What Is a Paternity Action?

A paternity action is a lawsuit regulated under Articles 301 to 304 of the Turkish Civil Code (TMK) No. 4721, which enables the establishment of filiation between a child and a father by court decision. This lawsuit, which aims to legally determine the father of a child born out of wedlock, is of great importance in terms of protecting the child's fundamental rights.

In Turkish law, filiation is established on the mother's side by birth, and on the father's side by marriage, acknowledgment, or judicial decree (TMK Art. 282). A child born within marriage is presumed to have the husband as father (paternity presumption, TMK Art. 285). For a child born out of wedlock, paternity is determined through acknowledgment or a paternity action.

A paternity action is one of the most fundamental legal mechanisms for determining the child's identity and filiation. The establishment of a legal bond between the child and the father is of critical importance in many aspects, including inheritance rights, alimony rights, social security, and citizenship.

Ways of Establishing Filiation

In Turkish law, filiation on the father's side can be established in three ways:

Establishment of Filiation Through Acknowledgment

Acknowledgment is a legal transaction by which the father establishes filiation with his out-of-wedlock child through a unilateral declaration of will (TMK Art. 295). Acknowledgment may be made by written application to the population registrar or the court, by official deed, or by will. For acknowledgment to be valid, the child must not have filiation with another man.

Acknowledgment is a voluntary act performed by the father. When the father does not wish to acknowledge the child or refuses to do so, it becomes necessary to file a paternity action. While a court decision is not required for acknowledgment, a paternity action requires a judicial process.

Objection to Acknowledgment

An objection to the acknowledgment may be raised by the mother, the child, or in case of the child's death, the child's descendants, the public prosecutor, and the Treasury. The objection action may be filed within one year from learning of the acknowledgment and in any event within five years from the acknowledgment (TMK Art. 300). In the objection action, if it is proven that the acknowledging person is not the biological father, the acknowledgment is invalidated.

Parties to the Paternity Action

The paternity action may be filed by the following persons pursuant to TMK Art. 301:

Plaintiff

• Mother: The child's mother may file a paternity action against the person alleged to be the father.
• Child: The child may also file a paternity action. If the child is a minor, the action is filed through the child's legal representative (guardian or custodian).

The litigation rights of the mother and the child are independent of each other. Even if the mother has not filed an action, the child may file an action in their own name upon reaching adulthood.

Defendant

• Person alleged to be the father: The action is filed against the person from whom paternity is claimed.
• Heirs: If the person alleged to be the father has died, the action is filed against his heirs.

Conditions for the Paternity Action

The following conditions must be met for a paternity action to be filed:

1. The Child Must Not Have Filiation Established with Another Man

For a paternity action to be filed, the child must not have filiation with another man. If the child was born within marriage, the husband is presumed to be the father under the paternity presumption. In this case, a paternity denial action must first be filed to eliminate the existing filiation, and then a paternity action may be filed. These two actions may be filed simultaneously, but the paternity action cannot be concluded before the paternity denial action is decided.

2. Relationship Between the Mother and the Person Alleged to Be the Father

Pursuant to TMK Art. 302, it must be proven that the defendant had sexual intercourse with the mother between the three hundredth day and the one hundred eightieth day before the child's birth. This period is called the "critical period" and represents the probable time frame during which the child was conceived.

3. Paternity Presumption

Pursuant to TMK Art. 302/1, if the defendant had sexual intercourse with the mother during the specified critical period, the paternity presumption applies. This presumption creates a legal assumption that the defendant is the father. Once the presumption applies, the burden of proof shifts and the defendant must prove that he is not the father.

4. Rebutting the Presumption

The defendant may rebut the paternity presumption in the following ways:

• Proving that he did not have sexual intercourse with the mother during the critical period
• Scientifically proving that it is impossible for the child to be his (DNA test)
• Proving that the probability of a third person being the father is higher than his own probability of being the father

Proof in Paternity Actions

Proof in paternity actions has been greatly facilitated by the possibilities of modern medical science:

DNA Test

The DNA test is the most reliable and conclusive means of proof in paternity actions. With today's technology, the accuracy rate of DNA tests exceeds 99.99 percent. The court may order a DNA test upon the parties' requests or ex officio.

For the DNA test, a blood sample or buccal swab is generally taken. The test is conducted by the Council of Forensic Medicine or expert institutions authorized by the court. The test result can definitively confirm the paternity claim or definitively exclude it.

Refusal of the DNA Test

If the defendant refuses to provide a DNA sample, the court may evaluate this situation as evidence against the defendant (HMK Art. 292). Article 292 of the Code of Civil Procedure regulates that judicial organs may request parties to participate in necessary examinations in filiation cases and that unreasonable refusal may result in a decision against the refusing party.

There are differing views on whether the defendant can be forced to provide a DNA sample. The general trend is that a sample cannot be taken by force but that refusal will be evaluated against the refusing party.

Other Evidence

In addition to the DNA test, the following evidence may also be used in paternity actions:

• Witness statements
• Messages and correspondence (SMS, WhatsApp, email)
• Photographs and video recordings
• Social media posts
• Blood type incompatibility (may be used for excluding paternity)
• Statements of the parties
• Medical reports and hospital records
• Prenatal care records

Statute of Limitations in Paternity Actions

The statute of limitations for paternity actions is regulated pursuant to TMK Art. 303 as follows:

• Mother's right to sue: The mother may file a paternity action within one year before or after the child's birth. The one-year period runs from the date of birth.
• Child's right to sue: The limitation period for the child is one year from reaching the age of majority. The child may file a paternity action within one year of turning 18.

If there are reasons justifying the delay, the action may be filed within one month from the cessation of the reason (TMK Art. 303/3). Whether the statute of limitations has expired is considered ex officio by the court.

The Constitutional Court has indicated that limitation periods should be evaluated within the framework of the principle of the best interests of the child. In particular, the restriction of the child's right to learn about their biological father due to limitation periods is noted as being open to debate in connection with constitutional rights [TO BE VERIFIED].

Legal Consequences of the Paternity Action

When a paternity action is accepted, i.e., when a paternity decree is rendered by the court, the following legal consequences arise:

1. Establishment of Filiation

Filiation is established between the child and the defendant by court decision. The filiation takes effect from the child's birth (retroactive effect). The decision is registered in the population register, and the father information in the child's population record is updated.

2. Custody

Custody of a child born out of wedlock belongs, as a rule, to the mother (TMK Art. 337). The establishment of filiation through a paternity decree does not automatically result in the transfer of custody to the father. However, if the child's interest requires it, the father may request custody, and the court may decide to grant custody to the father.

3. Alimony Right

Together with the paternity decree, the child acquires the right to claim alimony from the father. Contribution alimony may be claimed upon the finalization of the paternity decision. Alimony may also be claimed retroactively from the date of the child's birth. Additionally, interim alimony (precautionary alimony) may also be claimed during the proceedings.

4. Inheritance Right

A child whose filiation is established through a paternity decree becomes a legal heir of the father. The child has equal inheritance rights with children born within marriage. The inheritance right arises retroactively from the child's birth.

5. Surname

The surname of a child whose filiation is established through a paternity decree is determined according to the custody arrangement. If custody belongs to the mother, the child may bear the mother's surname; if the father obtains custody, the child takes the father's surname [TO BE VERIFIED].

6. Citizenship

If filiation is established through a paternity decree between a Turkish citizen father and a child, the child may acquire Turkish citizenship. This situation is particularly important for children born between a foreign national mother and a Turkish citizen father.

Alimony and Compensation Claims in Paternity Actions

The following claims may be raised together with or separately from the paternity action:

Mother's Claims (TMK Art. 304)

Pursuant to TMK Art. 304, the mother may make the following claims from the father together with or separately from the paternity action:

• Birth expenses: All hospital, doctor, medication, and other expenses related to the birth
• Living expenses for six weeks before and after birth: The mother's living expenses arising from her inability to work during the pre-birth and post-birth period
• Other expenses required by pregnancy and birth: All additional expenses arising during the pregnancy and birth process (check-up expenses, transportation expenses, etc.)

These claims may be asserted even in case of the child's stillbirth or death after birth. The period for asserting these claims is one year from the birth.

Child's Alimony Claim

Upon the finalization of the paternity decree, the child may claim contribution alimony from the father. The alimony amount is determined by the court taking into account the father's economic situation and the child's needs. Alimony continues until the child reaches majority; however, if the child is receiving education, it may be extended until the completion of education.

Differences Between Paternity Denial Action and Paternity Action

Paternity denial action and paternity action are two different institutions of filiation law. While both lawsuits relate to filiation, their purposes and consequences differ from each other:

Paternity Denial Action (TMK Art. 286-291)

The paternity denial action is a lawsuit filed by the husband or the child to rebut the paternity presumption in cases where a child born within marriage is presumed to have the husband as father. The husband claims that the child is not his and requests the elimination of the filiation.

Pursuant to TMK Art. 287, if the child was conceived within marriage, strong evidence rebutting the defendant's paternity must be presented. If the child was conceived before the marriage or during separation, the defendant does not need to present any other evidence; the situation rebutting the presumption arises automatically, and the plaintiff must prove the filiation.

In a paternity denial action, the husband must prove that he did not have sexual intercourse with the mother during the critical period or that the child did not result from this intercourse. The DNA test is also the most reliable means of proof in this action.

If the paternity denial action is accepted, the filiation between the child and the husband is eliminated. In this case, new filiation may be established through acknowledgment by the biological father or through filing a paternity action.

Connection Between the Two Actions

In practice, for children born within marriage whose biological father is not the husband, a paternity denial action must first be filed, followed by a paternity action. These two actions may be filed simultaneously, but the court cannot render a decision on the paternity action before the paternity denial action is concluded. This situation arises from the systematic structure of filiation law.

Competent Court

The court with jurisdiction over paternity actions is the family court. In places where there is no family court, the civil court of first instance hears the case in its capacity as a family court.

The competent court, pursuant to TMK Art. 301/4, is the court of one of the parties' domicile at the time of the action or at the time of birth. The plaintiff may file the action at the court of their own domicile or the court of the defendant's domicile.

Process of the Paternity Action

The paternity action consists of the following stages:

1. Filing of the Action

The action is filed with a complaint petition at the competent court with jurisdiction. The petition states the grounds for the paternity claim, evidence, and requests (alimony, compensation, etc.).

2. Preliminary Examination

At the preliminary examination stage, the court determines the parties' claims and defenses, identifies evidence, and invites the parties to settle. Since filiation cases are related to public order, settlement is limited.

3. Investigation

At the investigation stage, DNA testing is conducted, witnesses are heard, and other evidence is collected. The court may issue a referral order to the Council of Forensic Medicine or another authorized institution for the DNA test.

4. Decision

The court evaluates whether the paternity claim has been proven based on the evidence collected. If the paternity claim is proven, a paternity decree is rendered. The decision is notified to the population directorate and registered in the population register.

5. Legal Remedies

An appeal may be filed against the decision rendered in the paternity action to the Regional Court of Appeal. A cassation appeal may also be filed against the Regional Court of Appeal's decision.

Problems Encountered in Practice

Problems frequently encountered in practice in paternity actions include:

• Resistance to DNA testing: If the defendant refuses to provide a DNA sample, the court may evaluate this against the defendant; however, taking a sample by force is a debatable issue.
• Missing the statute of limitations: Loss of rights may occur particularly due to lack of awareness regarding the deadlines for filing actions after reaching majority.
• Filing paternity denial and paternity actions together: Not knowing that a paternity denial action must first be filed for a child born within marriage may cause problems.
• Population registry issues: Administrative problems may sometimes be encountered in registering the paternity decision in the population register.
• Foreign element: If the person alleged to be the father is abroad, delays may occur in the service of process and trial proceedings.
• Retroactive alimony claims: Determining the scope of retroactive alimony claims from the child's birth following the paternity decree may be complex.

Constitutional Court Decisions and Current Developments

The Constitutional Court has evaluated certain regulations regarding paternity actions and filiation within the framework of the principle of the best interests of the child. In particular, the issue of whether limitation periods restrict the child's rights has come to the attention of the Constitutional Court and has been evaluated in various decisions. The rigidity of limitation periods is seen as potentially preventing the child from exercising the right to learn about their biological father and establish filiation [TO BE VERIFIED].

Additionally, decisions of the European Court of Human Rights (ECHR) also influence the practice of paternity actions in Turkish law. The ECHR evaluates the child's right to access biological truth within the scope of Article 8 of the European Convention on Human Rights (right to respect for private and family life). In this framework, the compatibility of limitation periods and evidentiary rules in Turkish law with international standards is an important topic of debate.

Paternity Action and Maternity Action

In Turkish law, maternity is established automatically by birth (TMK Art. 282/1). For this reason, maternity actions are much more rarely encountered than paternity actions. A maternity action may arise in exceptional situations such as the mixing up of babies at a hospital. A paternity action, on the other hand, is one of the most commonly encountered types of lawsuits in filiation law.

This content is for general informational purposes only and does not constitute legal advice. For your specific legal issues, it is recommended that you obtain professional support from an attorney.