- Persons who can be adoptive parents in Ukraine
- Family lawyer in Ukraine
- Who cannot be an adoptive parent in Ukraine
- Child adoption procedure in Ukraine
- Parents’ Consent to Adopt a Child in Ukraine
- Requirements for written parental consent in Ukraine
- Child’s consent to adoption in Ukraine
- Family Adoption Lawyer in Ukraine
- Frequently asked questions to a lawyer in Ukraine
Persons who can be adoptive parents in Ukraine
The adoptive parent of a child may be an adult capable person.
An adoptive parent may be a person older than the child whom he / she wishes to adopt, not less than fifteen years.
In the case of the adoption of an adult, the age difference cannot be less than eighteen years. Spouses, as well as persons specified in the UK can be adoptive parents.
Persons of the same sex cannot be adoptive parents. Individuals who are not married to each other cannot adopt the same child.
If such persons live in one family, the court may decide on their adoption of the child. If a child has only a mother, he cannot be adopted by a man with whom his mother is not married.
If the child has only a father, he cannot be adopted by a woman with whom he is not married.
If such persons live in one family, the court may decide on their adoption of the child. If the child has only a mother or only a father, who, in connection with the adoption, lose their legal connection with him, the adoptive parent of the child may be one man or one woman. The number of children that one adoptive parent can adopt is not limited.
The law provides for conditions concerning the identity of the adoptive parent and are binding, since the relationship between the adopted child and the adoptive parent must be normal.
The adoptive parent of a child can primarily be an adult, capable person, regardless of gender. In this case, the adoptive parent must be at least fifteen years older than the child he wishes to adopt.
Establishing a 15-year age difference between an adoptive parent and an adopted child should be mandatory not only in the case of adoption by unauthorized persons, but also by relatives.
Such a tough approach is probably due to the desire to equalize the family in which the adopted child will be brought up with the biological family.
But the peremptory norm on the age difference is not at all justified when it concerns the adoption of a child by a stepmother or stepfather, close relatives, provided that the child knows that the adoptive parent is not his own father (mother), etc.
Thus, the circle of persons who could be adoptive parents is artificially narrowed. It would be more expedient to enable the court, taking into account the interests of the child, to reduce the age difference.
In the case of the adoption of an adult, the age difference cannot be less than eighteen years.
Both single persons and those who are married (spouses) can be adoptive parents.
Adoption grants the adoptive parent the rights and imposes obligations on him with respect to the child whom he adopted, to the same extent as the parents.
Paying tribute to the importance of this provision, the legislator establishes clear requirements for persons who can be adoptive parents, since they must provide the child with proper family upbringing and comprehensive harmonious development.
Family lawyer in Ukraine
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Who cannot be an adoptive parent in Ukraine
The same child cannot be adopted by persons who are not married to each other. If such persons live in one family, the court may decide on their adoption of the child. Persons of the same sex cannot be adoptive parents.
If a child has only a mother, he cannot be adopted by a man with whom his mother is not married. In the case when a child has only a father, he cannot be adopted by a woman with whom he is not married.
If such persons live in one family, the court may decide on their adoption of the child.
If the child has only a mother or only a father, who, in connection with the adoption, lose their legal connection with him, the adoptive parent of the child can be one man or one woman.
If there are several persons wishing to adopt the same child, the spouses have the preferential right to adopt him.
In accordance with the Procedure for maintaining a databank on orphans and children deprived of parental care, approved by order of the Ministry of Ukraine for Youth and Sports dated July 29, 2005 No. 1466, registered with the Ministry of Justice of Ukraine on August 18, 2005 under No. 903/11183, a record of persons is kept who want to take their children into a family, that is, who want to adopt a child.
Child adoption procedure in Ukraine
According to this Procedure, citizens who want to take their children into a family, personally submit information about themselves to local, regional, central registrars for entering it into a data bank and an application for the adoption of a child, after which the specified information is transferred to the data bank about orphans. and children deprived of parental care, a higher level, where they are assigned a registration code.
Data on citizens wishing to adopt a child for upbringing into a family must contain the following information: last name, first name, patronymic, passport data, date of birth, place of residence (registration), certificates of marital status, family composition, citizenship, family relationship to the child, conclusions about the state of health, information on the availability of housing and property, the absence of a criminal record, information on the passage of training (training course on the problems of raising orphans and children deprived of parental care) (if any), other data on such citizens.
The registrar of the data bank on orphans and children deprived of parental care of the appropriate level is obliged to register data about a citizen who wants to take a child into a family within 10 days after the citizen has received a full package of registration documents.
In case of refusal to register in the data bank about orphans and children deprived of parental care, the citizen is sent a reasoned response in writing.
The validity of the submitted documents is one year from the date of their submission.
The procedure for maintaining a databank on orphans and children deprived of parental care has been developed and introduced in order to ensure the social and legal protection of orphans and children deprived of parental care, and the creation of a unified electronic information system of data on such children in Ukraine (United data bank).
The main purpose of creating and maintaining a databank on orphans and children deprived of parental care is to improve the social protection of such children, primarily with regard to the process of their removal and placement, the implementation of their right to healthy development and family education, increasing the efficiency of the executive authorities on issues of child protection, improvement of statistical records of orphans and children deprived of parental care, in the interests of the children themselves.
Parents’ Consent to Adopt a Child in Ukraine
- The adoption of a child is carried out with the free consent of his parents.
- Parents’ consent to the adoption of a child must be unconditional.
- An agreement on the provision by the adoptive parent of payment for consent to the adoption of a child to parents, guardians or other persons with whom he lives is void.
- The parents’ consent to adoption can be given by them only after the child reaches two months of age.
- If the child’s mother or father is minors, the consent of their parents is required in addition to their consent to adoption.
- The written consent of the parents for adoption is certified by a notary.
- The mother and father of the child have the right to revoke their consent to the adoption before the entry into force of the court decision on the adoption.
The issue of parental consent to the adoption of their child is quite difficult. Thus, the commented article lists the conditions under which such consent can be obtained.
At the same time, it is noted that adoption is carried out with the free consent of the parents of the child who is being adopted, in addition, it must be unconditional and can be given by them only after the child reaches two months of age.
How should the free consent of the parents to the adoption of their child be assessed? The law also does not regulate the issue of parental rights and obligations in relation to a child from the moment of giving consent to adoption until the entry into force of a court decision on adoption, since the consideration of such cases in courts can take a long time.
As a general rule, children who do not have parents are adopted. The fact that there are no parents for children to be adopted is certified by the Death Certificate of both parents or a court decision declaring them dead.
In circumstances where a child has one or even both parents, adoption is carried out with the free consent of his parents.
Consent to adoption is required from both parents, regardless of whether they live with the child or separately. The consent of both parents is also required when the parents themselves do not live together.
In this case, it does not matter whether the marriage they entered into is preserved or it is dissolved, or declared invalid. Along with the consent of the mother, the consent of the father is also required.
To adopt a child, a single mother only needs her consent.
If the child has parents, their consent to adoption is considered a prerequisite for considering the adoption of their child, and therefore this circumstance must be indicated in the application for the adoption of the child.
In general, the lack of parental consent is a flaw in the application, which must be eliminated according to the Code of Civil Procedure.
If there is no such consent in the case file, and the court accepted the application for its proceedings, then the parents should be summoned at the stage of preparing the case for trial to obtain such consent, if their participation in the trial is impossible due to the observance of the secrecy of adoption.
Since this issue is very important, the judge, in order to prepare the case for trial, in our opinion, can call the parents in order to make sure that the parents’ consent to adoption was given by them deliberately, compulsorily, without receiving any remuneration.
How should the court act if, during the consideration of the case, it is established that the case does not contain the consent of the child’s parents to his adoption, or it is not notarized?
In this case, if the parents are involved in the consideration of the case, such consent, in our opinion, can be expressed directly in court when considering the adoption case. The consent given by the father or mother in court must be recorded in the minutes and signed by them personally, as well as reflected in the court decision.
If the case is considered in a closed court session, then due to the lack of such consent, the court must postpone the consideration of the case.
When deciding this issue, it should be borne in mind that adoption can be made without the consent of the child’s parents in the cases provided for in Art. 219 CK.
Part 1 of Art. 217 SK in conjunction with Art. 121 of the UK, part 1 of Art. 135 SK should be understood as follows: the father’s consent to the adoption of a child born to an unmarried mother is not necessary if the entry about the child’s father in the Birth Registration Book is made by the mother’s surname, and the name and patronymic are recorded at her direction.
The court may decide on adoption without the consent of the guardian (curator), health care or educational institution, provided that their refusal to grant consent is not in the child’s interests.
The parents’ consent to the adoption of a child must be unconditional and can be provided by them only after the child reaches the age of two months.
In this part of the UK, there is a warning about the inadmissibility of paying for parental consent to the adoption of their child.
So, an agreement on the provision to an adoptive parent, the adoption of a child by parents, guardians or other persons with whom he lives, is void.
If the mother or father is minors, in addition to their consent, the consent of their parents is also required.
This is due to the fact that their opinion cannot be recognized as fully formed.
We believe that this requirement of the law is associated with the need for additional protection of the interests of underage parents who could commit an act, the consequences of which they may regret for their entire lives in the future.
Requirements for written parental consent in Ukraine
The written consent of the parents for adoption is certified by a notary.
The parents’ consent to the adoption of their child must be stated in writing, but the signatures on this consent (statement) must be certified by a notary.
In our opinion, not only the signatures of parents on applications for consent to the adoption of a child (part 5 of article 217 of the UK) can be certified by notaries, but the signatures of other relatives who have the preemptive right to adoption must also be notarized. This provision should be similar to Art. 220 SK.
Based on the priority of the parents’ rights and the analysis of the norms of the Code of Civil Procedure, each of them can, before the commencement of proceedings on the case (if the adoptive parent requires the secrecy of adoption) or before the adoption of a court decision (if the parents are involved in the consideration of the case), revoke their earlier consent to adoption, regardless of the motives prompting them to do so.
The commented part is only about the fact that parents can withdraw their consent before the entry into force of the court decision.
Based on the analysis of this provision of the UK, it seems that such a statement can be withdrawn only after a court decision is made, since while maintaining the secrecy of adoption, as a general rule, parents should not be informed about the consideration of the case.
After a court decision is made, as a rule, a court decision can be appealed to the appellate instance, otherwise it gains legal force.
We believe that this is exactly the procedure that should apply when adopting children, since a change in their attitude on the part of parents who did not take part in the trial will affect the court’s decision.
It turns out that the court’s decision should cease to operate without any procedural features of its revision?
If the child denies the possibility of changing the court decision, then, despite his attitude to the situation in question and the thoughts of the adoptive parents, should it cease to work?
This provision can be considered contrary to the civil procedural procedure for the consideration of cases by the courts.
Clause 8 of the Resolution of the Plenum of the Supreme Court of Ukraine “On the Practice of the Application of Legislation by Courts in Considering Cases of Adoption and Deprivation and Restoration of Parental Rights” dated March 30, 2007 No. , has parents, a prerequisite for his positive decision is their free and unconditional consent.
It should be borne in mind that before the court decision on adoption enters into legal force, each of the parents can withdraw their consent, regardless of the motives.
If, after the decision was made, but before it entered into legal force, the child’s parents withdrew their consent to his adoption, the court cancels this decision and resumes the consideration of the case.
If the application for adoption is withdrawn after it has been satisfied by the court, but before the decision comes into legal force, the court cancels this decision and leaves the application without consideration.
Child’s consent to adoption in Ukraine
For the adoption of a child, his consent is required if he has reached such an age and level of development when he can express it.
The child’s consent to adoption is given in a form appropriate for his age and state of health:
- The child must be informed about the legal consequences of adoption.
- Adoption is carried out without the consent of the child, if due to age or state of health he is not aware of the fact of adoption.
- The child’s consent to adoption is not required if he lives with the adoptive parents and considers them to be his parents.
For the adoption of a child, his consent is required if he has reached such an age and level of development that he can express it.
But in the same part of the IC there is an innovation that causes the need for its concretization, namely, in Art. 218 UK it is assumed that the child’s consent to adoption is given in a form appropriate for his age.
The absence of norms in the UK that would establish such a relationship may lead to the impossibility of applying this provision in practice.
It is impossible in this case to apply the provisions of the Civil Code, the Code of Civil Procedure, since the child’s age has always been associated with his legal capacity, and the latter, in turn, influenced the boundaries and the procedure for expressing will, but not the form of the application for adoption.
Therefore, the absence in the UK of the provisions that took place in Art. 104 MOSC and which concerned the age of the child – 10 years, with whom the obligation to obtain consent for adoption was associated, may negatively affect the judicial practice of considering cases of this category.
The significance of this provision is also due to the fact that such consent of the child can and should affect the adoption of not only one child, but also the possibility of adopting brothers and sisters.
If the child’s consent is considered as a criterion for the possibility of his adoption, then the possibility of persons who have reached a certain legal age to object to the adoption of their younger brothers or sisters by separating them should be recognized. At the same time, such persons without a clear definition of their status in the law cannot be considered subjects of legal relations, and therefore a notary will not be able to certify their expression of will. If you do not specify the provisions of the law, then the unambiguous and obligatory fulfillment of its conditions will become impossible.
In practice, however, the age after which consent should be mandatory, in our opinion, can be established in accordance with Art. 6 SK, that is, it is 14 years old. In particular, this provision will comply with the norms of the Civil Code.
In addition, the legal consequences of adoption (Article 232 of the UK) must be explained to the child (part 2 of Article 218 of the UK), but, in our opinion, such explanations will be difficult for a child under 14 years of age.
Article 218 of the UK does not talk about which body the child gives consent to his adoption: the court, when considering the case or the notary, in our opinion, should be drawn up by analogy with paragraph 5 of Art. 217 SK, as parental consent.
The application for the analogy of Art. 73 of the Code of Criminal Procedure, which provides for the possibility of providing case materials for familiarization to persons aged 11 to 14, suggests the possibility and necessity of lowering the age limit for a child who agrees to adoption. So, it is proposed to establish in the law and legal practice the age at which the child’s consent to adoption is mandatory – 11 years.
Similarly, the issue of the child’s consent to live in the family of a foster caregiver should be resolved (Article 253 of the UK).
The issue of managing the property of a minor adopted child, and the obligation of parents to listen to the opinion of the latter (Article 177 of the SK), in our opinion, should also be resolved taking into account the age requirement of the child at 11 years old.
In the commented part, the case is fixed when the adoption is carried out without the consent of the child, namely: if, due to age or state of health, he is not aware of the fact of adoption.
With regard to age, we mean a young child who, due to his mental abilities, cannot consent to his adoption. A child (even after 14 years old) may also, for health reasons, not be aware of the fact of adoption.
For example, a child is deaf and dumb, or lags behind in mental development and the like.
Part 4 of this provision stipulates that the child’s consent to adoption is not required if he lives in the adoptive family and considers them to be his parents.
This provision of the law deserves attention, since it is not advisable to traumatize the psyche of a child who, from an early age, lives in the family of adoptive parents, considers them to be his parents, good relations in the family and to cross out everything achieved by the formal provision of the law on the consent of the child.
In addition, the provisions of Art. 207 SK, the court when considering adoption cases is not bound by the opinion of the child, he must first of all act in his best interests.
This provision of the law is also conditioned by the child’s right to the secrecy of adoption. So, part 2 of Art. 226 SK an adopted child has the right to keep the fact of his adoption secret, including from himself.
According to Art. 227 of the UK, the adoptive parent also has the right to conceal the fact of adoption from a child who is adopted by him, and to demand non-disclosure of this information by persons who become aware of it both before and after the child reaches the age of majority.
The adopter has the right to conceal from the child the fact of his adoption, if the disclosure of the secret of adoption may harm his interests.
That is, based on the analysis of Articles 226, 227 of the UK, the demand for the child’s consent to adoption may affect the preservation of the secrecy of adoption.
Family Adoption Lawyer in Ukraine
In resolving the case for adoption, the most optimal is to contact a family lawyer for the adoption of a child, who will help you quickly and efficiently resolve the case in your favor.
Our lawyers specialize in solving family law cases, so they know the subtleties and nuances that will help speed up the process.
The advantages of going to family law lawyers are:
- the efficiency of the decision of the case upon adoption;
- quick preparation of documents for their submission to the court;
- saving material and time resources in solving the case;
- the ability to resolve issues online.
Contact our family lawyers if a positive adoption result is important to you.
To resolve the case, you need to call or write to our family lawyers and they will provide you with all the necessary information as soon as possible!
Frequently asked questions to a lawyer in Ukraine
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