Paternity Suit in Turkish Law
In Turkey, the genetic father can recognize the child born outside of marriage any time, which is the matter of recognition case. However, in some situations, the father is not willing to recognize the child. In the event that the father is not willing to recognize the child and ignore the child’s interests, the recognition can be made in the court through paternity suit.
The judgment delivered by the court at the end of paternity suit is regarded as the paternity provision. Thus, the genetic father turns into legal father.
WHO ARE THE PARTIES OF PATERNITY SUIT?
The mother and the child can sue so that the court deliver judgement on paternity in the paternity suit. The mother and the child can take this action together or separately. When the suit is filed by either of them, the suit will be informed to the public prosecutor, as paternity suit is concerned with the public order.
The mother can bring paternity suit separately other than the child. She exercises this right not because she is the legal representative of the child but because she has right to sue. Apart from exercising this right, the mother may also claim compensation. If the mother has a mental incapacity, her legal representative can bring paternity suit instead of her.
The child has the right to sue if it is a major. The child requests the judge to deliver a judgment on paternity. As the child and the mother can sue independently, if either of these rejects the suit brought by the other, this will not affect the right to sue of the party bringing the suit.
If the child is a minor, paternity suit is brought by the trustee. Paternity suit can be also filed before the birth of the child. The child does not have the right to sue until it becomes a major. In this case, a trustee is appointed by the court and the suit is proceeded in this way. Suing by the mother on behalf of the child is not upheld by Yargıtay. The Supreme Court believes that the mother should not bring paternity suit on behalf of the child because of possible conflict of interests between her and the child.
The genetic father cannot bring paternity suit. It is because he can bring recognition suit to be identified as the father.
WHO IS THE RESPONDENT IN PATERNITY SUIT?
In paternity suit, the respondent is the genetic father. At the end of the suit, he is identified as the legal father of the child born outside of marriage.
If the genetic father has died, the paternity suit can be brought against his heirs.
WHAT IS THE STATUTE OF LIMITATIONS FOR BRINGING PATERNITY SUIT?
Paternity suit can be filed before or after the child is born. The time for filing suit for the mother is 1 year upon the child’s birth. Following this time, the mother loses the right to sue. This time starts for the child after it becomes a major.
THE PROCEDURE FOR FILING PATERNITY SUIT
Paternity suit is concerned with the public order. Therefore, the court investigates the facts of the case on its own motion and considers them accordingly.
The parties of the case have to give consent to the necessary investigation and examination required by the court that will ensure the identification of paternity. If they do not give consent to it, the court may consider it as evidence against the party not giving consent.
THE COMPONENT COURT
The component court in paternity suit is family courts. The suit can be filed in the court in the place where one of the parties reside in during the case or at the birth.
PROVING PATERNITY IN PATERNITY SUIT
In paternity suit, paternity should be identified by the court. That is, it is identified that the child born outside of marriage is from the respondent, who is claimed to be the genetic father.
The court triesto find out whether the mother has a sexual intercourse with the party who is claimed to be the father and whether the child is born out of this intercourse.
The claimant can establish its claim, relying on the presumption of paternity set out in Article 302 of the Turkish Civil Code. This article stipulates that if it is proved that the mother has a sexual intercourse with the respondent between 300 -180 days before the birth; it is deemed as the presumption for paternity. The respondent can rebut this presumption by proving the impossibility of his paternity or the higher likelihood of paternity of a third party than him. By means of developments in science and technology today, the paternity presumption can be easily rebutted. With new methods today, it can be proved with 99 % certainty that the respondent is the father of the child. In this regard, the court will identify paternity using DNA tests and other investigations and examinations , which will not put the respondent and the child in danger.
WHAT HAPPENS AS A RESULT OF PATERNITY SUIT?
As a result of maternity suit, the father of the child is legally identified, and paternity is established. Under normal conditions, the mother undertakes the care and expenses of a child born and grown up the outside of marriage. When paternity is established, the mother may claim child support payment for this.
The mother can also claim birth expenses and living expenses for the time six weeks before and after the birth by filing a compensation case.
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