- Parents’ Right to Determine the Child’s Place of Residence in Ukraine
- Family lawyer in Ukraine
- Dispute between mother and father regarding the place of residence of a young child in Ukraine
- Family lawyer when determining the child’s place of residence in Ukraine
- Frequently asked questions to a lawyer in Ukraine
Parents’ Right to Determine the Child’s Place of Residence in Ukraine
The place of residence of a child under ten years old is determined by agreement of the parents.
The place of residence of a child who has reached the age of ten is determined by the general consent of the parents and the child himself.
If the parents live separately, the place of residence of the child who has reached the age of fourteen is determined by him.
According to the Constitution of Ukraine, everyone has the right to choose their place of residence, but family relations have their own specifics, since young and minor children cannot live independently, because parents must participate in their upbringing and maintenance.
Therefore, Article 160 of the SK provides that if a child has not reached the age of 10, then his place of residence is determined by agreement of the parents.
Traditionally, if the parents live together, the child lives in one family with them at the place of their residence or at the place of residence of the adoptive parents, if separately, then in most cases the child lives at the mother’s place of residence, less often at the father’s place of residence.
But there are cases when a child may not live with his parents, but with his grandfather, grandmother, or the child, due to certain circumstances, may be brought up in special educational institutions or a health care institution.
If a child has reached 10 years of age, his place of residence is determined by the general consent of the parents and the child himself, but, as provided for in Part 3 of Art. 29 of the Civil Code, the place of residence of an individual aged 10 to 14 is still the place of residence of his parents (adoptive parents) or one of them.
If a natural person has reached the age of 14, he can freely choose his place of residence, with the exception of restrictions established by law.
This general provision is enshrined in Part 2 of Art. 29 of the Civil Code, but the UK established exactly such restrictions, which are mentioned in this part, that is, a 14-year-old child can determine his place of residence, but not arbitrarily (where he wants, he will live there), but only with his parents, but with who exactly – with the mother or with the father – he can decide for himself, unless otherwise established.
For example, the father was deprived of parental rights, he is characterized negatively and the child lived with the mother, a conflict arose between them, and the child decided to move to live with the father, although the court decision determined that the child should live with the mother. In this case, the will of the child cannot be taken into account by the court and the like.
Family lawyer in Ukraine
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Dispute between mother and father regarding the place of residence of a young child in Ukraine
If the mother and father, who live separately, do not come to an agreement as to who of them the young child will live with, the dispute between them can 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 can harm the development of the child by his immoral behavior.
If the guardianship and trusteeship authority or the court has recognized that none of the parents can create the child appropriate conditions for upbringing and development, at the request of the grandmother, grandfather or other relatives involved in the case, the child may be transferred to one of them.
If the child cannot be transferred to one of these persons, the court, at the request of the guardianship and guardianship authority, may decide to take the young child away from the person with whom he lives and transfer him to the custody of the guardianship and guardianship authority.
When commenting on this rule, the attention of specialists should be drawn to the fact that it covers the following cases:
- the spouses are married but live separately;
- the parents of the child live separately, since the child was born from a man and a woman who are not married;
- the child’s parents live separately after divorce;
- parents live separately, since a separate residence regime is established between them.
In case of divorce from children, the court, when considering the case, as provided for in Part 1 of Article 109 of the UK, must check the existence of a written agreement between them on which of them the children will live with, and note this information in the decision.
That is, as a general rule, parents can voluntarily decide on a contractual basis about the place of residence of the child.
If this issue has not been resolved in a contractual manner, then upon dissolution of the marriage, the spouses can, by mutual agreement, decide the issue of the child’s place of residence, which should be reflected in the court decision.
If, during the dissolution of the marriage, the parents did not come to an agreement with which of them the child will live, then the dispute is resolved in one proceeding with the dissolution of the marriage.
But under COBS, it was not provided for the simultaneous solution of the issue of divorce and determination of the child’s place of residence.
Therefore, today claims to determine the place of residence of a child, when the divorce took place before 2004, can be considered independently.
This provision also applies to cases where the parents of the child are persons who are not in a registered marriage.
But in any case, when resolving a dispute with which of the parents the young child will live, the court must take into account the attitude of the parents to the performance of their duties, to the child, in addition, the child’s personal attachment to each of them, the child’s age, state of health and other significant circumstances.
At the same time, such circumstances should be taken into account as the existence of an independent income for each of the parents, the provision of housing, the absence of bad habits.
The court cannot transfer the child to the parent who abuses alcohol, drugs or toxic substances, behaves immorally, as this can harm the child.
If both of the parents are characterized negatively and the court finds that none of them will be able to create and provide the child with conditions for education and development, then, as provided for in Part 3 of Art. 161 SK, at the request of the grandmother, grandfather or other relatives involved in the case, the child can be transferred to one of them.
We consider it expedient to dwell on the analysis of the situation on whose initiative the grandmother, grandfather or other relatives are involved in the case and what is their procedural position in the case, what requirement of the grandmother, grandfather and other relatives (the law does not specify who exactly) is in question.
Therefore, it is advisable to answer all these “unknowns” from the standpoint of the civil procedure. First of all, we note that the dispute between the parents about the determination of the child’s place of residence is considered in the procedure of action proceedings, where the parents will be parties.
Such a dispute can be considered with the participation of a child who has reached the age of 10, as provided for in Part 2 of Art. 160 of the UK, which states that the place of residence – with the father or mother – can be determined by the child himself by providing consent.
Such a case can be considered with the participation of the guardianship and trusteeship body in order to give an opinion on the case by this body in accordance with Art. 45 Code of Civil Procedure.
Based on the theory of civil procedure, it should be noted that the grandfather, grandmother and other relatives can, under Part 2 of Article 35 of the Code of Civil Procedure, be attached to the case as third parties without independent requirements regarding the subject of the dispute between the parties (parents) to determine the child’s place of residence on the initiative court or at the request of other persons participating in the case.
Such a request, for example, can be made by the guardianship and guardianship authorities.
- If the grandfather, grandmother or other relatives take part in the case as third parties without independent claims and the court, when considering the case, comes to the conclusion that the child cannot live with either of the parents, then the grandfather, grandmother or other relatives may submit an independent claim to parents about determining the child’s place of residence with them.
- Or if the grandfather, grandmother and other relatives do not participate in the case at all, and the court comes to the conclusion that the child cannot live with any of the parents, he can (due to the powers that the court exercises on behalf of the state and in its interests) inform the grandfather, grandmother and other relatives about the finding of such a case in court and explain to them the right, they can enter into the process as third parties with independent claims, suing the parties to determine the child’s place of residence with them.
- But if the grandfather, grandmother and other relatives do not want to present an independent demand to both parents to determine the child’s place of residence with them, and the court comes to the conclusion that the child cannot live with either of the parents, then, in our opinion, the guardianship authority and guardianship in the interests of a young child must declare a demand for the removal of the child (without deprivation of their parental rights) from the parent with whom he lives, and transferring him to the custody of the guardianship and guardianship authority.
In all the cases considered, when the court determines the child’s place of residence with either one of the parents or with a grandfather, grandmother or other relatives, or when the child is in the care of a guardianship and trusteeship body, the parents or one of them are not exempt from fulfilling the assigned responsibilities towards the child.
But the right to raise a child (as a personal non-property right) is not transferred from one of the parents to a grandfather with a woman.
Family lawyer when determining the child’s place of residence in Ukraine
When deciding a case, when determining the place of residence of a child, the most optimal is to contact a family lawyer 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 promptness of the decision of the case when determining the place of residence of the child;
- 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.
Please contact our family lawyers if a positive result is important for you when determining the child’s place of residence.
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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