Determining the child’s place of residence in Ukraine: case law
Living of a child with one of the parents is becoming the norm in our time, which of course cannot but indicate the weakness of the family in our country. The need to determine the child’s place of residence arises in the case of separate living of his/her parents, who are in a marital relationship, or the marriage between them is dissolved or not concluded at all. A natural consequence of determining the child’s place of residence is the appointment of alimony in favor of the person with whom he/she lives.
Determining where the child will live before the court decision
Oral agreement, with or without the conclusion of a notarized agreement on the maintenance and raising of the child, which is certainly the simplest of the options and probably the best. The contract can immediately prescribe the amount and procedure for payment of child support.
Parents can resolve this issue out of court (i.e. before a court decision), which has its pros and cons. This right is exercised by submitting an application together with other documents to the children’s service. In that case, the process of determining the child’s future place of residence can be quite inconvenient and time-consuming. It is mandatory for the service employee to draw up an inspection report on the living conditions, which accordingly requires interviews with the parents and visits to the child at the place of residence. The specialist must also assess the needs of the family and determine whether the parent is able and appropriate to provide for the child’s upbringing. At the end, a conclusion will be drawn by which the service will resolve the dispute in favor of one of the parents. It is possible that both parents can not provide proper conditions, and therefore they will be deprived of parental rights. The decision on the basis of the conclusion is made by the body of guardianship and trusteeship. The advantage of this method is that it is beneficial for those parents who are sure that the conclusion will be in his favor, but in fact, we can’t say that this scenario takes too much time, because it will still happen within the trial.
In Lviv, you can apply to the Children’s Service of the Lviv City Council or ask us to represent your interests.
What rules are set by the legislator to determine where the child will live?
The legislator believes that a child under the age of ten cannot make a conscious choice with which parent he or she really wants to live with. Therefore, the place of residence must be determined by the parents themselves without taking into account the opinion of the child. Accordingly, from the age of ten, the child’s opinion must be taken into account, and from the age of fourteen, the child has the right to choose the parent with whom they want to be together. There are no restrictions on spending time with the child. Residence is a purely legal category that does not restrict parental rights and does not set any time frame in the relationship between parents and children. But usually one of the parents, and as practice shows it is the father, is simply unable to devote much time to the child, and therefore is limited to simple visits to the child.
However, it also happens that parents are equally able to invest in the child, and therefore there is a dispute between them, which has alternative solutions.
A lawsuit to determine the child’s place of residence
A trial that is definitely better than other options in terms of its reliability and, of course, its ability to prove its position on the court’s determination of the child’s place of residence. It is possible that at the level of guardianship and custody bodies, children’s services may have certain agreements, and therefore we recommend that this issue be resolved in court. For example, the court will check the attitude of each parent to their responsibilities regarding the raising of the child, the attitude of the child to each parent, its needs and the possibility of their solution by one of the parents, the relationship between you and the child. etc. You can go to court immediately, without first going to the children’s service. The court usually involves a guardianship authority as a third party in order to avoid pressure on the child by the parents in determining their opinion about living with one of them.
Sample application to determine the child’s place of residence
You can find a sample statement of claim on the Internet, but due to the complexity of proof in this category of cases, it is better to contact our lawyers to write a claim. In general, it is not difficult to write a statement of claim yourself, but in the process of determining the interests of the child during the trial, as well as in the process of gathering evidence and the evidence of both parties, you can not do without a lawyer.
Whose side is the case law on?
The greatest importance is certainly played by the desire of the child and the attitude of parents to the child, which includes an atmosphere of love, care, emotional stability, material security and developmental environment. The court will weigh all the criteria in each case, and therefore everyone can have an equal chance to win the case depending on the child’s contribution.