Action For Paternity

The primary condition for filing an action for paternity is that the mother who gave birth to the child must be identified. The Supreme Court of Appeals also holds the view that the mother must be identified to file an action for paternity. The second condition for an action for paternity is that legal parentage has not been established between the child and another man. For instance, if a married woman becomes pregnant by a man other than her husband and the child is born within the marriage, according to the Turkish Civil Code, the child is legally affiliated with the married father.

The final condition for filing the lawsuit is the fulfillment of the notification obligation. Accordingly, the party filing the action for paternity must notify the Public Prosecutor and the Treasury of the situation.

Who Can File an Action for Paternity?

Contrary to popular belief, an action for paternity cannot be filed by the person claiming to be the father. A person claiming to be the father can establish legal parentage with the child through acknowledgment, provided they meet the conditions. The legislator has deemed it inappropriate to grant the right to file an action for paternity to such a person who can use the acknowledgment method, as the person has no legal interest in doing so. Those who can file this action are the mother and the child. The mother and the child can file an action for paternity jointly or separately. A decision rendered for one of the actions does not constitute res judicata for the other. Furthermore, the mother's or child's waiver of the action or settlement does not affect the other's right to sue. It should be noted that the right to file an action for paternity cannot be waived before the action is filed. The child's representation in the action is undertaken by a guardian ad litem.

If an action for paternity is filed by the mother, the establishment of legal parentage between the child and the alleged father is sought. The mother may also claim material damages incurred due to childbirth. These can be claimed concurrently with the action for paternity or as a separate cause of action. The items of material damages that can be claimed are enumerated in Article 304 of the Turkish Civil Code (TCC). Childbirth expenses, living expenses during the six-week periods before and after childbirth, and other expenses arising from this situation can be claimed. This compensation can be claimed even if the child is stillborn. Furthermore, the mother may also claim alimony/maintenance for the benefit of the child.

An action for paternity can also be filed by the child. The child will seek the establishment of legal parentage with the father. If the child is legally affiliated with another man, they must first seek the disavowal of this parentage. It is not possible to file an action for paternity without doing so. The child may also claim alimony/maintenance with the action for paternity. The duration of alimony/maintenance continues until the child reaches the age of majority. More detailed information regarding alimony/maintenance can be found in our article on this topic.

The action can be filed against the alleged father, or against his heirs if he has passed away. If the deceased person has no heirs, the inheritance devolves to the state. In this case, an action for paternity can be filed against the state.

Paternity Action DNA Test

Today, DNA testing is one of the most frequently used methods by parties to prove their claims in paternity actions. With this test, it can be determined with very high accuracy rates whether the person from whom a sample is taken is the child's father. DNA tests can be requested by the parties from the judge, or they can be ordered by the judge ex officio. A DNA test constitutes an expert report for the judge. This means the judge is not bound by the said report. However, it is known that the determination of legal parentage requires technical and specialized knowledge, and particularly that DNA test results are scientifically accurate to a very high degree. It is not possible for the judge to rule contrary to these test results. Although expert reports do not bind the judge, it is illogical for a judge to rule contrary to this method, which is objectively conducted, scientifically sound, and has a very high accuracy rate.

Proof in Paternity Actions

The party filing the action for paternity, i.e., the mother or the child, must prove the paternity of the alleged father. In other words, the mother or the child must substantiate their claims. To facilitate this difficult burden of proof, the legislator has introduced the institution of paternity presumption.

According to the paternity presumption, if the defendant had sexual intercourse with the mother between 300 and 180 days before the child's birth, this situation is accepted as constituting a presumption of paternity. The plaintiff can use any kind of evidence to prove the existence of this relationship. Strong indications demonstrating the existence of sexual intercourse are sufficient. Furthermore, circumstances such as the use of contraceptive drugs during sexual intercourse or incomplete intercourse do not pose a problem for the formation of the paternity presumption. However, it should be remembered that the contrary of this presumption can always be proven.

It is possible for the defendant to rebut the paternity presumption. The legislator has provided two possibilities in this regard. Firstly, proving that the child in question could not have been conceived from the sexual intercourse with the mother, or proving that such a relationship did not exist. The other method is to prove that the probability of another man being the father is higher than his own probability.

In addition to these means of proof, both the defendant and the plaintiff can resort to scientific methods. Furthermore, an action for paternity is a case where the principle of ex officio investigation applies. Therefore, even if not requested by the parties, the judge may decide to take blood and tissue samples from the relevant individuals for the determination of legal parentage. This decision rendered by the judge cannot be opposed by the parties or third parties, as long as the investigation does not pose any danger. If the defendant does not consent, and if it is necessary for the resolution of the dispute and poses no danger to the non-consenting party, the judge may order the collection of samples by force.

Statute of Limitations for Paternity Actions

An action for paternity can be filed either before or after the child's birth. The mother must file the action for paternity within one year at the latest from the child's birth. However, if the child is born while the mother is married to another man, it is naturally presumed to be born within the marital union and is legally affiliated with the mother's married husband. In such a case, for an action for paternity to be filed, the legal parentage with the other man must first be severed. If such a situation exists, the one-year period begins to run from the date the legal parentage relationship is severed. If there are justifiable reasons for exceeding this period, the legislator has stipulated that the action must be filed within one month from the cessation of these reasons. These periods stipulated in the Turkish Civil Code are, by their nature, peremptory periods. This means it is not possible to file an action for paternity after these periods have elapsed.

The Supreme Court of Appeals accepts that if the child files the action, it is not subject to any time limit.

Competent and Authorized Court for Paternity Actions

The court competent to hear paternity actions is the family court. If there is no family court in the place where the action is to be filed, it can be filed in the civil court of first instance.

The authorized court in an action for paternity is stipulated as the court of the domicile of one of the parties at the time of filing the action or at the time of the child's birth.

If the parties do not have a domicile in Turkey, the place where the action will be filed will be determined under the Private International Law and International Civil Procedure Code (MÖHUK). According to the relevant law, if an action for paternity is not filed or cannot be filed in a foreign country, the competent court in Turkey, if not available, the court of the person's habitual residence, if not available, the court of the person's last domicile, and if none of these exist, the courts of Ankara, Istanbul, or Izmir become authorized to hear the case.

Relevant Supreme Court of Appeals Decisions

Decision 1:

“In actions for disavowal of parentage, which are closely related to public order, the Code of Civil Procedure applies, provided that the conditions specified in Article 284 of the Turkish Civil Code are reserved. Since Article 292/1 of the Code of Civil Procedure stipulates that everyone is obliged to submit to the taking of blood or tissue samples from their body for the purpose of determining parentage, provided it is necessary for the resolution of the dispute, consistent with scientific data, and does not pose a health risk, and that if this obligation is not complied with without a valid reason, the judge shall order the examination to be conducted by force, the court's failure to consider that a decision should be rendered based on the outcome of a DNA test conducted in relation to the claim of disavowal of parentage, taking into account the report to be obtained within the framework of the aforementioned provision, is deemed incorrect.”

8th Civil Chamber of the Supreme Court of Appeals, E. 2017/16239, K. 2019/5995

Decision 2:

“When the concrete case is evaluated in line with the explanations above, since the Constitutional Court's annulment decision regarding Article 301/4 of the Turkish Civil Code has entered into force, there is no longer any peremptory period for an action for paternity filed by the child. The court, instead of examining the merits of the case after notifying the Treasury and the Public Prosecutor as per Article 301/3 of the Turkish Civil Code, collecting the parties' evidence related to the claim, conducting a DNA examination, evaluating all evidence together, and rendering a decision based on the outcome, ruled to dismiss the case on the grounds that the "peremptory period had elapsed," which was found to be incorrect.”

8th Civil Chamber of the Supreme Court of Appeals, E. 2018/969, K. 2019/5721

Av. Mehmet Yücesoy

İzmir Attorney & Legal Consultancy