Article 11 of the Law of Ukraine “On Child Protection” states that every child has the right to live in a family with parents or in the family of one of them and to parental care. Fathers and mothers have equal rights and responsibilities for their children. The main concern and responsibility of parents is to ensure the interests of their child.
The methods of participation in the upbringing of the child and communication with him of the parents who live separately from him are determined by the body of guardianship and care at the request of the mother, the child’s father.
Based on the study of living conditions of parents, their attitude to the child, other significant circumstances, the guardianship authority decides on this decision.
However, such a decision does not always satisfy one of the parents and therefore they are forced to apply to the court to declare illegal the decision of the guardianship authority to determine ways to participate in the upbringing and communication of the parents who live separately from her.
At the stage of preparation of the statement of claim to the court, the question arises as to the correct determination of the parties to resolve this dispute.
Thus, the Supreme Court in its decision № 757/39693/20 of September 15, 2021 spoke about resolving the dispute over the participation of one of the parents in the upbringing of the child. In particular, the Supreme Court found that in a lawsuit filed by one parent to determine how to participate in the child’s upbringing and communication, the other defendant was the appropriate defendant, not the guardianship authority.
The Supreme Court also noted that in the case of a lawsuit filed by one of the parents to declare illegal the decision of the guardianship authority to determine ways to participate in the upbringing and communication of the parent who lives separately from her, the appropriate defendants are: from the parents, for whom the ways of participation in the child’s upbringing and communication have been determined), and the body of guardianship and custody, the decision of which is being appealed; in a lawsuit filed by one parent to determine how to participate in the child’s upbringing and communication, the other defendant is the appropriate defendant, not the guardianship authority.
Thus, in the case under review, the plaintiff filed a lawsuit with the guardianship authority. The plaintiff did not file a claim against the woman, did not file a motion to involve her in the case as a co-defendant; therefore, it is necessary to refuse to satisfy the claim for declaring illegal and revoking the order of the head of the district state administration due to the improper composition of the co-defendants. The requirement to determine the method of participation in the upbringing of sons must be denied, as it is presented to the wrong defendant.
The Supreme Court stressed that the courts refused to satisfy the claim due to unfoundedness, and therefore the court decisions are subject to change in the motivating part. However, the courts correctly concluded that the lawsuit had been dismissed.
I also draw your attention to the fact that until the dispute is resolved at the request of the person concerned, the court may suspend the execution of the decision of the guardianship authority.
The court, at the request of the parent who lives separately, may transfer the child to live with him in case of evasion of the court decision by the person with whom the child lives.
A person who evades the execution of a court decision is obliged to compensate the material and moral damage caused to the parents who live separately from the child.