Paternity – Proving Paternity

 

Question:

 

Is it possible for a mother to file for paternity without filing for child maintenance ?

 

Answer:

 

Yes ! A mother can file a paternity plea against the alleged father without filing for child maintenance. There is no obligation to file for both. Sometimes a mother prefers to act this way because she feels that if she filed for child maintenance this would result in the alleged father severing contact with the child, or becoming alienated from him. Having said this, most mothers filing for paternity also file for child maintenance.

  

 

Question:

 

I am unmarried and due to give birth. I know who the father is but we

are not in a relationship. I doubt if he will want to be registered as the 'dad' . Can I  still get maintenance from him ?

 

Answer:

 

Only if paternity is established. Only after he is regarded as the legal father will you be entitled to financial support for him for the baby. If he fails to co-operate, you can bring legal proceedings at the family court for a judgment declaring him to be the father.

  

 

Question:

 

How can a single Moslem woman who gets pregnant by a Moslem man get financial support from him for her child ?

 

 

Answer:

 

By filing him for paternity and child maintenance at the family court.

 

A single Moslem mother cannot file for these at the Sharaii or Moslem Religious Court. Although the court has jurisdiction over personal matters where all sides are Moslems , Islamic religious law does not recognize paternity outside of marriage. If the two parties are not married then there is no basis in a Moslem Religious Court for a claim for paternity, which must be proved before maintenance can be claimed.

 

 

In the 1990's before the family courts were established, the Supreme Court held that a civil court has jurisdiction to grant “civil paternity” rather than religious paternity where a child would otherwise be left without maintenance. Where there is no maintenance obligation towards a minor under a person’s religious law – here none under Islamic law – then the maintenance obligation under civil law comes into play.This necessitates establishment of paternity – hence the “civil paternity” test.

 

In the case referred to above (Civil Appeal 3077/90) the mother was a single Moslem woman and the biological father a married man . The landmark case gave the civil District Court jurisdiction over paternity in such a situation . Today jurisdiction  over paternity lies ,as a routine matter ,with the family courts, which were established in 1995.

 

The Family Courts' Act of 1995 was amended in 2001 and gives Moslem women, single or married, the right to file for child maintenance at the family court.

  

 

Question:

 

I am single ,in my 30'’s and had an affair with a well-known person in our community. I got pregnant. He tried to pressurize me into having an abortion but I refused. He cut off all contact with me shortly afterwards saying a baby outside wedlock would endanger his reputation and marriage. Now I want to sue him for child maintenance for my baby but am worried that I will fail because I cannot prove he is the father. I know he won’t undergo any tests that could prove paternity – he refused to co-operate with any medical tests during my pregnancy which required samples from the ‘ father’. Can he still be declared the father and be made to support my child if he refuses paternity testing ?

 

Answer:

 

Yes ! A court can declare a person a biological father on the basis of his refusal to undergo D.N.A.testing , in certain circumstances.In May 2003 the Beersheva Family Court declared the defendant, the plaintiff’s gynaecologist, to be the father of her child, even though he refused to undergo D.N.A. testing. The defendant claimed that such testing would be likely to ‘harm his good name’ and endanger his marriage, and the family’s honour. These do not constitute ‘reasonable’ grounds for his refusal, the court said. On the contrary , if anyone knew of the case, the tests would ‘clear his name’, otherwise proceedings were behind closed doors and there was a ban on publication of names, it said.

 

The defendant’s refusal to undergo testing, plus other evidence including records of telephone conversations between the parties , exposed inconsistencies and illogicalities in his testimony, and thus gave preference to the plaintiff’s claims.

  

 

Question:

 

Can paternity be proved by letters where the alleged father, who has been filed for child maintenance, is a foreign resident living abroad and he cannot or will not come to Israel to undergo medical tests to determine whether he is the father ?

 

Answer:

 

Yes, in exceptional circumstances - for example, if the defendant is a foreign resident and has no intention of coming to Israel, and the court is satisfied that that the letters provide clear evidence of paternity. In a case before the Tel Aviv District Court in the 1990’s the plaintiff, a mother, represented by Adv. Amihoud Borochov, succeeded in her plea to declare a man, who had dual Israeli and foreign nationality, and who had left Israel suddenly during his girlfriend’s pregnancy, as her daughter’s father – largely on the basis of a series of letters he had sent. In them he openly admitted that he was the father of their future child and asked how his girlfriend was feeling and how the pregnancy was progressing. In the letters he also promised to marry the plaintiff and said they would be re-united and bring up their baby-to-be together.

 

In addition to the letters the plaintiff provided supporting evidence – regarding the couple’s registration for marriage and their plans for the wedding . After declaring the defendant to be the father, the court also awarded child maintenance against him.

  

 

Question:

 

Can tests to establish paternity be conducted abroad and will their results be acceptable in proceedings for paternity brought by the mother in Israel ?

 

Answer:

 

While tests to establish paternity may be conducted abroad it is doubtful whether their results would be accepted as evidence in court proceedings in Israel. Even if paternity tests are voluntarily conducted in Israel without an order a court here is not bound to accept their findings. Other factors which do not relate to the laws of evidence are involved here.

  

 

Case:

 

My husband and I are both Jewish . I have filed him for child maintenance. He says that our child, who is five , is not his, but that of a Christian man with him I had a long affair with. He has threatened to expose all this by D.N.A. testing if I do not agree to reduce the amount claimed drastically. Would the court allow D.N.A. testing  at this stage anyway ?

 

Answer:

 

One of the factors influencing the court in deciding whether to recommend D.N.A. testing to establish paternity is the ‘good of the child’ and the possible damage it may cause him/her. This is related to the stigma a child born to a married Jewish woman outside wedlock carries – that of being a bastard (‘mamzer’) or doubtful bastard (‘safek mamzer’).

 

In February 2001 the Beersheva family court faced a request from a Jewish father defending a child maintenance suit that one of his children was not his – but that of a non-Jew with whom his wife had been having an affair . The court held that where a Jewish woman has an extra-marital affair with a non-Jew their child will not be a ‘bastard’ according to Jewish law anyway. The real risk to the 8 year old child in question was of emotional damage associated with the possible discovery that her father was not really her father, it held. The ‘child’s good’ was the chief factor in the decision-making process, even if both spouses agreed to testing, it held, and outweighed the defendant’s right to discover the truth. It refused his request for genetic testing.

  

 

Question:

 

Can a married couple where the wife is not Jewish get permission for paternity testing for a child she bears ?

 

 

Answer:

 

Yes, providing the family court considers that testing would not be against the child’s good, and that no risk of illegitimacy would be involved. Where the husband and wife are Jewish, courts will not allow paternity testing because it would risk the child being labelled as a bastard , or ‘Mamzer’, in Jewish law. In February 2004 the Haifa Family Court granted permission for a wife, who was over six months pregnant, and her husband, both Roman Catholics, to undergo paternity testing, in an unusual case .

 

The couple had made a joint application for paternity testing. They suspected that the wife might be pregnant from extra-marital sexual relations, and not her husband. The couple claimed they needed to verify paternity as the doubt was straining their relationship, and that while their faith forbad abortion, they preferred to know the truth before the birth so that they could prepare themselves emotionally and get the necessary counselling and support to overcome the situation, if testing proved another man was the father. They had already contacted a medical institute in an attempt to arrange testing, but had been told that under the Genetic Information Act of 2000, a court order was required first.

 

The court granted permission, emphasizing a child’s right to know his/her true identity, and choosing not to adopt the recommendations of a social worker’s report which was against testing, and which predicted that the couple would succeed in raising the baby anyway, with the appropriate guidance and counselling, and that this would be in its best interests. The judgment also differed from the opinion of the representative for the Attorney General , who was against paternity testing because it could result in emotional problems for the baby in later life, if the husband was not the father. The representative also stressed that there was no possibility of aborting a foetus, like this one , which was over 25 weeks old and capable of life.

 

In its judgment the court emphasized that the circumstances of the case were exceptional ; the married couple had applied jointly, rather than the usual situation where the woman files for paternity against a third party, they were Roman Catholics , and not Jews, so that the issue of the status of ‘bastard’ under Jewish law did not apply.