Determining the schedule of communication with the child of one of the parents after divorce is a common category of cases in the field of family relations, but its typicality does not make it easy.
Both the parent living separately and the child have the right to communicate with each parent, regardless of whether they live together or separately. Yes, in accordance with Art. 153 of the Family Code of Ukraine (hereinafter – IC) mother, father and child have the right to unimpeded communication with each other, except when such a right is limited by law.
Also in accordance with Part 1 of Art. 15 of the Law of Ukraine “On Child Protection” a child living separately from parents or one of them has the right to maintain regular personal relationships and direct contacts with them. In turn, according to Part 2 of this article, parents who live separately from the child are obliged to participate in its upbringing and have the right to communicate with it, if the court finds that such communication will not interfere with the normal upbringing of the child.
At the international level, special attention is paid to the right to communicate. So in Part 3 of Art. 9 of the UN Convention on the Rights of the Child guarantees the right of a child divorced from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except when it is contrary to the best interests of the child.
According to Art. 4 of the Convention on the Contact of Children, the child and his parents have the right to establish and maintain regular contact with each other and such contact may be restricted or prohibited only when it is necessary in the best interests of the child; if maintaining uncontrolled contact with one of the parents does not meet the highest interests of the child, the possibility of controlled personal contact or other form of contact with one of such parents is considered.
Contacts and communication between parents and children are an important part of family life within the meaning of the European Convention on Human Rights, so in the decision “A.V. v. Slovenia ”(№ 878/13), the ECtHR recalled that under Art. 8 of the Convention, the state has positive obligations regarding “effective respect” for family life. In particular, in cases concerning the right of contact of one of the parents, the state is obliged to take measures to reunite parents with their children and to promote such reunification.
Despite the extensive regulation of the right of parents and children to communicate, in practice a number of questions arise as to how to resolve if the parents have divorced and one of them lives separately from the child. There are several options for resolving this complex issue: voluntarily determine such a schedule and procedure for communication; apply to the guardianship authority or apply to the court.
One of the parents who lives separately from the child is obliged to participate in its upbringing and has the right to personal communication with it. And 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 its upbringing, if such communication does not interfere with the normal development of the child.
In accordance with Part 4 of Art. 157 of the Criminal Code for parents provides an opportunity to enter into an agreement on the exercise of parental rights and responsibilities of those who live separately from the child.
In such an agreement, you can define all the important aspects for parents and change the aspects of communication, such as: place of communication, frequency and frequency, duration, the need for the presence of third parties in communication, and so on. Such an agreement should not be contrary to the best interests of the child.
The agreement on the exercise of parental rights and performance of duties by those who live separately from the child must be concluded in writing and must be notarized.
The parent who lives with the child, in case of his evasion of the contract is obliged to compensate the material and moral damage caused to the other parent (as part of independent proceedings).
If the parents did not agree on the communication of one of them with the child, then in accordance with Part 1 of Art. 158 of the IC on the application of the mother, father of the child, the guardianship authority determines the ways of participation in the upbringing of the child and communication with her of the parents who live separately from her. The decision on this is made by the guardianship authority on the basis of studying the living conditions of the parents, their attitude to the child, and other significant circumstances.
The procedure for consideration of such applications is defined in the Procedure for guardianship and custody of activities related to the protection of the rights of the child (hereinafter – the Procedure) approved by the Cabinet of Ministers of Ukraine dated 24.09.2008 № 866.
Thus, in accordance with paragraph 73 of the Procedure in case of a dispute between parents regarding participation in the upbringing of a child, one of the parents living separately from the child submits an application to the children’s service at the child’s place of residence, a copy of passport, certificate of registration (residence) , a copy of the certificate of marriage or divorce (if any), a copy of the child’s birth certificate.
The employee of the children’s service conducts a conversation with the parents and, if necessary, also with the child’s relatives. It takes into account the attitude of the parents to the performance of parental responsibilities, the child’s personal commitment to each of them, the child’s health and other important circumstances.
After clarifying the circumstances that led to the dispute between the parents regarding participation in the upbringing of the child, the children’s service draws a conclusion. This conclusion will determine the time, place, frequency and duration of communication.
In accordance with Part 2 of Art. 158 of the IC decision of the body of guardianship and trusteeship is binding. A person who evades the execution of the decision of the guardianship authority is obliged to reimburse the material and moral damage caused to the parents who live separately from the child.
It should also be noted that recourse to the guardianship authority is not mandatory, if a person wishes to go to court immediately, he or she has the right to do so. Also, appealing to the body of guardianship and trusteeship does not deprive a person of the right to apply to the court with the same question in the future.
If the parent living separately is not satisfied with the schedule set by the guardianship authority, or if the parent with whom the child lives prevents the parent living separately from communicating with the child and his / her child. upbringing, in particular if he evades the execution of the decision of the body of guardianship and trusteeship, the second parent has the right to go to court to remove these obstacles (Article 158 of the Criminal Code).
The court determines the ways of participation of one of the parents in the child’s upbringing (periodic or systematic visits, the possibility of joint recreation, visiting the child’s place of residence, etc.), place and time of their communication.
In resolving a dispute concerning the participation of one parent in the upbringing of a child, the parents’ attitude to the performance of their duties, the child’s personal commitment to each of them, the child’s age, state of health and other significant circumstances shall be taken into account. including the state of mental health of one of the parents, his abuse of alcohol or drugs.
At the request of the interested party, the court may suspend the execution of the decision of the guardianship authority until the dispute is resolved. And in case of evasion of execution of the court decision by the person with whom the child lives, the court on the application of the parent who lives separately, can transfer the child to live with him. A person who evades the execution of a court decision is obliged to reimburse the material and moral damage caused to the parent who lives separately from the child (as part of independent proceedings).
The legal position of the Supreme Court, which was formulated in the decision of 01.04.2020 on the case № 165/2839/17, is interesting, namely that any parent can file a lawsuit to determine the method of participation in the upbringing and communication with the child. (both those who live with the child and those who live separately).
Summarizing the above, it should be noted that the clarity and relative simplicity of the procedures for establishing a schedule of communication with the child is misleading. In practice, there are many factors and circumstances that are not defined by law, but must be taken into account. Especially many pitfalls in cooperation with the bodies of guardianship and care, you can read more about them in our article MOTHER VS FATHER. AN EQUATION IN WHICH THERE IS NO CHILD.
From the long-standing practice of representing the interests of parents in this category of cases, the lawyers of JSC “Neofelis Lo Group” advise to resolve disputes about the participation in the upbringing of one of the parents and establish a schedule of peaceful communication and not bring the case to court. Lawyers and jurists of Neofelis Lo Group JSC are ready to offer a whole package of services: from drawing up a relevant agreement to reconciling parents and finding the optimal solution through mediation.
If you have any questions or need legal advice, you can contact us via e-mail neofelis.lg@gmail.com or by phone 050 471 7771.
Kateryna Bezhanova, managing partner of Neofelis Lo Group.
Kateryna Daineko, Assistant Lawyer, Neofelis Lo Group.