[2] The defendant refuses a paternity test; the court has the right to make inferences according to law.
Compiled from: Laixi Court
Case review
In 2014, Zhang (male) and Han (female) registered their marriage, and in 2015, their first son, Zhang A, was born. In November 2016, Han became pregnant again, and in August of the following year, their second son, Han A, was born. In May 2019, the parties divorced by agreement, stipulating that Han A would be raised directly by Han. In September of the same year, Zhang sought to visit Han A, and Han stated in a WeChat voice message: “The child is not yours, why are you visiting? The child belongs to the Han family.” Zhang suspected that Han A was not his biological child and thus filed a lawsuit with the court, requesting a legal determination that Han A is not Zhang’s legitimate child and demanding that Han return the child support paid for Han A prior to their divorce.
The Laixi Court, after trial, ascertained that prior to October 2018, Zhang had been working in Huangdao District, Qingdao, taking irregular days off each month and returning to live in Laixi only on those days off. In November 2016, Zhang was off duty and returned home from the 9th to the 15th, and spent the rest of the time in Huangdao. Han, when undergoing prenatal screening on March 21, 2017, was determined to be 17 weeks and 4 days pregnant, meaning conception occurred around November 19.
It was further ascertained that five months after Han Moujia was born, Han Mou took Han Moujia to take a "hundred-day photo" with a male friend (Zhao Mou). Han Mou admitted that about five months after the divorce, she began dating Zhao Mou, and the two registered their marriage on November 4, 2019.
During the proceedings, Zhang Mou applied for a paternity test, but Han Mou refused.
Relevant Legal Provisions
Article 2 of the Interpretation (III) of the Supreme People’s Court on Several Issues Concerning the Application of the <Marriage Law of the People’s Republic of China>
If one spouse files a lawsuit with the People's Court requesting confirmation that a parent-child relationship does not exist and has provided necessary evidence to support the claim, while the other spouse has no contrary evidence and refuses to undergo a paternity test, the People's Court may presume that the claim of the spouse requesting confirmation of the non-existence of the parent-child relationship is established.
[1] Court Opinion
In this case, Han refused to undergo a paternity test. To determine whether a parent-child relationship exists between Zhang and Han A, the key is whether Zhang has provided the necessary evidence. Based on Han's prenatal screening results, it can be inferred that the date of conception confirmed in the report was around November 19, 2016. This date is medically referred to as the date of the pregnant woman's last menstrual period, and the actual time of conception should be on or after this date. According to the evidence provided by Zhang, he was working at the company around that date. Second, in traditional Chinese customs, a child's “100-day celebration” is of great significance. Han did not take photos of Han A's “100-day celebration” with her husband Zhang, but instead took them with Zhao, whom she claimed to be an ordinary friend. This contradicts traditional customs and practices, and the intimate behavior between the two in the photos is inconsistent with the identity of ordinary friends.
In summary, the court held that the evidence provided by Zhang had reached the necessary threshold. Since Han neither provided contrary evidence nor refused to undergo a paternity test, the court presumed in accordance with the law that Zhang and Han Moujia did not have a parent-child relationship. Because Han violated the duty of marital fidelity, the court supported Zhang's claim for reimbursement of expenses incurred in raising Han Moujia. As for the amount of child support, the court determined it to be 12,000 yuan at its discretion in accordance with the law.
[2] After the judgment, Han appealed, but still refused to undergo a paternity test during the second instance and withdrew the appeal after the court hearing.
[1] The author's perspective
In the determination of parent-child relationships, the legal principle of "mater semper certa est" (the mother is always certain) applies across jurisdictions worldwide. A disputed parent-child relationship generally refers to the relationship between a child and their biological father. The most accurate method for determining whether a man is a child's biological father is a parentage test. However, if one party refuses to undergo a parentage test and the court directly dismisses the claim on the grounds of insufficient evidence, this would be manifestly unfair and detrimental to the preservation of public order and good morals as well as social stability. Therefore, in such circumstances, the determination of a parent-child relationship does not require "evidence sufficient to confirm or rebut the facts"; it is sufficient for the claiming party to provide necessary evidence that reaches the threshold of persuading the adjudicator of the possibility that a certain fact exists. Where the other party fails to provide contrary evidence to rebut the claim, the court should uphold the claim to confirm or deny the parent-child relationship.
Of course, does meeting the evidentiary standard stipulated in the second provision above necessarily require a presumption of the existence or non-existence of a parent-child relationship? Clearly not. The second provision states that the people's court “may” make a presumption, not that it must. When making a presumptive conclusion, the court should fully consider the impact of the judgment on the parties’ marital relationship, family relations, and the child’s psychology and upbringing. At the same time, for children aged 8 or above, their wishes should be sought and fully respected, and the law should not be mechanically applied to make a presumption.
As the saying goes, "It takes a hundred years of cultivated karma to share a boat crossing, and a thousand years to share a pillow." Spouses should cherish this hard-won destiny, remain faithful and respectful to each other, so as to live in harmony and build a happy family together.
