PATERNITY SUIT In this article, we would like to inform you, our valued readers, about paternity suits
PATERNITY SUIT
In this article, we will endeavor to provide our valued readers with information regarding paternity suits.
A paternity suit is a lawsuit filed against a person alleged to be the father for the purpose of establishing legal parentage. A paternity suit may be filed by the child or the mother. A person who claims to be the father cannot file a paternity suit. A person claiming to be the father can establish legal parentage with the child through recognition, provided that the conditions are met. Therefore, a person claiming to be the father has no legal interest in filing a paternity suit.
The child and the mother may file a paternity suit jointly or separately. In the event that they file separate lawsuits, a decision rendered for one does not constitute a final judgment for the other. If the child or the mother waives the lawsuit or chooses to settle, the right of the other to file a lawsuit is not affected.
In the event that a paternity suit is filed by the mother, the establishment of legal parentage between the child and the person alleged to be the father is requested. Furthermore, the mother may also claim damages for financial losses incurred due to the birth. According to Article 304 of the Turkish Civil Code (TMK), she has the right to claim birth expenses, maintenance expenses for the six-week periods before and after birth, and other expenses arising from this condition. These financial damages may be claimed together with the paternity suit or may be the subject of a separate lawsuit. Financial damages can also be claimed if the child is stillborn. Additionally, the mother may request child support provided that it is in the best interest of the child.
In the event that a paternity suit is filed by the child, the establishment of legal parentage between the child and the person alleged to be the father may be requested from the court. Additionally, child support may also be requested by the child. Child support ends when the child reaches the age of majority. If the child is already linked to someone else by legal parentage, the dismissal of this legal parentage must first be requested; a paternity suit cannot be filed without doing so.
A paternity suit may be filed before or after the birth of the child. The mother may file a paternity suit within 1 year from the child's birth. If the child was born while the mother was married to someone else, since legal parentage will be established with this person upon birth, the child may file a paternity suit within 1 year from the date this legal parentage relationship is terminated. If there are justifiable reasons for exceeding this 1-year period, the paternity suit must be filed within 1 month from the date these reasons cease to exist. It is not possible to file a paternity suit after these periods have passed.
A paternity suit may also be filed against the heirs of the person alleged to be the father if that person is deceased. If the person alleged to be the father has no heirs, as the estate will remain with the state, the paternity suit may be filed against the state.
It is required that the party filing the paternity suit, i.e., the child or the mother, prove that the person alleged to be the father is indeed the father. To facilitate this situation, which is difficult to prove, the legislator has provided for a "presumption of paternity." According to the presumption of paternity, if the person alleged to be the father had sexual intercourse with the mother between 180 and 300 days before the child's birth, a presumption for paternity is formed. Any type of evidence may be used by the plaintiff to prove the existence of the relationship. The defendant, the person alleged to be the father, may rebut the presumption of paternity in two ways. Firstly, he can prove that it is impossible for the child to have been conceived from sexual intercourse with the mother or that no such sexual intercourse took place at all. Secondly, he can prove that it is more likely that another man is the father.
The plaintiff or the defendant may request a DNA test to determine legal parentage. Additionally, the judge may also request a DNA test ex officio. How to proceed with a defendant who refuses to undergo a DNA test has changed over time. Looking at previous court decisions, it is observed that based on the provision in Article 284/2 of the Turkish Civil Code that "the court may accept the defendant's refusal to undergo a DNA test as evidence against him," the lawsuits of plaintiffs were accepted by considering the defendant's refusal to undergo the DNA test as evidence against them. However, according to the Unification of Judgments Decision dated 18.10.2018, pursuant to Article 292 of the Code of Civil Procedure (HMK), which is a more specific and subsequent law compared to the Turkish Civil Code, an obligation has been imposed to submit to blood and tissue sampling in cases related to the determination of legal parentage. For this reason, the judge may order that blood or tissue samples be taken from a defendant who refuses to undergo a DNA test by force.
A paternity suit is filed at the Family Court in the place of residence of one of the parties at the time of the lawsuit or at the time of the child's birth. If there is no Family Court in the place where the lawsuit is to be filed, the case is heard in the Civil Court of First Instance.
Attorney Gizem GONCE & Trainee Attorney İlayda KORUDAĞ