Determination of the child's place of residence
This article will be useful to those of the parents who are involved in the dispute over the determination of the child's place of residence, lawyers and attorneys.
Content:
1. Introduction.
2. What does the definition of a child's place of residence give?
3. Determination of the child's place of residence by the guardianship and guardianship authority: a list of documents and the procedure for determining.
4. Pros and cons of the decision of the guardianship and guardianship authority to determine the child's place of residence.
5. Court to determine the child's place of residence.
6. Lawsuit to determine the child's place of residence 2021: worth knowing.
7. Appeal against a court decision on determining the child's place of residence.
8. Legal assistance and advice on determining the child's place of residence.
1. Introduction
The place of residence of the child upon divorce is determined with the consent of both parents. If the parents do not come to a general agreement on the determination of the child's place of residence with one of them, it is decided in court or with the help of the guardianship and trusteeship body.
2. What does the definition of a child's place of residence give?
The parent with whom the child's place of residence is determined can:
- freely take the child with you on vacation outside the country or for treatment (Article 157 of the IC of Ukraine, Rules for crossing the state border by citizens of Ukraine);
- apply to the court with a demand for the forced removal of the child from the parent, who forcibly changed the child's permanent place of residence (Article 162 of the IC of Ukraine).
Obtaining such decisions in relation to the child helps to relieve the pressure on the parent with whom the child actually lives. Indeed, in practice, quite often there are cases when one of the parents does not give consent to a friend to cross the border of the country with the child or abducts the child and the court cannot return the child to his main place of residence with the help of the authorities.
3. Determination of the child's place of residence by the guardianship and guardianship authority: a list of documents and the procedure for determining
According to the current legislation, the dispute between the parents can be resolved by the guardianship and guardianship authority.
Any parent can initiate a dispute. To do this, it is enough to submit an application to the child welfare service, which is located at the location of the child. According to the Procedure for the implementation by the guardianship and guardianship authorities of activities related to the protection of the rights of the child, the application must be accompanied by:
- copy of your passport;
- certificate from the place of registration;
- a copy of a marriage certificate or a court decision on divorce;
- a copy of the child's birth certificate;
- certificate from the place of study or education;
- certificate of payment of alimony (if any).
The Child Welfare Service conducts a survey of the living conditions of the parents and conducts a conversation with the parents. After that, the service draws up a conclusion for the guardianship and guardianship authority in which it notes with whom it is advisable to leave the child. This conclusion is submitted to the guardianship and trusteeship body and after that the body makes an appropriate decision.
The decision of the guardianship and trusteeship body may be appealed to the body to which the guardianship and trusteeship body is subordinate or to the court.
4. Pros and cons of the decision of the guardianship and guardianship authority to determine the child's place of residence
Pros:
- Helps in court to take the child away from the parent who forcibly changed the child's place of residence.
Cons:
- The border service does not always allow the child to leave the country (unfortunately, this is such a fact);
- A positive decision is usually made for the mother. Very rarely is it positive for the father;
- When making a decision, the interests of the child are not always taken into account;
- The administrative procedure is very lengthy and cancellation is often refused.
5. Court to determine the child's place of residence
In a judicial proceeding, determination of the child's place of residence is possible without prior settlement of the dispute through the guardianship and guardianship authority.
The initiation of a judicial order occurs by filing a claim with a court to determine the child's place of residence. The application is submitted to the court, which is located at the place of residence of the defendant.
When resolving a dispute about the place of residence of a young child, the following factors are taken into account: the attitude of the parents to the fulfillment of 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 (paragraph 2 of part 1). 1 article 161 of the UK of Ukraine).
Other circumstances that are important in resolving such a dispute include:
- the duration of the child's residence at a particular place of residence;
- the presence or absence of friends of the child at his place of residence;
- maintaining relations with relatives;
- work schedule of parents;
- persons with whom the parents live after the beginning of their separate residence;
- individual abilities of the child and the parents, the presence or absence of the parenting style of the parent;
- the conditions in which the child lives and will live;
- other.
6. Lawsuit to determine the child's place of residence 2021: worth knowing
Requirements for the statement of claim in Art. 175 Code of Civil Procedure of Ukraine. Including in the statement of claim on determining the place of residence of the child, you must specify a list of documents to determine the place of residence of the child and add these documents to the claim.
Documents must confirm the circumstances indicated in the claim. Otherwise, if the circumstances are indicated correctly, but there is no evidence, the court will consider such circumstances not established, which in fact may lead to a refusal to satisfy the claim.
The Code of Civil Procedure of Ukraine stipulates that when considering a dispute, the court shall consider the dispute within the grounds specified in the claim. Therefore, if any grounds in the claim were not indicated, but existed at the time of the consideration of the case, then the court will not take them into account, even if the party indicates them when considering the dispute orally.
For filing a statement of claim, you must pay a court fee, which in 2021 is 908 hryvnia. Other costs are unknown (costs of legal assistance, expertise, etc.).
The list of documents of the child's place of residence must be selected individually for each case, but roughly it looks like this:
- birth certificate of a child;
- court decision on divorce;
- a certificate from the kindergarten, which will indicate which of the parents took the child from the kindergarten or how often he was interested in the child's affairs in the kindergarten, etc.
- a certificate from the school, which will indicate information about the child's parents (similar to a certificate from a kindergarten);
- a certificate from the section on football, dancing and the like what the child walks on (the content is similar to a certificate from a kindergarten and school);
- a statement of the plaintiff's income;
- birth certificates of those children with whom the plaintiff's child is friends at the place of residence;
- a statement to summon and question witnesses who can confirm the child's residence at a certain address or that their children are friends with the child of the parties to the dispute;
- an act of inspection of living conditions (it is prepared by the service for children);
- documents of legality and permanence of residence at a certain address (lease agreement for an apartment or ownership, if the parents' apartment - their testimony that they are not against your stay with your child);
- the conclusion of an expert psychologist (it is possible to obtain it yourself or apply for a forensic examination);
- certificate of no criminal record;
- a certificate of the registered place of residence of the plaintiff;
- characteristics from each place of work;
- diplomas, certificates, school certificate;
- other.
Electronic evidence includes correspondence with the other side of the dispute in the messenger, in which it was said that she forbade meeting with the child and the like. In addition, it would be advisable to submit various photos or videos of a joint holiday with a child, etc. The list of electronic evidence is not exhaustive and is selected on an individual basis.
When resolving a dispute on the determination of the child's place of residence, the court takes into account the legislation, judicial practice, instructions, regulations. This includes the Family Code of Ukraine, the practice of the ECHR and the Supreme Court, the Code of Civil Procedure of Ukraine, the Plenary Sessions of the Supreme Courts, etc.
Jurisdiction of cases on determining the child's place of residence: at the place of registration or stay (residence) of the defendant; in the event of a counterclaim, the case will be considered at the place of initial filing of the statement of claim.
A third party that does not make independent claims: the guardianship and trusteeship body.
Terms of consideration of the case: from 6 months.
7. Appeal against a court decision on determining the child's place of residence
The decision of the first instance court comes into force after thirty days. The term is counted from the moment the participant receives the full text.
The decision of the appellate instance comes into force on the day of its announcement.
The court decision on determining the child's place of residence is subject to appeal in the appeal and cassation procedure. The deadline for appealing the court decision on the merits of the dispute is 30 days from the date of its announcement, if the full text was delivered by mail - the deadline starts counting from the moment the letter was received containing the court decision.
For appealing the court decision of the first instance, the participant in the case must pay 150% of the court fee, which was payable when filing the statement of claim, in case of appealing the decision of the appellate instance, 200% of the court fee must be paid.
8. Legal assistance and advice on determining the child's place of residence
If you need advice on this issue, you can contact Novakovskaya and Partners JSC and the association's lawyers will provide you with advice and legal assistance in resolving a dispute concerning the child's place of residence.
We provide assistance to the plaintiff, the defendant, and third parties.
This news was prepared by a practicing lawyer, partner of JSC Novakovskaya and partners Yanchuk Anatoly Anatolyevich. If you have any questions or need help, please contact us.
Our contacts:
Tel.: 050 052 44 04
Address:. Kiev, st. Khreshchatyk 15, office # 1
Email address: advokat@novakovska.com
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