Determination of the child’s place of residence in Ukraine

Are disputes about the place of residence of minor children subject to legal proceedings?

The court has the right to resolve a dispute only in relation to a young child.

In judicial practice, there are cases of resolving disputes about the place of residence of minor children.

This approach is wrong.

According to the given norms of Art. 160, 161 SK, the court has the right to resolve a dispute only in relation to a minor child, since the place of residence of a minor child is determined by him.

This position is set out in the decision of the Supreme Court on case No. 537/5119/15-ts dated 25.01.2018 (http://revestr.court.gov.Ua/Review/71826278U).

What is the evidentiary value of the conclusion of the guardianship and guardianship authority in family disputes?

According to Part 4, 5, 6 of Art. 19 IC of Ukraine, when the court considers disputes about the place of residence of the child, the participation of the guardianship and guardianship authority, represented by a proper legal entity, is mandatory.

The guardianship and trusteeship body submits to the court a written opinion on resolving the dispute based on information obtained as a result of examining the living conditions of the child, parents, other persons wishing to live with the child, participate in his upbringing, as well as on the basis of other documents related to the case.

The court may disagree with the conclusion of the guardianship and guardianship authority if it is not sufficiently substantiated, contrary to the interests of the child.

In this case, the court in its decision must necessarily give the reasons for such disagreement.

Should the guardianship and guardianship authority be involved in resolving a dispute about the child’s place of residence?

To answer this question, you must refer to clause 72 of the Resolution of the Cabinet of Ministers of Ukraine dated September 24, 2008 No. 866 “Issues of the activities of the guardianship and guardianship authorities related to the protection of the rights of the child” as amended by the Resolution of the Cabinet of Ministers No. 800 dated 03.10.2018 (https://zakon.rada.gov.ua/laws/show/866-2008-%D0%BFy).

According to this clause, in order to resolve the dispute between the parents over the determination of the child’s place of residence, one of the parents submits an application, a copy of the passport, a certificate from the place of registration (residence), a copy of the certificate of marriage or divorce (if availability), a copy of the child’s birth certificate, a certificate from the place of study, child’s upbringing, a certificate of alimony payment (if any).

An employee of the child affairs service at the place of residence (location) of the child conducts a conversation with the parents and visits the child at the place of residence, about which he draws up an act of examination of living conditions in the form according to Appendix 9, and also applies to a social institution and / or a social work specialist for ensuring that a family needs assessment is carried out in order to establish the ability of the mother, father to fulfill the responsibilities of raising and caring for the child.

If the parents of the child live within different administrative-territorial units, the parent who submitted an application for determining the place of residence of the child with him applies to the child affairs service at the place of residence (stay) to conduct a survey of his living conditions and drawing up an act of inspection of living conditions. The specified act is transferred by the applicant to the child affairs service at the place of residence (location) of the child, the employee of which conducts a conversation with him.

After examining the living conditions, conducting an interview with the parents and the child, the child affairs service draws up a conclusion on the determination of the child’s place of residence and submits it to the guardianship and trusteeship authorities for making an appropriate decision.

A systematic analysis of the above norms gives grounds for such conclusions.

What are the grounds for drawing up an opinion?

The conclusion of the guardianship and trusteeship body consists of an examination of the living conditions, interviews with parents and a child and verification of the collected documents.

Does the guardianship and guardianship authority give an opinion?

The key when deciding on the determination of the guardianship and trusteeship body is not the place of residence of the plaintiff and the defendant, but the place of residence of the child. In this case, the guardianship and guardianship authority is provided with the opportunity to visit the child at his place of residence.

How is the parent who lives in another administrative-territorial unit attracted?

The participation of such a father (mother) is necessary for examining his living conditions, conducting an interview.

The fulfillment of such a requirement depends on the initiative of such a father (mother).

To examine the living conditions, he is obliged to apply to the children’s affairs service at the place of residence to conduct a survey of his living conditions and draw up a survey report, and then send it to the guardianship and guardianship authorities at the place of residence of the child, who will conduct a conversation with the father (mother).

Predictably, a situation may arise in which the father (mother) avoids participating in drawing up the conclusion.

In this case, his actions should be assessed from the point of view of the norms of the Code of Civil Procedure as improper performance of procedural duties.

Should principle 6 of the Declaration of the Rights of the Child be applied (a young child should not, except in exceptional circumstances, be divorced from his mother) in disputes over the determination of the child’s place of residence?

The Declaration of the Rights of the Child is not an international treaty, the consent to be bound by which is provided by the Verkhovna Rada of Ukraine.

According to the first part of Article 2 of the Law of Ukraine dated. June 29, 2004 “On International Treaties of Ukraine” (hereinafter – Law No. 1906) an international treaty of Ukraine – concluded in writing with a foreign state or other subject of international law, which is governed by international law, regardless of whether the treaty is contained in one or more related themselves documents, and regardless of its specific name (treaty, agreement, convention, pact, protocol, etc.).

Article 2 of the Vienna Convention on the Law of Treaties of May 23, 1969 determines that for the purposes of this Convention, “treaty” means an international agreement concluded between states in writing and governed by international law, regardless of whether such agreement is contained in one document, two or more related documents, as well as regardless of its specific name; “Ratification”, “acceptance”, “approval” and “accession” mean, as the case may be, an international act with such a name and by means of which a State expresses internationally its consent to be bound by a treaty.

The Declaration of the Rights of the Child of November 20, 1959 is not an international treaty in the meaning of the Vienna Convention on the Law of International Treaties of May 23, 1969 and Law No. 1906, and also does not contain provisions regarding entry into force. In this regard, the Declaration of the Rights of the Child does not require the Verkhovna Rada of Ukraine to consent to its binding and is not part of the national legislation of Ukraine.

The Declaration of the Rights of the Child has not been ratified by Ukraine and has no official translation into Ukrainian.

Thus, the Declaration of the Rights of the Child is not an international treaty, consent to be bound by which is provided by the Verkhovna Rada of Ukraine, the resolution of the Supreme Court of the Supreme Court case No. 402/428/16-c of 10/17/2018 (http://www.reyestr.court.gov.ua/Review/76350762).

How is the principle of “ensuring the best interests of the child” implemented in cases of determining the place of residence of a child?

In determining the place of residence of a child, priority is given to the best interests of the child in accordance with the requirements of article 3 of the Convention on the Rights of the Child of 20 November 1989.

Article 141 of the SK of Ukraine establishes that a mother and a father have equal rights and obligations regarding the child, regardless of whether they were married to each other.

Dissolution of marriage between the parents, their living separately from the child does not affect the scope of their rights and does not relieve them of their obligations in relation to the child, except for the case provided for by part five of Article 157 of this Code.

According to parts one and two of Article 161 of the IC of Ukraine, if the mother and father, who live separately, do not come to an agreement as to which of them the young child will live with, the dispute between them may be resolved by the guardianship and guardianship authority.

When resolving a dispute about the place of residence of a minor child, the attitude of parents to fulfilling their parental duties, the child’s personal attachment to each of them, the child’s age, state of health and other circumstances of significant importance are taken into account.

The guardianship and trusteeship authority or the court cannot transfer a child to live with a parent who does not have an independent income, abuse alcohol or drugs, and their immoral behavior can harm the development of the child.

The first part of Article 3 of the Convention stipulates that the best interests of the child are given priority in all action against children, whether taken by public or private social welfare institutions, courts, administrative bodies or legislatures.

At the same time, the provisions of this Convention, ratified by the Verkhovna Rada of Ukraine on February 27, 1991, are consistent with the norms of the Constitution of Ukraine and the laws of Ukraine, therefore, as the panel of judges of the First Judicial Chamber of the Civil Court of Cassation within the Supreme Court believed, it is its norms that all courts of Ukraine must take into account, considering cases that relate to children’s rights.

In accordance with parts one and two of Article 171 of the IC of Ukraine, a child has the right to be heard by parents, other family members, officials on issues that concern him personally, as well as family issues. A child who can express his opinion should be heard when resolving a dispute between parents regarding his place of residence.

Thus, upon reaching the age of 10, a child has the right not only to be listened to and heard, but also the right to take an active part in deciding his fate, in particular, in determining his place of residence. Only if the will of the three participants in the negotiation process – mother, father, child – coincide, can peace and harmony be achieved.

Similar provisions are enshrined in article 12 of the Convention on the Rights of the Child, according to which States parties ensure that a child capable of formulating his or her own views has the right to freely express those views in all matters concerning the child, and the views of the child are given due weight in accordance with age and maturity.

In accordance with article 6 of the European Convention on the Exercise of Children’s Rights of 25 January 1996, during a case involving a child, before a decision is taken, the judicial authority gives the child the opportunity to express his opinion and gives him due attention.

To this end, the child, in particular, is given the opportunity to be heard in any judicial or administrative proceedings affecting the interests of the child, directly or through a representative or an appropriate authority in the manner prescribed by the procedural rules of national law.

The consolidation of this right emphasizes that the child is a person whose opinion must be taken into account, especially when dealing with issues that directly concern him.

When making a decision on the case “M.S. v. Ukraine ”dated July 11, 2017 (application No. 2091/13), the ECHR pointed out that when determining the best interests of a child in a particular case, two considerations should be considered:

  • First, it is in the child’s best interests to maintain ties to the family, unless the family is proven unfit or dysfunctional;
  • Secondly, it is in the best interests of the child to ensure his development in a safe, calm and stable environment, which is not unreliable (paragraph 100 of the judgment of 16 July 2015 in the case “Mamchur v. Ukraine”, application no. 10383/09).

Thus, the provisions of the Convention on the Rights of the Child of November 20, 1989, ratified by the Verkhovna Rada of Ukraine on February 27, 1991, that in all actions against children, regardless of whether they are undertaken by public or private institutions dealing with social security issues, the courts , administrative or legislative bodies, priority is given to the best interests of the child (Article 3), are consistent with the norms of the Constitution of Ukraine and the laws of Ukraine, therefore, it is its norms that must be taken into account by all courts of Ukraine when considering cases that relate to children’s rights.

In connection with the above, the Grand Chamber of the Supreme Court considers it necessary to deviate from the conclusions of the Supreme Court of Ukraine, expressed in the decisions of 12/14/2016 in case No. 6-2445tss16 and of 12.07.2017 in case No. 6-564tss17 on the application of law in such legal relations, namely Article 161 of the UK of Ukraine and principle 6 of the Declaration of the Rights of the Child, on the obligation to consider principle 6 of the Declaration of the Rights of the Child that a young child should not, except in cases of exceptional circumstances, be divorced from his mother.

The Grand Chamber of the Supreme Court considers that in determining the place of residence of a child, priority is given to the best interests of the child, in view of the requirements of the article of the Convention on the Rights of the Child of November 20, 1989.

Resolution of the Supreme Court of the Armed Forces case No. 402/428/16-c of 10/17/2018 (http://www.reyestr.court.gov.ua/Review/76350762).

When should the court take into account the child’s opinion when resolving family disputes?

According to international and national legal norms, the rights of the child include, in particular, the right to have his opinion taken into account on issues that affect his life. In particular, in accordance with the provisions of Art. 12 Part 1 of the UN Convention of November 20, 1989 “On the Rights of the Child” (ratified by Ukraine on February 27, 1991), the participating States ensure the child, who is able to formulate his own views, the right to freely express these views on all issues concerning the child, and the views of the child are given due attention according to age and maturity.

To this end, the child, in particular, is given the opportunity to be heard in any judicial or administrative proceedings affecting the interests of the child, directly or through a representative or an appropriate authority in the manner prescribed by the procedural rules of national law.

In accordance with article 6 of the European Convention on the Exercise of Children’s Rights of 25 January 1996, during the examination of a case involving a child, before a decision is taken, the judicial authority gives the child the opportunity to express his opinion and gives them due attention.

The domestic legislation also contains the corresponding provisions; in particular, according to the provisions of Art. 171 of the Family Code of Ukraine, the child’s opinion should be taken into account when deciding issues concerning his life.

The main question that arises with regard to the compliance of the courts with these requirements is at what age the child’s opinion should be taken into account.

It should be noted that the legislation, in particular the UK, does not contain a clear indication of the age from which the child’s opinion should be taken into account.

This issue is partially disclosed in Part 2 of Art. 160 SK, which provides that the place of residence of a child who has reached ten years of age is determined by the general consent of the parents and the child himself.

Thus, the law contains a mandatory indication that the court must take into account the opinion of a child who has reached the age of 10. Such circumstances are also noted by the Grand Chamber of the Armed Forces in case No. 402/428/16-c of 10/17/2018 (http://www.reyestr.court.gov.ua/Review/76350762).

However, this norm does not mean that the opinion of young children is not taken into account.

The main criterion for resolving this issue is “the child’s ability to express his opinion.”

The Human Rights SS notes that courts do not have to listen to a child’s testimony in court every time on the issue of parental visits. The decision on this issue depends on the specific circumstances of the case, taking into account the age and level of development of the child (SS decision “Sahin v. Germany”).

Similar criteria (age and developmental level) for hearing the child’s opinion are contained in Part 1 of Art. 218 IC for adoption.

Thus, in the case of determining the place of residence of a child under 10 years of age, when deciding on his interrogation, the court must proceed from the level of development of the child.

At the same time, it should be borne in mind that the legislation established not the conditions under which the child’s opinion should be taken into account, but those under which the child’s consent is not required: the appropriate age, state of development and health.

According to Part 3 of Art. 171 SK, the court has the right to make a decision contrary to the opinion of the child, if his interests require it (with the exception of cases of adoption). However, this does not absolve the court from the need to ascertain the child’s opinion.

In what cases is it advisable to appoint a psychological examination in cases of determining the child’s place of residence?

In case of reasonable doubts regarding the establishment of the authenticity of the child’s choice (ed. See the previous paragraph), the court must bring up the issue of the appointment of a psychological examination. Similar conclusions are contained in the EU human rights decision “Khusnutdinov v. Russia”.

When appointing an expert examination, the court should be guided by the Instruction on the appointment and conduct of forensic examinations and expert research and Scientific and methodological recommendations on the preparation and appointment of forensic examinations and expert research, approved by order of the Ministry of Justice of Ukraine dated 08.10.1998 No. 53/5 (https://zakon.rada.gov.ua/laws/show/z0705-98).

Clause 6.6 of the Instructions contains an indicative list of questions:

  1. How does the family situation, the individual psychological characteristics of the parents (indicate, if necessary, one or both of them), the peculiarities of their upbringing behavior affect the emotional state, mental development and feeling of well-being of the child?
  2. How can the conditions of upbringing of each parent affect the psychological state and development of the child?
  3. Does the child’s assessment of the family situation depend on the influence of parents and other adults?

At the same time, expert institutions offer to answer the following questions:

  1. Is a minor, taking into account his age characteristics, emotional state, individual psychological properties, the level of mental development and conditions of the microsocial environment, capable of assessing the attitude of each parent to him, to show commitment to one of the parents?
  2. Is it expedient in the interests of the child to reduce contacts with the father (or change the child’s place of residence), taking into account his age, emotional state, individual psychological properties, level of mental development?
  3. What influence on the psychological state of the child can be exercised by his father / mother?
  4. With whom (father or mother) does the child want to live?
  5. What individual psychological properties are characterized by the personality of the father / mother of the child?
  6. What psychological influence does the father / mother’s behavior have (can detect) on the mental state and development of the minor?
  7. Does the father / mother have the psychological and pedagogical qualities necessary for the upbringing of the child, taking into account the individual psychological properties, intellect, the properties of the emotional-volitional sphere, the orientation of the personality?
  8. Will the change in living conditions, upbringing and environment of a young child affect his psychological state in the event of the transfer of the child from mother to father, taking into account the fact that the latter has a common-law wife, another young child (as example, it is possible without conditions)?
  9. Has the child’s consciousness been formed that he lives in a full-fledged family with his own mother and father?
  10. What are the consequences of the appearance in the child’s life environment as the biological (native) father of the child?
  11. How does the family situation, the individual psychological characteristics of the parents (indicate, if necessary, one or both of them), the peculiarities of their upbringing behavior affect the emotional state, mental development and feeling of well-being of the child?
  12. How can the conditions of upbringing of each of the parents affect the psychological state and development of the child?
  13. Does the child’s assessment of the family situation depend on the influence of parents and other adults?

List of documents for examination, depending on the questions for examination:

  • medical documentation;
  • private bussiness;
  • school characteristics and characteristics from the place of work;
  • testimony of students, teachers, colleagues, friends, acquaintances, relatives and other people with whom the test person communicated closely.

The testimony of relatives and friends should reflect the characteristics of his development and behavior, living conditions, environment, inherent inclinations, hobbies, interests.

If available, diaries, letters, samples of creativity of the expert are also provided.

Useful site materials divorce.com.ua:

  1. Divorce from children in Ukraine
  2. Divorce with a child under one year old in Ukraine
  3. Equality of rights and obligations of parents in relation to a child in Ukraine
  4. Temporary departure of a child abroad in Ukraine
  5. Determination of the child’s place of residence in Ukraine
  6. Deprivation of parental rights in Ukraine
  7. Adoption of a child in Ukraine
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