DNA confirmed the paternity of the deceased serviceman, but his mother disagreed with the court's decision: what the appeal decided

The Khmelnytskyi Appellate Court upheld the decision establishing the fact of paternity of the deceased serviceman regarding his daughter and explained why such a case could be considered in a separate proceeding despite the objections of the deceased’s mother.

The court emphasized that at the time of applying to the court, there was no dispute over the right between the parties, and the application itself was submitted to confirm a legal fact necessary for the child to acquire the status of a family member of the deceased Defender of Ukraine.

The key evidence in the case was the conclusion of the forensic molecular genetic examination, according to which the probability of biological paternity was not less than 99.99999999%. Based on the totality of evidence, the court established the fact of paternity.

Circumstances of the case

The child’s mother applied to the court with a statement to establish the fact of paternity of the deceased serviceman regarding her daughter. She explained that after the official marriage was dissolved, they lived together again as a family without registering the marriage. During this period, the daughter was born, but during the state registration of birth, information about the father was entered based on the mother’s words in accordance with Article 135 of the Family Code of Ukraine. During his lifetime, the man recognized the child as his own, materially supported her, bought necessary things, and maintained a relationship with her.

After the serviceman’s death, the mother applied to the court, stating that establishing paternity was primarily necessary for the daughter to obtain the status of a family member of the deceased Defender of Ukraine and to exercise related rights and guarantees.

The court of first instance satisfied the application, established the fact of paternity, and obliged the state civil registration authority to make the appropriate changes to the child’s birth record.

Arguments of the appeal

The mother of the deceased serviceman requested to cancel the decision and leave the application without consideration.

In her opinion, case 686/23551/23 could not be considered in a separate proceeding because there was a dispute over the right between the parties. She stated that she was the sole heir of her son, had already accepted the inheritance, and establishing paternity was only necessary for further realization of property claims. The appellant also pointed out that the application to establish paternity was submitted only some time after the serviceman’s death.

Position of the appellate court

The panel of judges did not agree with these arguments and left the decision unchanged.

The court noted that Article 130 of the Family Code of Ukraine explicitly provides for the possibility of establishing the fact of paternity after the death of a man who was not married to the child’s mother if the record about the father was made according to Article 135 of the Family Code. In such cases, the application may be submitted by persons defined in part three of Article 128 of the Family Code, in particular the child’s mother or the adult child themselves.

The appellate court thoroughly analyzed the provisions of the Civil Procedure Code of Ukraine regarding separate proceedings and the practice of the Grand Chamber of the Supreme Court. The panel noted that a legal fact can be established in a separate proceeding only if it generates legal consequences, another procedure for its establishment is not provided by law, the applicant cannot confirm this fact in another way, and its establishment itself is not related to resolving a dispute over the right.

According to the court, these conditions were met in this case.

The panel emphasized that at the time of applying to the court, there was no dispute over the right between the parties. The purpose of the application was to confirm the legal fact of the child’s origin to acquire the status of a family member of the deceased Defender of Ukraine, not to resolve a civil dispute over the right.

The court also noted that the subsequent emergence of a separate claim regarding the redistribution of a one-time monetary aid to the family of the deceased serviceman does not indicate the existence of such a dispute at the time of applying to establish the fact of paternity. On the contrary, this dispute arose after the court established the relevant legal fact.

Decisive importance of the DNA examination

The appellate court separately drew attention to the significance of the molecular genetic examination.

According to its conclusion, the deceased serviceman can be the biological father of the child with a probability of not less than 99.99999999%. The appellant participated in the case consideration but did not provide evidence of the unreasonableness of this conclusion and did not file a motion for a repeated examination.

Referring to the practice of the European Court of Human Rights, the appellate court noted that the DNA test is the only modern scientific method for accurately establishing paternity, and its evidentiary value significantly outweighs any other evidence submitted by the parties to confirm or refute the biological origin of the child. That is why the conclusion of the forensic molecular genetic examination was decisive when evaluating the evidence in this case.

Court conclusion

The Khmelnytskyi Appellate Court dismissed the appeal and left the decision of the court of first instance unchanged.

The court confirmed that the case concerned the establishment of a legal fact, not the resolution of a dispute over the right, and therefore was lawfully considered in a separate proceeding. Having assessed all the evidence in their entirety, including the conclusion of the molecular genetic examination, the court concluded the fact of paternity of the deceased serviceman regarding the child was proven.

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