The fact of being the sole parent of a child is not subject to judicial determination under the rules of separate proceedings - SC GC

The fact that a child is being brought up by one of the parents alone is not subject to separate proceedings and may be established by the court as one of the circumstances constituting evidence in a dispute between the child's parents as to the fulfilment of their educational responsibilities.

These legal conclusions were reached by the Grand Chamber of the Supreme Court in a case involving a father's application to establish the fact of independent child rearing.

According to the circumstances of the case, the couple had a son in September 2020. From February 2022, the son continued to live with his father (the applicant) and his mother moved abroad. The applicant stated that since then the mother had not been involved in the child's life, had not communicated with him and had not provided any financial support.

The applicant claimed to be a father raising the child on his own. He needed to prove that he was raising the child alone in order to obtain the documents necessary to receive social assistance as a single parent, to register the child's place of residence, to resolve other issues relating to the child's residence and stay, and to obtain a deferment of mobilisation.

The lower courts had dismissed the father's application because he had failed to prove that the child's mother was not exercising her rights and obligations towards her minor child.

The Grand Chamber of the Supreme Court held that the case involved a legal dispute, in particular a dispute about the participation of one of the parents in the upbringing of the child and/or the avoidance of participation in the upbringing, which must be considered in the course of proceedings with the mandatory involvement of the guardianship and custody authority.

Proof of the fact of sole parental custody of a child by the father is connected with the occurrence (existence) of circumstances in which the mother does not fulfil her parental responsibilities towards the child, concerns a change in the scope of family rights or the failure of one of the parents to fulfil their parental responsibilities (including intentional) and, of course, affects the rights and interests of the child, as well as entails the corresponding legal consequences determined by law.

Such a fact of sole parental care cannot be established indisputably or by agreement of the child's parents, including on the basis of an agreement concluded between them or on the basis of a court decision issued in accordance with the rules of separate proceedings, since in such a case there is always a risk of violation of the principle of observing the best interests of the child.

Since family law does not provide for grounds for termination of parental responsibilities for raising a child, and the inalienability of family responsibilities under part 1 of Article 15 of the Family Code of Ukraine indicates that they cannot be waived, including responsibilities for raising a child, the fact of sole parental care of a child by one of the parents may be established by the court as one of the circumstances that constitute the subject of proof in a dispute between the child's parents regarding the performance of their child-rearing responsibilities.

At the same time, the courts of previous instances did not pay attention to the fact that the application for the establishment of a fact of legal significance is not subject to judicial review in a separate proceeding, since in the circumstances established in this case there is a dispute over the right of one of the parents to participate in the upbringing and maintenance of the child.

Taking into account the principle of inalienability of family responsibilities enshrined in family law and the impossibility of renouncing them, including the responsibilities of raising a child, the issue raised by the father in this case cannot be clarified without regard to the actions of the other parent and may be resolved within the framework of a dispute over the right between the child's parents in the action proceedings.

Resolution of the Grand Chamber of the Supreme Court of 11 September 2024 in case No. 201/5972/22 (proceedings No. 14-132цс23) - https://reyestr.court.gov.ua/Review/121753944.

This and other legal opinions of the Supreme Court are available in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.