A paternity action is an action brought in order to establish in law the biological father of a child born outside the union of marriage, to create the parent-child relationship and to clarify the reciprocal rights and obligations of the parties. The procedure and principles governing the establishment or denial of the paternal relationship are set out in Article 301 of the Turkish Civil Code No. 4721, and scientific evidence — above all DNA testing — carries decisive weight in the proceedings.
There is more than one route by which the tie between a child born outside marriage and the father may be established in law. The father may bring the child within his own parentage by a formal declaration of acknowledgement. Where, by contrast, the father refrains from acknowledging the child or expressly denies paternity, the mother or the child may apply to the court and obtain a judicial determination of the parent-child relationship.
Who holds the right to bring this action, how do the proceedings unfold, and what consequences does the judgment produce? Below we examine every stage of the paternity action from a practical standpoint.
The Legal Nature of the Paternity Action
A paternity action is a family law action brought in order to determine, by judicial decision, the legal or biological father of a child. The parent-child relationship that exists in fact from the moment of birth acquires formal recognition through this action; the child’s personal rights, together with rights to maintenance and inheritance, are thereby secured.
Governed by the relevant provisions of the Turkish Civil Code No. 4721, this action allows claims as to parentage to be examined in situations arising both within and outside marriage. During the proceedings, scientific methods such as DNA testing are used to place the paternal tie beyond doubt. The essential function of the action is to establish the parent-child relationship between the parties on the basis of objective, scientific and legal data.
The Parties to the Action
In a paternity action it is of considerable importance that the persons directly affected by its outcome are correctly identified. Who the parties may be, and their position in the proceedings, are set out in detail below.
Persons Entitled to Bring the Action
The Turkish Civil Code No. 4721 confers the power to bring this action — directed at establishing in law the parent-child relationship between a child born outside marriage and the father — upon the mother and upon the child.
- The mother: The mother may bring an action in order to establish the child’s parentage in relation to the father and to protect the child’s legal rights. That right, however, confers only the power to sue in her own name; until the child attains majority, the mother may not bring a paternity action on the child’s behalf. The reason is that the interests of the mother and those of the child may in certain situations conflict. In order to forestall any such conflict of interest, a guardian ad litem must be appointed for an action brought on the child’s behalf.
- The child: Once the child has attained majority, the child may bring the action in his or her own name; in actions brought before majority, the child is represented by a guardian ad litem.
- Joint or separate actions: The mother and the child may bring the action jointly, or they may bring it on separate dates. Where two separate actions are in issue, neither affects the other; indeed, the child’s waiver of his or her own action does not invalidate the action brought by the mother. Even in the event of the child’s death, the mother’s right of action subsists.
Because a paternity action falls among the rights strictly attached to the person, where it is brought through a representative, the power of attorney must contain express authority. A general power of attorney is not sufficient for this action; authority to bring a paternity action must be expressly stated.
The Person Against Whom the Action Is Brought
A paternity action is brought against the true father — the man who is the child’s biological father but whose name does not appear in the civil register. The person who bears the capacity of respondent in this action is the person alleged to be the biological father. If that person has died, the action is directed against his heirs.
Conditions Required for the Action to Be Brought
A paternity action is brought in order to establish the legal tie between the child and his or her biological father. That said, the action may be heard only if certain legal conditions are satisfied. Under the Turkish Civil Code No. 4721, the absence of any one of these conditions results in dismissal of the action. The principal conditions are as follows:
- The child’s mother must have been identified
For the action to be brought, the child’s mother must be known. If the mother is not established, an action for the determination of maternity must first be brought and the mother entered in the civil register. Only after that entry may recourse be had to a paternity action. The case law of the Court of Cassation likewise emphasises that establishing the identity of the mother is one of the preconditions of a paternity action.
- The child must have no parent-child relationship with another man
This action may be brought only where no parent-child relationship exists between the child and another man. If another man appears as the father in the civil register, an action for denial of parentage must first be brought. Once parentage has been denied, a determination may be made in respect of the biological father and a paternity action brought. This sequence is of particular importance where a married woman has had a child by another man. That is because, under the Turkish Civil Code No. 4721, the parentage of a child born to a married woman by a man other than her husband is treated as being connected to the husband as of right.
- The notification obligation must be complied with
A paternity action that has been brought must be notified to the public prosecutor and to the Treasury. That notification is decisive both for the legal validity of the action and for the transparency of the process. Further notifications are also required depending on who brought the action: if the action was brought by the mother, notice must be given to the guardian ad litem in order to protect the child’s interests, and if it was brought by the guardian ad litem, notice must be given to the mother. The Court of Cassation accepts that a judgment may be quashed in files where the notification obligation has not been complied with.
Proof in the Paternity Action
In these actions, the paternity of the person alleged to be the child’s father must be proved. Under the Turkish Civil Code No. 4721, the burden of proof rests on the party bringing the action, that is, on the mother or on the child. An allegation of paternity is generally supported by scientific methods such as blood and DNA analysis. Alongside these, the presumption of paternity is a statutory instrument that appreciably lightens the claimant’s burden of proof.
The Presumption of Paternity and the Evidence That May Be Relied Upon
Under the Turkish Civil Code No. 4721, the presumption of paternity treats the fact that the respondent had sexual relations with the child’s mother during a given period of time as evidence of biological paternity. Certain conditions must be satisfied for the presumption to apply; those conditions bear directly on the scope of the action and on the process of proof.
- The period within which the relations took place
The presumption takes effect where sexual relations between the respondent and the mother occurred between the 300th and the 180th day before the birth. Relations occurring within that interval are regarded as sufficient for the purposes of proving paternity.
- The actual period of conception
The scope of the presumption is not confined to those days alone. The fact that the respondent had sexual relations with the mother at any moment within the actual period of conception likewise gives rise to a presumption of paternity. That possibility is of additional importance in identifying the biological father.
Where it is established that relations with the mother took place between the 300th and the 180th day before the birth, the presumption of paternity arises. The existence of such relations may in turn be shown by various forms of evidence:
- Conduct on the part of the respondent, such as meeting the costs of the birth
- Letters or social media correspondence
- Witness statements
This evidence is expected to be strong enough to demonstrate that the relations existed. Neither the use of contraceptive methods nor the fact that intercourse was not completed prevents the presumption from arising. The presumption of paternity is, on the other hand, rebuttable in every case. There are two ways of depriving the presumption of effect:
- Showing that it was impossible for the child to have been born of the relations with the mother
- Proving that the likelihood of paternity is stronger in respect of another man
Rebutting the Presumption
At the outset of the proceedings the claimant must place before the court the evidence supporting the presumption of paternity. Once the claimant has established the presumption, the burden of proof shifts to the respondent. The respondent may, for his part, adduce any form of evidence in order to rebut the presumption. By way of example:
- Medical reports demonstrating infertility may be submitted.
- It may be proved that the mother had a child by another man.
At this stage DNA testing, medical reports and witness statements stand out as the strongest means of proof determining the outcome of the action.
Scientific Means of Proof: DNA and Blood Testing
With a view to rebutting the presumption, the respondent may have recourse to scientific methods. Foremost among these is DNA testing. Because DNA analysis establishes the child’s biological father with certainty, it is regarded as the most reliable means of proof available today. Blood testing may in some situations also contribute to proving paternity; it is not, however, regarded as sufficient on its own, and DNA testing yields a far more robust result.
A paternity action is subject to the principle of examination of the court’s own motion. What this means is that, even where the parties make no such request, the judge may order the taking of the blood and tissue samples necessary to determine parentage. The ability of the parties or of third persons to object to that order depends on the condition that the taking of the sample does not give rise to a danger to health.
The places at which DNA testing may be carried out are likewise limited; such analyses may be performed only in molecular genetics laboratories licensed by the Ministry of Health. Testing without a court order is therefore possible only through private laboratories; state and private hospitals do not provide this service.
The Legal Consequences of the Action
The final judgment given in a paternity action produces consequences that directly affect the lives of the parties and of the child alike. Those consequences comprise wide-ranging arrangements as regards pecuniary, non-pecuniary and personal relations.
The Mother’s Financial Claims
The mother who brings the action may, in that action or by way of a separate action, seek from the father or from his heirs the payment of the following expenses:
- Other expenses made necessary by the pregnancy and the birth
- The costs of the birth
- Living expenses for the six-week periods preceding and following the birth
The judge may order payment of these expenses even where the child was stillborn. That said, payments made to the mother by third persons or by social security institutions are deducted from the compensation to the extent that equity requires. These claims are not subject to court fees.
The Child’s Right to Maintenance
A paternity action does not produce consequences confined to the determination of parentage; it also brings the obligation to pay maintenance into play.
- From interim maintenance to child support
Once the action has been brought, if the court considers the likelihood of paternity to be strong, it may order interim maintenance in favour of the child until the proceedings are concluded.
Interim maintenance is a provisional payment directed at meeting the child’s basic needs until the paternity judgment becomes final. Once the proceedings are complete and paternity has been registered, that payment is converted into child support. Child support denotes the financial contribution to be made by the father towards the child’s care, education and other needs.
- The amount of child support
In fixing the amount, the child’s needs and the father’s financial means are assessed together. The court determines a sum that will preserve the child’s standard of living. Maintenance covers educational costs, health expenses and everyday living needs.
The court’s aim at this stage is to ensure that the child is cared for in the most favourable conditions and that the father’s contribution is fixed at a level that will secure the child’s future.
Personal Relations Between Father and Child
Once parentage has been determined, the court makes the arrangements as to custody of the child and provides for the establishment of personal relations between father and child. The child’s interests are taken as the basis of the decision.
- Custody and the right to establish personal relations
Whether or not the father obtains custody as a result of the action may vary according to the circumstances. Although custody is most often left with the mother, the court is under a duty to give the decision best suited to the child’s benefit. That assessment takes account of the child’s psychological and emotional development, the relationship formed with each parent, and the child’s safety.
Even where custody has not been awarded to the father, the father has the right to establish personal relations with the child on a regular basis. The court determines how often, where and in what manner those relations are to take place; a schedule of contact on set days and at set times may, for instance, be drawn up.
Surname and Inheritance Rights
Allowing the action not only confers on the child the right to bear the father’s surname; it also gives rise to the capacity of heir. Under the Turkish Civil Code No. 4721, the person determined to be the father becomes the guarantor of the child’s legal and financial rights alike. This means that the child acquires a right to inherit from the father. Indeed, once the paternity judgment becomes final, the child will be able both to benefit from the father’s estate and to bear his surname. That outcome strengthens the child’s legal status and at the same time ensures that the father discharges his responsibilities towards the child.
Time Limits for Bringing the Action
- The time limit applicable to the mother
A paternity action may be brought both before and after the birth. The time limit for bringing the action is, however, subject to specific rules. The mother must bring the action within one year of the birth; a mother who misses that period forfeits her right of action. If the child has a parent-child relationship with another man, the one-year period begins to run on the date that relationship ceases.
Where the delay rests on a justified ground, the action may be brought within one month of the date on which those grounds come to an end, even if the one-year period has expired.
- The time limit applicable to the child
By contrast, a paternity action brought by the child is not subject to any preclusive period.
This distinction in the regime of time limits is among the foremost matters not to be overlooked in a paternity action. It is decisive, if rights are not to be lost, that the mother and the child know the periods within which they may sue.
Courts with Subject-Matter and Territorial Jurisdiction
Applying to the correct court is of critical importance if the action is to be conducted swiftly and soundly.
- Court with subject-matter jurisdiction: Since paternity actions arise out of family law, subject-matter jurisdiction lies with the family court. In places where no family court has been established, the action is heard by the civil court of first instance.
- Court with territorial jurisdiction: Territorial jurisdiction lies with the court of the domicile of one of the parties either at the time of the birth or at the date of the action.
The Independent Legal Assessment
Although paternity actions technically take the form of an action for a declaratory determination, their consequences engage the law of maintenance, custody, surnames and succession all at once. For that reason the file should not be constructed with a focus solely on proving parentage; the financial and personal consequences that will arise once the judgment becomes final should also be planned from the outset.
In practice a significant proportion of actions are prolonged not for reasons going to the merits but because of procedural shortcomings. Omissions under headings such as the notification obligation, the appointment of a guardian ad litem and express authority in the power of attorney are, in particular, capable of leading to the judgment being quashed at a later stage.
In a concrete dispute it is appropriate to give priority to the following matters:
- Checking the civil register, before the action is brought, to see whether the child has a parent-child relationship with another man
- Making the notifications to the public prosecutor, the Treasury and, as the case may be, the guardian ad litem or the mother, without omission
- Documenting the starting point of the one-year period applicable to the mother and of the additional one-month period available where there is a justified ground
- Advancing the evidence supporting the presumption of paternity together and consistently in the statement of claim
- Requesting interim maintenance in favour of the child separately at the outset of the proceedings
- Confirming that express authority is contained in the power of attorney in actions to be brought through a representative
Independent Legal provides advisory services and conducts litigation throughout the whole of the process in disputes concerning parentage, from the pre-action assessment to the civil registry and maintenance formalities that follow once the judgment has become final.