Divorce with a dispute about children

Divorce with a dispute about children

If the spouses have common minor children, then, as a general rule, the divorce takes place in court. Which court to file a divorce application to depends on whether the parents have a dispute about the children’s place of residence or not.

Most often, the children remain with the mother, but in some cases the court may decide in favor of the father.

In any case, each parent has the right to participate in the child’s life, so it is necessary to determine a schedule of meetings between children and their father (or mother) living separately. Even if a parent has been deprived of parental rights, he has the right to restore the right to communicate with the child if he changes his lifestyle.

How to dissolve a marriage if there is a dispute about children?

The Family Code of Ukraine establishes a mandatory norm for the divorce procedure when the spouses have common minor children. In this case, divorce is possible only through the courts.

There are exceptions to this rule in the legislation, provided for by the Family Code of Ukraine. One of the parties can file for divorce in the registry office without the consent of the man and even if the couple has minor children, if:

• One of the spouses was declared incompetent by the court.
• One of the spouses was declared missing by the court (or declared dead).

It is not possible to dissolve a marriage if the wife is pregnant or the spouses have a child under one year of age.

There is also an exception to the rule if the child is not common (related exclusively to one of the spouses, for example, an unadapted child from a previous marriage), in which case a divorce is possible through the registry office with mutual consent.

If the child was adopted by the spouse (wife), then, despite the fact that he/she is not a blood relative of his/her stepfather (stepmother), the child will be considered common. This means that the marriage in this case can only be dissolved by the court.

Divorce if there is a dispute between the spouses about who the child will live with

As a general rule, claims are sent to the defendant’s place of residence. However, if the plaintiff is a father with whom minor children live, he has the right to file a claim at his place of residence.

That is, the case will be considered according to the rules of alternative jurisdiction.

It is necessary to apply to the court if the spouses have not come to a common opinion about the child’s place of residence and the procedure for communicating with him. In addition, it will be necessary to apply to the district court in the following cases:

• if spouses divide jointly acquired property;
• if it is necessary to confirm or deny paternity (maternity);
• if it is necessary to decide on the issue of limiting or depriving the parental rights of the second spouse.

Who will the child live with after the divorce?

If your man is against the child staying with you, divorce is only possible through court. The judge will hear the arguments of each party, as well as the child’s opinion, and make an appropriate decision.

The court fee for filing a claim to determine the child’s place of residence is 908 UAH 00 kopecks. If the claim is satisfied, the court fee will be collected from the defendant. If the claim is denied, the specified amount will not be returned to you.

Divorce with children

The child’s place of residence is determined either by court order or by agreement between the parents. An agreement between the parents is the simplest and most convenient option, which does not require the involvement of strangers, prioritizes the divorce process and allows maintaining good relations between the child’s parents. If the parents cannot peacefully resolve the dispute over the children, then it is necessary to go to court.

As a rule, the minor is left to live with the mother, but the father has the right to actively participate in raising the child. The court must carefully consider all the circumstances of the case and decide with whom the child should stay. The court must take into account the following factors:

• Age of the child.
• The child’s commitment to each parent, as well as other siblings in the family.
• Moral, ethical, and other significant qualities of the personality of each parent.
• Relationships between children and the father.
• The ability of the father and mother to create the conditions necessary for
• the normal upbringing and development of the child’s personality.

The last point provides:

• Work schedule, occupation of father and mother.
• Financial (material) situation of father and mother.
• Marital status of father and other incidents.

When a child reaches 10 years of age, the court takes into account his or her opinion regarding which parent he or she would like to stay with. However, the child’s wishes are not the main argument for the court: if during the hearing it turns out that the child wants to live with his or her father because he or she allows the child to eat chips and stay up until two in the morning, the judge will make decisions taking into account other significant factors.

Can a child stay with his father after a divorce?

According to statistics, in Ukraine a child is left with the father after the parents’ divorce only in 10% of cases. This is possible if:

1. The mother herself agrees to leave the child with the father, that is, a voluntary agreement between the spouses, which will be approved by the court.
2. The child’s mother is unable to fulfill her parental responsibilities due to excessive drug or alcohol use. This can be proven with the help of medical certificates, witness testimony, and so on.
3. The mother has serious financial difficulties. In this case, the court must compare the financial situation of both parents, and also find out whether they have their own housing.
4. The mother suffers from mental disorders or her legal capacity is limited.
5. The mother does not cope with her responsibilities for the upbringing and maintenance of the child: leaves him unattended or resorts to violence. The court will take into account the degree of responsibility of the parents. An irresponsible mother will not be able to obtain the right to raise the child.
6. A child who is older is strongly attached to the father.
7. The conclusion of the guardianship and trusteeship authority in favor of the father. The judge must be presented with an act of inspection of the living conditions of the child and the person claiming upbringing, as well as a conclusion on the merits of the stated claim. These documents will also be taken into account by the court.

If you need to resolve the issue through the court, you need to collect as many documents as possible, checks, various receipts, letters from the mother, official requests to government agencies, bank statements confirming the father’s efforts. Testimonies and other evidence are also important. Based on this, the court will decide with whom to leave the child.

Establishing a routine for communicating with a child

According to the Family Code of Ukraine, the parents’ spouses may take equal part in the upbringing of their minor child. Parents have the right to independently decide issues of upbringing and communication with children (oral and written agreements). But it happens that the presence of conflicts between parents forces them to go to court to determine the procedure for communication with the child.

A claim for determining the procedure for communication with a child is filed by one of the parents living separately from the child. The plaintiff must propose the procedure for communication that, in his opinion, will be fair. He must convince the judge that the schedule he proposes will not harm the child: does not disrupt the child’s routine, is realistic and meets his interests. The claim specifies specific days and hours of communication, as well as the procedure for communication during holidays and vacations. Often, the defendant can file a counterclaim, where he requests a reduction in the time allotted for communication, and also proposes his own schedule.

In these court proceedings, the guardianship and trusteeship authorities must be present and provide their opinion. Representatives of the service must visit the parents’ places of residence and then provide their opinions to the court. In addition, interviews are held with both parents. Often, the court involves an expert psychologist in such cases, who makes a conclusion, while clarifying the significance of the child’s communication with each parent.

After studying the case materials, explanations of the parents and conclusions of the guardianship authorities, the district court makes a decision. Usually the proceedings last several months. In addition, the court has the right to offer the parents to come to an agreement, and the parents can sign a settlement agreement. However, in the event of its violation, each of the parties can apply to the bailiff service for compulsory execution. In fact, compulsory execution in such cases is quite difficult and is poorly tolerated by both children and parents.

Restoring the right to communicate with the child

The father has the right to restore the right to communicate with the child. You can achieve what you want through the court by filing a claim. This is done in two cases:

• The father decided to change the terms of the agreement with his wife on the procedure for communication with the child or the court decision.
• A father deprived of parental rights wants to resume communication with the child.

The first option is possible if the conditions under which the preliminary decision was made or the agreement was concluded have changed significantly. The reasons for changing the procedure for communicating with the child may be different: a change in the child’s status (went to school or fell ill), a change in the child’s living conditions (moving to a new place of residence and increasing the distance between places of residence), changes in the second parent (the father or mother began to travel frequently on business trips) and other reasons.

Deprivation of parental rights is not an indefinite decision and can be reviewed, which means that the right to communication can be restored. To do this, the person deprived of parental rights must change their behavior, antisocial lifestyle, attitude towards the child, get a job, etc.

In a statement of claim for restoration of the right to communicate with the child, it is necessary to justify the reasons for changing the established order, that is, it is necessary to prove the validity of your demands. The statement of claim is filed with the district court at the location of the defendant, in addition, documents confirming the demands must be added to the claim. If the court considers the evidence and arguments of the plaintiff sufficient, then it can restore the right to communicate with the child.

Conclusion

If there is a dispute about children, the marriage is dissolved by court order. The child will most likely remain with the mother, but if there are more advantages to leaving the child with the father, the court may side with him. Parents determine the procedure for communicating with their daughter or son by agreement, otherwise the court does it.

If a parent has been deprived of parental rights or limited in them, he can file a lawsuit to restore the right to participate in the child’s life. The court will satisfy the claim only if the behavior and image of the plaintiff have really changed.

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Alexey Skryabin

Family lawyer

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