Insights

Ningbo divorce lawsuit paternity test application 4 conditions

Ningbo Author：LuXu WANG

In divorce proceedings, one party questions the child's parent-child relationship, and the other party is often emotional, thinking that this is an insult to marriage and personality. However, from a legal point of view, paternity testing is a serious litigation procedure, and the court will not start it easily, nor will it be forced by suspicion alone. Whether you can apply, what to do if the other party refuses, and how the result affects custody, all need to be judged according to specific rules.

Initiation conditions for 1. paternity testing

to apply for paternity testing in divorce proceedings, the following basic conditions usually need to be met: there is reasonable doubt on the part of the proposed identification, the identification of paternity is closely related to the obligation of raising or the division of property, the identification does not seriously damage the physical and mental health of the child, and there is preliminary evidence to support the necessity of the identification. Courts will not initiate appraisal simply because one party is emotionally suspicious, nor will they use appraisal as a tool to punish the other party.

the evidentiary basis of reasonable doubt

reasonable suspicion may include: long-term separation between the two parties during conception, one party has a medical fertility disorder, the other party admits to having a close relationship with another person, and the child's blood type or genetic characteristics are obviously inconsistent with one party. The party applying for appraisal shall provide preliminary evidence or clues, rather than empty words.

The request for identification must be made in the proceedings.

Paternity testing should generally be filed in divorce proceedings or custody disputes. The appraisal report privately entrusted before the lawsuit may not be directly adopted by the court if the other party does not approve it; the appraisal conclusion made by the appraisal institution entrusted by the court in the lawsuit has the highest probative force.

Time Node and Procedure of 2. Application for Appraisal

in divorce proceedings, the application for paternity testing is usually made before or during the first trial. After the application is made, the court will review the necessity. If it considers it necessary, it will organize both parties to negotiate to determine the appraisal agency. If the negotiation fails, the court will appoint the appraisal agency. The cost of appraisal shall be advanced by the applicant and ultimately shared by the losing party or according to the proportion of responsibility.

The writing of the application

the paternity test application shall state the basic information of the applicant, the respondent and the children, the reasons for the application, the factual basis of reasonable doubt, and the relevance of the appraisal conclusion to the custody, maintenance or property division of the case. The application should be concise and well-founded, and avoid using insulting and offensive language, otherwise it may leave a bad impression on the judge.

Selection of accreditation bodies

courts are generally designated from among the institutions listed in the roster of forensic institutions, or selected by mutual agreement under the auspices of the court. The appraisal institution shall have the qualification of forensic evidence appraisal, the sampling process shall be standardized, and the appraisal opinion shall state the source of the sample, the appraisal method, the conclusion and the exclusion probability.

The legal consequences of the 3. of the other party's refusal to identify.

Article 39 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code stipulates that if the father or mother and adult children sue for confirmation of the parent-child relationship and provide necessary evidence to prove it, if the other party refuses to do the paternity test without evidence to the contrary, the people's court may determine that the claim of the party confirming the parent-child relationship is established. Similarly, if the party denying paternity provides the necessary evidence and the other party refuses to identify it without evidence to the contrary, the court may find that the claim of the party denying paternity is established.

Standard of necessary evidence

necessary evidence does not mean sufficient evidence, but evidence that enables the court to have a reasonable doubt and to believe that the identification is indeed necessary. For example, proof of long-term separation, medical proof of fertility disorder, indirect evidence of intimate relationship between the other party and others, etc. There is only subjective suspicion without any evidence, and even if the other party refuses to identify it, the court may not adopt the presumption.

Special treatment of adult children

if the child is an adult and clearly disagrees with the identification, the court will not normally enforce it. Because the parent-child relationship involves not only legal identity, but also emotion, ethics and the human dignity of adult children, the court will respect the wishes of adult children.

Principle of maximizing the interests of 4. and children

the core purpose of paternity testing is not to punish one party, but to determine the obligation of raising and the identity of children. When deciding whether to initiate an appraisal, the court will give priority to whether it is beneficial to the physical and mental health of the child. The court may not grant permission if the identification may lead to serious psychological trauma, social discrimination or complete breakdown of family relations.

Protection of Minors' Interests

for minor children, the court will weigh the necessity of identification against the protection of their emotional interests. If the result of the appraisal may change the dependency relationship or the commitment of the maintenance fee, and it is obviously beneficial to the growth of the child, the court tends to grant it. If it is only to satisfy one party's emotional catharsis and is not beneficial to the child, the court may reject it.

Post-identification upbringing arrangements

if the result of the appraisal denies the paternity, the legal father is usually no longer liable for maintenance, and the maintenance paid may be claimed to be returned. However, the court will still consider the facts of long-term support of children, emotional dependence, living conditions and other factors, and make a judgment that is most conducive to the growth of children.

5. Identification Results and Change of Dependency Relationship

the conclusion of paternity test has a high degree of probative force. Once it is accepted by the court, it will usually have a direct impact on custody, maintenance, and visitation rights. If the parent-child relationship is confirmed, the duty of maintenance and the right of inheritance shall be determined accordingly; if the parent-child relationship is denied, the duty of maintenance may be relieved, and the relevant maintenance may be re-accounted.

Recovery and adjustment of alimony

after denying the parent-child relationship, the man may claim the return of the maintenance paid during the marriage or after the divorce. The amount of return is usually based on the actual amount paid, the length of support, the local standard of living, etc., rather than a simple full return. If the divorce agreement stipulates that the maintenance fee is higher, the adjustment or exemption may be claimed after denying the parent-child relationship.

Consideration of Emotional Raising Facts

even if the identification denies the paternity, if the man has been raising the child for a long time and has formed a deep emotional connection, the court may still proceed from the interests of the child at the time of the decision and continue to raise or grant visitation arrangements by the man. Identity relationship and emotional relationship are not completely equivalent, the court will make a comprehensive judgment.

6. case proof

according to similar judgment rules, if one party claims that the child is not born and provides necessary evidence such as long-term separation during conception and improper relationship between the other party and others, while the other party has no evidence to the contrary and refuses to do paternity test, the court can usually presume to deny the establishment of the claim of paternity according to judicial interpretation and adjust the custody and maintenance arrangement accordingly. In the absence of necessary evidence, the claim of suspicion alone is usually not supported. In similar cases, the amount of division or compensation is usually in the range of $100000 to $3 million, depending on the size of the property and the circumstances of the evidence.

According to similar adjudication rules, if an adult child clearly disagrees with the paternity test, and the result of the test may cause significant harm to his identity and emotional interests, the court usually does not allow the test, and instead handles related disputes based on existing evidence and support facts; For minor children, the court decides whether to grant permission more from the perspective of whether it is conducive to their growth. In similar cases, the amount of division or compensation is usually in the range of $100000 to $3 million, depending on the size of the property and the circumstances of the evidence.

7. Risk Alert

  • application for identification only by suspicion: when there is no preliminary evidence, the court may not grant permission and may intensify the contradiction.
  • Missed the best application time: the first instance was not submitted, and the second instance reapplication may not be accepted due to procedural reasons.
  • Private appraisal is not adopted: the appraisal conclusion entrusted by the court is not passed, and the other party does not approve it.
  • Neglecting the child's psychological harm: The results of the appraisal may have long-term effects on the child and need to be carefully evaluated.
  • The adverse chain reaction of the identification results: the denial of parent-child relationship may affect the maintenance, inheritance, visitation and other aspects.

8. FAQ

can one party in a divorce lawsuit apply for a paternity test?

Yes, subject to reasonable doubt and prima facie evidence. The court will review the need for identification and will only grant it if it deems it necessary.

What if the other party refuses to do a paternity test?

If the applicant provides the necessary evidence and the other party refuses to identify it without evidence to the contrary, the court may presume that the applicant's claim is established on the basis of judicial interpretation.

Can a child be forced to do a paternity test when he is an adult?

If the child is an adult and clearly does not agree to the identification, the court will not usually enforce it, and will respect his or her personal dignity and will.

The appraisal result negates the parent-child relationship. Can alimony be returned?

It is possible to claim the return of part of the maintenance paid, but the amount of the return shall be determined according to the actual maintenance time, the amount and the local living standard, and may not be returned in full.

Practical Experience of 9. Lawyers

one party in a lawsuit challenges the paternity, and the other party often feels insulted. But from a practical point of view, this is a serious litigation procedure, and the court will not start it with emotional suspicion alone, nor will it use it as a tool to punish the other party. Whether or not it can be done depends on whether the proposed party has a basis for reasonable doubt and whether the appraisal is materially related to the maintenance or property issues of the current round. Think clearly about these two points first, then decide whether to mention them or not, lest they be rejected and disrupt their rhythm.

If you really want to put forward it, first turn "reasonable doubt" into an expressible fact: the time of long-term separation, medical related circumstances, necessary records of contacts, etc., to form a reasonable explanation, rather than a sentence "I am doubt". At the same time to grasp the timing of the proposed, usually in the focus of the dispute is more clear after the proposed more appropriate. We must also consider the child's physical and mental state. Improper handling may be deemed to be detrimental to the child, but it will affect their original demands.

What to do if the other party refuses to cooperate is what the parties are most concerned about. This kind of problem can not be solved by speculation alone. Whether it can be strengthened by other means and how to connect with the claim of alimony and custody right should be judged in combination with the specific case. In particular, it should be reminded that no matter what the result is, children should not become a bargaining chip for adults to play games; using the program where necessary, rather than as pressure, is the most important measure to be kept in such cases. Crossing this line often hurts yourself and your children.

Paternity testing is a double-edged sword, which can clarify the identity relationship and may also tear apart family feelings. Before starting the appraisal, we should first assess whether there is reasonable doubt and necessary evidence, whether it is in line with the principle of maximizing the interests of the children, and whether it can bear the various consequences brought about by the appraisal results. In practice, it is recommended to prepare the application and evidence under the guidance of a lawyer to avoid emotional submission leading to the rejection of the application, and if the other party refuses to identify, make full use of the presumption rules in judicial interpretation, provided that the initial burden of proof has been fulfilled. Regardless of the outcome, ultimately the referee will put the child's physical and mental health and growth interests first.