The Civil Cassation Court of the Supreme Court for the first time applied a model of joint physical custody in a dispute between divorced parents over the residence of their children

In resolving a dispute between divorced parents over the child's place of residence, the court, guided by international norms and the principle of equal rights and duties of parents, has the right, taking into account the circumstances of the case, to determine the child's place of residence with one of the parents while ensuring the child's contact with the other parent, or to apply joint physical custody, with the child living alternately in the home of each parent according to a schedule.

The Supreme Court has repeatedly emphasised this in its judgments issued in 2023-2024.

However, as of mid-February 2024, there are no court decisions in force that would apply the joint physical custody model, although this model has been actively used for a long time in the countries of the Anglo-American legal system and European countries.

In a case pending before the Supreme Court, a father and a mother filed counterclaims to determine the residence of their three minor sons.

The court of first instance determined the place of residence of the older sons with their father and the younger one with their mother.

The court of appeal reversed the decision of the court of first instance and determined the younger son's place of residence with his father as well.

The Supreme Court issued a decision determining the place of residence of two younger minor children (the eldest is already 15 years old) with each parent in turn: two weeks with the father, two weeks with the mother, emphasising that the eldest has the right to join his brothers. After two weeks, the parent with whom the children have been living is obliged to take them to the other parent's place of residence and hand them over to the other parent's physical custody.

The court of cassation took into account the fact that the parties work in the same city and live in the suburbs of Lviv, that they have positive characteristics and that they express the desire to have equal care of the children.

During the trial of the case in the court of cassation, three court hearings were held with the participation of the parties to the case and their representatives. Each party agreed to alternate joint custody and submitted a draft settlement agreement, but the parties did not reach final agreement on all the terms.

The panel of judges took into account the proposals made by the parties in the draft settlement agreements and agreed with the final conclusion of the children's affairs authority to apply the model of joint physical custody of the parents in the disputed family situation.

Since children live with their father for a long time, they have corresponding social contacts at their father's place of residence and show greater attachment to him. However, children also need maternal care and love, which should have a positive impact on their development. Children deprived of love can turn into adults full of hatred. As Harvard University professor William Pollack, a specialist in male psychology, noted, boys who are deprived of a bond with their parents (especially their mothers) tend to suffer in silence, and instead of tears they may later "cry with bullets".

Joint physical custody in this case aims to bring the mother back into the lives of the children, who need both maternal and paternal care, which together form the basis of the children's formation as full members of society.

The court also took into account the need to ensure the brothers' cohabitation, given their emotional bond, mutual support and desire to live together, in accordance with the principle of the best interests of the child.

The Resolution of the Supreme Court of 16 February 2024 in case no. 465/6496/19 (proceedings no. 61-16408св23) will be available in the Unified State Register of Court Decisions - https://reyestr.court.gov.ua/.