Determining the place of residence of a child who is outside Ukraine: judicial practice during martial law

The issue of determining the place of residence of a child has traditionally been one of the most complex family disputes, as it combines legal norms, emotional conflict between parents and the state’s obligation to guarantee the protection of the interests of the child himself. During the war, this category of cases acquired new dimensions: the mass departure of children abroad, distance learning, changes in the usual social environment and the inability of guardianship authorities to directly check their living conditions. In such conditions, judicial practice has formed approaches to resolving disputes that were not so systematic a few years ago.

Lawyers of the law firm “Repeshko and Partners” commented on how the court approaches the resolution of disputes about determining the place of residence of a child if he is abroad, how the presence or absence of a real dispute between the parents is assessed, as well as how the courts take into account the wishes of the child, taking into account his age and the specific circumstances of the case.

If previously the dispute between the parents about determining the place of residence of a minor child was resolved in court, then in the current realities we are asked the question: what to do in the event of a dispute between the parents about determining the place of residence of the child, if the parents are separated by borders? How can the children’s service make a conclusion in this case about the expediency of the child’s residence with one or another of the parents? Does such a lawsuit even make sense in the current reality?

Case No. 202/14959/23 provides the answer to these questions, in which the Supreme Court of Ukraine issued a final ruling on October 22, 2025. Based on the case number, it began its existence back in 2023, that is, at the height of hostilities on the territory of Ukraine. In July 2023, the father filed a lawsuit against the mother to determine the place of residence of the children. The father motivated the lawsuit by the fact that since August 18, 2015, he had been in a registered marriage with the defendant. Two children were born to them in the marriage. Until April 2022, they lived in the city of Kramatorsk, Donetsk region, and in April 2022, the whole family left for Germany due to the armed aggression of the Russian Federation against Ukraine. After processing refugee documents and receiving assistance, the mother left for Ukraine on June 6, 2022 and never returned to Germany.

The father noted that he lives with his children in Germany, raising and supporting them on his own. He emphasized that the children have certain diseases, in particular, his son is a disabled child. During his stay in Germany, he is engaged in the treatment of children, their education and other household issues. The children’s father believes that the change of place of residence of the children will be accompanied by stress for them, especially for a child with a disability. In addition, the plaintiff drew attention to the fact that he is officially employed in Ukraine, owns housing, and his mother (the children’s grandmother) also has housing, who now also lives in Germany with them. He is not registered with a narcologist and psychiatrist. Taking into account the above, the father asked the court to determine the place of residence of the children together with him.

By the decision of the Industrial District Court of Dnipropetrovsk dated January 8, 2025, the father’s claim was satisfied, it determined the place of residence of the children together with the father.

The court of first instance motivated its decision by the fact that at the time of consideration of the case, the children live with their father in the Federal Republic of Germany. The parties do not dispute the above circumstances. The father created appropriate conditions for the development of the children, their education, takes care of the children, and is engaged in their upbringing. One of the children, when expressing his opinion, noted that the father takes care of him and he wants to live with his father. The opinion of the second child was not heard by the court, taking into account the arguments indicated by the father and the documents provided regarding his health status, as a child who will not be able to express his opinion. The court believed that determining the place of residence of the children with the father would best serve the interests of the children.

However, not agreeing with the court decision, the children’s mother filed an appeal against the decision of the local court and by the Resolution of the Dnipropetrovsk Court of Appeal dated May 21, 2025, her appeal was granted, the decision of the Industrial District Court of Dnipropetrovsk dated January 8, 2025 was canceled and a new court decision was adopted, which refused to satisfy the father’s claim.

Canceling the decision of the court of first instance and refusing to satisfy the father’s claims, the court of appeal concluded that the plaintiff:

• did not provide appropriate and admissible evidence to support the claims;
• did not prove the facts of providing the children with the necessary conditions for living and development; financial stability regarding the maintenance of children, proper care of their health, physical and moral development;
• did not prove that determining the place of residence of the children together with the father corresponds to the best interests of the children;
• did not prove that the children are provided with the necessary clothing, shoes, toys, school supplies, full-fledged nutrition, etc.;
• did not prove that the children have proper living conditions for living, development – the plaintiff did not provide proper and admissible evidence regarding the rental of a certain dwelling for the children to live in, the characteristics of the corresponding living space, the equipment of such a space with furniture necessary for each of the children, etc.

Also, the plaintiff did not prove the statement that the term of the rental of the dwelling was extended as of the time of filing the claim and to the present time. Therefore, the plaintiff has not proven the fact that the children live in acceptable living conditions, that the children are provided with sleeping places and appropriate furniture.

In addition, the father in Germany has income only in the form of social assistance as a refugee and for caring for a child and a child with disabilities; the plaintiff has no other income in Germany that is not related to social benefits.

At the same time, the appeal court took into account the letter from the guardianship and trusteeship body of the Kramatorsk City Council on the impossibility of providing an opinion on determining the children’s place of residence. The appeal court noted that the court of first instance unreasonably took into account the opinion of the child, who at the time of the interrogation was 12 years old, about the desire to live with his father, given that the court of first instance communicated with the child via video conference, which does not exclude the possibility of the father or another third party influencing the child during the boy’s communication with the court, which could have negatively affected the sincerity and frankness of the child’s explanations. The district court’s communication with the child was conducted without the participation of a teacher and/or a psychologist who has the appropriate qualifications to conduct a conversation with the child to clarify the true wishes of the minor.

At the same time, the appellate court noted that at the court hearing of the appellate court, the mother of the children explained that since June 2022 she has not lived with the children in Germany, as she has returned to Ukraine, where she is serving in the Armed Forces of Ukraine. She indicates that she is paying the alimony arrears. The defendant noted that she does not plan to take the children to Ukraine, due to the introduction of martial law in the country due to the armed aggression of the Russian Federation against Ukraine, which is dangerous for the life and health of the children, and indicated that she had not previously objected and does not object now to the children living with their father in the Federal Republic of Germany. The defendant does not object to the children living with their father and does not in any way hinder this. This is evidenced by the defendant’s failure to take any action to determine the children’s residence with her (she did not file a counterclaim to determine the children’s place of residence with their mother). The claim regarding the children’s place of residence was filed by the father, with whom the children already actually live in Germany. More than a year before filing this claim, the children’s mother returned to Ukraine, did not demand and does not demand a change in the children’s place of residence.

The plaintiff’s assertions that he had fears that the defendant could take the children to Ukraine without his (the father’s) consent are based on assumptions; the plaintiff did not prove and the appellate court did not establish the existence of a dispute between the plaintiff and the defendant regarding the children’s place of residence at the time the claim was filed, at the time the case was considered by local or appellate courts.

Disagreeing with the decision of the Court of Appeal, the children’s father filed a cassation appeal to the Supreme Court of Ukraine, in which he noted that the Court of Appeal had erroneously concluded that the housing lease agreement dated May 1, 2022, was inadequate evidence of providing the children with housing. The lease agreement was drawn up through a state structure, which provided a translation into Ukrainian. The landlord receives money for the rental of housing from the employment center. The agreement is automatically renewed. The defendant did not deny the fact of concluding a housing lease agreement.

The Court of Appeal ignored the fact that caring for a sick child with a disability is work under German law. Receiving social assistance and assistance for caring for a child with a disability in Germany cannot be an automatic basis for refusing to determine the place of residence of the children. The appellate court also did not take into account the attitude of the defendant to her parental responsibilities, who in June 2022 left the children with their father in Germany and returned to Ukraine and joined the Armed Forces of Ukraine. The mother of the children did not pay alimony voluntarily, she allowed arrears. Currently, the defendant is pregnant and has been discharged from the Armed Forces of Ukraine.

The Supreme Court established the following circumstances in the case. On August 18, 2015, a marriage was registered between the Plaintiff and the Defendant, which was later dissolved. The parties had two sons from the marriage. According to a copy of the certificate, one of the sons is a child with a disability. In April 2022, the parties together with the children left Ukraine for the Federal Republic of Germany. In June 2022, the mother returned to Ukraine, and the children remained to live with their father in the Federal Republic of Germany.

By order of the head of the CCC and the SP, the mother was called up and sent to perform military service during mobilization during martial law of reservists and conscripts according to the list. According to the certificate issued by the commander of the military unit, the defendant is on military service in a military unit. On April 27, 2023, the Industrial District Court of Dnipropetrovsk issued a court order to recover from the mother in favor of the father alimony for the maintenance of minor children in the amount of one third of all types of his earnings (income) monthly. According to the calculation of the arrears for the payment of alimony from the mother in favor of the father for the period from December 08, 2022 to July 31, 2023, the total amount of the arrears is UAH 188,499.20.

According to a copy of the temporary certificate of conscript, the plaintiff is unfit for military service with exclusion from military registration, Article 8a of the Ministry of Defense of Ukraine No. 2-94.

The employment center of the Tübingen district approved financial assistance for the father, and the father also receives financial assistance for caring for a disabled child. According to the letter of the guardianship and trusteeship body of the Kramatorsk City Council, the plaintiff’s family left Kramatorsk and moved to Germany. The mother joined the Armed Forces of Ukraine. The children remained to live in Germany with their father. The guardianship and trusteeship body is not able, according to Part Five of Article 19 of the Civil Code of Ukraine, to examine the living conditions of the children’s father, due to the fact that he lives in Germany, and the mother – due to the fact that she is in military service, and is also not able to find out the child’s opinion. Therefore, the guardianship and trusteeship body cannot provide a reasoned conclusion on determining the place of residence of children.

When determining the child’s best interests in each specific case, two conditions must be taken into account: firstly, it will be in the best interests of the child to preserve his or her ties with the family, except in cases where the family turns out to be particularly unsuitable or clearly dysfunctional; secondly, it will be in the best interests of the child to ensure his or her development in a safe, calm and stable environment that is not dysfunctional (according to the decision of MAMCHUR v. UKRAINE, No. 10383/09, § 100, ECHR, dated July 16, 2015).

According to Article 160 of the Code of Civil Procedure of Ukraine, the place of residence of a child who has not reached the age of ten is determined with the consent of the parents. The place of residence of a child who has reached the age of ten is determined with the joint consent of the parents and the child himself or herself. If the parents live separately, the place of residence of a child who has reached the age of fourteen is determined by the child himself or herself.

If the mother and father, who live separately, have not reached an agreement on which of them the minor child will live with, the dispute between them may be resolved by the guardianship and trusteeship body or by court. When resolving a dispute regarding the place of residence of a minor child, the attitude of the parents to the fulfillment of their parental duties, 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 (Part One of Article 161 of the Civil Code of Ukraine).

An analysis of the above legal norms and the practice of the European Court of Human Rights gives grounds for concluding that the equality of rights of parents in relation to the child is derived from the rights and interests of the child himself for harmonious development and proper upbringing, and first of all the interests of the child should be determined and taken into account, based on the objective circumstances of the dispute, and only then the rights of the parents. International and national norms do not contain provisions that would give any of the parents a priority right to live with the child.

When determining the place of residence of a child, courts must, through the prism of taking into account the best interests of the child, establish and provide a proper legal assessment of all the circumstances of the case that are important for the correct resolution of the dispute. Therefore, when considering cases regarding the place of residence of a child, courts must first of all proceed from the interests of the child himself, taking into account stable social ties, place of study, psychological state, etc., and also observe a balance between the interests of the child, the rights of the parents to raise the child and the obligation of the parents to act in his interests.

According to Article 171 of the Code of Civil Procedure of Ukraine, a child has the right to be heard by his parents, other family members, officials on issues concerning him personally, as well as family issues. A child who can express his opinion must be heard when resolving a dispute between his parents regarding his place of residence. The court has the right to make a decision contrary to the opinion of the child, if his interests so require. At the same time, part six of Article 19 of the Code of Civil Procedure of Ukraine stipulates that the court may disagree with the conclusion of the guardianship and trusteeship body if it is insufficiently substantiated and contradicts the interests of the child.

Given the introduction of martial law in Ukraine, when resolving disputes concerning the rights and interests of the child, the primary task of the state is to ensure its safety and right to life. The very fact of the introduction of martial law on the territory of Ukraine is not a sufficient basis for determining the place of residence of the child with one of the parents. At the same time, the circumstances related to the safety of the child and the consequences of hostilities are significant and are subject to establishment and assessment by the court. When resolving a dispute about the place of residence of a child during martial law, the courts must assess all the circumstances of the case in their entirety, apply flexible approaches to making a decision in the case, taking into account the best interests of the child, the balance between the interests of the child and the rights of the parents to raise him (this is stated in the Supreme Court resolution of June 14, 2023 in case No. 760/31518/21 (proceedings No. 61-5668св23).

The fact of the child’s residence abroad (regardless of whether the child was taken abroad before applying to the court with a claim to determine his place of residence or after) does not affect the resolution by the courts of Ukraine of the dispute about determining his place of residence. The return of the child to Ukraine is not a prerequisite for resolving a dispute between the parents about determining the place of residence of such a child. The child’s residence abroad is not an independent ground for refusing a claim about determining the place of residence of such a child together with one of the parents in Ukraine.

Provided for by parts four and five of Article 19 The Code of Civil Procedure of Ukraine states that the obligation of the conclusion of the guardianship and trusteeship body in the relevant categories of civil cases cannot be absolute. If, for one reason or another, such a conclusion cannot be obtained, the court must resolve the dispute based on the evidence available in the case. If, for one reason or another, the guardianship and trusteeship body refuses to provide its conclusion in a case where, according to the provisions of parts four and five of Article 19 of the Code of Civil Procedure of Ukraine, providing such a conclusion is mandatory, this circumstance does not mean the impossibility of considering and resolving the dispute.

The opposite approach is equivalent to a denial of access to justice and would mean a violation of the provisions of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The indicated approach is of a general nature and is quite fair for cases where a written conclusion of the guardianship and trusteeship body was not obtained when considering cases where the participation of the guardianship and trusteeship body is mandatory, given the impossibility of providing such a conclusion, in particular, in connection with the child’s stay in outside the country, the child’s stay in an uncontrolled territory, the inability to establish the place of actual stay of the child with one of the parents, etc. (this is stated in the resolution of the Supreme Court of the United Chamber of the Civil Court of Cassation dated December 11, 2023 in case No. 607/20787/19 (proceedings No. 61-11625сво22).

The need to hear the opinion of children who have reached a certain age and take it into account when resolving disputes about the removal of children is stated, in particular, in the decision of the ECHR dated December 18, 2008 in the case “Saviny v. Ukraine” (application 39948/06). In paragraph 59 of this decision, it is indicated that the court also notes that at no stage of the proceedings in the case did the judges hear the children. However, when resolving issues related to her life, a child who is capable of formulating her own views must be ensured the right to freely express these views in all issues concerning it, with the child’s views being given due weight in accordance with his or her age and maturity.

The result of the analysis of the above-mentioned legal norms and the practice of the ECHR gives grounds for concluding that the equality of parents’ rights in relation to the child is derived from the rights and interests of the child himself or herself for harmonious development and proper upbringing, and the interests of the child must be taken into account first of all, based on the objective circumstances of the dispute.

The Supreme Court noted that, in accordance with paragraph 64 of section 6 of the principles of the Committee of Ministers of the Council of Europe on child-friendly justice, when questioning a child, the court shall involve a qualified specialist, as far as possible. At the same time, in accordance with paragraph 72 of section 6 of the Committee’s principles, the court may allow the child not to give evidence, taking into account the best interests and well-being of the child.

The panel of judges believes that the court of first instance created all the conditions for the implementation of the child’s right to be heard in a manner that the court correctly determined to be possible during the ongoing war, when the child is in the territory of another state that provides shelter to citizens of Ukraine.

In addition, the appellate court erroneously referred to the fact that the plaintiff did not prove and the appellate court did not establish the existence of a dispute between the plaintiff and the defendant regarding the place of residence of the children at the time of filing the claim, at the time of consideration of the case by local or appellate courts, in view of the following.

In the resolution of the Supreme Court of November 29, 2023 in case No. 757/555/22 it is indicated that “the Supreme Court does not agree with the conclusion of the appellate court that in this case there is no dispute between the parents regarding the determination of the place of residence of the child and notes:

– firstly, in the event that the court considers that there is no subject of dispute in the case, the court shall close the proceedings in the case by its ruling (clause 2 of part one of Article 255 of the Code of Civil Procedure of Ukraine), and not refuse to satisfy the claim;

– secondly, the absence of a dispute is characterized by the fact that there are no unresolved issues between the parties, and therefore, the satisfaction of the plaintiff’s substantive claim in such a situation is inappropriate and will not lead to the desired consequences for the plaintiff, which have already been achieved by the parties, taking into account their agreement between themselves.

However, in the case under review, the filing of a lawsuit by the father to determine the place of residence of the child with the mother and the subsequent appeal by the defendant of the decision to satisfy this lawsuit in the appeal procedure gives grounds for concluding that there are unresolved issues between the parties regarding the determination of the place of residence of the child.

As a result, the Supreme Court decided to satisfy the father’s cassation appeal, to cancel the resolution of the appellate court, and to leave the decision of the Industrial District Court of Dnipropetrovsk of January 8, 2025 in force.

Therefore, the child’s residence abroad is not a reason for refusing to determine the place of residence with one of the parents. The absence of a conclusion of the guardianship authority does not prevents the consideration of the case. The court hears the child’s opinion, in particular via video conference, without the mandatory participation of a psychologist. Filing a claim and appealing it confirms the existence of a dispute between the parents. At the same time, this works for both the mother and the father.

Therefore, we advise that in disputes about determining the child’s place of residence, especially when the parents are in different countries or the child lives abroad, always proceed from the interests and safety of the child, collect all available evidence of the appropriate conditions for his or her life and development, and if it is impossible to obtain a mandatory opinion from the guardianship authority, do not postpone applying to the court. It makes a decision based on the available data, taking into account the child’s opinion in accordance with his or her age and maturity.