How to “divide” the child after divorce: expert opinion

Как “поделить” ребенка после развода: мнение эксперта

In a divorce the man always refuses to raise a child. Depending on family relations, the woman would be loyal to the joint education.

But there are other situations when one of the parties “declare war” to each other, to “divide” the child.

Как “поделить” ребенка после развода: мнение эксперта

We asked the opinion of a lawyer in family matters Oleg Golubnichiy, and he told important aspects, if there was such a situation.

In the family legislation of the Ukraine establishes the principle of equality of rights and obligations of the mother and father towards the child. In particular, article 141 of the Family code of Ukraine stipulates the following:

“Mother, father have equal rights and duties concerning the child, regardless of whether they were married to each other. Divorce between parents, their accommodation separately from the child does not affect the volume of their rights and not exempt from duties concerning the child.”

However, actually, in practice, if the child’s parents live separately from each other, but mostly separate from the mother and the child lives with the father, equality to the “rights” of the father towards the child is not the question. I have to agree with the fact that current trends are not positive due to the fact that a significant number of so-called “fathers”, after the dissolution of marriage do not wish to participate in the maintenance of the child, while concealing their income, sources of their origin, existing movable and immovable property.

Such behavior of men is due, primarily, to the fact that they believe that a large part of the money which shall be recovered in child support, spent for other purposes, that is not spent on the needs of the child and spent mother’s discretion. At the same time, none of them uses the mechanism of control over the use of funds paid as child support.

Also, in most cases, these parents do not wish to participate in the upbringing of their child, very rarely meeting with a child, or even disappearing from the life of mother and child. However, there are cases when the mother and father, equally, wish to participate in the life of a child and his upbringing.

In most cases, in the absence of conflict between parents and mutual awareness of the father that the child should be kept, and the mother that the child should be regularly to see his father and converse with him, the parents are not trying to formally resolve the issues of maintenance and education of the child with oral agreements.

It is also effective, but only for a certain period of time, as families have personal lives, new marriages, children, ruined business, fired from their jobs, deteriorating health, etc.

Accordingly, all these and other circumstances may affect the primary verbal agreements and unilaterally, some of the parents completely or partially ceases to comply with them, which, of course, not satisfied with one of the parents and eventually leads to conflict. Since, at this stage, if there is a conflict, to negotiate in a peaceful manner and sign the contract maintenance and upbringing of the child, is almost impossible, the parents go to court.

Because if after all parents have an understanding of with whom the child will live, how much alimony will be paid and as is often seen with a child of the parent who lives separately from the child, it is definitely recommended to formally resolve the matter and sign a contract between parents and raise a child. Thus, with a view to resolving this situation, there are notarized contracts through which parents can agree on the procedure of detention of child from parents who lives separately from the child, as well as its participation in the upbringing of the child.

Signing such an agreement is an advantage for parents because in the process of peaceful negotiations involved only the parents in a peaceful atmosphere, without conflict, unable to agree on each item of the contract. Also she has the opportunity to negotiate a real sume of the alimony, and the father to set the maximum number of days and hours in which it will communicate with your child and participate in his upbringing.

The execution of such contract is controlled solely by the parents without the participation of third parties, which again, gives you the opportunity to avoid conflicts and lawsuits.

And yet, there are cases when parents are unable to agree among themselves on who will in the future have custody of the children, therefore, appeal to the court for resolution of the dispute. Should start to note that the child has the right to choose with whom he wants to live only 14 years, because before the execution he was 14 years old, parents have the right to go to court to resolve this conflict by the court. As mentioned earlier, Ukrainian family law establishes equal rights of parents in respect of children, however, judicial practice is built on the Declaration of the rights of the child, adopted by the UN General Assembly from 20.11.1959 years, principle 6 of which States that only in exceptional cases a child may be separated from mom.

Naturally, the list of such “exceptional cases” one does not in itself mean that the child cannot be separated from its mother and transferred to the accommodation to the father, unless there is very good reason.

One such compelling reason may be the abuse of alcohol and drugs, which must be confirmed in court as legal evidence. In the absence of the father the evidence of the existence of such “exceptional cases”, and indeed absence in nature of such cases and circumstances to win such a dispute he did not succeed.

Thus, most lawyers and lawyers acting on her father’s side, I believe that the rule of international law is discriminatory, and given the fact that this Declaration has not been ratified by Ukraine, believe that the use of it.

However, this is not true, so, first, this Declaration is not subject to separate ratification, as it acts only as a recommendation, as, for example, resolution of the Plenum of the Supreme court of Ukraine, also have only a recommendatory character in connection with the absence in Ukraine of precedent.

However, these regulations are part of the Ukrainian legislation and the court has the right to use them according to part 2 of article 8 of the Civil procedure code of Ukraine. With that Declaration, the court has the right to use its provisions and use them for years. Secondly, I personally think that the indication that a child is separated from its mother only in exceptional cases, in the first place, not with a desire to discriminate against the rights of the father, but with the fact that biologically and psychologically the child is more connected with my mother, because she was carrying the child, also, mostly it is “maternity leave” until the child reaches 3 years. It suggests that the child is more attached to her mother.

I tend to agree that there are cases when the father is in this “maternity leave” and that the father of the child is more attached therefore it is impossible to separate the father of the child.

But if the father lives with the mother, only appears in a child’s life, and then claim for full custody, this idea of the father has no right to be doomed to success, except when the child residing with the mother can be hazardous to health and life of the child.

It should be noted that if both of the parents are approximately equal, this refers to the availability of housing (the right of ownership or leased) and wage (or minimum means of subsistence), still, the issue of establishment of the place of residence of the child, preference is given to the mother.

Thus, in 99 cases out of a hundred, the jurisprudence on the mother’s side. Wherefore, the father is just trying to negotiate with the mother about the procedure for his participation in the upbringing of the child, or in the absence of the ability to negotiate, apply to the court to establish a schedule of meetings with your child.

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