What is a parental case?

What is a paternity case? : It is a type of lawsuit that enables the establishment of lineage between the child born out of wedlock and the father. It is also called paternity clause.

It is one of the methods regulated in the TMK, which ensures the establishment of lineage between the father and the child and is based on the consent of the father; We gave detailed information about the methods of marrying and getting to know the mother in our article Establishing the Lineage. The subject of this article will be the "paternity provision", that is, the "paternity suit", which is a method that ensures the establishment of lineage between the child born out of wedlock and the father, and is not based on the consent of the father, as regulated in TMK Article 301 and its following.

With the innovative court decision given in the paternity case, paternity is established (with retroactive effect) between the child and the father. With this decision, there is now a lineage between the child born out of wedlock and the father, which is no different from the lineage relationship between the child born within marriage and the father.

PAternity CASE CONDITIONS

• Paternity judgment is a lawsuit that helps establish lineage between the child born out of wedlock and the father. Filing a paternity lawsuit depends on the existence of an existing family relationship with the child's mother. If there is no paternity relationship with the mother, it is impossible to file a paternity lawsuit at this point.

• In order to establish paternity by filing a paternity suit, the child must not have an existing paternity relationship with any man. It is not possible to file a paternity lawsuit without removing the existing paternity relationship.

This issue is in the 18th HD of the Supreme Court. 2013/19778 e. 2014/5824 k. In the decision dated 31.03.2014;

"In the concrete case; since it is requested to determine that the father of little Ahmet, who was born on 29.03.2005 within the official marriage of the plaintiff Selma and Ömer, who is not in the case, is actually the defendant Ferdi, the case is aimed at the request for determination of paternity based on Article 301 and following articles of the Turkish Civil Code... In addition, there is a paternity relationship between the child and Ömer who is out of the case, and unless this bond is removed, the paternity case will not be heard. Considering the legal regulations shown above, the case is "It was not deemed right to decide to accept the case when it should have been rejected." It is stated as follows.

• In the paternity case filed, legal notification obligations must be complied with. To the public prosecutor and the treasury in accordance with TMK 301/f.3; If the case is filed by the mother, to the trustee; If it is filed by the trustee, it is notified to the mother. In a decision of the Supreme Court regarding the obligation to notify the case; "In the paternity case, the lawsuit is filed against the father, and if the father is dead, against his heirs. Considering that the matter also concerns public order, a rule has been introduced that it will be reported to the Public Prosecutor and the Treasury. Failure to comply with the notification obligation requires reversal."

WHO CAN FILE A PARENTAL CASE?

The right to file a paternity suit is given to the mother and child in accordance with Article 301 of the Turkish Civil Code. Mother and child can file a lawsuit together, or they can exercise their right to sue separately. Lawsuits filed by the mother or child do not affect each other.

No matter who files the paternity lawsuit, the subject of the lawsuit is the request to establish a paternity relationship between the child and the person alleged to be the father. In addition, alimony may be requested in favor of the child.

MOTHER'S FINANCIAL RIGHTS IN PAternity CASE

In the paternity lawsuit filed by the mother, financial rights listed in the law may be requested as a limitation in her favor. In accordance with TMK 304; Birth expenses, living expenses for six weeks before and after birth, and other expenses required by pregnancy and birth may be claimed from the defendant. Even if the child is stillborn, the judge may decide to cover these expenses. The request for financial compensation in response to these demands is not subject to additional fees, as it is considered an accessory to the paternity case.

In the paternity suit filed by the mother, alimony may be requested for the benefit of the child. The woman's requests for alimony on her own behalf are rejected.

"In the paternity case, the financial rights of the mother are shown in Article 304 of the Turkish Civil Code. In illegal de facto partnerships, those living together have no alimony obligation towards each other. Imposing alimony for the benefit of the plaintiff without considering this aspect is against the procedure and the law." (Y2HD., 2005/8826 E)

A frequently made mistake in practice is this; In cases filed by the mother, in addition to material compensation, moral compensation is also claimed. However, in accordance with TMK 304, there is no non-pecuniary compensation regulation that gives the mother the right to claim. For this reason, claims for non-pecuniary damages must be requested in the competent court in accordance with general provisions.

In a Supreme Court decision regarding this issue;

"The non-pecuniary compensation requested by the plaintiff by paying the fee arises from Article 49 of the Code of Obligations and does not fall within the jurisdiction of the Family Court. Since there is a duly filed lawsuit regarding this request, a separation decision must be made and the duty issue must be observed." It is mentioned as follows.

PAternity CASE FILED BY THE CHILD

In the paternity suit filed by the child, first of all, a request is made to establish the paternity relationship between the father and the child. In addition, alimony may be requested in favor of the child from the defendant whose paternity is proven. This alimony is the participation alimony requested due to the father's obligation to contribute to the child's care and education expenses. Child support continues until the child reaches adulthood.

If the child who files the lawsuit is a minor, a trustee is appointed to represent the case on behalf of the child, as he/she does not have the power of discernment. Even if she has custody, her mother cannot represent her. The reason for this is stated as follows in a decision of the Supreme Court:

"Although, in accordance with Article 337 of the Turkish Civil Code, the custody of the child born from an extramarital relationship belongs to the mother, the Legislator, acting on the principle that the mother will not always act in the best interest of the child in the paternity case, has envisaged the appointment of a trustee for the minor and the notification of the case to the Public Prosecutor, the Treasury, if it is filed by the mother, to the trustee, if it is filed by the trustee, to the mother. Thus, the parents unite against the child with such or such thoughts and the birth of a situation to the detriment of the child. It was intended to be prevented." (Y2HD., 2002/1536 E.)

Can an adult child request alimony?

As a rule, an adult child cannot request alimony. However, an adult child who continues his education may request alimony from his parents with an exception provision. In this case, the requested alimony is now called support alimony. In a decision of the Supreme Court regarding this issue;

"Article 327 of the Turkish Civil Code, titled "Meeting the care and education expenses of children", states that the expenses necessary for the care, education and protection of the child will be covered by the mother and father, and article 328 states that the care debt of the mother and father will continue until the child reaches adulthood. If the child continues his education even though he is an adult, the mother and father are obliged to look after the child until his education ends, to the extent that can be expected from them according to the situation and conditions. "It has been regulated that, as a rule, the adult child cannot request alimony, but an exception has been made to this rule and that if his education continues, he can request alimony from his parents, depending on the situation and conditions." He mentioned it as follows.

CAN THE BIOLOGICAL FATHER FILE A PARENTAL ACTION?

The paternity suit is not filed by the person who thinks he is the father, that is, the biological father. If such a situation exists, a paternity relationship can be established with the child through marriage or recognition with the mother, which are methods of establishing paternity based on consent. There is no legal benefit in giving these people the right to file a paternity suit.

"The case is about the request for determination of paternity. The father or the heirs of the person alleged to be the father do not have the right to file a paternity lawsuit. From the evidence collected, it is understood that the case was filed by the heir (father) of the person claimed to be the father. In that case, the court should decide to reject the case, considering that the plaintiff does not have the capacity to file a paternity lawsuit." (Y2HD. 2010/7036 E.)

AGAINST WHOM CAN A PARENTAL CASE BE FILED?

In accordance with TMK 301/f.2, the paternity suit is filed against the person thought to be the father or, if the person is dead, against his legal heirs. If the deceased person has no legal heirs, the title of defendant will belong to the state.

WHAT IS THE PRESUMPTION OF PARENTAL?

Proof that the defendant is the father belongs to the plaintiff. While proving this, the plaintiff benefits from the presumption of paternity regulated by law. According to TMK 302/1 and 301/2,

The fact that the defendant had sexual intercourse with the mother between the 300th day and the 180th day before the birth of the child (i.e., during the period of conception), or the determination that the defendant had sexual intercourse with the mother during the actual pregnancy period, even if it was outside this period, is considered a presumption of paternity. The fact that sexual intercourse is a one-time occurrence or that the parties are protected during sexual intercourse does not constitute an obstacle to the presumption of paternity.

HOW CAN THE PRESUMPTION OF PARENTHY BE REFUSED?

According to TMK 302/3, "If the defendant proves that it is impossible for him to be the father of the child or that a third person is more likely to be the father than himself, the presumption loses its validity."

As can be understood, the law provides two opportunities for the defendant to refute the presumption of paternity. The defendant may prove this situation with any evidence that will eliminate beyond doubt the possibility that he is the father of the child. It is often seen that medical evidence is used in this regard.

As another way, the defendant can refute the presumption of paternity by proving that there was sexual intercourse between the child's mother and another man during the critical period, that is, during the pregnancy period, and by basing it on solid evidence that that person's probability of being the father is higher than his own.

HOW IS PARENTHY DETECTED?

The paternity case concerns public order because it is a case regarding paternity. For this reason, the judge investigates all the facts ex officio and evaluates them freely. While doing this, he determines paternity by making use of all the sources available to science.

The judge first investigates whether there are serious signs that the defendant is the father. If the signs obtained in this direction (which means whether there was a sexual intercourse between the defendant and the mother of the child during the pregnancy period) indicate a significant possibility that the defendant is the father, today's scientific tests and genetic analysis (DNA) are performed to ensure that the probability of paternity is close to a certain limit of 100%. DNA test is a discretionary evidence and is performed by experts. Although the result of this test, which has close to one hundred percent scientific accuracy, is not legally binding on the judge because it is discretionary evidence, it will be scientifically binding and the decision will be decisive. Therefore, before making a decision in the paternity case, all the evidence is evaluated by the judge and even the slightest doubt to the contrary is eliminated.

IS DNA TEST MANDATORY IN PAternity CASE?

Thanks to the technology available today, DNA tests provide nearly 100% reliable results. For this reason, DNA test result reports have a great impact on the judge's decision in paternity cases. Therefore, there are court decisions in which the plaintiff's case was accepted by accepting the defendant's avoidance of having the test as per TMK 284/2 as evidence against the defendant, who refused to provide the blood and tissue samples required for the DNA test.

MK 284/2 "Parties and third parties are obliged to consent to research and examinations that are mandatory in determining lineage and that do not pose a danger to their health. If the defendant does not consent to the research and examination prescribed by the judge, the judge may consider the expected result to be against him, depending on the situation and conditions."

However, the General Assembly of the Supreme Court of Appeals clearly stated its opinion in its decision dated 18.10.2018 regarding the decision of the first instance courts to accept the case by considering the refusal to take a DNA test as evidence against the defendant.

"… Although the local court stated that the defendant who avoided having the test was decided by accepting that the result expected from the examination was against him in accordance with Article 284/2 of the TMK, as explained above, a special regulation was made regarding the examination to be carried out to determine the lineage in the HMK, which is the next law according to the TMK, and in such cases, it was obligatory to endure blood or tissue collection due to the importance of the case.

This being the case, in order to obtain the correct conclusion about the paternity claim, which is related to public order, it is necessary to apply the provision of Article 292 of the Civil Procedure Code, which is the next law and contains a special regulation, and to make a decision in line with the report to be received."

WHAT HAPPENS IF THE COURT'S CALL FOR DNA TESTING IS NOT OBEYED?

This situation was accepted as an incomplete review in a decision of the 8th Civil Chamber of the Supreme Court of Appeals dated 28.03.2019, causing the court decision to be overturned. That is;

"From the information and documents in the file, it is understood that although notification was duly sent to the addresses where the defendant M. Durmuş was located for a DNA test, the case was accepted by the court after the defendant did not comply with the call.

In cases of determination of lineage that are closely related to public order, the Code of Civil Procedure is applied, without prejudice to the conditions specified in Article 284 of the Turkish Civil Code. In accordance with the said article, the judge investigates the material facts ex officio and freely evaluates the evidence. Pursuant to Article 292 of the Code of Civil Procedure, within the framework of the request in the petition, the court should also take into account the claims and defenses of the parties and issue an invitation to the defendant M. Durmuş to have a DNA test regarding the paternity claim, and warn him that he should give the necessary blood and tissue samples for the DNA test, otherwise this examination will be done by force. However, if the defendant does not come or does not give the blood and tissue samples if he comes, it is decided that these examinations will be carried out by force. "While a decision should be made in line with the report to be prepared and received, it is not deemed appropriate to accept the case with incomplete examination, contrary to the legal regulations shown above."

LIFE PERIOD IN PARENTAL CASE

TMK art. According to Article 303, a paternity suit can be filed before or after the birth of the child.

"The mother's right to sue expires after one year has passed since birth.

If there is a paternal relationship between the child and another man, the one-year period begins to count on the date this relationship ceases.

If there are reasons that justify the delay after the one-year period, a lawsuit can be filed within one month, starting from the disappearance of the reason."

• If the child has a paternity relationship with another man, this relationship is terminated, and then a paternity lawsuit can be filed by the child without being subject to a certain period of time.

''If a trustee is appointed for the child after birth, a one-year period for the child is valid on the date of notification of the appointment to the trustee; If no trustee has been appointed, it begins to operate on the date the child reaches adulthood.'' provision was annulled by the Constitutional Court and the decision entered into force on 08.02.2013. After the court's decision, Article 303/2 of the Turkish Civil Code. Since the annulment decision regarding the article has come into force and there is no longer a deprivation of rights for the child in the Law, the court must collect the evidence of the parties, conduct a DNA examination and make a decision based on the results. (Y18HD., 5.12.2013 T.)

THE AUTHORITY COURT IN THE PAternity CASE

Paternity case is one of the cases related to lineage. In accordance with TMK 283, cases regarding paternity are filed in the court of the residence of one of the parties at the time of the case or birth.

In cases where neither party has a residence in Türkiye, the competent court in the paternity case is MÖHUK art. It is determined in accordance with article 41.

THE COURT IN CHARGE IN THE PAternity CASE

The courts responsible for handling paternity cases are Family courts. In places where there are no family courts, civil courts of first instance are responsible for handling paternity cases as family courts.