The Supreme Court has applied a fundamentally new approach to resolving the dispute over the determination of the children's place of residence

The Supreme Court's ruling in case No. 465/6496/19 as of 16 February 2024 for the first time, applied the model of joint parental custody of children. The full text of the ruling has not yet been published in the Unified State Register of Court Decisions, but it can already be said that this decision will have a significant impact on the further development of judicial practice.

The case concerned the determination of the residence of three children after their parents' divorce and was considered by the courts for four years. According to the Supreme Court ruling, which concluded this matter, the children will reside alternately with each parent: two weeks with the father and two weeks with the mother. After two weeks, the parent with whom the children were residing is obliged to accompany (bring) them to the residence of the other parent and transfer them into the physical care of the other parent.

According to the known circumstances of the case, the children lived with the father for a long time, had social contacts corresponding to the father's place of residence, and showed greater preference for him than for the mother. However, according to the Supreme Court's conclusion, children need maternal care and love, which should positively influence their development.

It is important to note that in this case, the guardianship and custody authority, in its conclusion, considering the family situation, noted the expediency of applying the model of joint physical custody of parents regarding the children.

Additionally, the disputing parties initiated a negotiation process and attempted to agree on the terms of a settlement, which ultimately did not result in an agreement. Alongside this, the willingness of both parties to the alternating residence of the children with the father and mother apparently had significant importance in the issuance of the ruling.

In resolving the dispute in this case, the Supreme Court was guided by the principle of equality of rights and duties of parents, provisions of international law ratified by Ukraine, primarily the Convention on the Rights of the Child of 1989.

The institution of joint custody exists in most developed countries, where the principle of equal parental rights regarding children exists not only in legislative acts but also in practice. In particular, the model of joint parental custody of children is widely applied in the United Kingdom, Canada, Australia, Spain (with the consent of both parents), and the United States. In the state of Kentucky, there is even a presumption of joint custody.

In Ukraine, after the dissolution of parents' marriage, the question of where the children will reside is resolved through an agreement between the parents, a decision of the guardianship and custody authority, or a court decision.

Despite the absence of norms in Ukrainian legislation that would give either parent priority right to reside with the child, raise the child, or unilaterally decide on matters concerning the child, courts, in the majority of cases, tend to favor the mother and determine the child's place of residence with her.

The other parent, who lives separately (usually the father), has the right to periodic visits with the child, spending time with them, and joint recreation. As court practice shows, in case of disputes between parents regarding the involvement of the parent living separately in the child's upbringing, courts mainly establish a visitation schedule that does not fully ensure the realization of the principle of equality of parents regarding the child and allows each parent to fully exercise their parental rights.

Therefore, the question of applying the joint custody model for the real protection of the rights of both parents and ensuring the best interests of the child in Ukrainian society has been long overdue.

As of mid-February 2024, there were no legally effective court decisions in Ukrainian judicial practice that had resolved the dispute over the determination of the child's place of residence through the establishment of joint parental custody. The Supreme Court ruling of February 16, 2024, in case No. 465/6496/19, became the first such decision and marked the beginning of the application of the joint custody model.

For further information, please contact Asters' Partner Talina KravtsovaCounsel Yuri Neklyaev and Associate Maryna Korniienko.

Thank you for your application
This site uses cookies to offer you better browsing experience.
Toggle high contrast
Toggle normal contrast
Toggle big fonts
Toggle normal fonts