A child's stay abroad shall not deprive Ukrainian court of the right to resolve a dispute on determining the child's place of residence – SC CCC JC

The fact that a child lives abroad (regardless of the fact whether the child has been taken abroad before filing a lawsuit to determine the place of residence or after) shall not affect the decision of Ukrainian courts as for the dispute on the residence place determination.

The child’s return to Ukraine is not a precondition for resolving the dispute between the parents regarding the determination of the child's place of residence. A child's residence abroad is not an independent reason for refusing a claim on determining the place of residence of such a child together with one of his/her parents in Ukraine.

Such conclusions regarding the application of legal norms have been made by the Joint Chamber of the Civil Cassation Court within the Supreme Court (SC CCC JC), ensuring the unity of case-law, in the case upon father's claim on determining a child's place of residence together with him.

While appealing to the court in September 2019 with a lawsuit, father of the child referred to the fact that the minor son had remained living with his mother and her family after the divorce. At the same time, at the moment of appealing to the court, son remained living with mother's family (great-grandmother) due to the fact that the mother had gone abroad and lived outside Ukraine. Since the defendant is not properly engaged in raising the child and lives outside Ukraine, it will be in the best interests of the child to determine the place of residence together with his father.

Later, after the minor son had gone to the Kingdom of Spain in August 2021, the defendant did not bring the child back to Ukraine.

The court of first instance satisfied the claim. Having taken into account the conclusion of the guardianship authority, the court considered that determining the place of residence of son together with his father would be in the best interests of the child.

While revoking this judgment and refusing to satisfy the claim, the appeal court took into account the fact that son had been living permanently with his mother and her family by August 2021, where the necessary social and domestic conditions and stable social ties had been established, he had communicated with his father periodically, and according to the child's statements given to the guardianship authority, son had expressed a desire only to see his father and spend his free time with him, and to live with his grandmother (at the time of preparation of the conclusion by the guardianship authority).

The SC CCC JC agreed with the opinions of the appeal court that the plaintiff had not provided sufficient evidence to confirm the need to determine the child's place of residence with his father in view of the interests of the child, which prevail over the interests and wishes of his parents, and also that in the conditions of martial law in Ukraine, it would be safer for the child to stay with his mother in the Kingdom of Spain.

However, in this case, in connection with the existence of different legal opinions of the cassation court, the SC CCC JC resolved the legal issue regarding the possibility of consideration of the dispute on the determination of the child's residence place by the court of the permanent residence state, if the child is abroad.

The SC CCC JC noted that according to Art. 16 of the Convention on the Civil Legal Aspects of International Child Abduction (hereinafter referred to as the Hague Convention of 1980) after receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.

This norm limits the jurisdiction exclusively of bodies of the state, to the territory of which the child has been moved, and not to the state from which the child has been moved.

According to Art. 19 of the Hague Convention of 1980 a decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.

At the same time, the current legislation of Ukraine does not provide for the mandatory condition that the child's stay outside of Ukraine is a reason for refusing to satisfy the claim on the determination of the residence place on this basis only, which was noted in the cassation appeal with reference to another judgment of the Civil Cassation Court within the Supreme Court.

Besides, taking into account the provisions of international treaties regarding the preservation of the jurisdiction of Ukrainian courts in matters of parental responsibility, it is obvious that the case of determining the child's place of residence may be resolved by national courts.

Therefore, the circumstance of the child's residence abroad (regardless of whether the child has been taken abroad before filing a lawsuit to determine the place of residence or after) shall not affect the decision of Ukrainian courts regarding the dispute on the determination of his/her residence place.

A child's residence abroad is not an independent reason for refusing a claim on determining the place of residence of such a child together with one of the parents in Ukraine, and the fact of the child's return to Ukraine is not a precondition for resolving a dispute between parents on the determination of such a child’s residence place.

Resolution of the Supreme Court of 11 December 2023 in the case No. 607/20787/19 (proceedings No. 61-11625сво22) – https://reyestr.court.gov.ua/Review/116606725.

This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court – https://lpd.court.gov.ua.