A Child Who Isn’t Biologically Yours: Can Child Support Be Reclaimed, and What Happens When the Other Side Refuses a Paternity Test

The short answer

• If a child is not your biological child, you — as the father or the mother — may sue to deny the parent-child relationship; but an adult child may only sue to confirm it, and other relatives have no right to bring the action on someone else’s behalf (the Civil Code of the PRC, Article 1073; Supreme People’s Court Case Database, database entry no. 2025-07-2-476-001).
• Whether you win depends first not on whether the other side cooperates with a test, but on whether you have “necessary evidence”: only after you have first provided necessary evidence, and the other side has no contrary evidence yet refuses a paternity test, may the court find your claim established (Article 39(1) of the Interpretation (I) of the Supreme People’s Court on the Application of the Marriage and Family Chapter of the Civil Code).
• A court will not force anyone — including the child — to take a paternity test; a report based on privately taken samples and a unilaterally commissioned test is very likely not to be accepted if the other side does not accept it and no other evidence corroborates it (database entry no. 2023-14-2-021-001).
• Once parentage is excluded, the child support you have paid may be claimed back, and compensation for emotional (moral) damage may be claimed separately. In the database case, the court ordered the return of RMB 30,000 in child support and RMB 20,000 in compensation for emotional damage (database entry no. 2023-07-2-016-001).
• There is no fixed formula of “so much per year” for how much is returned; courts generally decide by reference to the local level of living and consumption expenditure (my own summary). Evidence proving what you actually spent is therefore more useful than arguing the point after the event.

Who may sue: only the father or the mother

The text of Article 1073 of the Civil Code of the PRC (excerpt): “Where there are objections to a parent-child relationship and legitimate reasons, the father or the mother may bring a lawsuit before a people’s court, requesting confirmation or denial of the parent-child relationship.” The second paragraph of the same article opens the door of “confirmation” only to an adult child; it does not open the door of “denial.”

My own summary: the class of plaintiffs is confined very tightly. In practice, other relatives — grandparents, or other parties in a succession case — who want to use a paternity test to exclude someone will not be supported by a court. The court’s reasoning in database entry no. 2025-07-2-476-001 says it plainly: the only persons who may request a finding that a parent-child relationship does not exist are the father or the mother; where a person other than the parents makes a request for a paternity test, that person is not a proper party (original text, excerpt).

The first threshold: what counts as “necessary evidence”

The text of Article 39(1) of the Interpretation (I) of the Supreme People’s Court on the Application of the Marriage and Family Chapter of the Civil Code: “Where the father or the mother sues before a people’s court requesting denial of a parent-child relationship and has already provided necessary evidence to prove it, and the other party has no contrary evidence and refuses to take a paternity test, the people’s court may find that the claim of the party denying the parent-child relationship is established.”

Note the sequence: first “necessary evidence,” then “the other side has no contrary evidence and refuses to take a paternity test,” and only last “may find.” It is not a rule that you win automatically because the other side will not cooperate. Database entry no. 2023-14-2-021-001 fell into precisely this trap: the plaintiff submitted a forensic appraisal opinion obtained from someone he engaged himself, and the other side neither accepted that appraisal nor agreed to be tested; the court held that the authenticity of the appraisal opinion could not be confirmed and that no other evidence corroborated it, so the plaintiff had not met the presumption’s precondition of having “provided necessary evidence,” and the claim was ultimately dismissed.

The key points of the ruling in that case (original text, excerpt): a child conceived during the subsistence of a marriage is presumed to be the husband’s child, which is a basic principle in determining parent-child relationships; although the father or the mother has the right to bring an action to deny, there must be legitimate reasons; where a unilateral paternity test report whose authenticity cannot be proven is used to request denial of the parent-child relationship between the child and the other party, and the other party does not accept that evidence and refuses to take a paternity test, Article 39(1) cannot be applied.

My own summary: “necessary evidence” that a court will accept must be able to show that you genuinely had a reasonable doubt and that its source can withstand cross-examination — the facts of long-term separation, medical materials from childbirth or health checks, chat records in which the other side admits it, and an appraisal opinion obtained through proper procedure. A report based on privately taken samples has very weak probative force once the other side denies it.

If the other side or the child refuses a test, will the court compel one?

No. Article 39(1) is a rule of “presumption,” not a rule of compulsory testing. A paternity test requires the collection of human biological samples and involves personal rights, so a court cannot compel anyone to cooperate, including the child.

Where a minor child is involved, courts are more cautious. The court’s reasoning in the case above states that the confirmation and denial of parent-child relationships involve the creation and extinction of a series of the child’s rights and obligations, bear on the stability of the parent-child status relationship and of the family, and have a major impact on the healthy growth of a minor. My own summary: precisely for that reason, situations do occur in which one side agrees but the child, old enough to understand, does not, so that the test cannot go ahead; courts also often take a conservative attitude toward claims of denial, and outcomes differ greatly from case to case.

How much child support can be recovered: a judgment already in the database

Database entry no. 2023-07-2-016-001 (Liu v. Wang, a post-divorce damages dispute): after the two retroactively registered their marriage, they were divorced by court mediation in 2018, agreeing that both children would live with the husband and that he would bear their support himself, and the husband also paid the wife RMB 100,000 as a property equalisation payment. After the divorce the two lived together again for a time; the husband worked away from home and transferred money to the wife for household expenses and the children’s upbringing. In May 2021 a paternity test excluded the husband as the daughter’s biological father, and the husband sued, demanding that the wife pay RMB 48,000 in child support for the non-biological child plus fault-based compensation and compensation for emotional damage of RMB 100,000.

The first-instance judgment ordered the wife to return RMB 30,000 in child support and to pay RMB 20,000 in compensation for emotional damage, and dismissed the other claims; the second instance upheld the judgment. The key points of the ruling in that case (original text): “Where one party, after divorce, discovers that a child born during the marriage is not biologically his or her own, he or she has the right to request the other party to return the child support spent on raising a child who is not biologically his or her own, and to request the other party to pay him or her compensation for emotional damage.”

The basis listed in that case’s related index is Articles 3, 1043, 1085 and 1091 of the Civil Code of the PRC; the words of the court’s reasoning (excerpt): “Liu has no blood relationship with Liu B, and has no statutory duty to support Liu B, and therefore the child support that Liu paid for Liu B should be returned to Liu by Wang.” My own summary: the point of the order to return is that “support was paid although there was no statutory duty to support, and it should be returned”; there is no fixed standard for the amount, and the receipts directly determine how much can be recovered.

Two legal bases for compensation for emotional damage

Route one: divorce damages. The text of Article 1091 of the Civil Code of the PRC: “Where any of the following circumstances leads to divorce, the no-fault party has the right to claim damages: (1) bigamy; (2) cohabiting with another person; (3) committing domestic violence; (4) maltreating or abandoning family members; (5) other major faults.” Having a child with another person during the marriage is in practice mostly placed under item (5), “other major faults” — that sentence is my own summary, and rulings still differ from place to place.

Procedurally there are two more hurdles: Article 86 of the Interpretation (I) provides that “damages” under Article 1091 include both material damage and emotional damage; Article 88 provides that the no-fault party, as plaintiff, must in principle raise the claim at the same time as the divorce proceedings; and where the fact that the child is not biologically one’s own is discovered only after the divorce, Article 89 allows a separate action for damages after the divorce registration has been completed, on the condition that no express waiver was made at the time of the divorce by agreement.

Route two: compensation for emotional damage in tort. The text of Article 1183(1) of the Civil Code of the PRC: “Where infringement of a natural person’s personal rights and interests causes serious mental damage, the infringed person has the right to claim compensation for emotional damage.” The amount is determined by the court by reference, cumulatively, to the degree of fault, the local economic level and the other party’s financial capacity.

Five things you can do after the discovery

• First, secure the evidence of expenditure: transfer records, WeChat red packets, tuition and medical receipts, and proof of everyday spending.
• Second, use a proper testing route: apply during the proceedings where possible, so that the court commissions a qualified testing institution; if you submit samples yourself, keep the complete chain of sampling and submission.
• Third, think the claims through at one go: on status, request denial of the parent-child relationship; on property, request return of the child support and compensation for emotional damage; where the non-biological fact is discovered only after the divorce, mind the timing of suit under Articles 88 and 89 of the Interpretation (I).
• Fourth, check standing: only you, as the father or the mother, can bring an action to deny parentage.
• Fifth, be prepared for uncertainty in the outcome: where a minor child is involved, the court places great weight on the stability of the status relationship and the child’s interests, and the proceedings may take a long time.

Limitations to note

• This article sets out the general rules under Chinese law; the concrete outcome depends on the evidence and on the approach of the court that hears the case.
• All three cases in the article come from content publicly included in the Supreme People’s Court Case Database; every passage marked “original text” quotes the “key points of the ruling” or “the court’s reasoning” as recorded there, and passages not so marked are my own summary. I have not verified one by one the similar individual cases circulating in short videos and online (for example accounts that “the child refused to take a test” or that “several departments worked on it jointly”), and they are not relied on as a basis for the conclusions in this article.
• The proposition that having a non-biological child with another person during the marriage falls within item (5) of Article 1091 as a major fault, and the strictness or leniency of local practice on testing and proof, still vary between regions; the practice of the court hearing the case governs.
• If you are facing a situation of this kind, it is worth going through the evidence list and the claims before you file. You are welcome to contact Wang Xin: phone 186-0113-9509, WeChat wang223040.

This is an English edition of Wang Xin’s original Chinese article, 孩子不是自己亲生的：抚养费能要回来吗？对方不肯做亲子鉴定怎么办. It explains the law of the People’s Republic of China in general terms and is not legal advice for any particular case; outcomes depend on the specific facts and on how local authorities apply the rules.