The military aggression of the Russian Federation against Ukraine significantly affected the regulation of marriage and family relations in Ukraine. To a large extent, this is due to the departure of many Ukrainians abroad. According to the Institute of Demography and Social Research named after M. Ptuhy of the National Academy of Sciences of Ukraine, from February 24 last year to February 20, 2023, the number of Ukrainians who went abroad is 1,830,000. In general, the institute estimates the number of Ukrainians abroad at approximately 5 million people.
Currently, there has been an increase in the number of disputes related to the determination of the method of parental participation in raising a child, because a large number of women were forced to leave the country with their minor children. It should be taken into account that Art. 142 of the Family Code of Ukraine establishes that the mother and father have equal rights and responsibilities towards the child, regardless of whether they were married to each other. In the Ruling of the Supreme Court of June 29, 2022, in case No. 753/7395/20, it was concluded that neither the legislation of Ukraine nor international documents contain norms that would grant any of the parents a priority right over the child.
At the same time, we focus attention on the fact that the court should take into account the priority of the child's right to life, his stay in a safe environment. But this does not mean at all that the parent who remained in Ukraine can lose contact with the child due to the actual lack of opportunity to see the child.
Let's consider several possible cases. In the first, the method of communication of the father/mother with the child was established until the beginning of the military aggression of the Russian Federation against Ukraine. As a rule, such participation is ensured by establishing a certain time for communication with the child of the parent who lives separately from her. In the future, a situation arises in which the father, for example, cannot go abroad, and the mother refuses to return to Ukraine with the child. Let us immediately note that, in most cases, such a refusal is justified and logical due to the possible destruction of the home, the poor psychological state of the child, probable shelling, etc. The only possible way to communicate with the child is remote communication. But it is necessary to take into account the Resolution of the Supreme Court of Justice of the Supreme Court in case No. 210/529/19 of April 5, 2023, which provides clarifications regarding the change in the court-established method of communication between the father and the child who went abroad with the mother because of the war.
The specified resolution states that the executor is obliged to take measures to enforce decisions in the manner and in the order established by the Law of Ukraine "On Enforcement Proceedings", in particular, in compliance with the requirements of Part No. 1, 2 Art. 64–1 of the Law on ensuring visits of the debt collector with the child at the time and place determined by the court decision. The Supreme Court emphasized that in the case of establishing in a court decision a certain schedule of meetings of the debt collector with the child (time and place), the executor does not have the right to change it on his own. But according to Part 3 of Art. 33 of the Law of Ukraine "On Executive Proceedings" in the presence of circumstances that complicate the execution of a court decision or make it impossible, the parties, as well as the executor at the request of the parties or the state executor on his own initiative in the case provided for by the Law of Ukraine "On State Guarantees for the Execution of Court Decisions ", have the right to apply to the court to establish or change the method and order of execution of the decision.
The second example is a situation in which a spouse decides to dissolve the marriage due to the long-term absence of the wife/husband in Ukraine, since she/he has left the country and has been living abroad for a long time. Unfortunately, the number of such cases is increasing significantly. In this case, there is a need to determine ways of communication between the father and the child. Given the relevance of this issue, it has been repeatedly discussed by the legal community. I support the position of colleagues who express an opinion about the possibility of communication by means of electronic communication in the mode of video conferences. However, there are already disputes in which the mother interferes with such communication by turning off the connection.
In addition, it is necessary to take into account that when considering relevant disputes, it is mandatory to involve the body of guardianship and guardianship. Thus, in the Decision of the Central Committee of the Central Committee of Ukraine dated September 14, 2022, in case No. 466/1017/20, it is stated that the body of guardianship and guardianship did not draw a conclusion on the feasibility of the child living together with the mother, and the act of examining living conditions is not inherently legal the nature and content of the conclusion of the body of guardianship and guardianship.
We must state that significant gaps remain at the legislative level in terms of ensuring the implementation of decisions on communication between one of the parents and the child and removing the relevant obstacles. In this context, we advise you to familiarize yourself with the separate decision of the Civil Court of Cassation of the Supreme Court in case No. 1309/9120/12 of March 8, 2023, in which the court draws the attention of the Cabinet of Ministers of Ukraine to the need to improve regulatory legal acts in order to eliminate the shortcomings indicated in this decision at the stage of enforcement of court decisions on the contact of one of the parents with the child, ensuring the actual implementation of court decisions in cases regarding the participation of parents in raising and communicating with minor children and removing obstacles to this, in particular targeted support for children who show signs of alienation from one of the parents.
The material provides information on only one of the categories of family disputes, which is widespread today. As you can see, there are many problematic nuances that need to be resolved at the legislative level. At the same time, appropriate judicial practice is gradually being formed, which can be useful to colleagues when participating in relevant cases.