One-Year Statute Of Limitations For Filing A Paternity Disputal Case, Running From The Date Of Discovery – Does It Begin Only Upon Suspicion?
Supreme Court of Appeals of the Republic of Turkey
8th Civil Chamber
Case No.: 2017/16734
Decision No.: 2018/252
Date of Decision: January 11, 2018
PATERNITY DISMISSAL CASE – ONE-YEAR STATUTE OF LIMITATIONS TO BEGIN FROM THE DATE OF DISCOVERY – DOUBT NOT SUFFICIENT FOR PURPOSES OF DISCOVERY – THE CASE MUST BE DEEMED TO HAVE BEEN FILED WITHIN THE TIME LIMIT – THE JUDGMENT IS OVERTURNED
SUMMARY: The case concerns a request for denial of parentage. Considering that the plaintiff requested the determination of whether the child was his and the establishment of paternity, but no investigation had been conducted in this regard previously; no DNA test or similar investigation was conducted to dispel the plaintiff’s suspicion that the child was not his, and the suspicion did not progress to a level of scientific certainty, i.e., it remained a suspicion; it is understood that the “discovery” event, which constitutes the beginning of the period in the relevant article regulating the statute of limitations for paternity denial cases, has not occurred; therefore, the court’s dismissal of the case due to the expiration of the statute of limitations is not appropriate.
(4721 S. K. m. 285, 286, 289) (6100 S. K. Geç. m. 3) (1086 S. K. m. 428, 440) (ANY. MAH. 25.06.2009 T. 2008/30 E. 2009/96 K.)
Case: At the end of the trial in the case between the parties described above, the Court decided to dismiss the case. Upon appeal of the judgment by the plaintiff, the Chamber reviewed the file and considered the matter.
Decision: In the petition, it was claimed that the defendant … and the common child … were not the child of the plaintiff … and it was requested that the blood relationship between them be denied. The court dismissed the case on the grounds that the one-year limitation period for denying the blood relationship had expired.
The case concerns the denial of parentage initiated by the father against the child and mother, as regulated in Articles 286 et seq. of the Turkish Civil Code No. 4721.
In a broad sense, parentage refers to the blood relationship between a person and their ancestors; in a narrow sense, parentage refers only to the biological relationship between a person and their parents. The bond between a person (child) and those from whom they are biologically (genetically) descended is called natural filiation (biological descent), while the legal relationship established between parents and a child as a result of the child being legally linked to a mother and father upon the fulfillment of certain conditions required by the legal system is called legal filiation (legal descent). Accordingly, lineage is defined as the natural and/or legal bond between a person and their parents.
According to Turkish Civil Code No. 4721, the legal lineage between a child and their mother is established by birth; the legal lineage between a child and their father is established by marriage to the mother, acknowledgment, a ruling in a paternity suit, or adoption. The legal parentage relationship established between the father and the child based on birth within marriage and the presumption of paternity (TMK Article 285) can only be terminated by the denial of parentage. If the action for denial of parentage is successful and the parentage between the child and the father is terminated, the child enters the status of a child without parentage on the father’s side. As stated in the Constitutional Court’s decision dated June 25, 2009, No. 2008/30 E. and 2009/96 K., the right to disclaim a child who is not genetically or biologically related to the person is one of their most fundamental rights.
Article 286 of the Turkish Civil Code No. 4721 states that the husband can refute the presumption of paternity by filing a lawsuit to deny the blood relationship against the child and the mother; Article 289 stipulates that the husband must file a paternity denial lawsuit within one year from the date he learned of the birth and that he is not the father or that the mother had sexual relations with another man while she was pregnant; if there are reasons justifying the delay, the one-year period shall commence after the disappearance of such reasons.
In paternity denial cases, it is necessary to focus on whether the “discovery” that is decisive in determining whether the case was filed within the statute of limitations and in substantiating the case occurred at a time when the doubt was sufficient in terms of discovery. In established Court of Cassation practice, paternity reports obtained outside of litigation are particularly taken into account in terms of the limitation period for filing a lawsuit starting from the date of learning, meaning that the limitation period is deemed to start when learning occurs through a paternity test outside of litigation. Therefore, suspicion that a child is not one’s own cannot be considered sufficient for the purposes of learning.
In the specific case, the plaintiff father … and the defendant mother İlknur married on 06.06.2003 and divorced on 11.05.2012, … was born on July 5, 2005. Shortly before the divorce decision was made, the defendant stated during an argument that the child was not hers but someone else’s. When the divorce case was filed, she repeated this, and the plaintiff requested that it be determined whether the child was his and that paternity be established. However, there was no previous indication in this direction.
In the present case, the plaintiff father … and the defendant mother İlknur married on June 6, 2003, and divorced on May 11, 2012. was born on July 5, 2005. Shortly before the divorce decision was made, the defendant stated during an argument that the child was not hers but someone else’s. She repeated this when the divorce case was filed, prompting the plaintiff to request that the child’s paternity be determined and the lineage be established. However, considering that no such investigation had been conducted previously; no DNA test or similar examination was conducted to dispel the plaintiff’s suspicion that the child was not his, and the suspicion did not progress to a point of scientific certainty, meaning it remained a suspicion. It was understood that the “discovery” event, which marks the beginning of the period stipulated in Article 289 regulating the statute of limitations for paternity denial cases, did not occur. Therefore, it was understood that the “discovery” event, which constitutes the beginning of the period specified in Article 289, had not occurred. The court accepted that the case was filed within the time limit, examined the merits of the case, collected the evidence of the parties in line with the claim, and ordered the necessary DNA examination to determine paternity. A decision should have been made based on the result of this examination. Therefore, dismissing the case due to the statute of limitations was not considered correct.
Result: The plaintiff’s attorney’s appeal is accepted, and the judgment is REVERSED for the reasons explained above, pursuant to Provisional Article 3 of HMK No. 6100 and Article 428 of HUMK No. 1086. Pursuant to Article 440/I of the Code of Civil Procedure, the parties may request a correction of the judgment within 15 days of the notification of the Court of Cassation Chamber’s decision. Upon request, the advance fee shall be refunded to the appellant. The decision was made unanimously on January 11, 2018.