Paternity Action and Establishment of Descent — Conditions and Procedure

The paternity action: establishment of descent under TMK Arts. 301-304, DNA testing, time limits, alimony and damages claims, and the differences from the action denying descent, examined in detail.

What Is a Paternity Action?

The paternity action is governed by Articles 301 to 304 of the Turkish Civil Code (TMK) No. 4721 and enables descent between child and father to be established by court order. Intended to determine legally the father of a child born outside marriage, this action is of considerable importance for the protection of the child's fundamental rights.

In Turkish law descent is established, as regards the mother, by birth and, as regards the father, by marriage, acknowledgement or a judicial decision (TMK Art. 282). The husband is presumed to be the father of a child born within marriage (the presumption of paternity, TMK Art. 285). For a child born outside marriage, paternity is determined by acknowledgement or by a paternity action.

The paternity action is one of the fundamental legal mechanisms for determining a child's identity and descent. Establishing a legal bond between child and father may produce consequences in many areas, including inheritance, maintenance, social security and citizenship.

Ways of Establishing Descent

In Turkish law descent on the father's side may be established in three ways:

Establishing Descent by Acknowledgement

Acknowledgement is a legal act by which the father establishes descent with the child by a unilateral declaration of intent (TMK Art. 295). It may be effected by written application to the civil registrar or the court, by official deed or by will. For acknowledgement to be valid, the child must not already have descent established with another man.

Acknowledgement is an act carried out by the father's declaration of intent. Where the father does not acknowledge the child, the mother or the child may have recourse to a paternity action. Acknowledgement requires no court judgment establishing paternity, whereas the paternity action is a judicial process.

Challenging an Acknowledgement

The mother, the child and, upon the child's death, the child's descendants, the public prosecutor, the Treasury and other interested parties may bring an action to annul the acknowledgement (TMK Art. 298). The forfeiture period is determined under TMK Art. 300 according to the capacity of the claimant; the additional period for a ground justifying delay is reserved. The burden of proof and the special rule for actions brought by the mother or the child are governed by TMK Art. 299.

Parties to a Paternity Action

Under TMK Art. 301, a paternity action may be brought by the following persons:

Claimant

• The mother: the child's mother may bring a paternity action against the person alleged to be the father.
• The child: the child may also bring a paternity action. If the child is a minor, the action is brought through the child's legal representative (guardian or trustee).

The rights of action of the mother and the child are independent of one another. Even if the mother has not brought an action, the child may bring one in their own name upon attaining majority.

Defendant

• The person alleged to be the father: the action is brought against the person alleged to be the father.
• Heirs: if the person alleged to be the father has died, the action is brought against their heirs.

Under TMK Art. 301/3 the paternity action is notified to the public prosecutor and the Treasury; where the action is brought by the mother, to the trustee, and where brought by the trustee, to the mother. These persons are drawn into the proceedings in the capacity of notified parties; apart from the father or the father's heirs, these recipients of notice do not become defendants merely by reason of the notice.

Conditions for a Paternity Action

The following conditions must be satisfied for a paternity action to be brought:

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

For a paternity action to be brought, the child must not have descent established with another man. If the child was born within marriage, the husband is presumed to be the father. In that case an action denying descent must first be brought to remove the existing descent, and only then may the paternity action be brought. The two actions may be brought simultaneously, but the paternity action cannot be concluded before the action denying descent has been decided.

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

Under TMK Art. 302, proof that the defendant had sexual relations with the mother between the three hundredth and the one hundred and eightieth day before the child's birth gives rise to a presumption of paternity. If relations are proved to have taken place outside that period at the actual time of conception, the same presumption may apply. In current practice biological descent is usually determined by DNA analysis.

3. The Presumption of Paternity

Under TMK Art. 302, the fact that the defendant had sexual relations with the mother during the stated period is treated as a presumption of paternity. If the defendant proves that it is impossible for him to be the child's father, or that the probability of a third party being the father is greater than his own, the presumption ceases to have effect.

4. Rebutting the Presumption

The defendant may rebut the presumption of paternity in particular by the following facts:

• Proving that there were no sexual relations with the mother during the statutory or actual period of conception
• Establishing by scientific evidence that it is impossible for the child to be his
• Proving that the probability of a third party being the father is greater than his own

Proof in a Paternity Action

DNA analysis is the strongest scientific evidence for determining biological descent. The court may order samples to be taken from the mother, the child and the person alleged to be the father; the report is assessed together with the other evidence. Witnesses, correspondence, photographs and facts concerning the parties' relationship may also be relied upon.

Under HMK Art. 292 everyone is obliged to submit to a blood or tissue examination that is necessary for the resolution of the dispute and poses no danger to health. If consent is withheld without just cause, the judge may order the examination to be carried out by compulsion. The consequence is not limited to an “adverse presumption”; proportionality, health and procedural safeguards are observed.

Time Limits in a Paternity Action

The periods in a paternity action are forfeiture periods, not limitation periods. The mother's right of action lapses one year after the birth; where there is a ground justifying the delay, the action may be brought within one month of that ground ceasing to exist. The provision in TMK Art. 303/2 allowing the child one year from attaining majority was annulled by the Constitutional Court; that former period is not applied as current law in respect of the child.

Legal Consequences of a Paternity Action

Once the judgment becomes final, descent between child and father is established as from birth. Parental authority as a rule rests with the mother; personal contact with the father and, where the conditions are met, parental authority are regulated by separate order. Contribution alimony for the child's maintenance costs is determined according to the bringing of the action and the specific claim; it does not run back automatically and without limit to the date of birth. The mother's pregnancy, birth and subsistence expenses are the specific claims under TMK Art. 304.

The surname is determined by administrative or judicial process in the light of the Civil Registration Services Law and current Constitutional Court decisions; a change in parental authority does not automatically alter the surname. Where the father is a Turkish citizen, the child acquires citizenship under Art. 7/3 of Law No. 5901 within the framework of the procedures and principles establishing descent.

Alimony and Damages Claims in a Paternity Action

Under TMK Art. 304 the mother may claim from the father or his heirs, together with the paternity action or separately, the costs of the birth, subsistence expenses for the six weeks before and after the birth, and other expenses required by the pregnancy and birth. These expenses may be claimed even if the child was stillborn. Payments made by a third party or a social security institution are taken into account to the extent that equity requires.

The text of TMK Art. 304 contains no special forfeiture period such as “one year from the birth” for these expenses. The mother's one-year period for the paternity action under TMK Art. 303 is not the same as the limitation period for the expenses claim; in a claim for expenses, the time at which the claim falls due, the establishment of descent and the applicable general provisions are assessed on the facts of the file.

A claim for alimony in respect of the child's maintenance costs is advanced on the child's behalf. The amount is determined according to the child's needs and the parents' living conditions and financial means. The duty of maintenance continues until majority; where the child has attained majority but is still in education, the parents remain obliged to maintain them until the education ends, to the extent that may be expected of them in the circumstances (TMK Art. 328).

Differences Between the Action Denying Descent and the Paternity Action

The paternity action establishes descent between the child and the person alleged to be the biological father; it is brought by the mother or the child against the person alleged to be the father or, if he has died, against his heirs. The action denying descent, by contrast, seeks to remove descent established with the husband by reason of marriage and is subject to the rules on parties, proof and time limits in TMK Arts. 286–291.

If the child currently has descent established with another man, descent cannot be established with a new man by acknowledgement or by a paternity judgment until that bond is removed. Although the actions may be brought together, the paternity claim depends on the outcome of the removal of the existing descent. The husband's period for bringing an action is one year from learning of the birth and of the fact that he is not the father; where there is a ground justifying the delay, the action may be brought within one month of that ground ceasing to exist. The former provision allowing the child one year from attaining majority cannot be used as a current rule in view of the Constitutional Court's decisions.

Competent Court and Venue

The court with subject-matter jurisdiction is the family court; where there is no separate family court, the civil court of first instance acts in the capacity of a family court. Under TMK Art. 283 descent actions may be brought in the court of the place of residence of one of the parties at the time of the action or at the time of the birth.

The Paternity Action Procedure

The paternity action consists of the following stages:

1. Bringing the Action

The action is brought before the competent court by a statement of claim. The statement of claim sets out the grounds of the paternity allegation, the evidence and the claims (alimony, damages and the like).

2. Preliminary Examination

At the preliminary examination stage the court establishes the parties' allegations and defences and identifies the matters in dispute. In descent actions the principle of investigation of the court's own motion and the public policy character of the matter are observed.

3. Investigation

At the investigation stage DNA testing is carried out, witnesses are heard and the other evidence is gathered. The court may order referral to the Council of Forensic Medicine or another authorised institution for DNA testing.

4. Judgment

The court assesses, on the evidence gathered, whether the paternity allegation has been proved. If it has, a paternity judgment is given. The judgment is notified to the civil registry office and registered in the civil register.

5. Avenues of Appeal

An appeal may be brought against the final judgment in a paternity action within the statutory period and subject to the statutory conditions. Whether the regional court of appeal's decision is open to appeal on points of law is examined separately according to the date of the decision and the monetary threshold and exceptions in the Code of Civil Procedure.

Problems Encountered in Practice

Where a party fails without just cause to submit to DNA analysis, the court may order the examination to be carried out by compulsion under HMK Art. 292; the matter is not limited to drawing an adverse inference. It cannot be said that the child has lost a right by reference to the annulled one-year period running from majority. The period applicable to the mother under TMK Art. 303 and the child's right are assessed separately.

If the child has descent with another man, that bond must first be removed. Service on a party abroad, the taking of DNA samples and obtaining foreign civil registry records may prolong the proceedings under the rules of international procedure. Past maintenance costs and the expenses under TMK Art. 304 are examined according to the nature of the claim and when it falls due; it cannot be said that a paternity judgment carries every head of alimony back automatically and without limit to the date of birth.

Constitutional Court Decisions and Recent Developments

TMK Art. 303/2, which laid down a one-year period for the child's paternity action running from attaining majority, was annulled by the Constitutional Court. As regards the periods for annulment of an acknowledgement, the claimant's capacity, the applicable article and the dates on which the Constitutional Court's decisions took effect must each be assessed separately.

Paternity Actions and Maternity Actions

In Turkish law maternity is established automatically by birth (TMK Art. 282/1). A maternity action is therefore encountered far more rarely than a paternity action. A maternity action may arise in exceptional situations, such as babies being mixed up in hospital. The paternity action, by contrast, is one of the most frequently encountered types of action in the law of descent.

This content is for general information purposes only and does not constitute legal advice. For your specific legal problems you are strongly advised to obtain professional support from an attorney.

Frequently Asked Questions

Does the child have one year from attaining majority?

No; that provision was annulled by the Constitutional Court.

Can a DNA sample be taken by force?

Under the conditions in HMK Art. 292 the judge may order the examination to be carried out by compulsion.

What is the mother's time limit?

One year from the birth; with a one-month exception once a ground justifying delay ceases.

Which court has venue?

The place of residence of one of the parties at the time of the action or at the time of the birth.