Case for rejection of parental

The case for denial of paternity is a type of lawsuit filed to eliminate the paternity relationship between the child and the father, based on the reasons stipulated by the law.

TMK art. According to 285; "The father of the child born while the marriage is still ongoing or within three hundred days starting from the termination of the marriage is the husband."

The lineage relationship requested to be rejected in this case is based on TMK art. There must be a lineage relationship based on the presumption of paternity regulated in 285 - that is, between the husband and the child.

The husband, who claims that he is not the biological father, may request the elimination of the paternity relationship between him and the child by filing a petition for denial of paternity. Making a decision in line with this request depends on reporting the evidence that will refute the presumption of paternity.

The decision to reject lineage given as a result of the case creates innovation with retroactive effect. This means that once the court decision becomes final, the paternal relationship between the child and the father is interpreted as having never been established since the birth of the child.

With the decision to reject paternity, the rights and obligations towards the child end. Therefore, expenses incurred for reasons such as education and care since the birth of the child can be claimed from the mother and, if lineage has been established, from the real father of the child, within the scope of unjust enrichment provisions.

WHO CAN FILE A CASE FOR REJECTION OF PARENTAL?

Turkish Civil Code 286/1. As a rule, the husband and the child are given the right to file a lawsuit for rejection of paternity independently of each other.

The trustee to be appointed to the minor child files a lawsuit for rejection of paternity within one year, starting from the notification of the appointment decision.

Again, in TMK 291/1, the right to sue is regulated for some people other than husband and child.

"In cases where the husband dies before the expiry of the period for filing a lawsuit, or if his absence is determined, or if he permanently loses his power of discernment, the husband's descendant, mother, father or the person claiming to be the father may file a lawsuit for rejection of lineage within one year, starting from the day they learn of the birth and death of the husband, that he has permanently lost his power of discernment, or that a decision of absence has been made against him."

According to the relevant law article, the husband's descendants, mother, father or the person claiming to be the father have the right to file a lawsuit in cases foreseen by law.

As can be seen above, the mother is not given the right to file a lawsuit for denial of paternity. Following the decision of the Constitutional Court in File 2023/37 E. on 26/7/2023, Article 286 of the relevant TMK was annulled. The annulment decision will enter into force 9 months after the Constitutional Court decision is published in the official gazette. For this reason, after the arrangement is made, the biological mother will also have the right to file a lawsuit. The Constitutional Court's evaluation is as follows:

"In Articles 286 and 291 of Law No. 4721, the persons who can file a lawsuit for denial of paternity in order to eliminate the paternity relationship between the child and the father are limited. Accordingly, the mother is not among the people who can file the said lawsuit. Therefore, the mother does not have the opportunity to apply to the judicial authorities by claiming that the child she gave birth to is not from the husband.

Although it is not possible to file a case for rejection of paternity by the mother, the child is given the right to file a case for rejection of paternity in the second paragraph of Article 286 of the Law, and in the second paragraph of Article 291, it is stipulated that the trustee to be appointed for the minor child can file a case for rejection of paternity within one year from the notification of the appointment decision.

Accordingly, it is possible to apply for the appointment of a trustee for the child in order to open a case for rejection of paternity. However, the ability to file a lawsuit by the trustee does not provide a guarantee in terms of the right to effective application in the context of the mother's right to demand respect for her private life. Because the trustee will file the case for denial of paternity on behalf of the child, considering the child's best interests. Therefore, in the said case, the mother of the child, as the plaintiff, will not be able to put forward her claims regarding the refutation of the presumption of paternity.

In this respect, the rule that does not allow the mother, as a plaintiff, to apply to the judicial authorities to refute the presumption of paternity by claiming that the biological father of the child is not the husband, violates the right to effective application in the context of the right to demand respect for private life.

For the reasons explained above, the Constitutional Court decided that the rule is unconstitutional and annulled it."

IF THE HUSBAND'S ABSENCE IS DECIDED, THE PERSON CLAIMING TO BE THE FATHER MAY FILE A CASE FOR REJECTION OF PARENTALITY

"... Since the husband's absence has been decided, the case is not about paternity, but about the rejection of paternity filed by the person claiming to be the father. In that case, the evidence should be evaluated within the framework of this legal nature of the case, taking into account that there is a conflict of interest between the children and their legal representative (mother) due to the case, a notification should be made to the court of peace to appoint a trustee to represent the children in the case and protect their rights and interests, the appointed trustee should be invited to the hearing, his/her evidence should be collected if he/she shows it, and all "The evidence must be evaluated together and a decision must be made in accordance with the outcome. Irrespective of this aspect, it is not found correct to describe the case as "paternity" and reject it with written justification, without considering that both the mother and the child may request the determination of the lineage between the child and the father, and that the person claiming to be the father cannot file a paternity suit." (Y2HD.2011/10692 e.)

AGAINST WHOM CAN A CASE FOR REJECTION OF LINEAGE BE FILED?

Since the right to file a lawsuit is granted to more than one person, the party to whom the lawsuit will be directed varies depending on the person who is the plaintiff.

In the case of denial of paternity;

•If the plaintiff is the husband; The lawsuit is filed against mother and child. If only one of them is filed, the case will be rejected.

•If the plaintiff is a child/trustee; The case is filed against mother and husband. The case against only one is dismissed.

•If the plaintiff is the person who claims to be the father; The lawsuit is filed against mother, child and husband.

•The plaintiff and other relevant persons in 291/1 are; The lawsuit is filed against mother and child.

PROOF IN THE CASE OF REJECTION OF PARENTAL

The provisions of proof regarding this case are regulated in Articles 287 and 288 of the TMK.

Conception of the child within marriage: In this case, the plaintiff is under a heavy burden of proof. The plaintiff who wants the paternity relationship between the husband and the child to be rejected is obliged to prove that the husband is not the father. The mere suspicion that the husband is not the father of the child will not alone be enough to refute the presumption of paternity. In this case, it may be possible to refute the presumption of paternity in the following cases; If it is proven that it was impossible for the mother and the husband to have sexual intercourse at the time the child was conceived, or if it is proven that there is no causal link between the sexual intercourse between the husband and the mother and the birth of the child, the presumption of paternity can be refuted and the lineage can be rejected.

Conception of the child before marriage or during separate living: In this case, since the presumption of paternity is seen to be weaker than for children conceived within marriage, the legislator lightened the plaintiff's burden of proof and did not seek any other evidence. However, if there is convincing evidence that the husband had sexual intercourse with his wife during the period of conception, the presumption regarding the husband's paternity remains valid.

PERIMENT TO FILE A CASE FOR REJECTION OF PARENTALLINE

In TMK 289, limitation periods are regulated for the case of denial of paternity filed by the husband and the child. According to the relevant article;

"The husband must file the lawsuit within one year, starting from the date of birth and the date on which he learned that he was not the father or that the mother had sexual intercourse with another man at the time of pregnancy.

The child must file a lawsuit within one year at the latest, starting from the date he/she becomes an adult.

If the delay is based on a justified reason, the one-year period begins to run on the date when this reason disappears.

LIFE PERIOD FOR TRUSTEE: The trustee to be appointed to a minor child files a lawsuit for denial of paternity within one year, starting from the notification of the appointment decision.

RELIEF PERIOD FOR OTHER INTERESTED PARTIES: In cases where the husband dies or is declared absent or permanently loses his power of discernment before the expiration of the period for filing a lawsuit, the husband's descendant, mother, father or the person claiming to be the father may file a lawsuit for denial of paternity within one year, starting from learning of the birth and death of the husband, that he has permanently lost his power of discernment or that a decision of absence has been made against him.

•Since the husband's temporary loss of discernment will constitute a justifiable reason for the delay, the prohibition period starts from the moment this reason arises. Additionally, if the husband's loss of discernment is temporary, this does not give him the right to sue other parties.

DNA TEST IN THE DENIAL CASE

The denial of 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. As a result of the collected and freely evaluated evidence, the judge may decide to conduct a DNA test between the husband and the child in order to scientifically prove this serious suspicion that the husband is not the biological father.

IN CASE OF REQUEST FOR DNA TEST: Pursuant to TMK 284/2, "The parties and third parties are obliged to consent to the research and examinations that are mandatory in determining the lineage and 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 arise against him, depending on the situation and conditions."

THE COURT IN CHARGE AND AUTHORITY FOR THE REJECTION OF PARENTAL CASE

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

Cases regarding paternity are filed in the court of one of the parties' place of residence at the time of the case or birth.

It is also possible to file a lawsuit for rejection of paternity in the court of the place where the child was born.

LEGAL CONSEQUENCES OF THE REJECTION OF PARENTAL CASE

•With the finalization of the court decision regarding the rejection of the lineage between the husband and the child, the lineage is terminated with retroactive effect (starting from the birth of the child).

•For a child who no longer has a lineage relationship with any man, a lineage relationship can be established between him and his real, biological father. In order to establish a paternity relationship with the real father, one of the methods of recognition or paternity suit should be used.

•The decision to reject paternity does not affect the paternity relationship between the child and his/her mother.

CASE FOR REJECTION OF PARENTAL FINANCIAL DAMAGES

Pecuniary compensation is the compensation of material damage that occurs to a person's property beyond his will, by the responsible person.

According to the principle of compensation law, if the conditions of liability are met, the person who caused the damage is obliged to compensate for the decrease in the assets of the injured person.

In the case of denial of paternity, the paternity relationship between the husband and the child ceases to exist as of the birth of the child, and the obligations of the husband as a father also cease to exist as of birth.

Therefore, it is possible for the husband to claim compensation for expenses such as education and care, which he has incurred as a father so far. This request is directed to the mother and, if a family relationship has been established, to the real father of the child. Compensation for this damage cannot be requested from the child.

The General Assembly of the Supreme Court of Appeals 2019/4-85 e. 2019/314 k. In its decision dated 19.3.2019;

"In the main case and the combined supplementary case, the plaintiff's attorney requested compensation for the financial damage he suffered due to the expenses he incurred for the care and upbringing of the children, whom he later learned were not his client's, from their birth until the date their custody was given to the mother.

In the case at hand, it is in line with the ordinary flow of life that the plaintiff, as the father with the right of custody, has covered the necessary expenses for the care, education and protection of the children, in the period until it was determined that the children were not the plaintiff's and their biological father was the other defendant, following the case of denial of paternity, and that their biological father was the other defendant.

In this case, although it is not possible for the plaintiff to prove the material damage and to determine the exact amount, the children's age, educational status and other conditions are evaluated together, taking into account the principles announced by the local court, and Article 42/2 of the UK. An appropriate amount of financial compensation to be assessed in accordance with the article should be ordered to be collected from the other defendant." It is stated as follows.

CASE FOR REJECTION OF PARENTAL AND CORRECTION OF CIVIL REGISTER

The case of denial of paternity and the correction of the civil registry are different procedures, both in terms of legal nature, legal causes and consequences, and the parties.

The case for denial of paternity is a type of lawsuit that serves the purpose of removing the lineage between the husband and the child who benefits from the presumption of paternity.

Correction of the civil registry is a process of determining that there is no lineage between the husband and the child written on the husband, such as a child within marriage, without benefiting from the presumption of paternity.

For example, if a woman who is divorced from her husband has her ex-husband register the child she gave birth to after 300 days after the divorce, the way to follow is to eliminate the paternity by correcting the population register, since the paternity relationship between the child and the ex-husband does not arise from the presumption of paternity.

The courts responsible for correcting the population registration are the civil courts of first instance. In paternity cases, the competent court is the Family Court.

Another distinction that should not be forgotten is in terms of duration. As we mentioned above, while the case of rejection of paternity is subject to certain restrictive periods, there is no time limit for the correction of the civil registry.