PATERNITY CASE
1-) Normative basis and regulatory framework
The basic regulations regarding the court determination of paternity are contained in Turkish Civil Code No. 4721 (TCC). The
TCC regulates the right to file a lawsuit to have the paternity between the child and the father determined by the court,
provisions regarding presumptions of paternity, and the statute of limitations. In summary, both the mother and the child may
request that the paternity between the child and the father be determined by the court; the lawsuit is filed against the father
or, if the father is deceased, against his heirs. Procedural notifications for such cases are stipulated in the legislation.
The TMK also regulates presumptions of paternity (for example, the defendant’s sexual intercourse with the mother within a
certain number of days before the birth of the child being considered as a presumption of paternity) and statute of limitations;
the Constitutional Court’s jurisprudence on statute of limitations has also influenced its application.
In short: determining paternity is an area closely related to public order, linked to both personality (identity) and
financial and inheritance consequences of the civil law system.
2-) Types of cases and legal nature
In Turkish law, three basic procedures regarding lineage prevail:- Recognition (establishment of lineage by consent) – registration in the civil registry from the father’s side.
Paternity determination by decree (paternity suit)—the establishment of paternity between a child born out of wedlock
and the alleged father by court order. This suit may be filed by either the mother or the child; it is directed against the
father or, in the event of the father’s death, his heirs. Procedural notifications must be made before filing the suit.- A lawsuit to deny paternity is generally filed to refute the husband’s presumption of paternity in cases of birth within
marriage. It is a lawsuit filed by the husband to prove his claim that the child’s relationship with the mother is not
genuine. Furthermore, the child or other interested parties have the right to sue, and the Turkish Civil Code (TCC)
contains provisions regulating denial. Constitutional Court decisions have brought some jurisdictional restrictions and
changes in interpretation.
Many of these cases concern public order. Therefore, the court is not unilaterally bound by the will of the parties but has
the duty to investigate the facts ex officio and reach a just conclusion.
3-) Procedural Notifications
Procedural notification obligations:Pursuant to the provisions of the Turkish Civil Code (TMK), relevant cases are reported to
the public prosecutor and the Treasury; to the trustee in cases filed by the mother; and to the mother in cases filed by the
trustee. Providing these procedural notifications is among the legally required procedures.
4-) Authorized and Competent Court
Competent and competent court:Cases regarding lineage are generally subject to the jurisdiction of the Family Court (if a family court
has not been established, the Civil Court of First Instance acts as a family court); the jurisdiction rules are determined in the Turkish
Civil Code.
Jurisdiction is important in terms of where a lawsuit can be filed. According to the TMK and HMK:
Residence of the child or mother:- The case can be filed in the Family Court of the place where the child resides or where the mother and child reside
together.
Defendant’s place of residence:- If a lawsuit is filed against the defendant father or his heirs, the court of the defendant’s place of residence also has
jurisdiction.
Link to population records:- The court determines the competent court through the civil registry records, as the decision must be recorded in the civil registry.
determines compatibility.
5-) Against Whom Can a Paternity Suit Be Filed?
The defendant in a paternity suit is the alleged father himself. However, if this person is deceased,
the paternity suit is filed against the alleged father’s heirs. If the alleged father has no heirs, the
paternity suit can also be filed against the state, as the inheritance of the alleged father will be
inherited by the state.
Therefore, if we were to list the people against whom this lawsuit could be filed:
1-)First of all, it is opened against the father,
2-)If the father is dead, it is opened against the father’s heirs,
3-)If the father has no heirs, the case can be filed against the state.
6-) Who can file a paternity suit?
According to the clear provision in Article 301, Paragraph 1 of our Turkish Civil Code, a paternity suit
can only be filed by the mother or the child. However, due to the child’s best interests and the principle
of impartiality, different procedures apply in these two cases. Chief among these is that the child’s
representation in the paternity suit should be handled by a trustee, not the mother.
According to Article 301/1 of our Turkish Civil Code:
“The court shall determine the lineage between the child and the father,
they may want.”
A father, on the other hand, is not required to file a paternity suit to include his illegitimate
child in his own registry, as the law allows him to recognize his child born out of wedlock. A
paternity suit filed by either the mother or the child is only possible if the father refuses to
recognize his child. Therefore, the right to file a paternity suit is granted to the mother and the
child. However, it should be noted that, just as in a paternity suit, recognition by the child’s
biological father is also possible if there is a lineage between the child and another man.
This will not be possible; in this case, the rejection of lineage will have to be done first.
7-) Evidence and Proof in Paternity Cases
Because a paternity suit is a lawsuit concerning lineage, the judge shall investigate the material facts ex
officio, in accordance with Article 284 of the Turkish Civil Code, and the evidence shall be freely assessed.
Furthermore, pursuant to the second paragraph of the same article, the parties are obligated to consent to
investigations and examinations that are necessary to determine lineage and that do not pose a health risk.
If the parties fail to fulfill this obligation, the expected outcome of such investigations and examinations may
be deemed to be detrimental to the person concerned, depending on the circumstances. Therefore,
regarding this case: The judge is granted extensive authority regarding the management of the trial
process, evidence, and proof.
According to Article 284 of our Turkish Civil Code:
“In cases concerning lineage, the following rules shall apply, without prejudice to the Civil Procedure Code:
The Code of Procedure applies:
1.The judge investigates the material facts ex officio and evaluates the evidence freely.
2.Parties and third parties are obligated to consent to the investigations and examinations required to determine
lineage and that do not pose a health risk. If the defendant does not consent to the investigation and examination
requested by the judge, the judge will determine the expected outcome based on the circumstances and conditions.
“He may consider it to have been born against him.”
😎 DNA (genetic) examinations and forced sampling
8.1. Forensic medicine and special laboratory applications
The court typically requests DNA analysis by sending a letter to the Forensic Medicine Institute or a licensed molecular
genetics laboratory. Sampling techniques (blood, saliva/swab, tissue) and laboratory competence are factors that
influence the outcome; therefore, the procedural and scientific reliability of the expert report is crucial.
8.2. Forced sampling: HMK and Supreme Court practices
Article 292 of the Code of Civil Procedure No. 6100 stipulates that “everyone is obligated to have blood or tissue taken
from their body for the purpose of establishing lineage, provided that it complies with mandatory and scientific data for
the resolution of the dispute and does not pose a health risk.” It stipulates that if this obligation is not met without
justifiable cause, the judge may order the examination to be conducted by force. The application of Article 292 of the
Civil Procedure Code (HMK) and the issue of forced sample collection have been shaped in practice by the precedents of
the Supreme Court of Appeals; the Court has ruled that samples can be taken by force against those who refuse to
provide samples despite invitations and warnings, and that this may have an impact on the decision. Therefore, in cases
where it is necessary for a DNA examination, the court summons the alleged individual to the Forensic Medicine
Institute with an annotated invitation; in the event of a refusal, measures of force may be taken under Article 292 of the
Civil Procedure Code.
Legal-ethical boundaries:The power to compel sample collection has sensitive implications for human rights
(physical integrity, privacy); therefore, courts must meticulously consider the criteria of proportionality, health
safety, and scientific necessity when making their decisions. This quest for balance in the precedents of the
Supreme Court of Appeals and the Constitutional Court guides practice.
9-) Other Requests That Can Be Made in a Paternity Case Besides the Decree Determination of
Paternity
If a paternity suit is filed by the mother, the alleged father is not only established as a line of descent between the
child and the alleged father, but the mother also has the right to claim certain financial rights from the father.
However, as will be discussed below, the mother’s financial claims are only subject to the Turkish Civil Code.
This may be related to the claims stipulated in Article 304 of our law, which we will quote below. Furthermore, to claim
non-pecuniary damages, a separate lawsuit must be filed with the general courts (the established precedents of the
Supreme Court of Appeals also confirm this view; the decision of the 2nd Civil Chamber of the Supreme Court of
Appeals, numbered 2018/4770 E., 2019/3562 K.). If a non-pecuniary damages claim has been filed in an already filed
paternity suit, the missing proportional fee for non-pecuniary damages must be completed, the file must be separated,
and a decision of lack of jurisdiction must be issued.
According to Article 304 of our Turkish Civil Code titled “Mother’s Financial Rights”:
“The mother may claim paternity from the father or his heirs together or separately,
may request reimbursement of expenses:
1.Birth expenses,
2.Living expenses for six weeks before and after birth,
3.Other expenses required for pregnancy and birth.
Even if the child is stillborn, the judge may decide that these expenses will be covered.
Payments made to the mother by third parties or social security institutions are deducted from the compensation to an
equitable extent.
10-) Legal consequences: civil registration, alimony, compensation and inheritance
10.1 Civil registry and identity law
If a court decision establishes paternity by default, civil registry records are corrected once the decision becomes final; administrative
procedures and registration processes are conducted within the framework of Population and Citizenship Affairs legislation. As a result
of this process, the child acquires a civil registry link with the father from the date of the decision, or their registration is corrected;
thus, other legal consequences related to inheritance and lineage arise.
10.2 Claims in favor of the mother and child (TCC Art. 304 and child support)
The Turkish Civil Code (TCC) stipulates that the mother may claim certain financial rights (such as childbirth expenses, living
expenses for six weeks before and after the birth, etc.), either separately or in conjunction with a paternity suit. Additionally,
child support may be requested for the child’s care and upbringing; the court will evaluate the alimony and compensation
claims based on the likelihood and evidence of establishing paternity.
10.3 Inheritance and lineage consequences
Establishing paternity also has consequences in inheritance law; by establishing paternity by decree, the child acquires the status of heir based
on the lineage between the father and the deceased, or this status is confirmed. Furthermore, in cases of previous registration errors or
fraudulent declarations, the cancellation/correction of civil registration records may be requested. Court of Cassation precedents generally
stipulate that decisions must consider procedural and formal matters related to registration procedures.
CONCLUSION
Paternity suits are an important legal mechanism that serves not only to protect individual rights
but also social order and the public interest. Accurate and legally established paternity is crucial
for establishing the child’s identity, protecting the financial rights of both mother and child,
ensuring orderly inheritance, and ensuring the reliability of civil registration records.
The Turkish Civil Code (TCC) has established a legal framework in this area by regulating in detail the
requirements for filing a paternity suit, the statute of limitations, methods of proof, and critical issues such as
forced sample collection. Furthermore, the precedents of the Constitutional Court and the Court of Cassation play
a significant role in ensuring the fair application of statute of limitations and the protection of fundamental rights
and freedoms during forced sample collection processes. These decisions serve as a guide for applying the
abstract provisions of the legislation to concrete cases.
Today, DNA testing and modern biogenetic methods are considered the strongest evidence in fulfilling
the burden of proof in paternity cases. However, the protection of individuals’ physical integrity and
privacy during forced sample collection must be evaluated in accordance with the principle of
proportionality. In this context, courts must meticulously observe both legal safeguards and ethical
and medical standards when applying Article 292 of the Civil Procedure Code.
Among the most common problems encountered in practice,rightProcedural errors include
misinterpreting time limits, failing to comply with authority and duty rules, incomplete procedural
notifications, and forced sample collection. These problems lead to unnecessary prolongation of cases
and disadvantage for the parties. Furthermore, delays in reflecting court decisions in civil registration
records can directly affect the child’s identity and inheritance rights, undermining the principle of legal
certainty.
In this context, the following suggestions can be developed to ensure that paternity cases are conducted more effectively and fairly:- Reorganization of the limitation periods based on the best interests of the child,- Coordinated work between the Forensic Medicine Institute and private laboratories to ensure rapid and reliable results
of DNA tests,- Expediting procedural notification and population registration processes electronically,- Developing standard protocols in accordance with human rights and ethical rules in forced sample collection processes,- Courts should exercise their ex officio investigative authority by observing the balance between public order and the rights of the
parties.
Ultimately, paternity cases are not only individual pursuits of rights for mothers and children, but also
legal processes that concern the broader interests of society. Therefore, conducting these cases
quickly, transparently, and with respect for human rights is a critical requirement for both
strengthening the rule of law and safeguarding the future of children and families. Within this
framework, developing legislation, improving judicial practices, and integrating scientific
advancements into legal processes will contribute to more equitable and effective conduct of paternity
cases in the future.
COURT OF APPEALS DECISIONS REGARDING PATERNITY CASE
1-) Court of Cassation 2nd Civil Chamber 2021/5738 E., 2021/9678 K. (DNA test procedure in
paternity cases, the necessity of sending the samples to be taken from the person alleged to
be the father and the child for DNA testing at the same time and together and obtaining a
report from the Forensic Medicine Institute in this manner,)
“…When the file was reviewed, it was stated that the plaintiff-defendant … had filed a timely objection to the forensic medicine report
on which the judgment was based, and that in their objection, a DNA sample could have been taken from someone else instead of the
defendant-plaintiff …, and that the fact that the DNA samples were taken after a long period of time could have affected the result of
the report. The court held that the plaintiff mother …, the little Pelin Hayat for whom the paternity will be established, and the
defendant …, who is alleged to be the father, should have been sent to give DNA samples at the same time and a new report should
have been obtained from the Forensic Medicine Institute. However, it was not deemed correct to render a judgment based on this
report without addressing the objections raised against the expert report, and therefore, the judgment had to be overturned.
RESULT: For the reason stated above, it was unanimously decided to REVERSE the decision of the
regional court of justice, to refund the advance appeal fee upon request, and to send the file to the
relevant civil chamber of the regional court of justice.
2-) Court of Cassation 2nd Civil Chamber 2021/5860 E., 2021/9679 K. (Determination of paternity by
default, i.e. litigation expenses and attorney fees in paternity cases);
“…1-The case concerns the determination of paternity by decree, and the first instance court has decided to
accept the case, determine paternity, and charge the defendant with the litigation costs and attorney fees.
Against this decision, the defendant has filed an appeal for litigation costs and attorney fees. Therefore, the
portion of the first instance court’s decision regarding the acceptance of the case and the determination of
paternity has become final without appeal. Therefore, the defendant’s appeal petition for the acceptance of
the case should be dismissed.
2-As for the examination of the defendant’s other appeals;
Considering the documents in the file, the evidence on which the decision is based, and the legal reasons, it was necessary to
reject the defendant’s groundless appeals and approve the judgment, which was in accordance with the procedure and law.
3-) Court of Cassation 2nd Civil Chamber 2021/5966 E., 2021/9684 K. (The necessity of obtaining
the DNA test from the nearest Forensic Medicine Institution in the paternity case, the report
prepared by a single physician from the university chief physician is not deemed suitable to
make a decision in the paternity case);
“…The case is about the request for the determination of paternity by decree. The court appointed a guardian for the minor,
notified the Treasury and the Public Prosecutor about the case and ensured the formation of parties, then a DNA report was
obtained from the Genetic Diagnosis Center of the İnönü University Medical Center Chief Physician, and the case was accepted
in accordance with the report prepared by a single physician dated 03.03.2016, which stated that “there is a 99.99% probability
that he could be the father.”
Considering that cases concerning paternity are matters of public order, an investigation must be
conducted to leave no room for doubt, and a decision must be made based on the results.
Therefore, DNA reports must be prepared by a panel of experts. The court deemed it
inappropriate to rely solely on a single physician’s report, despite the need to obtain a panel
report from the nearest Forensic Medicine Institute. Therefore, the decision must be overturned.
4-) Court of Cassation 2nd Civil Chamber 2018/4770 E., 2019/3562 K. (In the case
of alimony and compensation in the paternity case, and moral compensation
in the paternity case, the file will be separated in terms of moral
compensation and a decision of lack of jurisdiction will be made to send it to
the civil court of first instance.)
“…Article 304 of the Turkish Civil Code stipulates that the mother may claim, either separately
or in conjunction with a paternity suit, from the father or his heirs, maternity expenses, living
expenses for six weeks before and after the birth, and other expenses necessitated by
pregnancy and childbirth. The court should have requested birth certificates from the
hospital where the birth took place, collected evidence from the parties, examined the
evidence within this framework, and, if necessary, obtained a report from an expert on
expenses. However, the issuance of a written verdict based on an incomplete review is
contrary to procedure and law, and requires reversal.
3- In the examination conducted regarding the request for moral compensation;
Article 304 of the Turkish Civil Code regulates the financial rights of the mother. The plaintiff’s claim for
nonpecuniary damages, beyond the financial rights stipulated in Article 304 of the Turkish Civil Code, stems from
the Code of Obligations and falls outside the jurisdiction of family courts (TBK 49 and 58). According to these
explanations, the lawsuit for nonpecuniary damages stems not from Article 304 of the Turkish Civil Code, but
from Articles 49 and 58 of the Code of Obligations, and the case must be heard and decided in the Civil Courts of
First Instance. The plaintiff has paid the application fee. The application fee covers all requests in the petition.
Therefore, the court should have granted the plaintiff time to complete the relative fee for this request, and if the
missing relative fee is completed within the given timeframe, it should have issued a decision of separation and
lack of jurisdiction regarding this request. However, it was deemed incorrect to dismiss the case without
considering this aspect, rendering it a final judgment.
MOST WONDERED QUESTIONS ABOUT THE PATERNITY CASE
1-) What is a paternity suit?
It is a legal process that establishes the legal lineage between a child born out of wedlock and the father
through a court decision. This process secures the child’s legal status.
2-) Who can file a paternity suit?
Only the mother or the child can file this lawsuit; the mother and the child can file the lawsuit independently or together.
3-) Can the real father (alleged father) file a lawsuit?
No. The father cannot be a plaintiff in such cases; instead, he must seek recognition.
4-) Against whom can a paternity suit be filed?
The defendant is the child’s biological father. If the father is deceased, the lawsuit is directed against his heirs.
5-) How to prove paternity case?
DNA testing is the most reliable evidence in a court decision. Supporting evidence such as witnesses and documents can also
be used.
6-) Can the court request a DNA test?
Yes. The judge may order DNA testing on his own initiative; this evidence is considered the strongest in the
case.
7-) What happens when you avoid having a DNA test?
The judge may decide to force a DNA test depending on the timeframe; this may be interpreted against
the defendant.
😎 What is the time limit for the mother to file a lawsuit?
The mother must file a paternity suit within one year of the birth. If the deadline expires, the right to file a lawsuit is void; however, if
there is a legitimate reason, the lawsuit can be filed within one month after the reason no longer exists.
9-) Is there a time limit for filing a lawsuit for a child?
No. No limitation period is applied to children based on Constitutional Court decisions; children can file a
lawsuit at any age.
10-) Which court has jurisdiction and authority in paternity cases?
The lawsuit can be filed by the Family Court (or, if not available, by the Civil Court of First Instance) in terms of jurisdiction; and
by the court of the mother’s or child’s place of residence or place of birth in terms of jurisdiction.
11-) Who is notified in the case file?
It is mandatory to notify the Public Prosecutor’s Office and the Treasury, and also to the trustee if the case is filed by the mother, and to
the mother if the case is filed by the trustee.
12-) Can someone else file the lawsuit?
Basically not. However, a guardian can be appointed on behalf of the child and the case can be handled that way.
13-) What are the effects of the paternity suit on the civil registry?
Once the result is finalised, the civil registration is updated: the child officially acquires the identity of his or her father and begins to have access
to the legal rights associated with it.
14-) Does the paternity suit also include alimony or compensation?
Yes. In addition to the court, childbirth expenses, pre- and post-birth living expenses (material rights), and child support
can also be requested.
15-) What are the recommendations to facilitate the process?
Taking into account the limitation periods, file a lawsuit in a timely manner
Having DNA testing done legally
Get professional support to avoid procedural errors
Preparing the necessary documents correctly for rapid registration in the population registry
Applying to court in cases of forced sampling and human rights violations
THE IMPORTANCE OF LAWYER SUPPORT
Paternity cases require technical knowledge, legislative expertise, and in-depth expertise in judicial
practices. While the legal provisions are clear, each case has its own unique circumstances, and even a
small mistake can lead to a loss of rights. Therefore, working with an experienced attorney from the
beginning of the process is crucial to determining the right strategy, protecting your rights, and
achieving the swiftest resolution.
It’s important to remember that every step taken during the litigation process has legal and financial implications.
A professional lawyer will guide you not only in preparing the petition but also in gathering evidence,
representing the court, negotiating, and pursuing potential alternative solutions.
In order not to risk your rights and to manage the process safely, it is recommended that you consult a specialist Lawyer