With the beginning of hostilities on the territory of Ukraine, society was to some extent divided into those who went to fight voluntarily in the first days and in the first ranks, those who are waiting to be served with a summons, and those who, for various reasons, do not want to be on the front lines.
Statistics are an inexorable thing, so let’s give some numbers. Currently, it is known that almost 20,000 men left Ukraine to avoid mobilization. More than 21,000 men were apprehended while attempting to illegally cross the country’s border, both with forged documents and outside border checkpoints. Since the beginning of martial law, border guards have discovered the bodies of 28 men in the Tisza River of Zakarpattia Oblast who tried to illegally cross the state border of Ukraine. In fact, there are probably many more such falls – sometimes the river carries bodies to the shore not immediately, but later.
At the end of June 2024, border guards on the border with Moldova detained a record number of evaders – 47 men in four minibuses from different regions of Ukraine tried to cross the state border of Ukraine. For this trip, each of them paid the organizers from 5 to 18.5 thousand US dollars. An even greater number of men would like to either cross the Ukrainian border to leave, or at least avoid mobilization. However, the most careful are looking for other ways to avoid mobilization, for example, depriving the child’s mother of parental rights.
IA “FAKT” asked the lawyers of the “Repeshko and Partners” bar association to comment on how this process takes place and whether it is legal.
Deprivation of parental rights is a legal process in which many parties participate, necessary documents are collected, and conclusions of competent authorities are obtained. According to Art. 23 of the Law “On Mobilization Training and Mobilization”, women or men who independently raise children under the age of 18 have the right to postpone mobilization. But it is impossible to give up the child, and, accordingly, the parental rights!
The law has a clear list of reasons when one of the parents can be deprived of parental rights and it is exhaustive. Yes, according to Art. 164 of the Family Code of Ukraine: a mother or father may be deprived of parental rights by a court if she or he:
- did not take the child from the maternity hospital or other health care institution without a good reason and did not show parental care for him for six months;
- shirk their responsibilities regarding raising a child and/or ensuring that he/she obtains a full general secondary education;
- treat the child cruelly;
- are chronic alcoholics or drug addicts;
- resort to any kind of exploitation of the child, force him to beg and wander;
- convicted of committing an intentional criminal offense against a child.
From the point of view of our problem, citizens are most interested in the first two points. We even had such families at our consultation who seriously considered the option of giving birth to a child, leaving it in the maternity hospital, and then the father would take it away and be a single father. You need to start with the fact that pregnancy lasts nine months. Then, if the child’s mother decided to leave her in the maternity hospital, she needs to write a corresponding statement. After that, the child is sent to the foster home, the documents for her are transferred to the guardianship authorities, and the mother herself is given a six-month period to change her mind and still take the child. And only after this six-month period has expired, at least a guardian can be appointed to the child. To this deadline, it is necessary to add a deadline for the preparation of documents and their approval.
But still, the most common option is the second option – when there are already born children of various ages, but necessarily up to 18 years old, and sometimes even a registered marriage of the child’s parents. In this case, it is necessary to go through two courts – the first involves the dissolution of the marriage, and after it – the deprivation of the child’s mother’s parental rights on the grounds that she evades the fulfillment of her duties regarding the upbringing of the child.
We know that the courts are currently overwhelmed with a large number of cases in this category. At the same time, many citizens turn to us for advice of the specified nature. For the most part, after the comprehensive consultation provided by us regarding the specific parents and the specific situation, this option is no longer considered, because how is it possible to deprive the mother of parental rights, who has been an active member of the parent committee of the class for five years in a row and she almost lives with the child at school.
However, each case must be considered individually. But if you follow the rules of the law and follow all the procedures and rules, then claims of the specified category are considered at least within a six-month period, and in some courts or with individual judges, much longer, taking into account the workload and working conditions (lights out, air alarms ). The court’s decision enters into force within thirty days, and usually the first hearing in the case takes place no earlier than a month later, taking into account the fact that the opinion of the children’s affairs service needs to be obtained.
There are various decisions in the Unified State Register of Court Decisions, even those that were adopted a few days after the filing of a claim, or do not contain sufficient justification at all – we will not comment on them, but consider how it should be from the point of view of compliance with all requirements and the presence of relevant grounds.
The first thing to note is that even recognition of the relevant lawsuit by the mother cannot be the basis for depriving her of parental rights, because such actions contradict the moral principles of society and do not correspond to the interests of the child (ruling of the Civil Court of Cassation dated November 10, 2023 in case no. 401/1944/22). Together with such a refusal in the case, all other circumstances and evidence in their totality should be investigated. The Supreme Court of Ukraine has repeatedly noted that the deprivation of parental rights is an extreme measure to resolve family issues, which is resorted to only in exceptional cases and in the presence of sufficient and convincing evidence that the identity of the mother/father poses a real threat to the child and his health and mental development. So, as we can see, the mother’s consent to the deprivation of her parental rights, even notarized, is not enough for the father’s claims to be satisfied.
In addition to consenting to the deprivation of parental rights from the mother, the father must provide the court with a number of convincing evidence that would definitely confirm the fact of evasion of his parental duties. It can be testimony of witnesses, but not only them. It is also necessary to remember the criminal liability of witnesses for false testimony – before questioning each witness, the court makes them swear an oath, warning of such liability. As practice shows, in many cases after this, if the witness promised to embellish something in his testimony, then after this procedure he refuses to give false testimony. There were also witnesses who could not say anything after that, except that they were asked to come to court. This must be taken into account.
But still, the main evidence in the case will be the documents – certificates, acts, characteristics, etc. What documents need to be collected is usually decided by the lawyer, based on the specific situation: the age of the child, his state of health, visits to various sections, the lifestyle of each parent and other significant circumstances. But if we are talking about the deprivation of the mother’s parental rights, then it will be necessary to obtain a certificate from the pediatrician stating that the mother is not interested in the child’s health, a description from the school that no one has seen the mother, and the father takes care of the child’s school life, a similar description from of a kindergarten, an act with the participation of a local deputy and witnesses of neighbors that the mother left the house and left the child to the father and other documents. Also, evidence includes photos, videos, audio files, court decisions on other cases (for example, on bringing the mother to administrative responsibility for failure to fulfill parental duties or collection of alimony).
The children’s service of the relevant territorial community will be a mandatory participant in the court case. She will participate as a third person and the court will not make a decision until it receives a conclusion from her on the expediency of depriving the mother of parental rights. Therefore, it will be necessary not only to the court, but also to this body, which is collegial, to explain the entire situation that has developed. At the same time, from a certain age, representatives of this body conduct an interview with the child, finding out his opinion, and also direct both the father and the mother to undergo an interview with a psychologist. The service’s conclusion on the case is not binding on the court, but given that it is a collegial body that acts exclusively in the interests of the child, courts rely on it in 90% of cases and make decisions similar to the conclusion. Although the situations are different.
Also, theoretically, the court can consider this category of case without the participation of the parties – the mother will provide a notarized statement that she acknowledges and does not object to the lawsuit, the father will provide his written statement through the court office that he supports the circumstances set forth in the lawsuit and asks for it to be satisfied, but , whether to summon the parties to court or whether a decision can be made without them will be decided by the specific judge before whom the case will be considered. A child who can express his opinion must be heard when resolving a dispute about the deprivation of parental rights. The court has the right to issue a decision contrary to the child’s opinion, if the child’s interests require it. At the same time, the court usually listens to the child in the presence of a psychologist or a representative of the children’s affairs service, without the presence of the child’s parents in the meeting room. However, for the most part, the practice is that the child is not called to court in order not to injure the child.
But even when, at first glance, sufficient evidence is provided for depriving the mother of parental rights, the court may refuse to grant the claim, warning of the need to change the attitude towards the upbringing of the child (children) and entrusting the guardianship authorities with monitoring the fulfillment of parental duties (ruling of the Civil Court of Cassation dated 04.04.2024 in case No. 553/449/20).
So, in order to go all this way, it is necessary to weigh and weigh all the pros and cons. After all, if the child is still small and accordingly will not be called to the service for children’s affairs, it is one thing, but if the child is older, then you also need to think about the child’s moral condition. You can tell the child that the refusal will be purely formal in nature, but he can tell this information to the children’s services, and then the services will have a lot of questions for you. The child may not believe in the fakeness of her rejection and will consider herself guilty of the fact that her mother rejects her, because this means that she is not a good enough child and is not needed by her parents.
It is probably unnecessary to tell what such thoughts of a child can lead to – from a banal refusal to listen to parents to suicide. Such a psychological trauma can cripple a child for the rest of his life. On the other hand, such a situation brings out the problem of lies in life. It goes without saying that children follow the example of their parents.
However, there is another more global problem. In this case, the child remains with one of the parents and for everyone, the second parent does not legally exist. At the same time, it should be remembered that a person deprived of parental rights:
- loses personal non-property rights in relation to the child and is released from duties regarding his upbringing;
- ceases to be the legal representative of the child;
- loses rights to benefits and state aid provided to families with children;
- cannot be an adoptive parent, guardian or custodian;
- cannot receive in the future the property rights related to parenthood that she could have in the event of her incapacity (the right to maintenance from a child, the right to a pension and compensation for damages in the event of the loss of a breadwinner, the right to inheritance);
- loses other rights based on kinship with the child.
So, as we can see, the most vulnerable participant in this process is the child itself, and therefore everything that parents do, they should do with the thought of the child in the first place, taking into account his interests and psycho-emotional state.
In addition, there is another important point. If something happens to the father, and the mother is officially deprived of parental rights, the child will go to an orphanage. Think about it!
