✅ Elimination of obstacles in communication with the child

Elimination of obstacles in communication with the child

The order of communication, meetings with the child, elimination of obstacles in communication with the child in Ukraine

Parents’ decision on raising a child:

  • The issues of raising a child are decided by the parents jointly, except for the case provided for in part five of this article.
  • The parent who lives separately from the child is obliged to take part in his upbringing and has the right to personal communication with him.
  • The parent with whom the child lives has no right to prevent the parent who lives separately from communicating with the child and participating in his upbringing, if such communication does not interfere with the normal development of the child.
  • Parents have the right to conclude an agreement on the exercise of parental rights and the fulfillment of duties by those of them who live separately from the child. The contract is concluded in writing and is subject to notarization.
  • The parent who lives with the child, in the event of his evasion from the execution of the contract, is obliged to compensate the material and moral damage caused to the other parent.

Departure of the child abroad in Ukraine

The parent with whom the child’s place of residence has been determined by a court decision or the conclusion of the guardianship and guardianship authorities has been confirmed, in addition to the parent to whom enforcement measures are applied to the decision to establish a meeting with the child and to remove obstacles in meeting the child, independently decides the issues temporary departure outside Ukraine for a period not exceeding one month, in order to:

  • treatment;
  • education;
  • participation of a child in children’s competitions, festivals, scientific exhibitions, student olympiads and competitions;
  • ecological, technical, artistic, tourist, research, sports events;
  • health improvement and recreation of a child abroad, including as part of an organized group of children.

If he knows the place of residence of the other parent, who does not shy away and properly fulfills parental responsibilities, informs him by sending a registered letter about the temporary departure of the child outside Ukraine, the purpose of the departure, the state of destination and the corresponding time period of stay in this state.

When a parent decides to leave a child abroad in Ukraine

The parent with whom the child’s place of residence has been determined by a court decision or with the conclusion of the guardianship and guardianship authorities, independently decides the issue of temporary travel outside Ukraine for a period of up to one month or more 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 a child abroad, including as part of an organized group of children, in the event of:

  • the presence of 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;
  • the presence of a debt on the payment of alimony, confirmed by a certificate of the existence of a debt on 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, rare orphan diseases, cancer, hematological diseases, cerebral palsy, severe mental disorders, type I diabetes mellitus (insulin-dependent), acute or chronic kidney disease IV degree, or the maintenance of a child who has received severe injuries requiring organ transplantation, palliative care, and confirmed by a document issued by the medical advisory commission of a medical and preventive institution in the manner and in the form established by the central executive body, which ensures the formation and implements the state health policy.

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 a return receipt to the parent with whom the child lives, for consent to leave the child for borders of Ukraine for the purpose of treatment, education, 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 groups 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 date 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.

A certificate of the existence of arrears in the payment of alimony is issued by the body of the state executive service, a private contractor in the manner prescribed by law.

Equality of rights of mother and father in raising a child in Ukraine

The mother and father have equal rights and obligations regarding the child.

Taking into account the equality of the rights and obligations of both parents in relation to the child, the legislative provision on the joint decision by them of the issues of raising their child seems to be justified.

In the case of normal relations between parents, in order to resolve the issue of raising a child, formalization of any agreements between the parents or their appeal to the authorized state authorities is not required.

The UK contains exceptions to the general rule on the joint solution of the issue of raising a child (part 5 of article 157 of the UK).

Separate residence of one of the parents in Ukraine

The fact that the father or mother lives separately from the child does not deprive him of the right to personal contact with her and the obligation to take part in his upbringing.

The child’s right to contact parents who live separately is provided for in Art. 15 of the Law of Ukraine “On Child Protection”. According to Part 1, a child who lives separately from his parents or one of them has the right to maintain regular personal relationships and direct contacts with them.

Part 2 of Art. 15 of the Law of Ukraine “On Child Protection” provides that parents living separately from a child are obliged to take part in his upbringing and have the right to communicate with her, if the court recognizes that such communication will not interfere with the normal upbringing of the child.

That is, special legislation actually establishes the presumption of the harmfulness of communication between a child and parents living separately from the child, which, in our opinion, contradicts Part 2 of Art. 157 SK.

Article 16 of the Law of Ukraine “On Child Protection” also provides for the child’s right to contact with parents who live in different states.

According to Part 2 of Article 16, parents, other family members and relatives, in particular those who live in different states, must not interfere with each other’s exercise of the child’s right to contact with them, must guarantee the child’s return to his place of permanent residence after the exercise of the right to contact, not to allow unlawful change of his place of residence.

It is clear that the parent with whom the child lives communicates with her more often and has a greater influence on the formation of his personality than a parent living separately from the child.

Moreover, often the question of the child’s communication with the parent who lives separately from her depends on the personal relationship between the parents and can be the subject of blackmail by one of the parents to the other.

In judicial practice, there are cases of satisfaction of claims for the obligation to remove obstacles to the participation of a parent, who lives separately from the child, in his upbringing.

Agreement on the exercise of parental rights in Ukraine

Parents have the right to conclude an agreement on the exercise of parental rights and the fulfillment of duties by those of them who live separately from the child.

The contract is concluded in writing and is subject to notarization.

In the relevant agreement, the parties may provide for the procedure, place and time of communication between the child and the parent who lives separately from her.

Evasion from the execution of the contract is the basis for compensation for material and moral damage caused to the parent who lives separately from the child.

Compensation for Moral Damage in Case of Evasion of Contract Performance in Ukraine

The issue of calculating the amount of non-pecuniary damage that can be compensated in case of evasion of the contract deserves attention.

So, according to the prescriptions of Part 2 of Art. 23 of the Civil Code, moral harm is, inter alia, in the mental suffering that an individual has experienced in connection with unlawful behavior towards himself, his family members or close relatives.

According to the rules of Part. Under the same article, the amount of monetary compensation for moral damage is determined by the court depending on the nature of the offense, the depth of physical and mental suffering, deterioration of the victim’s abilities or depriving him of the possibility of their realization, the degree of guilt of the person who caused the moral harm, if guilt is the basis for compensation, as well as taking into account other circumstances of significant importance.

In determining the amount of compensation, the requirements of reasonableness and fairness are taken into account.

One of the possible ways of calculating moral harm is the appointment of a psychological examination in a court case.

In particular, in accordance with clause 6.6 of the Instruction on the appointment and conduct of forensic examinations and expert research (On the approval of 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 studies: order of the Ministry of Justice of Ukraine dated October 8, 1998 No. 53/5.

  • whether the situation investigated in the framework of the case is traumatic for the person (surname, name and patronymic);
  • if so, have the person (surname, name and patronymic) suffered (moral harm)?
  • were the suffering (moral harm) of the person (surname, name and patronymic) caused by the situation (the conditions of the situation are indicated), which is being investigated in the case?
  • if the person (surname, name and patronymic) suffered suffering (moral harm), what is the possible amount of monetary compensation for the suffering caused (moral harm)? “

Part 5 of Art. 157 The UK provides for exceptions to the rule regarding the general decision by parents on the issue of raising a child.

Independent solution of the issue of temporary departure of the child abroad in Ukraine

An independent solution to the issue of temporary departure of a child abroad is possible by one of the parents if:

  • by a court decision, the place of residence of the child with one of the parents was determined or the conclusion of the guardianship and guardianship authority was confirmed;
  • the period for the child to travel abroad does not exceed one month;
  • the purpose of the child’s departure abroad 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 in as part of an organized group of children.

The father or mother, with whom the decision of the court is determined or the place of residence of the child is confirmed by the conclusion of the guardianship and guardianship authority, directs to the parent who lives separately from the child, provided that he (she) does not shy away and properly fulfills parental responsibilities , a registered letter on the temporary departure of the child outside Ukraine, the purpose of departure, the state of destination and the corresponding time period of stay in this state.

Sending a registered letter is not required 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. In the cases listed in clause 2, para. 2 h. 5 tbsp. 157 SK – there is enough debt on the payment of alimony, the total amount of which exceeds the amount of the corresponding payments for three months.

The mechanism for obtaining an opinion from the guardianship and guardianship authority to confirm the child’s place of residence when deciding the issue of his temporary departure outside Ukraine is determined by clause 72 and the Resolution of the Cabinet of Ministers of Ukraine “Issues of the activities of guardianship and guardianship authorities related to the protection of the rights of the child.”

A package of documents to confirm the child’s place of residence in Ukraine

To confirm the child’s place of residence when deciding the issue of his temporary departure outside Ukraine for the purpose specified in Part 5 of Art. 157 UK, the parent with whom the child lives, submits the following documents to the child welfare service at the child’s place of residence:

  • statement;
  • 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 in par. 1 h. 5 tbsp. 157 SK (if available);
  • a copy of the document issued by the medical advisory commission of the medical institution in the manner and in the form established by the Ministry of Health (submitted for temporary travel outside Ukraine of a child with a disability, a child who suffers from severe perinatal lesions of the nervous system, severe congenital malformations, rare Orphan diseases , oncological, oncohematological 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, was seriously injured, requires organ transplantation or palliative care).

Conclusion on confirmation of the child’s place of residence in Ukraine

Based on the results of consideration of these documents, a visit to the child at his place of residence, a conversation with a parent who lives separately from the child (if possible), or a conversation with a child who has reached the age of 14, the Service for Children prepares a confirmation conclusion the place of residence of the child for his temporary departure outside Ukraine and one of such draft decisions / orders of the regional, district in the cities of Kiev and Sevastopol, the state administration, the executive body of the city, district in the city (in case of formation) council, village, village council of the united territorial community:

  • on approval of the conclusion of the service for children on confirmation of the child’s place of residence for his temporary departure outside Ukraine;
  • to refuse to approve such a conclusion.

The grounds for refusing to approve the conclusion on confirming the child’s place of residence for his temporary departure outside Ukraine are:

  • failure of the applicant to submit the documents specified in this paragraph;
  • the presence of a court decision in which the place of residence of the child with the other parent is determined or the initiation of proceedings on the case to determine the place of residence of the child.

Decision to approve the conclusion in Ukraine

The district, district in the cities of Kiev and Sevastopol, the state administration, the executive body of the city, district in the city (in case of formation) council, village, village council of the united territorial community, within seven working days from the date of submission of the application, makes a decision / order on the approval of the conclusion of the service children on confirmation of the child’s place of residence for his temporary departure outside Ukraine or refusal to approve it, which is drawn up on the letterhead of the authority, issues it.

On the day of the decision / order, the Children’s Affairs Service informs about it:

  • the applicant – by means of telephone communication;
  • a parent who lives separately from the child (if his place of residence is known) – by sending him a copy of the decision / order by registered mail.

If within ten working days from the date of adoption of the decision / order it is not appealed, it comes into force and its copy, certified in accordance with the established procedure, is issued to the applicant for presentation when crossing the state border of Ukraine.

The decision / order is valid for one year from the date of its entry into force.

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, has the right to apply to the second parent for consent to the child’s departure 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 a child abroad, including as part of an organized group of children.

If consent is not provided within ten days from the moment of notification of delivery of a registered letter containing the corresponding appeal, the parent living separately from the child has the right to apply to the court for granting permission to leave the child abroad without the consent of the second parent.

By the decision of the Chamber of the Supreme Court in case No. 712/10623/17, it was noted that temporary travel abroad accompanied by one of the parents should be in the interests of the child and such permission, in the absence of the consent of the other parent, can be granted on the basis of a court decision for a certain period with a determination its beginning and end.

Judicial practice shows that, guided by the aforementioned legal position, the courts refuse to satisfy claims for the departure of children abroad without determining the period of such departure and without specifying the host state.

Certificate of the presence of arrears in the payment of alimony in Ukraine

A certificate of the existence of arrears in the payment of alimony is issued by the body of the state executive service, a private contractor in the manner prescribed by law.

The procedure for issuing this certificate established by clause 7 of the Instructions for organizing the enforcement of decisions (On approval of the Instructions for organizing the enforcement of decisions: order of the Ministry of Justice of Ukraine dated April 2, 2012 No. 512/5. Https://zakon.rada.gov.ua / laws / show / z0489-12

In the event that a public executive service body, a private executor receives an application from a recoverer for the issuance of a certificate on the existence of an arrears in the payment of alimony, the body of the state executive service, a private executor, within three working days shall issue a levied certificate of the existence of an arrears in the payment of alimony (hereinafter referred to as a certificate), which sealed with the seal of the body of the state executive service, a private contractor.

To issue a certificate, the executor calculates the amount of debt for the payment of alimony from the date of presentation of the executive document for compulsory execution.

If the aggregate amount of debt on the payment of alimony from the date of submission of a writ of execution for compulsory execution is less than the amount of the corresponding payments for three months, the body of the state executive service, a private executor notifies the recoverer in writing of the refusal to issue a certificate and provides him with a calculation of the debt.

Useful site materials advokat-skriabin.com:

  1. Lawyer in Zaporozhye
  2. Alimony lawyer
  3. Divorce
  4. Division of property of spouses
  5. Deprivation of parental rights
  6. Determining the child’s place of residence
  7. Departure of the child abroad
  8. Obtaining a court decision
  9. Apostille on documents
  10. Obtaining duplicate duplicates of documents at the registry office
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Checked by Victoria on 22.06.21

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