Usually, we are all somehow used to the term “single mother” or “single mother”. It was always used in the sense that a woman gave birth to a child without a husband, not being married, while the child’s father is, so to speak, “unknown” – not recorded as such in the child’s birth certificate. But more and more recently, in connection with mobilization measures, the term “single” or “lonely” father began to appear in widespread use.
How do these terms affect the status of a person, his mobilization duties, and in general, what does it mean in a legal sense and what documents is it confirmed by? IA “FAKT” turned to the lawyers of the “Repeshko and Partners” bar association for comments and answers.
According to Art. 23 of the Law of Ukraine “On Mobilization Training and Mobilization”, conscripted women and men are not subject to conscription for military service during mobilization:
- who have a child (children) under the age of 18, if the second parent of such child (children) is deceased,
- deprived of parental rights,
- recognized as missing or unaccountably missing,
- declared dead
- is serving a sentence in places of deprivation of liberty,
- the person independently raises and supports the child according to the court’s decision
- the entry of the father of such a child in the Birth Registration Book is made on the basis of Part 1 of Article 135 of the Family Code of Ukraine;
What we especially want to draw your attention to is that this article applies to both men and women. In light of recent changes in mobilization legislation (Article 1 of the Law of Ukraine “On Mobilization Training and Mobilization”), it is established that women who are fit for service due to their health and who have obtained a medical or pharmaceutical specialty are subject to mandatory military registration.
It should be noted that in 2022 – the beginning of 2023, there was a practice according to which conscripted men who were divorced and, in addition, had a court decision that the child’s place of residence was determined together with the father, were not subject to mobilization. Some of them even managed to get abroad with such documents. The unified state register of court decisions has many interesting documents related to this practice. But for now, new changes to the legislation have entered into force, the practice on most issues has been established, the requirements of the territorial centers of assembly and social support are known. Even if the child’s parents are divorced, if there is a decision to determine the child’s place of residence with the father, if the mother is currently in an unknown place, or maybe it is known, but abroad – all this is not a reason to release the child’s father from mobilization.
What documents must be submitted and how to obtain them in each specific case?
An entry about the father of such a person in the Birth Registration Book is made on the basis of part 1 of Article 135 of the Family Code of Ukraine “When a child is born to a mother who is not married, in cases where there is no joint statement of the parents, a statement of the father or a court decision, a record about the father of a child in the Birth Registration Book is carried out according to the surname and citizenship of the mother, and the name and patronymic of the child’s father are recorded at her direction.” This is the option they say: “single mother”.
Persons who have a child (children) under the age of 18, if one of the parents of such child (children) has died, must provide a death certificate issued by the civil status registration authorities of the prescribed format. Death certificates issued by the authorities of the LPR, DPR or on the territory of the Republic of Crimea are not recognized by Ukraine, and are not considered documents in the legal sense of the word. In order to, so to speak, “legalize” such a death certificate, it is necessary to apply to a court in the territory of Ukraine and establish the fact of death or declare the citizen dead.
If a person is serving a sentence in places of deprivation of liberty, then in accordance with it there must be a sentence that has entered into force and which has been assigned a punishment as connected with deprivation of liberty. You also need to get a certificate from the administration of the penal institution where the person is, that he is really behind bars.
Declaration of a natural person as deceased in accordance with Art. 46 of the Civil Code of Ukraine takes place in the following cases and in the following terms, the list of which is exhaustive and only by court decision:
- in the person’s place of permanent residence there is no information about his place of stay for 3 years;
- the person went missing under circumstances that threatened him with death or gave reason to assume his death from a certain accident within 6 months;
- the possibility to consider a natural person dead from a certain accident or other circumstances as a result of man-made and natural emergencies within the first month after the completion of the work of the special commission formed as a result of man-made and natural emergencies;
- a natural person disappeared in connection with hostilities, armed conflict after 2 years from the end of hostilities. Taking into account the specific circumstances of the case, the court may declare a natural person dead even before the expiration of this term, but not before the expiration of six months.
What to do in a situation regarding recognition of a person as missing or missing?
These two different concepts and circumstances are confirmed by different documents. A natural person may be recognized by the court as missing if, within one year, there is no information about his whereabouts in his place of permanent residence. Therefore, a court decision is required to establish this fact. A missing person is a natural person, regarding whom there is no information about his whereabouts at the time the applicant submits an application for his search. A person acquires the status of missing under special circumstances from the moment of entering the information about him contained in the statement about the fact of disappearance into the Unified Register of Persons Missing under Special Circumstances, and is considered to have disappeared under special circumstances, with the moment the applicant submits a statement about the fact of the person’s disappearance. A person is considered missing under special circumstances until the search for him is terminated in an orderly manner. Thus, in relation to a missing person, you need to have a certificate of entry of the child’s father/mother into the Unified Register of Persons Missing Under Special Circumstances.
The most interesting from a practical point of view are the grounds on which a person independently raises and maintains a child by court decision and deprivation of parental rights.
Regarding the case when a person independently raises and maintains a child according to a court decision, there are currently not many such options. One of those that is known is the removal of a child from his parents without deprivation of parental rights. The court may make a decision to remove the child from the parents or one of them, without depriving them of parental rights, in the following cases:
- 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;
- in other cases, if leaving the child with them is dangerous for his life, health and moral education.
The decision to determine the place of residence of the child together with the father does not fall under the scope of the mentioned clause, because regardless of which parent the child lives with, the second parent does not lose the obligation to maintain the child and provide financial support. Such a court decision resolves purely the issue of the child’s stay with the father or mother. In the operative part of the decision, the court prescribes “to determine the place of residence of the minor child together with ….”. The court has no right to write anything about maintenance.
In our practice, in connection with this, the question began to arise – is it possible, in the presence of certain circumstances, to establish a legal fact – the fact of the husband’s independent upbringing of the child? Despite the fact that similar single decisions of the court are in the Unified State Register of Court Decisions, the Grand Chamber of the Supreme Court of Ukraine determined that a man who is raising a child on his own may indeed have a dispute related to proving the existence of grounds for a postponement of conscription for military service during mobilization, but it is impossible to consider his statement in the order of a separate proceeding according to the rules of civil procedure, that is, as establishing a fact.
Currently, by the decision of October 26, 2023, the Grand Chamber of the Supreme Court has considered case No. 201/5972/22, which will form the practice regarding the resolution of similar issues. Thus, the court recognized that there is a problem with this issue, there is a request for its solution, but within the framework of which judicial procedure – civil or administrative – the issue will be resolved – this will be finally decided by the Supreme Court.
Things are a little easier with the issue of deprivation of parental rights. According to Art. 164 of the Family Code of Ukraine: “Mother, father may be deprived of parental rights by the court, if she, he:
- The child was not taken from the maternity hospital or from another health care facility without a good reason and did not show parental care for it for six months;
- Evade their responsibilities regarding raising a child and/or ensuring that he/she obtains a full general secondary education;
- The child is treated cruelly;
- Are chronic alcoholics or drug addicts;
- They resort to all kinds of exploitation of the child, force him to beg and wander;
- Convicted of committing an intentional criminal offense against a child.”
- That is, there is a clear list of reasons specified in the law.
Deprivation of parental rights occurs in relation to children who have not reached the age of 18. In this category of cases, the children’s service of the relevant local council participates as a third party. She prepares and submits to the court an official written opinion on a specific case. The specified conclusion is prepared taking into account the documents available in the case file, in addition, some separate documents may be requested from the parties. The service also visits the parents’ place of residence, offers the parties an interview with a psychologist, as their age and emotional state allows – communicates with the child. 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.
This step is quite radical, because 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 assistance provided to families with children;
- Cannot be an adopter, guardian or custodian;
- Cannot receive in the future those property rights related to parenthood, which 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.
A person who suffers from mental disorders or is incapacitated in connection with this cannot be deprived of parental rights. In this case, the legislator proceeds from the fact that a person suffering from a mental disorder cannot fully perform his parental functions not of his own free will, namely in connection with the disease, which does not depend on the will of the person.
It must be remembered that deprivation of parental rights is not an irreversible process. According to Art. 169 of the Family Code of Ukraine, the mother, father, deprived of parental rights, have the right to apply to the court with a claim for restoration of parental rights.
However, renewal of parental rights is not possible if:
- The child was adopted and the adoption was not canceled or declared invalid by the court.
- At the time the court considered the case, the child had reached the age of majority.
After the decision of the court on the deprivation of parental rights has entered into legal force, the court sends it to the state registration body of civil status acts at the place of registration of the child’s birth to enter the relevant information in the act record of the child’s birth.
Recently, interest in this category of grounds for exemption from mobilization is higher than ever. But usually, after receiving full information about the procedure for the deprivation of parental rights, the consequences and terms of this procedure, the child’s parents do not want to consider it as an option for release from mobilization, because even the preparation and consideration of the specified case can last for more than one year.
