Custody of Children, Ukraine Family Law

[Ken Colamarino 0]

Unlike the US, Ukraine does not grant custody of children in divorce decrees. The custody is decided by the parents. A parent can be deprived of parental rights by petitioning the court. The relevant excerpts from the Family Law of Ukraine follow. This should be sufficient to show the NVC that custody papers are not ussued in Ukraine. Of course, a notarized document from the other parent indicating he/she agrees for the child to immigrate to the US is required, or court documents indicating that they have been deprived of parental rights is required.

Excerpts from Ukraine Family Law (effective January 1, 2003)

Section 3 Rights and Duties of a Mother, a Father and a Child.

Chapter 13. Personal non-property rights and responsibilities of parents and children.

Clause 141. Equal parental rights and responsibilities in respect of the child.

1. The mother and the father assume equal rights and responsibilities in respect of the child irrespectively of whether they were married to each other or not.

2. Dissolution of parents’ marriage, their living separately from the child does not affect the scope of their rights and does not release them from responsibilities in respect of the child.

Clause 142. Equal children’ rights and responsibilities in respect of their parents

1. Children assume equal rights and responsibilities in respect of their parents irrespectively of whether their parents were married to each other or not.

Clause 155. Exercising parental rights and discharging parental responsibilities.

1. Exercising parental rights and discharging parental responsibilities shall be based on the respect for the child’s rights and his/her human dignity.

2. Parental rights may not be exercised contrary to the interests of the child.

3. Abandonment of the child by parents shall be unlawful and breaks down morals of the society.

4. Avoiding discharging parental responsibilities constitutes the ground for bringing parents to responsibility prescribed by law.

Clause 160. Parental right to determine the child’s place of residence.

1. The place of residence of the child under the age of 10 is determined upon parents’ consent.

2. The place of residence of the child that has attained the age of 10 is determined upon parents’ consent and consent of the child himself/herself.

3. Whenever the parents live separately, the place of residence of the child that has attained the age of 14 is determined by himself/herself.

Clause 161. Dispute between the mother and the father about the place of residence of a minor child.

1. If the mother and the father who are separated disagree on with whom of them the minor child will be living, such a dispute may be decided judicially. When considering the dispute about the place of residence of the child, the court takes into account how parents discharge their parental responsibilities, personal affection of the child towards each of parents, the child’s age, state of health and other essential circumstances.

2. The court may not leave the child live with the parent who does not have his/her own earnings, abuses with alcohol and drugs and can hamper the child’s development with his/her immoral behavior.

3. If the court has found that neither of parents is able to create adequate conditions for the child’s education and development, upon request of the grandmother, grandfather or other relatives involved in the case, the child may be left in charge of somebody of them.

4. As long as the child cannot by given to anyone of these persons, the court, upon request of the Custody and Care Authority, may pronounce the decision to take the child from the person the child lives and give him/her in charge of the Custody and Care Authority.

Clause 162. Legal consequences of the unlawful conduct of one of parents or any other person during determining the child’s place of residence.

1. If one of parents or any other person, at his/her own discretion and without consent of the other parent or other persons with whom the minor child has lived in accordance with law or judicial decision, changes the child’s place of residence, including by kidnapping, the court, upon legal action of the person concerned, has the right without any delay to render the decision on taking the child back and giving him/her to person with whom the child lived before. The child may not be taken back only if his/her staying in the previous place of residence creates a real threat to the child’s life and health.

2. The person that, on his/her own discretion, has changed the place of residence of the minor child shall have the duty to repair material and moral damage inflicted on the person with whom the child lived together.

Clause 163. Parental right to take the child from other persons.

1. The parents enjoy preferential right for their minor child to live with them.

2. The parents have the right to demand separating the minor child from any person who keeps him/her against law or judicial decision.

3. The court may refuse to take the minor child back and give him/her to the parents or one of them if it is ascertained that this is contrary to the child’s interest.

Clause 164. Grounds for deprivation of parental rights.

1. The court may deprive the mother, the father of parental rights if he/she:

1) has not taken the child away from the maternity home or any other health institution without valid reasons and within six months did not care about the child;

2) avoids discharging his/her responsibilities to educate the child;

3) treats the child in a brutal manner;

4) is a chronic alcoholic or drug addict;

5) has recourse to the child’s exploitation, involves him/her in begging and vagrancy;

6) has been convicted for committing an intentional crime against the child.

2. The mother, the father may be deprived of the parental rights on the grounds referred to in subparagraphs 2, 4 and 5 of paragraph 1 of the present Clause if they have attained the full age.

3. The mother, the father may be deprived of the parental rights in respect of all of their children or some of them.

4. The court shall institute criminal proceedings if, when hearing the case related to the deprivation of parental rights, it founds elements of crime in actions committed by both parents or one of them.

Clause 166. Legal consequences of parental rights deprivation.

1. The person deprived of the parental rights:

1) loses his/her personal non-property rights in respect of the child and is released from responsibilities to educate the child;

2) terminates being legal representative of the child;

3) loses the rights for benefits given by the State to families with children;

4) may not be an adopter, custodian or caretaker of the child;

5) may not acquire in the future property rights arising from parentage, which he/she could have been entitled to in case of his/her inability to work (right to maintenance from children, right to an old-age benefit and reparation of the damage in case of loss of the breadwinner, succession right);

6) loses other rights arising from the affiliation to the child.

2. A person deprived of his/her parental rights is not released from the responsibility to maintain the child. In parallel with deprivation of parental rights, the court may, upon request of the applicant or upon its own initiative, to decide the issue of levying maintenance for the child.

Ukraine_Family_Law.doc