of November 29, 2018 No. 16
About application of the legislation by courts by hearing of cases, connected with establishment of origin of the child
For the purpose of ensuring uniform application by courts of the legislation by hearing of cases, connected with the child's origin, the plenary session of the Supreme Court of the Republic of Kazakhstan decides to make the following explanations.
1. The child's origin certified in the procedure established by the law of the Republic of Kazakhstan is the basis for emergence of the rights and obligations of parents and the child (Item 2 of article 46 of the Code of the Republic of Kazakhstan "About scrap (matrimony) and family" (further - the Code)).
In case of dispute over questions of paternity (motherhood) of the child question of the child's origin, in particular, disputes on paternity proof; about contest of paternity (motherhood) and exception of information about the father (mother) of the child of the birth statement of the child are permitted by district (city) court and equated to them by courts (further - district court) according to the procedure of claim production with observance of requirements of Chapter 14 of the Code of civil procedure of the Republic of Kazakhstan (further - GPK).
The question of the child's origin, of factual determination of the birth of the child by the specific woman, factual determination of recognition of paternity or the fact of paternity is allowed by district court according to the procedure of special proceeding by the rules established by Chapter 32 GPK.
2. Courts need to consider that the disputes connected with establishment of origin of children can be resolved by court only after the child's birth.
If the statement connected with establishment of origin of the child is submitted till the child's birth (for example, about contest of paternity), the judge refuses its acceptance based on the subitem 1) to part one of Article of 151 GPK. Such refusal does not interfere with repeated appeal to the court with the specified statement after the child's birth.
As the law not fixed term of limitation period for this category, paternity (motherhood) can be established by court after the child's birth (Item 1 of article 8 of the Code) at any time.
3. Owing to Article part three 27 GPK of case on paternity proof and collection of the alimony are carried to cognizance of specialized interdistrict juvenile court. This rule extends also in case of presentation of the independent paternity suit.
According to Article part four 30 GPK paternity suits and about collection of the alimony can be shown at the choice of the claimant or in court in the place of the residence, or in specialized interdistrict juvenile court at the place of residence of the defendant.
Other claims connected with the child's origin, not carried to cognizance of specialized interdistrict juvenile court are considered at the place of residence of the defendant.
According to Article 307 GPK of case, the child's origins connected with establishment which are subject to consideration according to the procedure, provided by Chapter 32 GPK, are considered by court at the place of residence of the applicant.
If the actual place of stay of the defendant is unknown, the court starts consideration of the case with observance of requirements of part one of Article 133 GPK.
4. If defendant on the case of paternity proof and collection of the alimony is the foreign citizen living in the territory of foreign state owing to the subitem 3) of Article part two 466 GPK such case can be considered by court of the Republic of Kazakhstan provided that the residence of the claimant is the Republic of Kazakhstan (if other rules of determination of cognizance of the specified dispute are not established by the international treaty ratified by the Republic of Kazakhstan).
5. By hearing of cases, the children connected with establishment of origin, courts should consider provisions of article 12 of the Convention on the Rights of the Child (New York, on November 20, 1989, the Resolution of the Supreme Council of the Republic of Kazakhstan of June 8, 1994 "About ratification of the Convention on the Rights of the Child" (further - the Convention on the Rights of the Child)) and article 62 of the Code according to which the child irrespective of age has the right to express freely the opinion in case of the decision in family of any question infringing on its interests and also to be heard during any legal or administrative proceedings. In this regard on the case of factual determination of recognition of paternity the child who reached age of ten years has right to be heard during legal proceedings on the circumstances important for the correct permission of case.
6. According to article 48 of the Code in case of the child's birth at the parents who are not married (matrimony) among themselves and in the absence of the joint statement of parents or the statement of the father of the child the question of the child's origin from the particular person (paternity) is resolved by court according to the procedure of claim production according to the statement of one of parents, the guardian or the custodian of the child or according to the statement of person dependent on which there is child, or according to the statement of the child of age of majority on reaching it.
7. The court has the right to establish according to the procedure of claim production paternity according to the statement of the father of the child who is not married (matrimony) to the child's mother in case of the death of mother, deprivation of its parent rights, recognition incapacitated or impossibility of establishment of its location if the body performing functions on guardianship or custody did not agree to paternity proof extrajudicially (Item 5 of article 47 of the Code).
In this regard the judge in case of adoption of the action for declaration should check whether the claimant addressed to the body performing functions on guardianship or custody behind receipt of consent to establishment of his paternity by bodies of state registration of acts of civil status.
If it is determined that the claimant did not address for receipt of such consent, the judge based on the subitem 1) of Article part one 152 GPK returns the action for declaration and if proceedings are initiated - leaves the action for declaration without consideration based on the subitem 1) of Article 279 GPK and explains to the claimant its right to address on the specified question to the relevant organ performing functions on guardianship or custody.
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