When parents divorce or separate, it is important to determine whether the child will reside with the mother or father. Some couples may seek mutual agreement on this. However, if the parents are unable to put their resentment and sentiments aside, and reach a compromise on their own, the only thing to do is to go to a guardianship authority or court, which will decide on the parents' custody rights and determine the child’s place of residence.
Such disputes are both among the most common in the area of family law and the most difficult in terms of preparation of evidence, evaluation of evidence by the court, the hearing procedures and the methods of enforcement of the court judgments. The judgments of the court of first instance are often appealed by the losing party, which greatly increases an already lengthy process. In addition, if the circumstances change, such disputes can be tried again.
A little bit “more equal”
Ukrainian family law establishes an equality principle of legal rights and responsibilities for both the mother and father. However, as a matter of practice, when determining a child’s place of residence courts take as a premise the principles set forth in the Declaration of Rights of the Child, adopted by the UN General Assembly on 20 November 1959. Thus, pursuant to principle 6 of the Declaration, a child of tender years shall not, safe in exceptional circumstances, be separated from his mother. Therefore, often consideration of such cases by Ukrainian courts becomes a mere formality, as the courts side with the mother while the merits of the case are considered “just for the record.”
Fathers only have a chance to obtain custody when some “exceptional circumstances” exist, such as the mother's lack of independent income, her alcohol or drug abuse, immoral behavior that may harm child's development, etc. However, even the existence of such circumstances does not guarantee that the child will be given residence with the father. The judgment of the Supreme Court of Ukraine, dated 30 March 2011, is a great example of such judicial formalism, when neither the mother’s attempts to commit suicide, her financial insecurity, the child’s desire to live with his father, nor even the guardianship authority's recommendation were convincing enough for the court to place the child in the father’s custody.
Until 2012 even in those cases where the father managed to obtain a positive court judgment in the court of first instance and/or court of appeals, more often than not, the higher courts canceled such judgments proceeding from the principle 6 of the Declaration and placed the child with the mother.
However, in 2012 this well-established practice was radically changed. Overcoming the discriminatory principle of the priority of the mother's parental rights, the High Specialized Court for Civil and Criminal Cases delivered a number of court judgments in fathers' favor. These judgments are based on the principle of the child's best interests set forth by the Convention on the Rights of the Child dated 20 November 1989.
Thus, in its judgment of 11 May 2012 the High Specialized Court arrived at the conclusion that cases concerning determination of child's place of residence should be tried based on a balance between the child's interests, the parents' rights to raise their children and the parents' responsibility to act in the child's best interests. The High Specialized Court noted that when considering such cases, courts should take into account not only principle 6 of the Declaration, but also principles set forth by the Convention, as well as provisions of Ukrainian family law.
That said, when it comes to representing the father’s interests in court one should place priority upon the provisions of the Convention, which are based on the doctrine of the child's best interests and, as opposed to principle 6 of the Declaration, do not establish discriminatory provisions regarding the priority of the mother's rights. One can also argue that the Declaration only sets out the main principles in the field of children's rights and is not an international treaty within the meaning of the Vienna Convention on the Law of Treaties and the Law of Ukraine “On International Treaties of Ukraine,” and is thus not binding.
In this regard, it is also worth mentioning the clarification of the Plenum of the Supreme Court of Ukraine of 12 June 1998 “On Application of Certain Provisions of the Marriage and Family Code by the Courts.” The said clarification foresees the following rule: when considering disputes between the parents living separately as regards determination of child's place of residence, the courts should take as a premise the equality of parents' rights and responsibilities and deliver a judgment that would best serve the minors’ interests. Despite the fact that in 2007 this clarification ceased to be in force, both the High Specialized Court of Ukraine and the Supreme Court of Ukraine point out the necessity to apply the aforementioned principles.
Priority to Children
Even though lately there have been positive developments in court practice as regards custody and determination of a child's place of residence, the said category of cases remains one of the most difficult and controversial, as a court judgment determines a child's fate. One good thing is that now a caring father with a well-written procedural document, backed by solid evidence, has better chances to get custody over his child, although he needs to be prepared to go through several court instances.