The Biological Father Does Not Have to Pay Alimony If the Child Was Adopted by Another Man - Civil Cassation Court Within the Supreme Court

The plaintiff divorced a man with whom she had a common daughter. The plaintiff's husband adopted a child in a new marriage. The woman filed a lawsuit to recover child support for her daughter from her biological father.

The court of first instance upheld the claim, since the parental rights and obligations of the adopted child must be fulfilled by both the father and the adoptive parent.

The court of appeal agreed with the above conclusions, but reduced the amount of alimony collected.

The Supreme Court composed of a panel of judges of the Civil Cassation Court overturned the previous judgments and dismissed the claim, having made the following legal conclusions.

According to part 1 of Art. 232 of the Family Code of Ukraine, from the moment of adoption, the personal and property rights and obligations between the parents and the adopted person, as well as between him and his or her other relatives by origin, are terminated. When a child is adopted by one person, these rights and obligations may be preserved at the request of the mother, if the adopter is a man, or at the request of the father, if the adopter is a woman.

Mutual personal property and non-property rights and obligations between the adopted person and the adoptive parent and their direct relatives shall arise upon the adoption (part 3, Art. 232 of the Family Code of Ukraine).

According to parts 4, 5 of Art. 232 of the Family Code of Ukraine, adoption imposes the rights and obligations upon the adoptive parent regarding the adopted child in the same scope as for the parents of the child. Adoption imposes the rights and obligations upon the adopted child regarding the adoptive parent in the same scope as for the child of the parents.

The courts of previous instances considered that the analysis of the provisions of part 1 of Art. 232 of the Family Code of Ukraine gave grounds for the following conclusions:

- the legal fact of adoption changes the subject composition of parental legal relations, namely: the parents of the adopted person cease to be subjects of parental rights and obligations, legal ties like the ones that exist between parents and children are established between the adopter and the adopted child;

- the subject composition may be supplemented rather than changed, since parental rights and obligations for the child will be performed by both parents and adoptive parents.

In addition, the courts pointed out that part 1 of Art. 232 of the Family Code of Ukraine provides an alternative approach to maintaining parental rights and obligations, depending on the characteristics of adoption. In the situation of adoption by one person (by the second spouse), the law indicates the possibility of preserving property obligations (the right to alimony), and the general condition for the realization of the right to alimony is the manifestation of the desire of the second parent by origin to receive alimony.

The Supreme Court disagreed with this and pointed out that an analysis of the above provisions of the family law indicated that the obligation to support a child until coming of age was based on the fact of paternity; instead, adoption changed the subject composition of the legal relationship between the mother, father and child.

Interpretation of the provisions of para. 2, part 1, Art. 232 of the Family Code of Ukraine in the context of preserving the rights and obligations of one of the parents by origin provides grounds for concluding that the legislature provided for the possibility for a child adopted by one person to retain a legal link with the father or mother by origin, who are not deprived of parental rights and have consented to adoption.

At the same time, such preservation of a legal connection is possible only in a way that excludes a situation in which, from a legal point of view, a child will have two mothers or two fathers at the same time.

In other words, if a child is adopted by a man, the rights and obligations between the child and his biological father are not preserved, but it is possible to preserve the rights and obligations between the mother and the child.

Accordingly, if the adopter is a woman, the rights and obligations between the child and the biological mother are excluded, but the rights and obligations between the father and the child may be preserved.

The family law of Ukraine does not provide for the obligation of a parent by origin whose child is adopted by another man to support such a child until the child reaches the age of majority.

Resolution of the Supreme Court of August 31, 2022, in case No. 522/5039/21 (proceedings No. 61-4147св22) – https://reyestr.court.gov.ua/Review/106051894.

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