What is a paternity claim? A paternity claim is a lawsuit filed to obtain a judgment declaring that a particular man is the father of a particular child.
If the claim is accepted, and a judgment is handed down determining that the man is the child’s father, then all the rights and obligations of a father toward his child apply to him, above all while the child is a minor, for example:
- The father will be required to pay child support.
- The father will be entitled to parenting time (visitation) with the minor.
- The father will be entitled to take part in significant decisions concerning the minor, such as his upbringing, place of residence, travel abroad, and more.
In addition, the child will be entitled to inherit from his father under the provisions of the Inheritance Law.
Who can file a paternity claim?
A paternity claim can be filed by the child’s parents or by the child himself, as follows:
- Either parent can file the claim when there is no agreement between them on the matter. For example, a claim filed by the mother when the father denies paternity of the child, or a claim filed by the father when the mother claims that the child’s father is not him but another man.
- Both parents can file the claim together, by agreement, for example when they are not formally married to each other and the father did not register with the Ministry of the Interior as the child’s father during the child’s first year of life.
- The child himself can file the claim: while a minor, through a guardian appointed by the court, and as an adult, on his own and independently.
How is a paternity claim filed?
As a general rule, the paternity claim is filed with the family court in whose district the child lives, or where the parents’ last common place of residence, if any, is located.
For Jews, the Rabbinical Court has no authority to hear paternity claims.
For Muslims, the Sharia court also has authority to hear paternity claims, but only where the recognition of paternity is sought within the Muslim community alone. Where the plaintiff wants the recognition to bind state institutions as well, for example for National Insurance purposes or for filing a child support claim, he must file the claim with the Family Court, which will rule in accordance with Muslim law.
Procedurally, an affidavit supporting the facts alleged in the statement of claim, signed by the plaintiff and verified by an attorney, must be attached to the statement of claim, and a fee must be paid.
After the defendant files a defense, a hearing date is set, and the hearing is held behind closed doors.
At the end of the proceeding, a judgment is handed down determining whether the man in question is the child’s father or not.
An appeal against the Family Court’s judgment may be filed with the District Court within 45 days of the date of the judgment.
How is a paternity claim decided?
Naturally, the most effective way to determine paternity is a court order directing genetic testing under the Genetic Information Law, 5761 – 2000, as explained further below.
However, where there is concern that the test results could lead to the child being declared a mamzer under Jewish law (for example, a child born to a married woman by a man who is not her husband, in which case he would be barred from marrying under the law and exposed to further halakhic restrictions), or where significant harm could be caused to the child under the law of another religion to which he belongs, the court will not order a genetic test. The fear of harming the child is also the reason genetic paternity testing cannot be done in Israel at a laboratory without a court order.
When it is not advisable or not possible to obtain a genetic testing order (for example, when the father is abroad and refuses to be tested), one can bring a civil paternity claim.
This is a claim whose result has no halakhic significance; it operates only toward the state’s civil institutions, such as the National Insurance Institute, or for the purpose of filing a claim for child support, a claim for visitation, and the like.
In such a claim, paternity is determined not by genetic testing but by documents and other evidence. For example, if the child was born abroad, documents can be submitted proving official recognition of paternity by the authorities of the country of birth, such as a birth certificate recording the father’s name, or a certificate showing that the father is registered as the child’s father in that country’s population registry, and so on.
Ordering a genetic test – paternity claim
As stated, where there is no concern that the test results could lead to the child being declared a mamzer under Jewish law, or cause him significant harm as a member of another religion, and to the extent that testing serves the child’s best interests in the specific case, the Family Court will tend to order a genetic test to determine paternity (a “genetic test for family ties”), under the provisions of the Genetic Information Law, 5761 – 2000.
How the genetic test is carried out – paternity claim
The genetic test is a simple, non-invasive DNA test performed at one of the laboratories authorized for this in Israel, usually on a blood sample, though sometimes on a saliva or hair sample provided by the persons tested.
To improve the accuracy of the test, the mother should be tested along with the father and the child.
If one of the persons to be tested is abroad, the sample can be taken there and sent to a laboratory in Israel under the procedures for samples from overseas.
Consent to the test – paternity claim
As a general rule, a genetic testing order will not be issued without the consent of the person to be tested.
The father or mother may therefore, on the face of it, refuse to undergo the test. But if the refusal rests on unreasonable grounds, it can work against the person refusing. For example, if the father objects to the test, the court can treat the refusal as decisive evidence that he is indeed the child’s father.
In addition, an order to test a minor, a person lacking legal capacity, or a person for whom a guardian has been appointed will be issued only with the consent of the person responsible for them. For a minor over the age of 16, the minor’s own consent is also required.
However, where the order concerns testing the paternity of a minor parent, that is, determining whether a minor is the father of the child, the court can order the test even without the consent of the person responsible for that minor, provided the minor himself has consented to it.
Genetic testing of a fetus – paternity claim
The court may also order a genetic test before the child is born, while the fetus is still in the womb, after it has weighed the need to carry out the test already during the pregnancy.
Such an order is conditional on the consent of the pregnant woman carrying the fetus, after the risks the test poses to her and to the fetus have been explained to her. Because of those risks, the woman is also entitled to refuse genetic testing of the fetus, without this being held against her as a breach of any legal obligation.
