Establishing Paternity Through Court Proceedings: Special Considerations When the Father is Outside Ukraine

Introduction

General Procedure for Establishing Paternity

According to Part 2 of Article 125 of the Family Code of Ukraine, if the mother and father of a child are not married to each other, the child's paternity is determined either by joint application of the mother and father or by court decision.

Voluntary Acknowledgment of Paternity

Voluntary acknowledgment of paternity is accomplished by filing a joint application with the civil registration office. This application can be filed simultaneously with the registration of the child's birth or afterwards. If the paternity acknowledgment application cannot be submitted in person, it may be filed through a representative or sent by mail, provided the applicant's signature is notarized.

Judicial Establishment of Paternity

In the absence of a joint application from both parents, paternity may be established by court decision under Article 128 of the Family Code of Ukraine. A lawsuit may be filed by the mother, guardian, custodian of the child, a person who maintains and raises the child, the child themselves upon reaching adulthood, or a person who believes they are the child's father.

The basis for establishing paternity is any evidence confirming the child's descent from a particular person, collected in accordance with the Civil Procedure Code of Ukraine. Such evidence includes: proof of cohabitation, maintaining a common household, witness testimony, and DNA test results.

The European Court of Human Rights in its decision of May 7, 2009, in the case of Kalacheva v. Russia (Application No. 3451/05) noted that DNA testing is currently the only scientific method for accurately establishing paternity of a particular child; its evidentiary value significantly outweighs any other evidence submitted by the parties to confirm or refute disputed paternity.

In Mifsud v. Malta (Application No. 62257/15 of April 29, 2019), the ECtHR recognized that DNA testing does not contradict the principles of the rule of law and natural justice, especially considering the legitimate purpose of the state fulfilling its obligations to the child.

In Jäggi v. Switzerland (Application No. 58757/00 of October 13, 2006), the ECtHR indicated that a person's interest in establishing their father cannot disappear over time, and that taking samples from a deceased person's body to establish paternity does not violate their rights.

The Supreme Court of Ukraine in its ruling of May 16, 2018, in case No. 591/6441/14-ts confirmed that the basis for a categorical conclusion in establishing paternity through judicial proceedings may be the conclusion of a forensic genetic examination.

If a party to the case evades participation in the examination, and it is impossible to conduct the examination without it, the court may recognize the fact of paternity or refuse to recognize it depending on who is evading and what significance the examination has for that person (Article 109 of the Civil Procedure Code of Ukraine).

Special Considerations for Paternity Cases Filed by a Father Located Outside Ukraine

When the child's father is abroad and wishes to establish his paternity through court, special procedural complications arise. The father as plaintiff bears the burden of proving his paternity, but he is physically located outside Ukraine, creating additional challenges in presenting evidence.

Jurisdiction

According to Article 27 of the Civil Procedure Code of Ukraine, lawsuits against an individual are filed in the court at their registered place of residence or stay, unless otherwise provided by law. General jurisdiction is at the defendant's location, meaning at the mother's place of residence. If the mother and child reside in Ukraine, the lawsuit is filed in a Ukrainian court at their place of residence.

A father who is abroad may file a paternity establishment lawsuit with a Ukrainian court regardless of where he resides. His location abroad is not an obstacle to filing a lawsuit in a Ukrainian court if the defendant (mother) resides in Ukraine.

Stages of Legal Proceedings

1. Filing the Lawsuit

The lawsuit may be filed with the court by mail (sent by registered letter with a list of contents), through a representative (an attorney located in Ukraine), or in electronic form through the "Electronic Court" system (if the plaintiff has an electronic digital signature and is registered in the ESITS subsystem).

The lawsuit should be accompanied by a copy of the child's birth certificate, documents confirming the relationship with the child's mother (correspondence, photographs, tickets, money transfers), information about witnesses and what circumstances they can confirm (if any), as well as other evidence confirming paternity.

2. Ordering DNA Testing

The European Court of Human Rights in its decision in Kalacheva v. Russia (Application No. 3451/05 of May 7, 2009) noted that DNA testing is currently the only scientific method for accurately establishing paternity, and its evidentiary value significantly outweighs any other evidence.

The plaintiff or their representative files a motion with the court to order DNA testing. The motion must specify the expert institution proposed to conduct the examination, the questions to be posed to the expert, and justification for the necessity of the examination. The typical question for the expert is formulated as follows: "Is [plaintiff's full name] the biological father of the child [child's full name], [date of birth]?"

According to Part 1 of Article 99 of the Civil Procedure Code of Ukraine, the court orders an examination in a case when the following conditions are met: specialized knowledge in a field other than law is necessary to clarify circumstances, and the parties have not provided appropriate expert conclusions or the conclusions raise doubts.

The expert institution is chosen by the parties by mutual agreement, and if no such agreement is reached, the expert is determined by the court. The plaintiff has the right to propose a specific expert institution, such as "MAMA PAPA" LLC (Kyiv), the Kyiv Research Institute of Forensic Examinations, the Lviv Research and Forensic Center of the Ministry of Internal Affairs of Ukraine, the Mykolaiv Research and Forensic Center of the Ministry of Internal Affairs of Ukraine, or the Kharkiv Research and Forensic Center of the Ministry of Internal Affairs of Ukraine.

When choosing an expert institution, it is necessary to determine in advance whether the institution has experience working with samples collected abroad, what requirements the institution has for the sample collection procedure, whether the institution accepts samples collected by foreign medical facilities, as well as the cost of the examination and its timeline.

3. Collecting Biological Samples from the Plaintiff Abroad

The key difficulty is that DNA testing requires biological samples from two people: the child and the presumed father. If the father is abroad, the question arises of how to collect his samples.

Option 1: Personal Travel to Ukraine

The simplest option is if the plaintiff can travel to Ukraine to provide biological samples directly at the expert institution. In this case, the court orders the examination and requires the parties to appear at the expert institution, the plaintiff arrives in Ukraine at the designated time, the expert collects samples from all participants simultaneously or sequentially, after which the expert institution conducts the study and provides a conclusion to the court.

The advantages of this option are obvious: simplicity, speed, absence of risks regarding maintaining the chain of custody of samples.

However, the disadvantages include the need to visit Ukraine during martial law, the need for visa and permit documents for foreigners, financial costs, and time constraints.

Option 2: Collecting Samples Abroad Through Judicial Request to a Foreign Court

If the plaintiff cannot travel to Ukraine, they have the right to request that the court send a judicial request to the competent authority of a foreign state to collect biological samples.

The legal basis for this is Part 1 of Article 498 of the Civil Procedure Code of Ukraine, according to which, if it is necessary to serve documents, obtain evidence, or conduct certain procedural actions on the territory of another state, a Ukrainian court may address the foreign court with an appropriate judicial request.

In addition, Ukraine is a party to the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (The Hague, March 18, 1970), which entered into force for Ukraine on July 21, 2001. According to Article 1 of the Convention, a judicial authority of a Contracting State may, by means of a letter of request, request the competent authority of another Contracting State to obtain evidence or perform other judicial acts.

Ukrainian Court Practice: Three Rulings and No Actual Results

Ukrainian courts in three paternity establishment cases granted plaintiffs' motions to send judicial requests to foreign states.

The Desnianskyi District Court of Chernihiv on June 23, 2023, in case No. 750/4385/23, instructed the competent court of the Republic of Poland to obtain genetic material samples from the defendant and child, with sample collection assigned to the Institute of Forensics of the Polish Forensic Association LLC in Warsaw.

The Leninskyi District Court of Dnipro on November 1, 2024, in case No. 205/5354/24, instructed the competent authority of the Swiss Confederation to conduct a forensic genetic examination of a child who was in the Municipal Institution "Center for Social Support of Children and Families 'Wings of Hope'" of the Mariupol City Council on Swiss territory.

The Dnipro Court of Appeal on September 12, 2023, in case No. 227/3077/20, instructed the competent authority of the Netherlands to collect biological material samples (blood, saliva, or hair) from the plaintiff and transfer them to the court for further examination by a Ukrainian institution.

However, reality proved quite different. In case No. 750/4385/23 (Poland), the court's decision was issued on October 11, 2023, but solely because the defendant acknowledged the claim in full. In a statement dated October 9, 2023, the defendant informed the court that she acknowledged the claims, and this acknowledgment became the basis for granting the lawsuit without conducting the examination and without actual execution of the judicial request by Polish authorities.

The other two cases - No. 227/3077/20 (Netherlands) and No. 205/5354/24 (Switzerland) - are still awaiting receipt of biological samples from foreign competent authorities.

The case regarding the Netherlands has been ongoing since 2023, and the case regarding Switzerland since 2024, but no samples have been received by Ukrainian courts.

This situation demonstrates the practical ineffectiveness of the judicial request mechanism for collecting biological samples abroad. Cases can drag on for years without any real progress, and the plaintiff remains uncertain about the possibility of proving their paternity.

Alternative Evidence of Paternity Instead of DNA Testing

Consequently, a father who is abroad should not rely exclusively on DNA testing.

Article 128 of the Family Code of Ukraine clearly provides that the basis for establishing paternity is any evidence confirming the child's descent from a particular person, collected in accordance with the Civil Procedure Code of Ukraine. While the expert conclusion is the most significant evidence, it is not the only possible proof of paternity. The court may establish paternity based on a combination of other evidence if the examination cannot be conducted within a reasonable time for objective reasons.

Correspondence Between Father and Mother

Correspondence between the father and the child's mother can become key evidence in the case. This may include emails, messages in messengers like Viber, Telegram, or WhatsApp, SMS messages, correspondence on social networks like Facebook or Instagram. Particularly important are messages in which the mother informs the father about the pregnancy, discusses the future child with him, requests financial assistance, talks about her health during pregnancy, or notifies him of the child's birth. Also significant are messages in which the father calls the child his own, expresses intentions to participate in upbringing, discusses the child's name, or addresses birth registration issues.

The correspondence must be preserved in full with all dates and sender names. It is advisable to take screenshots of the correspondence showing visible dates and contact information, and to have printouts notarized. If the correspondence was in a foreign language, a notarized translation into Ukrainian is required.

Photographs and Video Materials

Photographs showing the father and mother together during pregnancy can confirm cohabitation or a close relationship during the conception period. Photographs of the father with the newborn child demonstrate his participation in the child's life from the first days. Joint family photos of the father, mother, and child demonstrate the familial nature of the relationship. Video recordings where the father communicates with the child, calls the child his own, and fulfills parental duties also have significant evidentiary value.

Printouts of photographs with dates and locations, USB drives with video files, and links to social media posts where the father identifies the child as his own can be submitted to the court.

Money Transfers and Financial Support

Evidence that the father provided financial support to the mother during pregnancy or after the child's birth can confirm his acknowledgment of paternity. Such evidence includes receipts for money transfers through banks or payment systems like Western Union or MoneyGram, receipts for purchasing items for the child (clothing, toys, baby food), bank statements showing regular fund transfers, and gift agreements or other documents regarding property transfer.

It is important to keep all financial documents with dates and transfer amounts, as well as confirmation of the payment purpose if indicated in the transfer comment.

Witness Testimony

Witnesses in a paternity establishment case may include relatives of the father or mother who knew about their relationship, friends and acquaintances who saw the father and mother together during pregnancy, neighbors who can confirm cohabitation, medical workers who observed the mother during pregnancy and saw the father nearby, or people who were present at the child's birth or visited the family after birth.

Witnesses can testify that the father and mother lived as a family, that the father acknowledged the child as his own in conversations with other people, that he participated in caring for the child, or provided financial assistance. The lawsuit should specify the witness's full name, their place of residence or work, and exactly what circumstances they can confirm.

Cohabitation Documents

If the father and mother lived together, this can be confirmed by a housing lease agreement signed by both, a residence certificate showing registration at the same address, utility bills in the father's name at the mother's residence address, or letters and parcels sent to a common address.

Medical Documents

Sometimes the father accompanied the mother to medical examinations during pregnancy, and his presence was recorded in medical records or visitor logs. Blood test results showing the father's blood type and Rh factor, if they match the child's data, may also be useful, although this data alone does not prove paternity but can be an additional argument.

Public Acknowledgment of Paternity

If the father publicly identified himself as the child's father, this is highly significant. Such evidence may include social media posts where the father calls the child his own, media statements or interviews, letters to government authorities or other persons where the father mentions the child as his own, or statements to an employer requesting assistance in connection with the child's birth.

Joint Documents and Obligations

Sometimes the father and mother executed joint documents that indirectly confirm their family relationship. These may include joint bank accounts, health insurance policies where the father listed the mother and child as family members, documents regarding joint purchases or loans, or wills where the father mentions the child.

Genetic Testing of Other Relatives

If conducting an examination with the father's participation is impossible for an extended period, the court may order DNA testing with the participation of other blood relatives of the father. These may include the plaintiff's parents (the child's grandfather and grandmother), the plaintiff's siblings (the child's aunts and uncles), or the plaintiff's children from other relationships (the child's half-siblings). Although such an examination is less accurate than direct testing with the father, it can confirm blood relation to the father's family and, in combination with other evidence, become the basis for establishing paternity.

Practical Recommendations

A father who is abroad and wishes to establish his paternity should understand from the outset that the judicial process may take considerable time. If he cannot travel to Ukraine to provide biological samples, he should not rely solely on a judicial request to collect samples abroad, but should simultaneously gather as much alternative evidence of paternity as possible. It is important to preserve all correspondence with the child's mother, take screenshots of important messages, keep receipts for money transfers and purchases of items for the child, collect photographs and video materials, and identify in advance a circle of witnesses who can confirm the circumstances of the case.

It is advisable to engage a qualified attorney in Ukraine who has experience handling paternity establishment cases with an international element. An attorney can properly formulate the claims, prepare all necessary motions, and represent the plaintiff's interests in court. One should also be prepared for the case to last a year or even longer, especially if waiting for a response to a judicial request from foreign authorities is necessary.

Special Considerations for Paternity Cases Filed by the Mother Against a Father Located Outside Ukraine

The most common situation is when a child's mother residing in Ukraine files a lawsuit with a Ukrainian court to establish paternity against a father who is abroad. Unlike the case where the father is the plaintiff (discussed in Section 2), different procedural features arise here. The main difference is that the father as defendant must be properly notified of the legal proceedings, and his right to defense must be ensured even though he is outside Ukraine.

Jurisdiction

Article 28 of the Civil Procedure Code of Ukraine provides a special jurisdictional rule for paternity establishment cases. Lawsuits to establish the defendant's paternity may also be filed at the registered place of residence or stay of the plaintiff. This means that the child's mother has the right to file with the court at her place of residence in Ukraine even if the father resides abroad. This provision was created to protect the interests of the mother and child, as they do not need to seek a court at the defendant's place of residence in a foreign state.

Service of Process on the Defendant Abroad

Proper notification of the defendant about the legal proceedings is a mandatory condition for hearing the case. This is not merely a procedural formality but a fundamental right to defense recognized by international human rights conventions. The procedure for serving documents abroad is regulated by the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of November 15, 1965, bilateral legal assistance treaties between Ukraine and the respective state, and the Instruction on the Procedure for Implementation of International Treaties approved by Order of the Ministry of Justice of Ukraine No. 1092/5/54 of June 27, 2008.

The Ukrainian court prepares a judicial request for legal assistance and sends it through the main territorial justice department to the Ministry of Justice of Ukraine. The Ministry of Justice in turn forwards the request to the competent authorities of the foreign state, which serve the documents on the defendant and send confirmation of service back to the Ukrainian court.

Service of documents through international legal assistance can take from several months to a year. According to international practice, documents should be sent to competent authorities of foreign states no less than 6 months before the hearing date. According to paragraph 4 of part one of Article 228 of the Civil Procedure Code of Ukraine, the court may suspend proceedings in the case if a judicial request is sent to a foreign court. Proceedings are suspended until a response is received from the foreign court.

The judicial request must be prepared in the state language of Ukraine and accompanied by a certified translation into the official language of the respective state. The request must contain the case name, information about the parties, the procedural status of the persons, a clear list of procedural actions to be performed, and reference to the international treaty. Service of documents is certified by confirmation signed by the person to whom the document was served and stamped with the official seal of the requested institution.

According to Article 15 of the Convention on the Service Abroad of Judicial and Extrajudicial Documents, if the defendant did not appear, judgment shall not be given until it is established that the document was served in a proper manner or delivered personally to the defendant, and a sufficient period of time has passed from the moment of service. This rule is aimed at ensuring that the defendant has a real opportunity to organize their defense and participate in the legal proceedings.

Conducting Forensic Genetic Examination

As already noted in Section 2, forensic genetic examination is the most significant evidence in paternity establishment cases. The plaintiff files a motion with the court to order an examination to establish the child's descent from the defendant. The motion specifies the expert institution assigned to conduct the examination (typically an expert institution at the court's location in Ukraine).

Biological samples (buccal epithelium) from the child are collected by a forensic expert from a Ukrainian expert institution on Ukrainian territory following standard procedure in compliance with forensic examination legislation. However, the key feature is collecting biological samples from the defendant who is abroad.

Judicial Request for Sample Collection Abroad

Simultaneously with the motion to order an examination or after the examination is ordered, the plaintiff files a motion with the court to send a judicial request to the competent authorities of a foreign state to perform procedural actions, namely collecting biological samples (buccal epithelium) from the defendant for conducting forensic genetic examination.

The Ukrainian court prepares a judicial request that clearly specifies the case name and its essence, information about the defendant (full name, date of birth, place of residence), the defendant's procedural status, a clear list of actions (collection of biological samples of buccal epithelium or a swab from the inner side of the cheek for conducting forensic genetic examination to establish paternity), collection procedure (preferably indicating the need for identification of the person, ensuring sample integrity, proper packaging), where and how the collected samples should be sent (address of the expert institution in Ukraine), and reference to the international treaty.

The judicial request is sent through the Ministry of Justice of Ukraine to the competent authorities of the foreign state. In cases provided by international treaty, the request may be sent through the Ministry of Foreign Affairs of Ukraine for execution by a Ukrainian consular institution.

The competent authorities of the foreign state organize collection of biological samples from the defendant in accordance with that state's legislation. Collection is performed by a medical worker or other authorized specialist in compliance with identification procedures. After collection, the samples are properly packaged, sealed, and sent to the expert institution in Ukraine by mail or through diplomatic channels.

Consequences of the Defendant's Evasion from Examination Participation

If the defendant who is abroad, after proper notification through judicial request, refuses to provide biological samples or evades participation in procedural actions provided by the foreign court's judicial request, the Ukrainian court may apply the provisions of Article 109 of the Civil Procedure Code of Ukraine. According to this article and Supreme Court case law, the court may establish the fact of paternity without an expert conclusion based on other evidence in the case (witness testimony, correspondence, photographs, proof of cohabitation, money transfers, etc.).

What Constitutes Evasion from Examination

The Supreme Court in its ruling of October 19, 2022, in case No. 686/3582/16-ts indicated that the legislature established a special procedural sanction for persons who evade participation in examination. It is important to establish evasion as intentional actions resulting in the inability to conduct an examination to clarify an answer to a question that is significant for them. The consequence may be the court's recognition of the fact for which the examination was ordered or refusal to recognize it.

However, the Supreme Court in its ruling of November 6, 2024, in case No. 334/6732/21 warned that the court must clearly distinguish between evasion from examination and the presence of objective obstacles to participation. In this case, the defendant indicated that she was not evading the examination but did not petition the court to resolve the issue of collecting necessary biological samples from the minor outside Ukraine. The Supreme Court noted that the lower court reached a premature conclusion about the absence of legal grounds to grant the claim under Article 109 of the Civil Procedure Code of Ukraine.

Important conclusion: for applying Article 109 of the Civil Procedure Code, the court must ensure that the party is actually evading the examination rather than facing objective obstacles. If the party demonstrates readiness for the examination but lacks the ability to travel to Ukraine, the court must consider the issue of collecting samples abroad.

When the Defendant is Actually Evading

The Supreme Court in its ruling of April 29, 2025, in case No. 706/939/20 considered a situation where the father, receiving court notifications at his mailing address, repeatedly failed to appear at the forensic medical examination bureau to provide experimental samples. The examination was ordered 7 times from the moment the order to appoint the examination was issued. The Supreme Court confirmed the legitimacy of establishing paternity without the examination conclusion based on other evidence.

A particularly detailed analysis of evasion indicators is provided in the Supreme Court's ruling of October 1, 2025, in case No. 686/14591/23. The defendant resided with the child on the territory of the Federal Republic of Germany and evaded conducting forensic genetic examination. The following served as grounds for the evasion conclusion:

• the defendant's actual awareness of the examination appointment;
• circumstances preventing arrival at the expert institution were not valid;
• failure to comply with the expert's requests to provide biological material samples collected properly by medical workers;
• lengthy duration of the case, repeated court appointments of examination;
• appointment of examination in a territory where combat operations are not taking place;
• repeatedly changed dates for biological sample collection;
• failure to comply with the expert's request to provide samples collected at the place of residence in Germany;
• absence of petitions for conducting examination on German territory;
• absence of evidence that conducting examination contradicts the child's interests.

Critically important conclusion from this case: if a party is abroad and cannot travel to Ukraine, they must actively petition the court for sample collection abroad or for conducting examination outside Ukraine. A passive position consisting only of notifying about inability to appear without filing appropriate petitions may be interpreted by the court as evasion from examination.

At the same time, the court must ensure that the defendant was properly notified about the legal proceedings in accordance with international treaty requirements, that the defendant was given sufficient time to organize their defense and participate in the examination, and that evasion from examination is intentional rather than caused by objective circumstances. Systematic and repeated failure of the defendant to appear for biological sample collection indicates their unwillingness to obtain accurate conclusions regarding the child's descent and to refute the plaintiff's arguments.