.
Ksenia Luzina, a lawyer from the Shcheglov & Partners Moscow Law Office, noted: “Perhaps the only conclusive evidence for recognizing paternity is a 99, 99% probability is a genetic examination (DNA test). No other evidence, including testimony, is so significant for the court to recognize or challenge paternity. In the event that the opposite party, for example, the father, whose right to paternity is disputed, recognizes the lawsuit, the court, as a rule, will not initiate an expert examination at the expense of the federal or local budget and will take the parties “word of mouth”.
If we talk about a specific case, here the Armed Forces of the Russian Federation literally “poked with a nose” the local courts on the norms of the law, clearly prescribing how the court should act in case one of the parties refuses to conduct the examination.
Otherwise, if the Supreme Court of the Russian Federation had been recognized as legal by the court, we would have had a case of total evasion of persons uninterested in a fair outcome from any kind of forensic examination.
In fact, by the indicated court decisions, the lower courts “paved the way” to legal abuse of the right, which in itself has legal consequences, but only if the abuse of the right is proved in court. The second, important point that the RF Armed Forces rightly drew attention to is the reason why the mother of the child did not appear for examination and which the courts should have found out in any case. Even if the mother of the child already in court objected to the genetic examination, she was obliged to fulfill the court ruling in this part and to appear with the child in the expert institution at the appointed time.
Nevertheless, from the information contained in the said decision of the Armed Forces of the Russian Federation, the lower courts apparently had enough that the mother of the child objected to the examination and most likely did not appear at the venue for this reason. However, it can be assumed that the mother of the child did not appear for examination because of the poor health of the child.
Then the court had to contact the defendant and find out the reason for her failure to appear at the expert institution. If the court finds the reason for the failure to appear valid, it has the right to take measures to postpone the examination to another date. If the situation repeats itself and the court finds that the mother of the child, for example, failed to appear for the examination more than three times, for a reason recognized by the court as disrespectful, it will be possible to resolve the issue of evading the mother of the child from the examination in accordance with Article 79 of the Code of Civil Procedure of the Russian Federation.
If each time, not being present for the examination, the mother of the child informs the court of the reason that the court may find respectful, the court may need to consider the issue of abuse of the right of the respondent. Otherwise, in a specific case, the trial is incomplete, because the court did not find out all the circumstances that are significant for the case.
For example, according to German law, if the court appoints an examination and before it is found out that the child, for example, is underweight by age, the court has every reason to “move” the deadline for it, since the examination may worsen the child’s health.
The Russian court also has the right to invoke these circumstances, although they are not explicitly stated in the law, having first ascertained them from the party that is evading the examination. Only then can we talk about the completeness and objectivity of the trial.
The third point important for the administration of justice that the Armed Forces of the Russian Federation drew attention to by canceling previous judicial acts was that local courts actually left the lawsuit without consideration, without refuting or establishing paternity, which in itself is the basis for the cancellation or amendment of the decision lower court, as handed down in violation of the law.
It is noteworthy that according to the legislation of several European countries a deadline has been set for contesting paternity, for example, in Germany it is two years from the moment when the father found out about his violated right. According to Russian law, the statute of limitations for contesting paternity has not been established, and in general, the very procedure for challenging paternity in the courts is quite clearly stated at the legislative level and should not cause any difficulties in law enforcement. ”