Theory of everything. Theory of everything Article 49 Establishment of paternity in court

Do you think you are Russian? Were you born in the USSR and think that you are Russian, Ukrainian, Belarusian? No. This is wrong.

Are you actually Russian, Ukrainian or Belarusian? But do you think that you are a Jew?

Game? Wrong word. The correct word is “imprinting”.

The newborn associates himself with those facial features that he observes immediately after birth. This natural mechanism is characteristic of most living creatures with vision.

Newborns in the USSR saw their mother for a minimum of feeding time during the first few days, and most of the time they saw the faces of the maternity hospital staff. By a strange coincidence, they were (and still are) mostly Jewish. The technique is wild in its essence and effectiveness.

Throughout your childhood, you wondered why you lived surrounded by strangers. The rare Jews on your way could do whatever they wanted with you, because you were drawn to them, and pushed others away. Yes, even now they can.

You cannot fix this - imprinting is one-time and for life. It’s difficult to understand; the instinct took shape when you were still very far from being able to formulate it. From that moment, no words or details were preserved. Only facial features remained in the depths of memory. Those traits that you consider to be your own.

3 comments

System and observer

Let's define a system as an object whose existence is beyond doubt.

An observer of a system is an object that is not part of the system it observes, that is, it determines its existence through factors independent of the system.

The observer, from the point of view of the system, is a source of chaos - both control actions and the consequences of observational measurements that do not have a cause-and-effect relationship with the system.

An internal observer is an object potentially accessible to the system in relation to which inversion of observation and control channels is possible.

An external observer is an object, even potentially unattainable for the system, located beyond the system’s event horizon (spatial and temporal).

Hypothesis No. 1. All-seeing eye

Let's assume that our universe is a system and it has an external observer. Then observational measurements can occur, for example, with the help of “gravitational radiation” penetrating the universe from all sides from the outside. The cross section of the capture of “gravitational radiation” is proportional to the mass of the object, and the projection of the “shadow” from this capture onto another object is perceived as an attractive force. It will be proportional to the product of the masses of the objects and inversely proportional to the distance between them, which determines the density of the “shadow”.

The capture of “gravitational radiation” by an object increases its chaos and is perceived by us as the passage of time. An object opaque to “gravitational radiation”, the capture cross section of which is larger than its geometric size, looks like a black hole inside the universe.

Hypothesis No. 2. Inner Observer

It is possible that our universe is observing itself. For example, using pairs of quantum entangled particles separated in space as standards. Then the space between them is saturated with the probability of the existence of the process that generated these particles, reaching its maximum density at the intersection of the trajectories of these particles. The existence of these particles also means that there is no capture cross section on the trajectories of objects that is large enough to absorb these particles. The remaining assumptions remain the same as for the first hypothesis, except:

Time flow

An outside observation of an object approaching the event horizon of a black hole, if the determining factor of time in the universe is an “external observer,” will slow down exactly twice - the shadow of the black hole will block exactly half of the possible trajectories of “gravitational radiation.” If the determining factor is the “internal observer,” then the shadow will block the entire trajectory of interaction and the flow of time for an object falling into a black hole will completely stop for a view from the outside.

It is also possible that these hypotheses can be combined in one proportion or another.

If a child is born to parents who are not married to each other, and in the absence of their joint application for recognition of paternity, the origin of the child from a specific person is established in court upon the application of one of the parents, as well as other persons specified in the law. Establishment of paternity in such cases is carried out through a lawsuit according to the rules of civil procedural legislation. In most cases, the plaintiff is the child's mother, and the defendant is the person who, according to the mother, is his father.

On the procedure for considering cases of establishing paternity, see Resolution of the Plenum of the Supreme Court of the Russian Federation of October 25, 1996 No. 9 “On the application by courts of the Family Code of the Russian Federation when courts consider cases of establishing paternity and collecting alimony.” As noted in paragraph 3 of the said Resolution, if an adult child is declared incompetent, then he can submit an application to establish paternity with the consent of his guardian or the guardianship and trusteeship authority.

If, when considering a case to establish paternity, the defendant agreed to submit an application to establish paternity to the civil registry office, the court finds out whether this does not mean that the defendant recognizes his paternity, and, based on the rules of Part 2 of Art. 39 of the Code of Civil Procedure of the Russian Federation, discusses the possibility of accepting the defendant’s recognition of the claim and issuing it in accordance with Part 3 of Art. 173 of the Code of Civil Procedure of the Russian Federation decisions to satisfy the stated requirements.

It is important to emphasize that the court takes into account any evidence that reliably confirms the origin of the child from a specific person (Article 49 of the RF IC). In paragraph 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of October 25, 1996 No. 9 “On the application by courts of the Family Code of the Russian Federation when considering cases of establishing paternity and the collection of alimony” it is also noted that in relation to children born after the entry into force of the Family Code Code of the Russian Federation (i.e. March 1, 1996 and after that date), the court, based on Art. 49 of the RF IC, takes into account any evidence that reliably confirms the origin of the child from a specific person. Such evidence includes any factual data established using the means of proof listed in Art. 55 Code of Civil Procedure of the Russian Federation.

Unlike previous legislation, the Family Code does not contain a clear list of circumstances that must be taken into account by the court when making a decision in the case of establishing paternity. However, these circumstances will undoubtedly be taken into account when considering specific cases. These include:

cohabitation and management of a common household by the child’s mother and his intended father at the time of the child’s conception;

joint upbringing or maintenance of a child by his mother and putative father;

recognition of paternity by the defendant, reliably confirmed by evidence;

witness statements and other evidence.

According to Part 1 of Art. 55 of the Civil Procedure Code of the Russian Federation, evidence includes explanations of the parties and third parties, testimony of witnesses, written and material evidence, audio and video recordings, and expert opinions. Evidence may include letters, questionnaires, statements, witness statements, physical evidence, and other factual data (for example, the husband’s infertility, being on a business trip at the time of conception, etc.).

This means that the court in this case can use all methods and means known to modern science to establish paternity, including forensic medical examinations. With the help of forensic medical examinations, the time of conception (forensic gynecological examination), the defendant’s ability to have children, and the presence (absence) of a family relationship with the child (biological, molecular genetic examination) can be established.

Thus, any new discoveries that help to establish with 100% accuracy the origin of a child from a specific person can be used by the court. In particular, gene fingerprinting is recognized as such (its accuracy is 99.99 percent), but the latter is quite expensive and therefore not accessible to everyone. When implementing it, for the evidentiary identification of a person and the establishment of his consanguinity, during the forensic examination of physical evidence, individualizing characteristics are identified at the level of the human genetic matrix - cellular DNA.

Thus, in contrast to the previously effective family legislation (Part 2 of Article 48 of the Code of the Russian Federation), in order to establish the origin of a child, the court must establish a single fact - any evidence that reliably confirms the origin of the child from a specific person.

A forensic gynecological examination is necessary in cases where the defendant claims that he could not be in a close relationship with the child’s mother at the time of conception, for example due to going on a business trip, etc. During the examination, medical documents are examined: an individual card of the pregnant woman, a birth history, an individual card of the newborn.

Forensic biological and molecular genetic examinations are carried out in accordance with the Instructions for organizing and conducting expert research in the forensic medical examination bureau, approved by Order of the Ministry of Health of the Russian Federation dated April 24, 2003 N 161, and Guidelines N 2001/4 “Use of molecular genetic individualizing system based on polymorphic nucleotide sequences of mitochondrial DNA in forensic medical examination of personal identification and establishment of biological relationship”, approved by the Ministry of Health of Russia on January 25, 2001.

New edition of Art. 49 IC RF

In the event of the birth of a child to parents who are not married to each other, and in the absence of a joint application of the parents or an application of the child’s father (clause 4 of Article 48 of this Code), the child’s origin from a specific person (paternity) is established in court upon the application of one of the parents, the guardian (trustee) of the child or at the request of the person who is dependent on the child, as well as at the request of the child himself upon reaching the age of majority. In this case, the court takes into account any evidence that reliably confirms the origin of the child from a specific person.

Commentary on Article 49 of the RF IC

It is important to emphasize that the court takes into account any evidence that reliably confirms the child’s origin from a specific person (Article 49 of the Family Code of the Russian Federation). In paragraph 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of October 25, 1996 No. 9 “On the application by courts of the Family Code of the Russian Federation when considering cases of establishing paternity and the collection of alimony” it is also noted that in relation to children born after the entry into force of the Family Code Code of the Russian Federation (i.e. March 1, 1996 and after that date), the court, based on Art. 49 of the Family Code of the Russian Federation, takes into account any evidence that reliably confirms the origin of the child from a specific person. Such evidence includes any factual data established using the means of proof listed in Art. 55 Code of Civil Procedure of the Russian Federation.

cohabitation and management of a common household by the child’s mother and his intended father at the time of the child’s conception;

joint upbringing or maintenance of a child by his mother and putative father;

recognition of paternity by the defendant, reliably confirmed by evidence;

witness statements and other evidence.

A so-called blood test is also carried out, which cannot give an exact positive result as to whether the person is the father. However, it can give a 100% negative result in cases where certain blood types of the child and the father do not match.

In cases of establishing paternity, it is possible to conclude a settlement agreement between the plaintiff and the defendant. This happens in cases where the child’s mother declares a waiver of the claim in connection with the consent of the alleged father to submit a joint application to the registry office for voluntary recognition of paternity, and because of this, a settlement agreement is reached between them, approved by the court.

Another comment on Art. 49 of the Family Code of the Russian Federation

1. The judicial procedure for establishing paternity is applied in the absence of either a marital relationship between the child’s parents or their joint application or the application of the child’s father (see Article 48 of the RF IC and the commentary thereto). It should be noted that in connection with the amendment by the Federal Law of November 15, 1997 to the wording of Article 48 of the RF IC, the former clause 4, which was referred to in Article 49 of the RF IC, became clause 3 of Article 48 of the RF IC , however, due to the negligence of the legislator, the corresponding changes were not made to Article 49 of the RF IC (the reference is not to clause 4, but to clause 3 of Article 48 of the RF IC).

2. As stated in Resolution No. 9, in cases of establishing paternity, challenging paternity (maternity), and collecting alimony, when resolving the stated claims, the court should proceed from the time the legal relationship of the parties arose and the rules for enacting the RF IC. It is necessary to take into account that, in accordance with Article 169 of the RF IC, the norms of the RF IC are applied to family relationships that arose after its entry into force. For family relationships that arose before the RF IC came into force, its norms apply only to those rights and obligations that arise after the RF IC came into force.

3. The circumstances for establishing paternity in court, provided for in Article 49 of the RF IC, differ significantly from those provided for in Article 48 of the Code of Laws of the Russian Federation. Taking into account the procedure for enacting and the procedure for applying Article 49 of the RF IC, established by clause 1 of Article 168 and clause 1 of Article 169 of the RF IC, the court, when deciding which norm should be followed when considering a case to establish paternity (Art. .49 of the RF IC or Art. 48 of the Code of the Russian Federation), must be based on the child’s date of birth.

Thus, in relation to children born after the entry into force of the RF IC (i.e. on March 1, 1996 and after this date), the court, based on Article 49 of the RF IC, takes into account any evidence that reliably confirms the origin of the child from a specific person. Such evidence includes any factual data established using the means of evidence listed in Article 49 of the Code of Civil Procedure.

In relation to children born before the entry into force of the RF IC, the court, when deciding the issue of paternity, should be guided by Part 2 of Article 48 of the Code of Laws of the Russian Federation, taking into account the joint residence and running of a common household by the mother of the child and the defendant before the birth of the child or joint upbringing or maintenance them of the child or evidence reliably confirming the defendant’s recognition of paternity.

4. In the event of the birth of a child to parents who are not married to each other, and in the absence of a joint statement from the parents, the issue of the origin of the child is resolved by the court in the manner of claim proceedings upon the application of one of the parents, the guardian (trustee) of the child or upon the application of a dependent person where the child is located, or at the request of the child himself upon reaching the age of majority (Article 49 of the RF IC). The court also has the right to establish paternity by way of claim proceedings at the request of a person who is not married to the child’s mother, in the event that the child’s mother has died, been declared incompetent, it is impossible to establish her whereabouts, or she has been deprived of parental rights if the guardianship and trusteeship authority has not given consent to establish the paternity of this person at the civil registry office only on the basis of his application (Part 1, Clause 4, Article 48 of the RF IC).

5. When preparing cases on establishing paternity for trial and during the consideration of the case, the judge (court), in necessary cases, to clarify issues related to the origin of the child, has the right, taking into account the opinions of the parties and the circumstances of the case, to order an examination. The conclusion of an examination on the issue of the origin of the child, including one carried out using the method of “genetic fingerprinting”, by virtue of Article 78 of the Code of Civil Procedure is one of the evidence that must be assessed by the court in conjunction with other evidence available in the case, since in accordance with Part 2 Article 56 of the Code of Civil Procedure of the Russian Federation, no evidence has pre-established force for the court.

Commentary on Article 49 of the RF IC

1. Paternity is established in court when the parents are not married (the marriage is not concluded, terminated or declared invalid more than 300 days from the date of birth of the child) and at the same time:
there is neither a joint statement from the parents nor a statement from the father, where he recognizes himself as a parent;
the application was submitted by the father, but there is no consent from the guardianship and trusteeship authority (clause 3 of article 48 of the Family Code).

2. The court considers such cases based on claims:
a) mother;
b) a man to whom the guardianship and trusteeship authority refused to establish paternity;
c) a guardian (custodian), as well as a person who is dependent on the child;
d) the child himself, who has reached the age of majority.

3. The commented article gives the court the right to take into account any reliable facts in favor of the child’s origin from a given father.

In this regard, the Supreme Court of the Russian Federation, in Resolution No. 9 of October 25, 1996, stated the following:
circumstances of establishing paternity in court, provided for in Art. 49 UK, differ significantly from the list of Art. 48 KoBS. Considering the procedure for the entry into force and the procedure for applying Art. 49 UK, established by paragraph 1 of Art. 168 and paragraph 1 of Art. 169 of the IC (see commentary to them), the court, when deciding which norm should be followed when considering cases of this category (Article 49 of the IC or Art. 48 of the Code), must proceed from the date of birth of the child.

Thus, in relation to children born after the entry into force of the Family Code (i.e. after March 1, 1996), the court, based on Art. 49 of the Family Code, takes into account any evidence that reliably confirms the origin of the child from a specific person. Such evidence includes any factual data established using the means of evidence listed in the Code of Civil Procedure.

If the court deems it necessary, it may order a genetic examination, which with almost 100% probability gives an answer regarding consanguinity. However, the costs of this examination are so high that the court resorts to it if other evidence is insufficient.

An expert opinion on the issue of the origin of a child is one of the pieces of evidence that must be assessed by the court in conjunction with others, since, in accordance with the Civil Procedure Code, no evidence has pre-established force for the court.

Based on Part 3 of Art. 79 of the Code of Civil Procedure of the Russian Federation, if a party evades participation in the examination, the expert fails to provide the necessary materials and documents for the study, and in other cases, if, due to the circumstances of the case and without the participation of this party, the examination cannot be carried out, the court has the right to recognize the fact, for the clarification of which the examination was appointed, as established or refuted. This issue is resolved by the court depending on which party, for what reasons, did not appear for the examination or did not present the necessary research items to the experts, as well as what role the examination conclusion plays for it, based on the evidence available in the case in its entirety (clause 6 Resolutions dated October 25, 1996 N 9).

In relation to children born before the entry into force of the Family Code, the court, when deciding the issue of paternity, must be guided by Part 2 of Art. 48 CoBS, i.e. take into account the joint residence and management of a common household by the defendant and the child’s mother before his birth, or joint upbringing or maintenance of the child, or evidence reliably confirming the defendant’s recognition of paternity (clause 2 of the Resolution of October 25, 1996 No. 9).

In such cases, genetic examination, in the absence of other evidence provided for in the CoBS, does not play a legal role.

4. When considering a claim to establish paternity in relation to a child whose father is already recorded as another person (see commentary to Article 51), the court is obliged to involve him in participation in the case (clause 9 of the Resolution of October 25, 1996 No. 9).

5. The court has the right, in the course of a special (rather than a claim) proceeding, to establish, in the presence of undeniable evidence, the fact of paternity of a person who was not married to the child’s mother in the event of the death of this person. This applies to children born on March 1, 1996 and later. For children born before March 1, 1996, proof of at least one of the circumstances listed in Art. 48 KoBS (clause 5 of the Resolution of October 25, 1996 N 9).

6. The record of the father of a child born before March 1, 1996 can be challenged by the person registered as the father within a year from the moment he became (or should have become) aware of this record (clause 10 of the Resolution of October 25 .96 N 9). If the child was born after this date, then the statute of limitations does not apply to the consideration of such disputes.
State registration of paternity establishment is carried out by the registry office: at the place of residence of the father or mother of the child who were not married to each other at the time of his birth; or at the place of state registration of the child’s birth; or at the place where the court decision on paternity was made (Articles 48, 49 of the Civil Status Law).

Consultations and comments from lawyers on Article 49 of the RF IC

If you still have questions regarding Article 49 of the RF IC and you want to be sure of the relevance of the information provided, you can consult the lawyers of our website.

You can ask a question by phone or on the website. Initial consultations are held free of charge from 9:00 to 21:00 daily Moscow time. Questions received between 21:00 and 9:00 will be processed the next day.

ST 49 RF IC

Commentary to Art. 49 of the Family Code of the Russian Federation

Being a procedural norm by legal nature, the commented article not only defines the grounds for a claim to establish paternity or maternity, as well as a list of persons who have the right to file such claims, but also provides the court with significant freedom in the choice and evaluation of evidence.

Arbitrage practice.

In the event of the birth of a child to parents who are not married to each other, and in the absence of a joint statement from the parents, the issue of the origin of the child is resolved by the court in the manner of claim proceedings upon the application of one of the parents, the guardian (trustee) of the child or upon the application of the person who is dependent on the child. a child, or at the request of the child himself upon reaching the age of majority (Article 49 of the RF IC). The court also has the right to establish paternity by way of claim proceedings at the request of a person who is not married to the child’s mother, in the event that the child’s mother has died, been declared incompetent, it is impossible to establish her whereabouts, or she has been deprived of parental rights if the guardianship and trusteeship authority has not given consent to establish the paternity of this person in the civil registry office only on the basis of his application (part 1, paragraph 4, article 48 of the RF IC).

Since the law does not establish a statute of limitations for cases in this category, paternity can be established by the court at any time after the birth of the child. It is necessary to take into account that, by virtue of clause 5 of Art. 48 of the RF IC, establishing paternity in relation to a person who has reached the age of 18 is allowed only with his consent, and if he is declared incompetent - with the consent of his guardian or guardianship authority. When considering a claim to establish paternity in relation to a child whose father is a specific person (clauses 1 and 2 of Article 51 of the RF IC), he must be brought by the court to participate in the case, since if the stated requirements are satisfied, the previous information about the father must be excluded (cancelled) from the child’s birth certificate.

When preparing cases on establishing paternity for trial and during the consideration of the case, the judge (court), in necessary cases, to clarify issues related to the origin of the child, has the right, taking into account the opinions of the parties and the circumstances of the case, to order an examination. The conclusion of an examination on the issue of the origin of the child, including one carried out using the method of “genetic fingerprinting”, by virtue of Part 3 of Art. 86 of the Code of Civil Procedure of the Russian Federation is one of the evidence that must be assessed by the court in conjunction with other evidence available in the case, since in accordance with Part 2 of Art. 67 of the Code of Civil Procedure of the Russian Federation, no evidence has pre-established force for the court (Resolution of the Plenum of the Armed Forces of the Russian Federation dated October 25, 1996 N 9 “On the application by courts of the Family Code of the Russian Federation when considering cases of establishing paternity and collecting alimony”).