The appeal against the decision of the registry office has not passed 300 days. Legal meaning of determining the moment of divorce

QUESTION: My daughter divorced her husband at the end of June 2013 (a divorce document was received). She left her husband's surname, as she has a son from this marriage. Since April 2013, she has been living with another man, not scheduled. From him she gave birth to a child on January 22, 2014. The father of the child came to the registry office to issue a birth certificate in his last name. There he was refused this, referring to the law - 300 days have not passed after the divorce and the surname can only be given to the mother, i.e. first husband). 1. Is it possible in this situation to submit a joint application to establish paternity, if the parents are not registered, and issue a certificate in the name of the father.
2. And what does 300 days have to do with it if there is a father of a born child. Is it really necessary to wait 3 months to get a birth certificate in the name of the father?

LAWYER'S ANSWER: You fell under the "presumption of paternity". Paragraph 2 of Article 48 of the Family Code of the Russian Federation establishes the presumption of paternity: If a child is born from persons who are married to each other, and also within three hundred days after the date of dissolution of the marriage, its recognition as invalid, or from the moment of the death of the spouse of the child's mother, the former spouse is recognized as the father of the child (spouse) of the mother, unless otherwise proven (Article 52 of this Code). The paternity of the spouse of the mother of the child is certified by a record of their marriage.

You have the right to contact statement of claim about establishing paternity. The plaintiff will be the mother of the child, the defendant will be the former spouse. And the third person needs to involve the biological father. If the Parties in court confirm these circumstances in protocol, the court decision will establish the surname, name and patronymic of the father. The registry office, on the basis of a court decision, makes changes to the record of the birth of a child.
This right is established by Art. 52 of the Family Code of the Russian Federation, according to which the entry of parents in the book of birth records can be changed by a court decision.
The presumption of paternity of up to 300 days is established to protect the interests of the mother

SAMPLE SAMPLE PATERNITY CLAIM :
Respondent XXX and I were married, which was dissolved on 01/08/2012. on the basis of a joint application of the spouses.
HH,MM,YY. I have a daughter XXX (I enclose a birth certificate). The father of the child in the birth certificate (record of the act of birth No. XX) is the defendant in accordance with the requirements of paragraph 2 of Art. 48 of the Family Code of the Russian Federation (presumption of paternity), because at the time of the birth of her daughter, less than three hundred calendar days had passed since the dissolution of the marriage.
The information about the father contained in the birth record No. XX is unreliable due to the following circumstances.
Family relations with XXX were in fact terminated before the dissolution of the marriage - since October 2012, we did not conduct a common household.
In fact, I lived together with XXX in an apartment at Yaroslavl, st. ______. We run a common household. We have developed family relationships and the biological father of my daughter DDD. is TTT.
By virtue of paragraph 2 of Art. 51 of the Family Code of the Russian Federation, if the parents are not married to each other, an entry about the mother of the child is made at the request of the mother, and an entry about the father of the child is made at the joint application of the father and mother of the child, or at the request of the father of the child (paragraph 4 of Article 48 of this Code) , or the father is recorded according to the court decision.
According to Art. 52 of the Family Code of the Russian Federation, the entry of parents in the register of births, made in accordance with paragraphs 1 and 2 of Article 51 of this Code, can only be challenged in judicial order at the request of the person recorded as the father or mother of the child, or the person who is actually the father or mother of the child, as well as the child himself upon reaching the age of majority, the guardian (custodian) of the child, the guardian of the parent recognized by the court as legally incompetent.
The circumstances set forth in this statement of claim are not disputed by the respondent. I will try to ensure the appearance of the defendant.
In view of the above circumstances, guided by the requirements of Article.Article. 48, 51, 52 of the Family Code of the Russian Federation, art. 131-135 Code of Civil Procedure of the Russian Federation,

PLEASE COURT:

Determine that XXX HH.MM.YY. year of birth, place of birth: _______, father DDD HH.MM.YY year of birth, place of birth g
Oblige the Department of the Civil Registry Office of the Dzerzhinsky District of Yaroslavl to make changes to the act record No. XX from the date of the following content:
Exclude information about XXX recorded by the father of the child;
Write down the father of the child "LLC";
Change the surname and patronymic of the child and write it down as "DDD".

Hello. You have explained everything correctly.

Article 48

Establishing the parentage of a child
1. The origin of the child from the mother (maternity)
established on the basis of documents confirming the birth of a child
mother in a medical organization, and in the event of a child being born outside a medical
organizations on the basis of medical documents, testimonies or
based on other evidence.
(V
ed. Federal laws of November 15, 1997 N 140-FZ, of November 25, 2013 N 317-FZ)
2. If the child was born from persons
married to each other, as well as within three hundred days from the date of
dissolution of marriage, its recognition as invalid or from the moment of the death of the spouse
mother of the child, the spouse (former spouse) of the mother is recognized as the father of the child, unless
proven otherwise (Article 52 of this
of the Code). The paternity of the spouse of the mother of the child is certified by a record of their marriage.
3. Excluded. - Federal Law of November 15, 1997 N 140-FZ.
3. Paternity of an unmarried person
with the mother of the child, is established by filing with the body of registration of acts
civil status joint application by the father and mother of the child; when
death of the mother, recognition of her incapacity, the impossibility of establishing a place
mother's stay or in case of deprivation of her parental rights - at the request of the father
child with the consent of the guardianship and guardianship authority, in the absence of such
consent - by court order.
If there are circumstances that give reason to believe that
that filing a joint declaration of paternity may be
after the birth of a child impossible or difficult, the parents of the future
child, who are not married to each other, have the right to submit such an application to
civil registry office during the mother's pregnancy. Recording
about the child's parents is made after the birth of the child.
4. Establishing paternity in respect of a person who has reached
the age of eighteen years (majority), is allowed only with his consent,
and if it is declared incompetent, - with the consent of his guardian or guardianship authority and
guardianship.
ConsultantPlus: note.
In accordance with the Federal Law of November 15, 1997 N 140-FZ
paragraph 4 of Article 48 referred to in this Article shall be considered paragraph 3 of the said
articles.
Article 49. Establishment of paternity in
judicial order
IN
when a child is born to parents who are not married to each other, and
absence of a joint application by the parents or the application of the father of the child (art. 48, para. 4
of this Code) the origin of the child from a specific person (paternity)
established by court order at the request of one of the parents, guardian
(custodian) of the child or at the request of the person who is dependent on
child, as well as at the request of the child himself upon reaching the age of majority.
In doing so, the court takes into account any evidence, with certainty
confirming the origin of the child from a particular person.
Article 50
Establishment by the court of the fact of recognition of paternity
In the event of the death of a person who acknowledged himself as the father
child, but was not married to the mother of the child, the fact of recognition of paternity
may be established by judicial procedure according to the rules established by the civil
procedural law.
Article 51
birth record book
1. Father and mother married between
themselves, are recorded by the child's parents in the birth record book upon application
any of them.
2. If
parents are not married to each other, the record of the mother of the child is made
on the application of the mother, and the record of the father of the child - on the joint application of the father and
the child's mother, or

at the request of the father of the child (paragraph 3 of article 48

"The 300 day rule"- a common basis for registry offices to refuse recently divorced or widowed mothers to register a child for the biological father of a newborn.

It is believed that a child born within 300 days after a divorce (or the death of her husband) should automatically be "recorded" to the ex-husband. Is it so? What to do in a situation when, when registering a child, the registry office seeks to record it on the ex-husband instead of the biological father? Let's figure it out!

Why are the employees of the registry office firmly convinced that no one other than the ex-husband should be recorded as the father, although in fact he may not be one?

Reasons for such a decision of the registry office:

Article 48 of the Family Code:“If a child was born from persons who are married to each other, as well as within three hundred days from the moment of dissolution of the marriage, its recognition as invalid, or from the moment of death of the spouse of the mother of the child, the spouse (former spouse) of the mother is recognized as the father of the child, unless otherwise proven ( article 52 of this Code). The paternity of the spouse of the mother of the child is certified by a record of their marriage.

Article 17 of the Federal Law“On acts of civil status”: “In the event that the marriage between the child’s parents is dissolved, declared invalid by the court, or if the spouse has died, but no more than three hundred days have passed from the date of dissolution of the marriage ... until the child’s birth ... information about the father of the child [is entered] - on the basis of the parents' marriage certificate or other document confirming the fact of state registration of the marriage, as well as a document confirming the fact and time of termination of the marriage ... If the child's parents are not married to each other, information about the mother in the record of the child's birth certificate are entered in the manner prescribed by paragraph 1 of this article ... Information about the father of the child in this case is entered on the basis of the record of the act of establishing paternity if paternity is established and registered simultaneously with state registration

The Family Code does not recognize the ex-husband's right to a child, he introduces the presumption of paternity. Those. the mother of a newborn child is not obliged to prove to anyone (including through the court) who the father of the child is and can simply record the father of the child of her ex-husband. Maybe, but it shouldn't.

It is legally established that “if the child’s parents are not married, ... an entry about the child’s father is made at the joint application of the father and mother of the child, or at the request of the child’s father, or the father is recorded according to a court decision” (Chapter 10, Article 51 of the RF IC).

The article of the law "On acts of civil status" does not say "unless proven otherwise." However, the law is based on the norms of the Family Code of the Russian Federation. In article 52 of the RF IC, this very “other” is listed. “Other” is a joint application to the registry office from the mother and father of the child to establish paternity.

In the vast majority of cases, parents, submitting a joint application to the registry office for voluntary paternity, receive an oral refusal from the registry office. And it is unlikely that anyone succeeds the first time, although a joint statement from the parents of the child is a voluntary recognition of oneself by the parents and there is no one who could dispute this.

It is from this position that you need to approach the filing of an application with the registry office to establish paternity.

So, you're going to apply for paternity already knowing you're going to get rejected. What to do?

• Take a receipt for payment of the state duty for the voluntary establishment of paternity and pay it (now the fee is 200 rubles).
• Fill out the birth statement (form No. 1), indicating in the application, of course, the full names of both parents. It happens that in the registry office they may offer to leave the column for the name of the father empty - do not agree, otherwise the data of the former spouse will be entered there.
• Fill out an application to establish paternity (Form No. 12).
• Attach a certificate from the hospital to the documents.

If the employee of the registry office refuses to accept the documents, he must respond with a justified written refusal in accordance with Article 11 of the Federal Law "On acts of civil status". In case of refusal not only to accept documents, but also to issue a written refusal, the documents can be re-sent to the same registry office by registered mail with notification.

You can try, having received a refusal from the registry office at the place of birth of the child, submit documents to the registry office at the place of registration of the father.

If a written refusal is received, appeal it in court!

An appeal against a written refusal takes place in court in accordance with Article 11, paragraph 3. Simultaneously with the appeal against the refusal, the father of the child may file a paternity suit against the mother, which she recognizes. If it is not possible (for some reason) to appeal against the refusal from the registry office, changes will be made to the child's birth certificate on the basis of a court decision on establishing paternity.

The problem, if the child has not yet been born, can be solved in another way. After the dissolution of the marriage, the expectant mother needs to change her last name (on the basis of a divorce certificate with the assignment of a maiden name or a decision to change the last name, first name or patronymic). The new passport will not contain marriage marks and the registry office at the place of birth of the child or at the place of registration of the father will not have the problem described above (it can only arise in the registry office in which the marriage and divorce of the mother of the child was registered). Although here you have to cheat and not indicate that the mother was married. They will not be able to check (and they will not want to).