Temporary departure of a child abroad in Ukraine

What are the novelties of the legislation on the temporary departure of a child abroad?

The Law of Ukraine of July 3, 2018 No. 2475-eighth (https://zakon.rada.gov.ua/laws/show/2475-l9) amended the wording of part 5 of Article 157 of the IC on the temporary departure of a child abroad.

Analysis of the structure of the new edition of Part 5 of Art. 157 SK indicates that it consists of 5 paragraphs that regulate legal relations, conditionally can be divided into 3 groups:

  1. temporary departure of the child, accompanied by the parent with whom he lives, without the permission of the other parent for up to 1 month (paragraph 1);
  2. temporary departure of the child, accompanied by the parent with whom he lives, without the permission of the other parent who has an alimony debt (paragraph 2);
  3. temporary departure of the child, accompanied by a parent with whom the child does not live (paragraphs 3,4,5).

Type 1. Temporary departure of the child, accompanied by the parent with whom he lives, without the permission of the other parent for up to 1 month.

According to paragraph 1 of part 5 of Art. 157 SK, the conditions for the temporary departure of a child, accompanied by a parent with whom he lives, outside Ukraine are:

  • the place of residence of the child with such a parent is determined by a court decision or confirmed by the conclusion of the guardianship and guardianship authorities;
  • with regard to this parent, there is no enforcement procedure for the forced removal of obstacles in the child’s communication with the second parent;
  • the duration of the trip does not exceed 1 month;
  • the purpose of the trip is treatment, education, participation of the child in children’s competitions, festivals, scientific exhibitions, student olympiads and competitions, environmental, technical, artistic, tourist, research, sports events, health improvement and recreation of the child abroad, including as part of an organized groups of children.

The same rule stipulates that if the second parent properly fulfills parental responsibilities, then the parent who plans a trip abroad with a child and knows the address of the second parent has to notify the latter about the child’s upcoming trip, its purpose and duration by registered mail.

Type 2. Temporary departure of the child, accompanied by the parent with whom he lives, without the permission of the other parent who is in arrears in the payment of alimony.

In accordance with paragraph 2 of part 5 of Article 157 of the IC, the parent with whom the child’s place of residence is determined by a court decision or the conclusion of the guardianship and guardianship authorities, independently decides the issue of temporary travel outside Ukraine for up to one month or more for the purpose of treatment training, participation of a child in children’s competitions, festivals, scientific exhibitions, student olympiads and competitions, environmental, technical, artistic, tourist, research, sports events, health improvement and recreation of a child abroad, including as part of an organized group of children, in the case of:

  • if there is an arrears in the payment of alimony, the total amount of which exceeds the amount of the corresponding payments for four months, confirmed by a certificate of arrears in the payment of alimony;
  • there is a debt in the payment of alimony, confirmed by a certificate of the existence of a debt in the payment of alimony, the total amount of which exceeds the amount of the corresponding payments for three months, if the alimony is paid for the maintenance of a child with a disability, a child who suffers from severe perinatal lesions of the nervous system, severe congenital malformations , has rare orphan diseases, oncological, hematological diseases, cerebral palsy, severe mental disorders, type I diabetes mellitus (insulin-dependent), acute or chronic kidney disease IV degree, or for the maintenance of a child who has received severe injuries that require organ transplantation, palliative assistance, is confirmed by a document issued by the medical advisory commission of the medical and preventive institution in the manner and in the form established by the central executive body, which ensures the formation and implements of state policy in the healthcare sector.

Analysis of par. 2 h. 5 tbsp. 157 UK indicates that these elements should be present, and not interconnected. From this it follows that the purpose of the departure of a disabled child (sick child) should not necessarily be treatment.

You should also pay attention to the fact that the specified alimony debt is considered cumulative, that is, the alimony payer can partially repay them, in this case, the presence of debt, for example, for 6 months, will not be the basis for the application of such norms if the total amount of debt will not exceed the debt for 4 months.

The advantage of applying this norm in relation to the norm of paragraph 1 of part 5 of Art. 157 SK is the absence of limitation of the departure period to one month.

However, at the same time, the legislator does not provide clear criteria for determining the possible period of departure of the child in the event that there is a backlog of alimony, which is essential.

Based on the systemic interpretation of this rule, such a period should correspond to the purpose of departure.

In turn, deliberate violation of the period of a child’s stay outside Ukraine may result in administrative liability and a fine from UAH 1,700 to UAH 3,400.

In addition, this leads to the following restriction in the right to travel with a child abroad for a period of 1 year, unless it is possible to obtain the notarized consent of the second parent for such a trip.

At the same time, given the lack of certainty regarding the period of the child’s departure in judicial practice, it is predictable that problems will arise in proving the composition of such an offense.

Type 3. Temporary departure of the child, accompanied by a parent with whom the child does not live.

According to paragraphs 3, 4, 5 h. 5 Art. 157 SK, the parent who lives separately from the child does not shy away and properly fulfills parental responsibilities, does not have arrears in the payment of alimony, applies by registered mail with acknowledgment of receipt to the parent with whom the child lives for consent to leave a child outside Ukraine for the purpose of treatment, education, participation of the child in children’s competitions, festivals, scientific exhibitions, student olympiads and competitions, environmental, technical, artistic, tourist, research, sports events, health improvement and recreation of the child abroad, including as part of an organized group of children.

If those of the parents with whom the child lives are not provided with a notarized consent to leave the child abroad for the specified purpose, within ten days from the moment of notification of delivery of the registered letter, the parent who lives separately from the child and who has no debt for payment of alimony, has the right to apply to the court with an application for permission to leave the child abroad without the consent of the second parent.

In this case, the parent, with whom the child does not live, raises the question of going abroad with him.

He can exercise this right in case of proper performance of parental duties. The evasion of such a parent from the performance of parental responsibilities indicates the commission of actions against the interests of the child, and therefore, of course, does not give him the right to travel with the child abroad.

This situation, in contrast to the previous ones, does not require preliminary control of the parent with whom the child lives, and therefore there is normally no requirement regarding the previous determination of the child’s place of residence.

The fact that the child lives with the other parent is sufficient.

Regardless of the duration of the trip, such a parent must obtain a written notarized consent of the second parent for the child to travel abroad.

If the second of the parents with whom the child lives does not give his consent to the child’s temporary departure abroad with another parent within 10 days from the date of notification of the delivery of a registered letter with such a request, the legislator provides for the possibility of going to court to obtain permission for the child to travel abroad without the consent of the second parent.

In this case, according to the new rules of the Code of Civil Procedure, on the basis of a claim of a parent who lives separately from the child, the court must consider the issue of the child’s departure from Ukraine in the manner of a simplified action procedure.

It should be noted that in accordance with para. 3 hours 4 tbsp. 19 of the Code of Civil Procedure, the rules of simplified action proceedings apply only to the parent who lives separately from the child. In the event that the parent with whom the child lives with a lawsuit (for example, for leaving for a period exceeding 1 month), such a claim is subject to consideration according to the general rules of claim proceedings, since it is a family dispute.

In our opinion, such requirements for the consideration of the claim of the father, with whom the child lives and who does not have the right to unimpeded export of the child abroad, in general proceedings put him in unequal conditions in relation to the other parent with whom the child does not live, a similar claim of which will be be considered according to the rules of simplified production.

What is the procedure for confirming the place of residence of a child with a father when they are temporarily traveling abroad?

According to paragraph 1 of part 5 of Art. 157 SK one of the conditions for the temporary departure of the child, accompanied by the parent with whom he lives, outside Ukraine is confirmation of the place of residence of the child with such a father to the conclusion of the guardianship and guardianship authority.

Issues of confirming the child’s place of residence by the guardianship and guardianship authority are regulated by clause 72-1 of the Procedure for the implementation by the guardianship and guardianship authorities of activities related to the protection of the rights of the child, approved by the Cabinet of Ministers of Ukraine dated 24.09.2008 No. 866 (hereinafter – the Procedure) (https://zakon.rada.gov.ua/laws/show/866-2008-%D0%BF).

According to clause 72-1 of the Procedure for confirming the child’s place of residence when deciding the issue of his temporary departure outside Ukraine for the purpose specified in part five of Article 157 of the Family Code of Ukraine, the parent with whom the child lives, submits to the child affairs service at the place residence of the child the following documents:

  • application;
  • a copy of the applicant’s passport;
  • a copy of the child’s passport (if any);
  • a certificate of registration of the applicant’s place of residence (if there is no data on registration of the place of residence in the passport);
  • certificate of registration of the child’s place of residence;
  • a copy of the child’s birth certificate;
  • a copy of the court decision on divorce (if any);
  • confirmation of sending a registered letter in accordance with the requirements provided for by paragraph one of part five of Article 157 of the Family Code of Ukraine (if any);
  • a copy of the document issued by the medical advisory commission of the medical institution.

Based on the results of consideration of the submitted documents, after visiting the child’s place of residence, conducting a conversation with the parent who lives separately from the child (if possible), or a conversation with a child who has reached the age of 14, a conclusion on confirmation of the child’s place of residence is prepared and approved for his temporary departure outside Ukraine.

If such a decision is not appealed to the court within 10 days, it comes into legal force and is valid for 1 year.

Please note that in order to make such a decision, the guardianship and guardianship authority conducts a conversation with the parent who lives separately from the child (if possible), or with the child himself who has reached the age of 14.

That is, when deciding the issue regarding a young child, the guardianship and guardianship body actually performs its inherent function of resolving a dispute between parents about the child’s place of residence.

In the case of a minor child, the guardianship and trusteeship body only checks the will of such a child, which, in accordance with the norms of the Investigative Committee, independently decides questions of its residence.

In addition, clause 72-1 of the Procedure stipulates that if such a decision is appealed to a court within 10 days, it comes into force and is valid for 1 year.

When applying paragraph 1 of part 5 of Art. 157 Investigative Committee should pay attention to the fact that the powers of the guardianship and guardianship body include making a decision on the place of residence of the child (clause 72 of the Procedure) and the decision to confirm the child’s place of residence (clause 72-1 of the Procedure).

When differentiating them, one should proceed from the fact that the Procedure was supplemented with clause 72-1 in accordance with the Resolution of the Cabinet of Ministers of Ukraine No. 620 dated 08/22/2018, in fulfillment of the requirements of the Law, and therefore this rule is a special rule when applying Part 5 of Art. 157 SK.

From the above, it should be concluded that if the dispute about the place of residence of the child is resolved, it is not in order, but in accordance with the decision of the guardianship and trusteeship body (clause 72 of the Procedure), the parent with whom the child will live does not have the right to independent solution of the issue of temporary departure of the child in accordance with Part 5 of Art. 157 SK. In this case, additional confirmation of the child’s place of residence is required in accordance with clause 72-1 of the Procedure.

Does the court have the right to grant permission for the temporary departure of the child for a specified period?

Permission for temporary departure of a child in the absence of the consent of the other parent may be granted on the basis of a court decision for a certain period, with the determination of its beginning and end.

By the decision of the Grand Chamber of the Supreme Court of 04.07.2018 in case No. 712/10623/17 (http://www.reyestr.court.gov.ua//Review/74838799), the approach when considering this category of cases was changed.

The court’s decision states that the provision on the equality of rights and responsibilities of parents in raising a child cannot be interpreted to the detriment of the child’s interests, and the child’s temporary departure abroad (with the definition of a specific period) accompanied by a parent with whom his place of residence is determined and who provides to a child, the standard of living necessary for all-round development cannot implicitly testify to the deprivation of the possibility of the other parent of the child, provided by law, to participate in his upbringing and communication with him.

In this category of cases, a generalized and formal approach is unacceptable, since the very presence of one of the parents has the right to refuse consent to the temporary departure of the child abroad with the other parent is an essential tool of influence, especially in relations between former spouses, which may not be used in the interests of the child.

Each case requires a detailed study of the situation, taking into account various factors that may affect the interests of the child, including his opinion, if, in accordance with his age, he is able to formulate his own views.

Permission for temporary departure of a child in the absence of the consent of the other parent may be granted on the basis of a court decision for a certain period, with the determination of its beginning and end.

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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