- Determining the child’s place of residence: assistance from a lawyer
- Who will the child live with after the divorce?
- How to determine the child’s place of residence?
- Agreement on the child’s place of residence: legal services
- How to win a case regarding a child’s place of residence in court?
- How is a dispute about a child’s place of residence resolved?
- Determination of the place of residence of the child by the guardianship and trusteeship authorities
- Determination of the child’s place of residence by the court
- In which court is a claim regarding the child’s place of residence filed?
- What court fee should I pay for a child’s residence claim?
- How is a court decision to determine a child’s place of residence implemented?
Determining the child’s place of residence: assistance from a lawyer
Legal advice on determining a child’s place of residence
Preparation and submission of documents to the guardianship and trusteeship authorities to determine the child’s place of residence
Determining the child’s place of residence is the process of establishing the child’s place of residence with one of the parents with the help of guardianship and trusteeship authorities, or through the court.
A situation often arises when parents, due to a quarrel, end their marriage or divorce, after which the child remains to live with one of the parents.
Traditionally, children remain with their mother, especially if the children are small and require breastfeeding and 24-hour maternal care.
We recommend deciding on the place of residence of children based on the priority of the interests of the child, and not the parents. The child must live with the parent who can provide the maximum for the child not only financially, but also spiritually and psychologically. At the same time, one should not forget about the interests of the second parent, with whom it is also necessary to ensure the opportunity to meet with the child.
Such an agreement can be secured by concluding a notarial agreement, which determines both the child’s place of residence and the procedure for paying alimony, which is provided for in Art. 109 IC of Ukraine.
If the parents cannot voluntarily agree on the child’s place of residence, such a dispute is first resolved by the guardianship and trusteeship authority or the court.
Our family law attorneys have extensive experience in determining the place of residence of a child. Our lawyers protect the interests of the client in the guardianship and trusteeship authorities, as well as in the courts of Ukraine.
Who will the child live with after the divorce?
According to Article 33 of the Constitution of Ukraine, Art. 2 of the Law of Ukraine “On freedom of movement and free choice of place of residence in Ukraine”, every citizen of Ukraine, as well as stateless persons and foreigners, is guaranteed freedom of movement and free choice of place of residence, with the exception of the restrictions provided for by the Law.
At the same time, according to Art. 160 of the Family Code and Art. 29 of the Civil Code of Ukraine, young children cannot independently decide on the issue of residence, since due to their age they are directly dependent on their parents.
The place of residence of a child under 10 years of age is decided with the consent of the parents, and after 10 years of age – with the consent of the parents and the child.
If the parents live separately, the place of residence of a child who has turned 14 years old is decided by the child independently.
Thus, the Family Code defines the right of both parents, both during marriage and after its dissolution, to jointly determine with which of them the child will live. This means that parents must jointly and mutually resolve this issue based on the interests of the child. Unfortunately, parents are not always able to agree on the child’s place of residence.
In practice, immediately after the birth of a child, he is registered at the place of residence of the parents, who usually live together.
In the case when parents divorce, and for example, after the dissolution of the marriage with the child, the mother is forced to live at a different address from the previous one, problems arise with assigning the child to a clinic, enrolling in a kindergarten or school, receiving various benefits and social assistance.
In order to solve this problem, you need to contact a lawyer or advocate for legal assistance.
How to determine the child’s place of residence?
After divorce, the child’s parents usually live separately. At this moment, a dispute arises between them about who the child will live with. We recommend that this issue be resolved voluntarily, so that the child lives with the parent who can give him the proper upbringing and spiritual development as much as possible, and not with the one who is financially better off.
Most often, children remain with their mother, especially if the children are under 6 years old and require constant care. The child’s father, in turn, is not deprived of the opportunity to meet with the child, take care of him not only financially, but also give the child his love and upbringing.
It is not uncommon for a court to indicate in a claim for divorce who the child will live with after the divorce. If the defendant does not object to this reasoning of the claim, the tribunal, by its decision, confirms this state of affairs. It should be noted that if circumstances change, in the future the defendant may seek protection of his interests in court or with the guardianship and trusteeship authorities if a dispute arises about the child’s place of residence.
You can also enter into a notarized agreement on the child’s place of residence, which will control the rights of both parents.
Agreement on the child’s place of residence: legal services
The current Family Code of Ukraine provides for the right of parents, on the basis of an agreement certified by a notary, to determine the child’s place of residence.
Such an agreement is concluded by the spouses before filing an application for divorce with the court.
The contract specifies with whom the children will live after the divorce, what participation in ensuring their living conditions will be taken by the parent who will live separately, as well as the conditions for exercising his right to personally raise the children.
In Ukraine, the practice of concluding such agreements is very small, due to the fact that many notaries refuse to conclude such agreements.
How to win a case regarding a child’s place of residence in court?
Established judicial practice, as a rule, takes the mother’s side in disputes about the child’s place of residence. This is due to the psychological and physical connection between the child and the mother, especially if the child, due to his age, needs constant care and attention.
In particular, in paragraph 6 of the Declaration of the Rights of the Child, ratified by Ukraine, children are not recommended to be separated from their mother unless there is a clear and urgent need.
At the same time, our practice shows that there are positive decisions in favor of the father regarding the child’s place of residence. In such cases, the courts, having studied all the circumstances of the case, determined that living with the child would best protect the interests of the child. In doing so, the court took into account the personality of the father and mother, their social status and characteristics.
How is a dispute about a child’s place of residence resolved?
If a mother and father living separately do not agree on which of them the minor child will live with, the dispute between them can be resolved by the guardianship and trusteeship authority or the court.
When resolving a dispute regarding the place of residence of a minor child, the attitude of the parents to the performance of their parental responsibilities, the personal attachment of the child to each of them, the age of the child, the state of his health and other circumstances of significant importance are taken into account.
The guardianship and trusteeship authority or the court cannot transfer the child to live with a parent who does not have an independent income, who abuses alcohol or drugs, and whose immoral behavior can harm the development of the child.
If the guardianship and trusteeship authority or the court recognizes that neither parent can create the proper conditions for the child’s upbringing and development, at the request of the woman, grandfather or other relatives involved in the case, the child may be transferred to one of them.
If the child cannot be transferred to one of these persons, the court, at the request of the guardianship and trusteeship authority, may decide to remove the child from the person with whom he lives and transfer him to the guardianship of the guardianship and trusteeship authority.
Determination of the place of residence of the child by the guardianship and trusteeship authorities
To determine the place of residence of the child by the guardianship and trusteeship authority, the parent can contact the guardianship and trusteeship authorities at the child’s current place of residence.
The following documents are submitted to the guardianship and trusteeship authorities:
- application in the prescribed form;
- a copy of the applicant’s passport;
- certificate from the place of registration (residence) of the applicant;
- documents on ownership of housing (if available);
- a copy of the certificate of marriage or divorce (if available) or court decision;
- a copy of the child’s birth certificate;
- a certificate from the kindergarten or school the child attends;
- certificate of arrears of alimony (if any).
After receiving this list of documents, representatives of the guardianship and trusteeship authorities go to inspect the living conditions of the child to both the father and mother, about which a report is drawn up. Therefore, it is necessary to ensure in advance that the child has proper living conditions: a separate place for sleeping and studying. Books, toys, things.
It is advisable if the child(ren) have a separate room that meets all sanitary standards. Representatives of the guardianship and trusteeship authorities may be critical of the parent whose apartment (house) has no communications, the house is in disrepair, etc.
The next stage: the child’s parents are summoned to a commission of the guardianship and trusteeship authority, at which the parents’ explanations are heard, after which a decision is made on the child’s place of residence. This decision is mandatory for parents, but unfortunately, it is impossible to enforce it, which is why many parents are forced to go to court to resolve this issue.
Determination of the child’s place of residence by the court
One of the parents has the right to file a claim in court to determine the child’s place of residence, both immediately and after the procedure for determining the child’s place of residence has been determined by the guardianship and trusteeship authority, but the decision of the guardianship authorities is not implemented.
To prepare a statement of claim in court, you must contact a lawyer or family law attorney.
The following documents must be attached to the claim to determine the child’s place of residence:
- a copy of the plaintiff’s passport;
- certificate from the place of registration (residence) of the plaintiff;
- documents on ownership of housing (if available);
- a copy of the certificate of marriage or divorce (if available) or court decision;
- a copy of the child’s birth certificate;
- a certificate from the kindergarten or school the child attends;
- certificate of arrears of alimony (if any);
- documents on the health status of the child and father;
- documents on the plaintiff’s financial condition;
- documents indicating the possibility of adequate provision for the child by the plaintiff;
- other incidents of significant importance (bad habits, work schedules, profession, etc.);
- if, before filing a claim in court, the issue of the child’s place of residence had already been decided by the guardianship and trusteeship authorities, it is necessary to submit the decision of this authority
We recommend that you present to the court all the evidence that may be on your side: the ownership of an apartment, the child’s attendance at a kindergarten or school near the apartment. Confirmation of sufficient financial status. Witnesses who will give the court the necessary explanations may also be summoned and questioned.
If there is a lot of evidence and documents, it is difficult to collect. Therefore, we recommend that you seek help from family law attorneys, since based on attorney requests, we can collect the necessary evidence in a short time.
At the court hearing, witnesses or a child over 10 years old may also be questioned regarding their desire to live with one of the parents. The child’s opinion about personal preferences towards the parent will be taken into account by the court.
The guardianship and trusteeship authority must be involved in the consideration of the case, which draws up acts of living conditions, and also prepares a conclusion on the claim. The conclusion of the guardianship and trusteeship authority, although not mandatory for the court, in practice has a significant impact on the outcome of the case.
A court decision on the child’s place of residence may serve as the basis for the official registration (registration) of the child without the consent of the second parent.
Also, a court decision on the child’s place of residence with one of them may be the basis for taking the child abroad without the permission of the second parent (who in any case must be notified about this).
In which court is a claim regarding the child’s place of residence filed?
A claim to determine the child’s place of residence is filed at the defendant’s place of residence in a district (local) court.
What court fee should I pay for a child’s residence claim?
To file a claim to determine the place of residence of a child, you must pay a court fee in the amount of 0.4 of the subsistence minimum. The remaining costs will be the services of a lawyer for drawing up a statement of claim, documents on the merits of the case and participation in court hearings.
How is a court decision to determine a child’s place of residence implemented?
The court decision to determine the child’s place of residence, unfortunately, is not subject to mandatory execution. If the court has determined with whom and where the child will live, and the defendant does not give up the child, a claim should be filed with the court to claim the child, which will be carried out by the state executor and the guardianship and trusteeship authorities.
Also on the site rozirvannya-shlyubu.com.ua the following materials may be useful to you: Actual marital relations, Adoption of a child, Parents’ right to a child, Father’s rights to a child, Divorce, Collection of alimony, Division of marital property.
