Mother/Father and Child Rights: How to Avoid Sanctions for Obstruction of Communication

Divorce is not only the end of a relationship between two adults, but also a deep test for their child. She becomes an involuntary witness and often a victim of conflicts between parents. In many cases, one parent after the breakup of the relationship limits the other’s access to the child, hinders their communication and uses the child as a tool in the conflict. Such actions not only injure the child, but also contradict the law. As cases of interference with communication become more frequent, judicial authorities respond to such actions by imposing sanctions to ensure that the interests and rights of the child are respected.

Lawyers of the “Repeshko and Partners” Bar Association commented on the legal consequences of preventing communication with a child. They explained what sanctions are provided by law for restricting communication, how the child’s interests are protected and how to avoid legal conflicts for the sake of his well-being.

When the family breaks up and the decision to dissolve the marriage enters into force, in 99% of cases the children remain living with the mother. Recently, this trend has changed somewhat, but in general the situation has not changed. The Family Code of Ukraine establishes that the place of residence of a child who has not reached the age of 10 is determined with the consent of the parents. The place of residence of a child who has reached the age of 10 is determined by the joint consent of the parents and the child. If the parents live separately, the place of residence of the child who has reached the age of 14 is determined by her. That is, there are no questions regarding children over 14 years of age, the situation with children under 14 remains difficult.

There are rare cases when the mother for some personal reasons (revenge, jealousy, etc.) does not allow the father to communicate with the child, despite the fact that he has no desire to do so.

The law states that the mother and father have equal rights and responsibilities regarding the child, regardless of whether they were married to each other. Divorce between parents, their living separately from the child does not affect the scope of their rights and does not release them from their obligations towards the child, except in the case provided part five Article 157 of this Code.

Mother, father and child have the right to unhindered communication with each other, except when such right is limited by law. At the same time, the parent who lives separately from the child is obliged to participate in his upbringing and has the right to personal communication with him. The parent with whom the child lives does not have the right to prevent the parent who lives separately from communicating with the child and participating in its upbringing, if such communication does not interfere with the normal development of the child.

What are the levers of influence on the mother if she prevents the father from communicating with the child

It should be noted right away, if by agreement or court decision the child lives with the father, these levers will be equally distributed to the father, who is already preventing the mother from communicating with the child.

The first thing to do is contact the children’s service at the child’s place of residence. Based on the application of the child’s mother or father, the guardianship authority determines the methods of participation in the child’s upbringing and communication with the parent who lives separately from the child. The decision on this is made by the guardianship authority based on the study of the living conditions of the parents, their attitude towards the child, and other significant circumstances.

Note that the decision of the guardianship body is binding. A person who evades the implementation of the decision of the guardianship authority is obliged to compensate the material and moral damage caused to the parent who lives separately from the child.

At the same time, the service calls both the father and the mother for an interview, as age allows – talks with the child, conducts an interview with a psychologist. The decision in this case will be as follows: “To determine the time for meetings with the father from 11 a.m. to 2 p.m. on Saturday and from 5 p.m. to 7 p.m. on Sunday.” But the decision of this body has one feature – it cannot be enforced. If, at 11 o’clock on Saturday, the father knocks on the mother’s door to take the child for a walk in the park, and she does not open the door for him, then everything will end there… The father can only go to court to collect material and moral damages. The very decision to meet the child will remain on paper.

Therefore, the second stage, if this situation occurs, is to apply to the court with a corresponding statement of claim. If the parent with whom the child lives interferes with the parent who lives separately in communicating with the child and in its upbringing, in particular if he evades the implementation of the decision of the guardianship authority, the other parent has the right to apply to the court with a lawsuit to remove these obstacles. The court determines the methods of participation of one of the parents in the upbringing of the child (periodic or systematic visits, the possibility of joint rest, visiting the child’s place of residence, etc.), the place and time of their communication. In some cases, if it is caused by the interests of the child, the court may condition visits with the child to the presence of another person.

When resolving a dispute regarding the participation of one of the parents in raising a child, the attitude of the parents towards the performance of their 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 in including the state of mental health of one of the parents, his abuse of alcoholic beverages or drugs.

At the request of the interested party, the court may suspend the execution of the decision of the guardianship authority until the dispute is resolved. It is necessary to know that the person who evades the execution of the court decision is obliged to compensate the material and moral damage caused to the parent who lives separately from the child.

When the case is considered by the court, a representative of the children’s affairs service participates in the sessions, moreover, this service is necessarily involved as a third party and it provides a conclusion, taking into account all the circumstances of the case, which visitation schedule is recommended in a particular case. The court decision can establish not only a few hours a week as time for seeing the child, but also taking into account the age – spending some national or religious holidays with the father, three days during the winter vacation, a month during the summer vacation (for school-age children). , free telephone communication and other options depending on the circumstances of each family.

How long will the court consider the case

One of the most important questions that interests our clients in this case is how long will the court consider the case?

Unfortunately, the terms of the court’s consideration of the case are not as short as desired, and a lot depends on how the parties will appear at the court session and at the children’s service. In any case, it is unlikely that this case can be considered in less than half a year, taking into account the procedure for opening the proceedings, obtaining an opinion from the service for children’s affairs and the entry into force of the decision within a month. The maximum term can be up to several years, taking into account the consideration of the case by the appellate court. That is why lawyers recommend that you first contact the guardianship authority (children’s service). This body issues its decision within a month or two, conducts a conversation with the parents, which may have a positive effect on the person who prevents them from meeting with the child.

However, the time spent on obtaining the court decision itself clearly makes sense, because the court decision already has a mechanism of enforcement in the event that the party does not comply with it voluntarily, while the sanctions in such a case are quite significant and encourage compliance with the law. If the decision has entered into force and at the time determined by it, the father came to the child’s place of residence to pick him up for a walk, and the door was not opened, then together with the application for the opening of executive proceedings to the state executive service at the address of the child’s residence, the father submits a copy of the decision and waiting for the opening of executive proceedings.

The execution of the decision to establish visitation with the child consists in ensuring that the debtor visits the debt collector with the child in the order determined by the decision. The state bailiff checks the debtor’s compliance with this decision at the time and place of the meeting specified by the decision, and if they are not specified by the decision, then the check is carried out at the time and place of the meeting determined by the state bailiff.

In case of non-compliance by the debtor without valid reasons, the state executor draws up an act and issues a resolution imposing a fine on the debtor in the amount determined part one Article 75 of the Law “On Executive Proceedings”. The resolution states the requirement to implement the decision and a warning about criminal liability.

Part 1 of Article 75 of the Law of Ukraine “On Enforcement Proceedings” specifies that in case of non-execution without valid reasons within the time limit set by the executor of a decision obliging the debtor to perform certain actions and a decision on reinstatement, the executor issues a resolution imposing a fine on the debtor – a natural person in the amount of 100 tax-free minimum incomes of citizens, which is UAH 1,700 and sets a new deadline.

In case of repeated non-execution of the decision by the debtor without valid reasons, the state executor draws up an act, as well as:

• issues a resolution imposing a double fine (3,400 hryvnias) on the child’s mother;
• sends a notification to the pre-trial investigation body that the mother of the child has committed a criminal offense,
• applies for a temporary restriction of the child’s mother’s right to travel outside of Ukraine to the court at the location of the state executive service body,
• issues a reasoned resolution on establishing a temporary restriction of the child’s mother’s right to drive vehicles (taking into account the restrictions provided for in part ten Article 71 of this Law).
• takes other enforcement measures provided for by this Law.

We would like to emphasize that part 10 of Article 71 provides that the temporary restriction of the debtor’s right to drive vehicles cannot be applied in the event of:

1) if the establishment of such a restriction deprives the debtor of the main legal source of livelihood;

2) the debtor’s use of a vehicle in connection with a disability or the debtor’s being dependent on a person with a disability of the I, II group, recognized in the established procedure, or a child with a disability;

3) the debtor’s completion of fixed-term military service, military service by conscription of officers, military service by conscription during mobilization, for a special period, military service by conscription of reservists in a special period, or if the debtor completes military service and performs combat tasks of the military service in a combat situation or in the area of ​​an anti-terrorist operation, implementation of measures to ensure national security and defense, repel and deter armed aggression of the Russian Federation in the Donetsk and Luhansk regions;

In the case of execution of the decision by the child’s mother, the executor draws up an act and issues a resolution on the termination of the executive proceedings.

If the mother of the child continues to prevent the father from seeing the child, the father has the right to apply to the state bailiff with an application for the resumption of enforcement proceedings. After the resumption of executive proceedings, the state executor shall again carry out the measures that were mentioned earlier.

Criminal liability for failure to comply with a court decision

Regarding criminal responsibility for failure to comply with a court decision, we note that the Criminal Code of Ukraine contains Article 382 “Failure to comply with a court decision”, which provides:

1. Deliberate non-fulfillment of a judgment, decision, resolution, court ruling that has entered into force, or obstruction of their execution – is punishable by a fine from five hundred (8,500 UAH) to one thousand non-taxable minimum incomes of citizens (17,000 UAH) or imprisonment for a term of up to three years
2. The actions provided for in the first or second part of this article were committed by an official who occupies a responsible or particularly responsible position, or by a person who was previously tried for the crime provided for in this article, or if they caused significant damage to the rights and freedoms of citizens protected by law, state or public interests or the interests of legal entities, – shall be punished by deprivation of liberty for a term of three to eight years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.

Therefore, in the event that the child’s mother does not comply with the court decision, the executor sends a notice of the debtor’s criminal offense to the pre-trial investigation body and issues a decision to terminate the enforcement proceedings.

As we can see, the law has significant sanctions so that the execution of the court decision becomes real. After all, even a fine in the sense of the criminal code is the presence of a criminal record with all the consequences that follow from it.

It is also necessary to remember the civil-material liability, which we mentioned at the beginning and which can be applied independently of the listed sanctions and in addition to them. Although this sanction is implemented also under the condition of submitting a corresponding claim to the court and going through the process and obtaining a court decision, but in case of voluntary non-compliance, it can also be enforced through the bailiff.