If one of the parents has changed the child's place of residence before the decision on determining the child's place of residence was taken and does not comply with the decision after it was taken, the other parent may bring an action to remove the child

The mother (father) has the right to apply for the removal of the child if one of the parents has changed the place of residence without the consent of the other parent before the decision on the determination of the place of residence was taken and has not changed the place of residence of the child after the court decision was taken, in accordance with Article 162 of the Family Code of Ukraine, which is to be applied by analogy of law.

This conclusion was reached by the Joint Chamber of the Civil Cassation Court of the Supreme Court, thus ensuring uniformity of case law, in a case concerning a mother's request to remove her minor child from his father.

The plaintiff stated that in January 2021, the defendant moved her son to his place of residence without her consent. In November 2021, the court of first instance, whose decision was upheld by the courts of appeal and cassation, decided that the young son should live with his mother. Despite these court rulings, the defendant continues to keep his son in his custody, restricting the mother's ability to communicate with the child.

The court of first instance granted the claim, and the court of appeal upheld the decision. The courts considered part 1 of Article 162 of the Family Code of Ukraine as the legal basis and the defendant's failure to comply with the court's decision to determine the child's place of residence with his mother as the factual basis.

The Joint Chamber of the Civil Cassation Court of the Supreme Court partially upheld the cassation appeal and modified the reasoning of the court decisions, reaching the following conclusions on the application of the law.

A court decision determining the child's place of residence is essentially a recognition decision and, by its very nature, a non-property decision. As the court decision on the child's place of residence does not require the debtor (the parent with whom the child actually lives) to take any action, such a decision is not enforceable. The current legislation does not stipulate that the failure of one of the parents to comply with a court decision determining the child's place of residence with the other parent is a condition/reason for the application of Article 162 of the Family Code of Ukraine. The main condition for the application of Article 162 of the Family Code of Ukraine is the fact of "unauthorised change of the child's place of residence".

There is a gap in the Family Code of Ukraine and no regulation that would define the rule of conduct for participants in family relations in cases where one of the parents has changed the child's place of residence without the consent of the other parent prior to the decision on determining the place of residence and has not changed the child's place of residence after the court decision. A similar provision is Art. 162 of the Family Code of Ukraine, which is to be applied by analogy of law. Obviously, it is contrary to the principle of reasonableness and fairness to deprive a mother (father) of the right to bring an action for the removal of a child if one of the parents has changed his or her place of residence before the decision on the place of residence was taken and has not changed the child's place of residence after the court decision.

The mother (father) has the right to apply for the removal of the child if one of the parents has changed the place of residence without the consent of the other parent before the decision on the determination of the place of residence was taken and has not changed the place of residence of the child after the court decision was taken, in accordance with Article 162 of the Family Code of Ukraine, which is to be applied by analogy of law.

The removal of the son from his father does not harm the interests of the boy, since the change of the child's place of residence was made by the father during the proceedings to determine custody of the child, the dispute in this case concerning the removal of the child arose during the determination of his place of residence, which makes it impossible to conclude in this situation that the child has lost contact with his mother.

The Resolution of the Supreme Court of 25 March 2024 in case No. 183/1464/22 (proceedings No. 61-7478сво23) - https://reyestr.court.gov.ua/Review/118485782.  

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.