When military service is more important than the rights of the child: the formula of “justice” from the Supreme Court
Family cases in the courts have always been a source of difficult emotional and legal debates, because they concern the most vulnerable part of society – children. In such cases, every decision is of great importance for the future fate of the child, because the court must be the defender that will provide the best conditions for its development and well-being. However, the recent decision of the Supreme Court of Ukraine, which concerns the determination of the child’s place of residence, caused surprise and called into question priorities in judicial practice. In this case, instead of focusing on the best interests of the child, the court chose military service. The decision, which refused to determine the daughter’s place of residence with her father due to the circumstances of military service, prompts a deeper understanding of how state institutions should balance the interests of children and the requirements of national security.
What the court of first instance decided
A case that cannot but attract attention has appeared in the Unified State Register of Court Decisions. On January 22, 2025, the Supreme Court of Ukraine considered the application of a serviceman of the Armed Forces of Ukraine, who appealed to the court to determine the place of residence of his daughter together with him.
This family story has a long history. On November 10, 2001, the plaintiff and his wife were married, which was dissolved by the decision of the Bilhorod-Dnistrovsky City District Court of the Odesa Region in September 2013. A daughter was born in this union, who has lived with her father since the divorce. He was actively involved in her upbringing, took care of her financial support, health and education, while the mother practically did not participate in the child’s life and did not provide for her needs. That is, she actually removed herself from fulfilling her parental duties.
According to the father, the court’s decision should only have been the basis for officially confirming the child’s place of residence together with him, because it corresponds to her interests and reflects the real situation in the family. At the same time, the mother did not object to the daughter living with the father, and acknowledged the claims, stating this in her statement.
The court of first instance sided with the father, because the real state of affairs really showed that the child is dependent on the father, and the mother does not take an active part in her upbringing. The court’s decision was based on where the child actually lives. He considered that living with her father was in her best interests. The father independently performed all the duties that should have been divided between two parents, and the child had a deep emotional connection with him. The court noted that such a decision is not only logical, but also fair, as it meets the interests of the child.
It would seem that the case was decided fairly and in favor of the child. However, the situation became complicated when the military unit, where the father served, intervened in this matter. It turned out that the case had not only family law significance, but also important legal consequences for the mobilization status of the plaintiff. By law, conscripted men who are raising children under 18 on their own have the right to deferment from mobilization.
Decision of the Court of Appeal
On January 23, 2023, the military unit, which did not take part in the first hearing of the case, filed an appeal, in which it demanded a review of the decision of the court of first instance. The military believed that the lawsuit was used by the child’s father as a way to obtain an official basis for discharge from the army, since the law provides for demobilization for single parents.
In turn, the judges assumed that the girl’s father performs military duty for the defense of Ukraine, and the lawsuit filed by the military unit concerns the establishment of the legal fact of the child’s place of residence, which gives the right to release from military service. They noted that the military unit is a person for whom the decision of the court of first instance created grounds for the emergence of duties that did not exist before, and therefore its rights are violated. The court also noted that the review process in the first instance had certain shortcomings: the guardianship authority was involved formally, and the opinion of the child herself, who was 16 years old at the time of the review, was not taken into account.
As a result, the Odesa Court of Appeal concluded that this case goes beyond the usual determination of the child’s place of residence. It has become an issue that affects the constitutional duty of a serviceman and affects the functioning of a military unit. That is why the court decided to satisfy the claim of the military unit.
The final decision of the Supreme Court
After the decision of the appeals court, the father filed a cassation appeal to the Supreme Court, hoping for justice. But on January 22, 2025, the Supreme Court of Ukraine left unchanged the decision of the appellate instance, which canceled the possibility of officially fixing the place of residence of the child together with the father. The judges recognized that the key issue in this case is not so much the care of the child as the issue of her father’s military service.
The Supreme Court emphasized that the cassation appeal procedure involves checking the correctness of the application of legal norms, and not establishing new facts. In this case, the appellate court, in the opinion of the Supreme Court, reasonably concluded that the lawsuit was filed with the intention of creating grounds for the dismissal of the serviceman from service, and not for the purpose of protecting the rights of the child.
The court also indicated that the guardianship authorities were not fully involved in the case, and the child, who has already turned 16 years old, was not even asked about her opinion on who she wanted to live with. This became one of the arguments why the court does not consider the decision of the first instance to be properly substantiated.
Thus, the Supreme Court upheld the conclusion of the appeal: the rights of the military unit as a party that could be affected by the decision were violated, and the decision of the first instance created a legal conflict between the father’s right to raise the child and his military duty. As a result, the court did not satisfy the father’s cassation appeal.
The Supreme Court vs the rights of the child: disturbing conclusions
The Supreme Court of Ukraine made a decision in which it was noted that it is based on the principles of the rule of law, enshrined in Article 263 of the Civil Code of Ukraine. It also mentions that the decision must be legal, justified and correspond to the spirit of justice. Even more interesting – in its decision, the court refers to the Law of Ukraine “On the Protection of Childhood”, as well as Article 51 of the Constitution and Article 5 of the Family Code, which determine that the family, childhood, motherhood and fatherhood are protected by the state, and the interests of the child must be taken into account first of all But is it really like that in reality?
During the consideration of the case on determining the child’s place of residence, the Supreme Court came to the conclusion that the court of first instance committed a number of procedural violations. It was stated that he made a decision based on the recognition of the claim by the defendant, without delving into the factual circumstances of the case. At the same time, the guardianship body did not take part in the review, did not provide an opinion on the family situation. However, it is not clear why the Supreme Court reached such a conclusion based only on the decision of the Court of Appeal, without a detailed analysis of all available evidence.
Even more questions are raised by the fact that the court did not take into account critical aspects of this case. In the decision of the court of first instance, it was clearly determined that the marriage between the parents of the child was broken back in 2013, when neither the war nor the mobilization processes were discussed at all. And it was from this time that the child constantly lived with the father, but the Supreme Court ignored this important fact. It was also not taken into account that the mother actually removed herself from raising the child since ancient times, and the child herself, who turned 16 years old, could not express her opinion about who she wanted to live with.
The involvement of a military unit in the case looks even more surprising. What does a military unit have to do with determining a child’s place of residence? What regulatory documents define this? Why did the court recognize her as an interested party? Did anyone really care about the child’s fate and place of residence? By the way, this question remained open.
As you know, the function of the Supreme Court is to fairly protect the rights of all people. At the same time, he is obliged to protect the rights of children and families, and not to track down “evaders” from military service. But in this case, the priorities are set differently: the interests of the military unit, not the child, became decisive. The court decided that the personnel situation in the military unit is more important than the right of the child to live with the father. That is, in fact, this decision demonstrates that the judicial system is ready to give priority to state interests even in those cases where the rights of the child must be protected first.
Crucially, the court verdict in this story sets a dangerous precedent where the interests of the military may become more important than the needs of the family. What does this mean for other military personnel who are raising children on their own? Can they be sure that their rights will not give way to bureaucratic or military interests?
This decision of the Supreme Court once again raises the question of the balance between state interests and the rights of citizens. Can an institution called to protect justice make decisions that prioritize military necessity over the protection of a child? If this trend continues, it will mean that in the future courts will not be guided by laws and morality, but only by state expediency. And this is where dangerous prospects will open, when any decision can be made not with regard to the rule of law, but exclusively in the interests of the state apparatus. In such a system, the rights of a child, a family or an individual can easily be neglected in favor of “more important interests”, which will change each time depending on the political course or the military situation. Ultimately, this can turn the courts into a tool for legitimizing any government decisions, depriving citizens of their last hope for justice.
