In a case of disputing paternity, the plaintiff must prove the absence of blood relationship with the child. The most convincing evidence for this is the conclusion of a molecular genetic examination. The problem begins when the court ordered the examination, but it did not take place: the child lives abroad, the participant did not appear for the sample collection, or the expert institution only reported the date to the court.
The formal answer seems simple. There is no conclusion, so the plaintiff has not proven the claim. However, this approach allows one party to bear the consequences of a procedural failure that it could not eliminate on its own. The expert does not collect biological materials on its own initiative, and the plaintiff does not have the authority to forcibly deliver the other party and the child to an institution.
In its ruling of April 8, 2026 in case No. 537/3041/24, the Supreme Court clarified the boundary between the burden of proof of the party and the obligations of the court during the examination it has ordered. The decision does not exempt the plaintiff from active actions and does not make failure to appear automatic proof of lack of paternity. It requires first checking whether the court created a real opportunity to conduct the study, properly informed the participants and explained the consequences of evasion.
Who and what proves in a paternity dispute?
Article 136 of the Family Code of Ukraine gives a person who is recorded as the father of a child the right to demand the exclusion of information about him from the birth certificate. The subject of proof here is narrow: the absence of blood relationship between the plaintiff and the child. Mere doubts, conflict between former spouses, correspondence or the mother's statement are not enough for a categorical conclusion of the court.
The right to such a claim has temporal and personal limits. The challenge is possible after the birth of the child and before the child reaches the age of majority. The statute of limitations does not apply to the man's claim to exclude his registration as the father, but this does not cancel the age limit for the child. Also, the law does not give the right to challenge paternity to a person who knew at the time of registration that he was not the biological father, or who gave consent to the use of assisted reproductive technologies in a case provided for by law.
Therefore, before filing a lawsuit, it is necessary to check not only the biological version of events, but also the legal basis for the registration. A child born before the expiration of ten months after the termination of the marriage, as a general rule, is descended from the spouses. In case No. 537/3041/24, this presumption became one of the starting points of the dispute. However, the presumption does not prohibit the person registered as the father from proving the opposite under Article 136 of the Civil Code of Ukraine.
The claim should not concern the abstract “cancellation of paternity”, but the exclusion of information about a person as a father from a specific civil registration. This requires the details of the registration, the child’s birth certificate and evidence of the norm on which the determination of origin was based. If the registration was drawn up by a foreign authority, it should be checked separately which decision can be enforced and which documents are required to change the registration data.
If an existing record of the father needs to be excluded, the practical route involves challenging paternity in court . This should be distinguished from the situation where there is no record of a specific man and paternity needs to be established . These claims have different prerequisites, the range of claimants and the distribution of the burden of proof. An error in the very construction of the claim is not corrected by the result of a DNA test.
What the Supreme Court established in case No. 537/3041/24
The dispute began with the mother's lawsuit for the deprivation of parental rights. The man recorded as the father filed a counterclaim to contest paternity and exclude information from the civil registration. The mother lived with the child in Poland. The court of first instance ordered a molecular genetic examination, but the studies were not conducted due to the mother's failure to appear with the child for the collection of samples.
The courts of first and appellate instance rejected the counterclaim. The main argument was the lack of evidence that would confirm or refute the blood relationship. The Supreme Court recognized such conclusions as premature. There was no evidence in the case file that the letter from the expert institution with the date and time of sample collection was sent to the parties. The court also did not clarify the reasons for the mother's failure to appear with the child.
The Court of Cassation drew attention to Article 107 of the Code of Civil Procedure of Ukraine. If the expert examination was ordered by the court, it is the court that provides the expert with the necessary materials and determines their list. The expert does not have the right to collect materials independently. From this, the Supreme Court made a specific procedural conclusion: the court must ensure the appearance of the parties to the expert institution. In the case under consideration, the court did not recognize the appearance of the mother and child as mandatory, did not explain the consequences of non-compliance with the decision, and did not facilitate the provision of biological samples.
The ruling did not establish the absence of paternity and did not satisfy the claim on the merits. The Supreme Court partially satisfied the cassation appeal, overturned the decision in part of the counterclaims and remanded the case for a new trial. This is an important limitation: the cassation opinion concerns the due process of proof, not the biological origin of a particular child.
The court's obligation to organize the appointed expert examination does not replace the party's initiative. The plaintiff must still file a proper motion, comply with the ruling, pay the specified costs, and notify of obstacles. The difference is that the party is responsible for its own procedural conduct, but cannot be held liable for a notification not sent by the court or for actions for which the law did not authorize it.
For other cases, the position provides a practical test. Before refusing due to the lack of a DNA report, the court must check who was supposed to appear, whether this person received a specific notification, whether he had a real opportunity to comply with the decision, and whether the consequences of repeated failure to appear were explained to him. If these actions are not taken, the entire result of the procedural failure cannot be shifted to the plaintiff.
When failure to appear becomes evasion of examination
Article 109 of the Code of Civil Procedure of Ukraine allows the court to recognize a fact for the clarification of which an examination is ordered, or to refuse to recognize it, if the participant evades providing materials or other participation without which the examination is impossible. The norm uses the word "may". Therefore, this is not an automatic sanction for each failure to appear, but a procedural consequence that requires established circumstances and motivated application.
First, the court must identify the behavior of a particular participant. The return of the decision by the expert without execution does not yet prove the intentional evasion of the mother, father or other person. Data on proper notification, date and place of selection, content of the expert institution's requirements and reasons for non-appearance are required. If the notification only reached the court, as in case No. 537/3041/24, the party may not have known at all when it was necessary to appear.
The court then assesses the real possibility of participation. The child's stay abroad does not eliminate the need for an examination, but it affects the way it is organized. It is necessary to find out in advance the place of residence, the procedure for notification, the possibility of arrival, the child's health and other circumstances that may explain the absence. The fact of a foreign address itself does not confirm either good faith or evasion.
Proof of delivery should allow establishing not only the fact of receipt of the correspondence, but also its content. A notification without the exact date, time, address of the institution and the requirement to arrive with the child does not confirm that the participant understood what action is expected of him. Similarly, general knowledge of the appointment of an examination does not equal notification of the specific collection of samples.
Only after a proper summons, explanation of the consequences and the absence of a good reason, repeated failure to appear may give grounds to discuss Article 109 of the CPC of Ukraine. Even then, the court must take into account who evades and what significance the examination has for this person. For example, the failure to appear of a plaintiff who asks to deny his paternity and the failure to appear of a defendant with a child create different procedural situations.
A party should not wait for the court to restore the entire route of communications itself. If the document or information is in an expert institution or with another participant, it is necessary to request the court to request evidence in a timely manner . In the motion, it is advisable to name the specific document, explain its meaning, and indicate why the party cannot obtain it on its own.
How to prepare and accompany a DNA examination
The request for an expert examination should resolve practical issues, and not just contain a request to “order DNA”. Article 103 of the CPC of Ukraine requires special knowledge to establish a circumstance that cannot be clarified without them, and the absence of a proper conclusion of the party or doubts about the conclusion already submitted. In a case of contesting paternity, the question to the expert usually concerns the presence or absence of blood relationship between a specific person and the child.
The application should propose an expert institution, formulate the questions, indicate the persons from whom samples are required, and inform the court of all known addresses and circumstances of their stay. If the child lives abroad, this fact should be stated immediately, and not after the first return of the decision. The court and the participants should determine in advance how to carry out the research, taking into account national and international procedures.
After the appointment of the expert examination, the party's work does not end. It is necessary to track the receipt of the decision by the institution, payment for the examination, expert requests, determination of the selection date and evidence of notification of all participants. If the expert asks the court to ensure appearance, it is advisable to file a separate motion for mandatory appearance, delivery of the notification and clarification of Article 109 of the Code of Civil Procedure of Ukraine. Each such action must remain in the case file.
Failure to pay the cost of the examination can also disrupt the investigation, but it should not be confused with failure to appear for sample collection. It is necessary to check who the court has ordered the costs to be paid by, whether this person has received an invoice, what payment deadline the institution has set, and whether there is proof of payment. This is a separate element of the procedural chronology.
A private test can explain to a person whether it is worth starting a dispute, but it does not always replace a judicial examination. The court checks the origin of the samples, compliance with the procedure, the authority of the expert and the possibility of the other party to ask questions or object to the conclusion. At the same time, Article 110 of the CPC of Ukraine does not give even a judicial conclusion a predetermined force. The court evaluates it together with other evidence and must motivate the rejection.
The deadlines for submitting evidence and motions should be monitored separately. If a party submits an important document late, the reasons must be explained and confirmed why it could not have been submitted earlier. The material on the consequences of missing the deadline for submitting evidence explains why a mere reference to the document's significance is not enough. This is particularly sensitive for a paternity dispute, as a re-examination may delay the proceedings and require the child's new participation.
What to do if the examination did not take place
After the expert institution notifies you that it is impossible to conduct an investigation, you need to find out the reason, and not agree with the formula "the parties did not appear." It is worth getting the institution's letter itself, checking to whom and when the summons were sent, whether the case materials contain confirmation of service, and whether the participant reported any obstacles. Without this information, it is impossible to distinguish an objective reason from deliberate failure to comply with the ruling.
If there is no evidence of notification, the party may request that the decision be re-sent, a new date be set, that attendance be made mandatory and the consequences of non-compliance be explained. If the participant is abroad, the request should propose a realistic procedure for organizing the study and provide known contact details. The court must take into account the international element, but the party must provide it with a factual basis for appropriate procedural actions.
If a duly notified participant fails to appear again without good reason, it is necessary to ask the court to assess this behavior under Article 109 of the Code of Civil Procedure of Ukraine. The petition must be based on the sequence of documents: the decision on the examination, the institution's appeal, the notification of the date, proof of delivery, explanations or their absence, the repeated summons. It is this chronology that shows that the research was disrupted by specific behavior, not by improper organization.
During the court hearing, it is advisable to request that objections and motions be recorded in the minutes and submitted in writing. Otherwise, during an appeal or cassation review, it will be more difficult to show that the party timely drew the court's attention to the lack of notification, requested a repeat examination, or demanded an assessment of the evasion.
If the court rejects the claim due to the lack of a conclusion, the complaint should indicate not only the high evidentiary value of the DNA test. A stronger argument will be a list of procedural actions that the court did not take: it did not hand over the participants a letter from the institution, did not establish the reason for the non-appearance, did not recognize the appearance as mandatory, did not explain the consequences and did not consider the possibility of a repeated examination. It was this defect that became the basis for the cancellation of the decisions in case No. 537/3041/24.
For the client, this means that supporting a dispute cannot be reduced to filing a lawsuit and a single motion. It is necessary to lead an evidentiary route to the result of the examination or to a properly established fact of evasion. A family law lawyer can check the basis for the record, formulate questions for the expert, record procedural violations, and prevent a technical return of the decision from turning into an unjustified rejection of the claim.
Visnovok
In a dispute over paternity, the absence of a DNA report has no predetermined explanation. It may be the result of improper notification, objective inability to appear, passivity of the party, or deliberate evasion. The court must establish a specific reason, and the participants must submit documents by which this reason can be verified.
The Supreme Court's ruling of April 8, 2026 does not shift the burden of proof from the plaintiff to the court. It prohibits refusal due to lack of expertise if the court has not completed its own part of the procedure. The application of the consequences of Article 109 of the CPC of Ukraine requires a proper summons, a real opportunity to participate, an explanation of the consequences, and an assessment of the reasons for non-appearance.
Therefore, a strong position in such a case does not consist only of the claim of biological origin. It contains the full procedural chronology: the appointment of the expert examination, the movement of the decision, the notification of the participants, the organization of the sampling and the reaction to each failure. It is this chronology that allows the court to either obtain a scientific conclusion or legally assess the evasion.
FAQ
Is it possible to win a paternity case without a DNA test?
This possibility depends on the totality of evidence and the procedural conduct of the parties. If another participant deliberately evades the appointed examination, the court may apply Article 109 of the Code of Civil Procedure of Ukraine. A single failure to appear without proof of proper notification does not provide an automatic response.
Is a home or private DNA test sufficient to exclude a paternity record?
Not always. The court checks who the samples were obtained from, how they were identified, who conducted the testing, and whether procedural requirements were followed. Therefore, a private result can be useful for an initial assessment, but a court-ordered molecular genetic examination is often required in a dispute.
What happens if the mother does not bring the child to an expert institution?
The court will first check the notification, the reasons for the failure to appear, and the possibility of enforcing the ruling. After a proper summons and explanation of the consequences, repeated unjustified failure to appear may be assessed as evasion under Article 109 of the Code of Civil Procedure of Ukraine.
Can paternity be contested after the child reaches adulthood?
According to Part 3 of Article 136 of the Civil Code of Ukraine, a person registered as a father may contest paternity only until the child reaches the age of majority. The fact that the statute of limitations does not apply to such a claim does not cancel this separate limit.
What did the Supreme Court ruling in case No. 537/3041/24 change?
The Supreme Court did not decide the paternity issue on the merits. It overturned previous decisions regarding the counterclaim and sent the case for a new trial because the courts failed to ensure proper organization of the expert examination and prematurely blamed the lack of its conclusion on the plaintiff.