Paternity Lawsuit - Av. Gökhan Akgül

ما هي دعوى النسب؟

A paternity lawsuit is a case aimed at establishing the lineage relationship between the father and the child. It is filed by the mother and the child against the father when the father does not acknowledge that he is the father. The purpose of a paternity lawsuit is to identify the father of a child born out of wedlock and to legally establish the relationship between the child and the father through a court decision.

What are the conditions for filing a paternity lawsuit?

1- The first condition for filing a paternity lawsuit is that the mother who gave birth to the child must be identified.
2- There must be no established paternity relationship between the child and another man.

Who Can File a Paternity Lawsuit?

The right to file a paternity lawsuit is granted to the mother and the child. The mother and the child can file the lawsuit together or separately. The mother’s right to file a lawsuit is independent of the child’s right to do so. Therefore, even if the child dies, the mother can still file a paternity lawsuit. If the paternity lawsuit is filed by the mother, the child is represented in the case through a guardian. The right to file the lawsuit does not pass to the heirs of the mother or child; however, if the mother and child die after the lawsuit has been filed, the right to the lawsuit passes to their heirs.
The lawsuit is filed against the father, or if the father is deceased, against the father’s heirs. If there is a possibility that more than one man could be the father, the paternity lawsuit can be filed individually against each of them or as a single lawsuit against all.

TIME LIMITS IN PATERNITY CASES

A paternity lawsuit can be filed before or after the child is born. If the mother is filing the lawsuit, she must do so within 1 year following the child’s birth date.
The 1-year period regarding the child starts from the date the child reaches legal adulthood if no guardian has been appointed for the child. If a guardian has been appointed, the period starts from the date the appointment is notified to the guardian.
If the child is legally recognized as the child of a man, the child cannot file a paternity lawsuit without first filing a lawsuit to deny the parentage of that man. In such a case, the 1-year period starts from the termination of the legal parentage relationship. For example, if at the time the child is born, the mother is married to another man, the child is presumed to have been born within the marriage and is legally connected to the mother’s husband. In this situation, before filing a paternity lawsuit, the legal parentage between the child and the mother’s husband must first be terminated.
The 1-year statute of limitations applies only to the mother; there is no such time limit for the child.

EVIDENCE IN PATERNITY CASES

In a paternity case, the burden of proof lies with the mother and the child who initiate the lawsuit. They must prove that the person they claim to be the father is indeed the biological father. Since proving this can be quite difficult, the legislator has established the concept of the presumption of paternity.

According to this presumption, if sexual intercourse occurred between the alleged father and the mother between 180 and 300 days before the child’s birth, it serves as a presumption of paternity. However, this presumption can be rebutted. In order to rebut the presumption of paternity, it must be proven either that no sexual relationship took place, or if it did, that the child was not conceived as a result of that relationship.

The alleged father can also rebut the presumption by proving that another man could be the biological father. In cases where no presumption applies, the most valid and commonly used method of proof is a DNA test conducted on the parties.

Civil Chamber 2017/11626 E., 2019/4901 K.

According to Article 325 of the Code of Civil Procedure, in cases and proceedings where the parties cannot freely dispose of the subject matter, the judge shall rule that the necessary expenses for the evidence obtained ex officio be paid by one of the parties or both parties in the specified proportion within a one-week period. If an advance covering these expenses is not deposited within the given period, the judge shall order that the expenses be paid from the Treasury, to be later collected from the party who is ultimately held liable for the cost.

Accordingly, in lawsuits concerning the determination of paternity, since courts are obliged to establish an accurate civil registry record without any doubt or hesitation, it is considered incorrect not to rule for conducting a DNA test and issuing a decision based on the resulting report — to be financed by the Treasury if the parties fail to provide the necessary advance — with the cost later collected from the liable party in accordance with the aforementioned legal provision.

CONCLUSION: For these reasons, the judgment rendered without taking into account the principles explained above is found to be incorrect. As the appeal objections are justified, the decision is REVERSED pursuant to Article 428 of the Code of Civil Procedure.

COMPETENT AND AUTHORIZED COURT IN PATERNITY CASES

In paternity cases, the competent court is the Family Court. In locations where there is no Family Court, the Civil Court of First Instance handles the case in the capacity of a Family Court.

The authorized court in a paternity case is the court of the place of residence of one of the parties, either at the time of the lawsuit or at the time of the child’s birth.

WHAT ARE THE CONSEQUENCES OF A PATERNITY LAWSUIT?

If the court concludes in a paternity lawsuit that the defendant is the father, the mother gains certain financial rights. The mother may request reimbursement of the following expenses from the father or his heirs, either together with the paternity case or separately:

Birth-related expenses,
Living expenses for six weeks before and after the birth,
Other expenses necessitated by pregnancy and childbirth.

Even if the child is stillborn, the judge may rule that these expenses be covered.

As a result of a paternity lawsuit, if the court rules that the defendant is the father, certain legal consequences also arise for the child:

The child gains the right to be the legal heir of the father.

The man who is ruled to be the father may request from the court the right to have contact with the child.

The court orders the man who has been proven to be the father to pay child support in favor of the child.

Sample Supreme Court (Court of Cassation) Decisions

2nd Civil Chamber 2009/11660 E., 2010/13456 K.

Case Law Text

Following the trial of the case between the parties, the judgment given by the local court, dated and numbered above, was appealed regarding the paternity case; the files were read, and the matter was discussed and considered.

The action for denial of paternity filed by the child (Article 286/2 of the Turkish Civil Code) and the paternity case filed by the mother (Article 301 of the Turkish Civil Code) were consolidated, and it was decided to accept both cases. The defendant, Yener, whose paternity was established by the judgment, has appealed.

A prerequisite for the examination of the paternity case is that the paternity relationship between the child and the man registered as the father in the population registry must have been terminated (Articles 303 of the Turkish Civil Code, Supreme Court of Appeals 2nd Civil Chamber, 18.10.2004, case no. 10284-11937).

Since the decision rejecting the paternity relationship has become final without appeal, the paternity case can now be examined. The defendant also initially argued that the ruling on the denial of paternity must become final first and did not consent to DNA testing. For these reasons, the result of the denial of paternity case should have been awaited first, and then all evidence evaluated together before ruling on the paternity case. Deciding on the paternity case without considering this point necessitates annulment.

RESULT: The appealed judgment is hereby REVERSED for the reasons stated above. Considering the reason for annulment, there is no need to examine other appeals. Upon request, the advance appeal fee shall be refunded to the payer. This decision was made unanimously, with the right to apply for correction of the decision within 15 days from the notification of this ruling. 05.07.2010 (Monday)

2nd Civil Chamber, Case No: 2021/5941, Decision No: 2021/8069

After the trial of the case between the parties, the judgment given by the local court, the date and number of which are shown above, was appealed by the heir …, the documents were read, and the matter was deliberated and decided as follows:

The case concerns the determination of paternity. Article 301 of the Turkish Civil Code states:
“The mother and the child may request the court to determine the legal relationship of paternity between the child and the father. The case is filed against the father or, if the father is deceased, against his heirs. The paternity case shall be notified to the public prosecutor and the Treasury; if the case is filed by the mother, notification shall be given to the guardian; if the case is filed by the guardian, notification shall be given to the mother.”

Furthermore, unless explicitly authorized, a legal representative cannot file or pursue lawsuits related to rights that are strictly personal to the individual (Code of Civil Procedure, Article 74). According to Article 301 of the Turkish Civil Code, the legal relationship of paternity between a child born outside of marriage and the father can be established by a court decision. The lawsuit that enables this is the paternity case. The paternity case involves the exercise of a right that is strictly personal.

In the present case, the public prosecutor and the Treasury were not notified. Although notifying the public prosecutor and the Treasury is mandatory in paternity cases (Turkish Civil Code, Article 301, last paragraph), the case was proceeded without notifying the Treasury and the public prosecutor and without obtaining a special power of attorney from the plaintiff’s legal representative to file the paternity case. Continuing the proceedings and entering judgment on the merits in this way is contrary to procedural law and legislation. For this reason, it is necessary to annul the decision solely for this reason.

RESULT: The appealed judgment is hereby REVERSED for the reasons stated above; there is no need to examine the other appeals at this stage; the advance appeal fee shall be refunded to the depositor upon request; and the right to request correction of the decision within 15 days from the notification of this ruling is reserved. Decided unanimously on 03.11.2021 (Wednesday).

2nd Civil Chamber Case No. 2008/10260, Decision No. 2008/10063

After the trial conducted regarding the case between the parties, the judgment given by the local court, the date and number of which are shown above, was appealed. The documents were read, and the matter was discussed and considered.

1- The case for the denial of paternity between the minor Müslüm and the defendant … was filed by the guardian on behalf of the child against the mother and the former husband. … does not have the status of a party in the case for denial of paternity. However, since paternity was also claimed in the same case, … has intervened in the case concerning the “paternity case.” The status of intervention does not apply to the case for denial of paternity. Therefore, as … does not have the authority to appeal the decision regarding the denial of paternity, the appeal request of … concerning this part of the judgment should be rejected.

2- Along with the request for denial of paternity, a request for a ruling of paternity was also made. Since the decision on the denial of paternity has become final by the parties not appealing it, the paternity case has now become examinable. Accordingly, a judgment, either accepting or rejecting paternity, should have been rendered; the judgment given in writing was not correct.

RESULT: The judgment is unanimously REVERSED regarding the appeal objections of the intervener … for the reasons stated in paragraph 2 above. Due to the reason for reversal, there is no need to examine other aspects related to paternity for now. The appeal request of … regarding the denial of paternity is unanimously REJECTED for the reasons stated in paragraph 1 above.