This issue has always been very delicate and painful in the relationship between former spouses. A significant number of men immediately after the divorce are manipulated by declaring that they will take the child away from the mother, live with them from the beginning, and then deprive them of parental rights. Many women face the problem when the child actually has a father, but as they say, he causes more problems than benefits – some offer to waive alimony from them in exchange for permission to register the child at their place of residence. Let us, with the help of the lawyers of the “Repeshko and Partners” Bar Association, find out what is a myth and what is a strict legal reality in this matter.
We would like to point out right away that both the child’s mother and the father can be deprived of parental rights. Deprivation of parental rights takes place exclusively in court and on the basis of a court decision. Currently, in practice, there are quite a few cases when it is the father who applies to the court with a corresponding lawsuit and asks to deprive the mother of parental rights.
According to Art. 164 of the Family Code of Ukraineparents may be deprived of parental rights by the 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.
This is a clear list of grounds specified in the law. The article does not contain the phrase “or in other cases”. If any of the grounds are missing, or the ground for which there is a desire to deprive parental rights is not included in this list, then there is nothing to appeal to the court. The only room for maneuver in this sense is left by paragraph 2, which states that parents “avoid fulfilling their responsibilities regarding the upbringing of a child.” There is no clear list of what exactly is meant by evasion of duties. See what is included in the list of parents’ responsibilities towards the child and compare with your situation. The only caveat contained directly in judicial practice is that a person who does not fulfill his parental duties due to mental illness, insanity, a long business trip, or the creation of obstacles by the other parent with whom the child lives cannot be deprived of parental rights.
Deprivation of parental rights occurs in relation to children who have not reached the age of 18. A mother or father can be deprived of parental rights for all or one of their children. It should be noted that for this category of cases, the children’s service of the relevant local council acts as a third party in the case. At the same time, they play a very important role in the case – more than one court will not start hearing the case until it receives an official written opinion on a specific case from the Children’s Affairs Service. The service prepares the specified conclusion taking into account the documents available in the case file, may additionally request some separate documents from the parties, 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.
In our practice, there was a case when the mother of a minor child applied for the deprivation of parental rights. The situation began with the fact that the mother was unable to register the child at the place of residence – the state body requested the father’s written permission to register the child. The mother could not get such a permit because, firstly, the child’s father did not want to give it, and secondly, he was in custody in a pre-trial detention center. The mother also could not take the child on vacation abroad, because the father also did not give permission. It later turned out that the father had previously been held criminally liable for drug trafficking and had a probationary sentence, during which he repeatedly committed the same actions and was sent to the pre-trial detention center under arrest, taking narcotic drugs himself. He was sentenced to at least 6 years in prison. By the way, he was not interested in the child either. The Children’s Service concluded that it is not advisable to deprive the father of parental rights – he is behind bars, he wants to, but he cannot. In turn, the judge, who had many years of experience behind him, did not listen to the conclusion and made a decision to deprive the father of his parental rights.
If the court, when considering a case of deprivation of parental rights, finds signs of a criminal offense in the actions of the parents or one of them, it shall notify the pre-trial investigation body in writing, which in accordance with the procedure provided for Criminal Procedure Code of Ukraine, begins a pre-trial investigation. Thus, in addition to deprivation of parental rights, it is possible to receive a criminal case. The court fee for filing a claim to the court on deprivation of parental rights for 2024 is UAH 1,211.20.
As for the documents that need to be prepared in order to go to court with the relevant lawsuit, their list depends on the specific situation, but in any case, the following are the minimum required in copies: passport and identification code of the plaintiff, an extract from the register of the territorial community about the place of registration, such as a passport in the form of an ID card, also for the defendant, a birth certificate of a child (children), a marriage certificate, a court decision on divorce, a certificate of the place of registration of the child, a court decision on the collection of alimony, a certificate from the executive service on the existence of arrears of alimony , a declaration from a doctor, a certificate from a doctor about who attends receptions and takes care of the child’s health, a certificate from a kindergarten or school (depending on what the child attends) about who takes care of the child’s interests, the act is drawn up by a local deputy with the participation of neighbors-witnesses about the inspection of the parents’ living conditions, documents about the presence of real estate in the name of the parents, certificates from the parents’ place of work about the amount of wages and characteristics from the employer, work books, parents, information about applying to the police authorities with statements and complaints against the second parent, a certificate of appeal to the children’s affairs service due to the fact that one of the parents did not fulfill his duties, a certificate of criminal record, a sentence in a criminal case, a certificate of being in a dispensary registration due to alcoholism, acts or documents audio and video recordings, etc., of violations committed against the child by the relevant authorities.
Some of the specified documents, unfortunately, can be obtained only at the request of a lawyer or directly from the court. It will also be good to have several witnesses who will be able to confirm the circumstances that led to the deprivation of parental rights in a court hearing under oath.
Purely practical advice: if you really plan to go to court in the future with a claim for deprivation of parental rights, apply today with an appropriate written statement to the children’s affairs service regarding the non-fulfillment of direct parental responsibilities by the second parent. In the future, this will prove that the need to deprive of parental rights is not situational, but quite chronic.
The right to apply to the court with a claim for the deprivation of parental rights has one of the parents, a guardian, a custodian, a person in whose family the child lives, a health care institution, an educational or other children’s institution in which the child is staying, a guardianship authority and custody, the prosecutor, as well as the child himself, who has reached the age of fourteen. This list of persons is exhaustive.
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 those 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 in the event of the loss of a breadwinner, the right to inheritance;
- loses other rights based on kinship with the child.
The main thing that you need to know in this situation is that a person deprived of parental rights is not released from the obligation to maintain a child. Thus, in the claim for the deprivation of parental rights, it is advisable to raise the question of the collection of alimony (if such a decision on the collection of alimony has not been received) for the child at the same time. At the same time, alimony is charged in the same amount as provided for parents who are not deprived of parental rights. Therefore, when the lawsuit regarding the deprivation of parental rights is satisfied, the court simultaneously makes a decision on the collection of alimony for the child.
In addition, there is another point that not everyone knows about. According to Art. 168 of the Family Code of Ukraine: “Mothers and fathers who have been deprived of parental rights have the right to apply to the court to grant them the right to see the child. The court can allow one-time, periodic visitation with the child, if it does not harm his life, health and moral education, provided that another person is present.”
Now one of the main issues is to which court to file a claim. Consideration of the case on these grounds takes place at the place of registration of the defendant, i.e. the father whose parental rights they want to deprive. There is a way out of this situation if such a court is located in another city or another region altogether. If, at the same time as the demand for the deprivation of parental rights, a demand for the collection of alimony is filed (and in the event that it has already been collected by another decision – to change the method of collection, reduction or increase of alimony), then the claim can be filed at the place of registration of the plaintiff.
The issue also becomes significant if one of the parents is in a territory not controlled by Ukraine. Here you have to look at the situation taking into account the hint given earlier. In the event that the courts in the territory of residence of both parents cannot perform their functions due to the occupation or the immediate proximity of hostilities, the following must be taken into account. According to the seventh part of Article 147 of the Law of Ukraine “On the Judiciary and the Status of Judges”, in case of impossibility of justice by the court for objective reasons during a state of war or emergency, in connection with a natural disaster, military actions, measures to combat terrorism or other extraordinary circumstances, the territorial jurisdiction of court cases considered in such a court may be changed, by decision of the High Council of Justice, by transferring it to the court that is closest territorially to the court that cannot administer justice, or to another designated court. The corresponding decision is also the basis for the transfer of all cases pending before the court whose territorial jurisdiction is changing.
Currently, the list of courts whose judicial functions have been changed or returned can be found at official link.
The issue of the possibility of the appearance of a father who is deprived of parental rights in court in such a situation is also an important point. Therefore, before filing a lawsuit in such a situation, you need to weigh all the available evidence and understand whether it will be enough for the court to make a positive decision in your favor, because having three prison sentences and a certificate of alcoholism is one thing, but when simply not seeing a person for four years is a completely different matter.
It must be remembered that deprivation of parental rights is not an irreversible process. According to Art. 169 of the Family Code of Ukraine, a mother or father deprived of parental rights has the right to apply to the court with a claim for the restoration of parental rights. At the same time, renewal of parental rights is not possible if:
- the child was adopted and the adoption was not canceled or declared invalid by the court.
- by the time the case is considered by the court, the child has reached the age of majority.
The court checks to what extent the behavior of the person deprived of parental rights has changed and the circumstances that were the basis for the deprivation of parental rights, and makes a decision in accordance with the interests of the child. In turn, the court’s decision on the deprivation of parental rights, after it has entered into force, the court sends to the state registration body of acts of civil status at the place of registration of the child’s birth to enter the relevant information in the act record of the child’s birth.
In any case, before you dare to take this step and deprive the child of parental rights in relation to the second relative, consider all the circumstances, think about the future, rethink the grievances and act solely in the interests of the child. Wise decisions for you!
