The fact of father's residence in the city being destroyed as a result of Russian military aggression is not an unconditional ground for refusal to take away a young child and transfer him to his father - SC CivCC

Parents have a priority right to raise a child over any person, including close relatives, and, as an exception to this general rule, if it is established that the transfer of the child to the parents or one of them would be contrary to the child's interests, the court may refuse to return the child.

This conclusion was made by the Supreme Court as part of the panel of judges of the Second Judicial Chamber of the Civil Cassation Court in a case brought by the child's father against her aunt, in whose family the plaintiff's daughter lives, to take the child and transfer her to her father.

The court of first instance, dismissing the claim, concluded that the removal of the minor from her aunt would not contribute to the stability of the child's psycho-emotional state and, accordingly, her harmonious stable development, given her established social ties and life in the city of Pereiaslav, Boryspil district of Kyiv region, the absence of such ties and the conditions known (familiar) to the child at the father's place of residence in Kharkiv.

The court of appeal agreed with this conclusion and proceeded solely from the fact that Kharkiv, as the most likely place of residence of the child in the event of the initial claim being granted, is subject to destruction and deaths of city residents as a result of the military aggression of the Russian Federation, which is a well-known fact. Visual damage to buildings (destroyed buildings) will obviously not contribute to the child's stable psycho-emotional state.

The CivCC of the Supreme Court, cancelling the decision of the court of appeal in part of the claims of the child's father to take away the minor child and sending the case for a new appeal, noted that the court of appeal did not pay attention to the fact that the plaintiff, being the only parent of the minor child, has a preemptive right, including over the child's aunt (grandparents), to the personal upbringing of the daughter and to cohabitation with her.

Pursuant to part 1 of Article 151 of the Family Code of Ukraine, parents have a priority right over other persons to the personal upbringing of their child.

Pursuant to Article 163 of the Family Code of Ukraine, parents have a priority right over other persons to have their minor child live with them. Parents have the right to demand the removal of a minor child from any person who keeps him or her in his or her custody not on the basis of the law or a court decision. The court may refuse to take a minor child and hand him or her over to the parents or one of them if it is established that this is contrary to his or her interests.

A child may not be returned to one of the parents if there is a threat to the child or the conditions of living with that parent are dangerous for the child's life, health and moral upbringing.

The conclusion of the appellate court that the father's preemptive right to personal upbringing of the child would be contrary to the child's interests in view of the military aggression of the Russian Federation and the destruction suffered by Kharkiv as the child's likely place of residence with the father, in the opinion of the CivCC of the Supreme Court, cannot be considered reasonable, since the above is not an unconditional basis for believing that the conditions of living with the father are dangerous to the child's life, health and moral upbringing within the meaning of part 3 of Article 163 of the Family Code of Ukraine.

The court of appeal did not verify the existence of circumstances provided for in Article 163 of the Family Code of Ukraine that would indicate that the removal of the child from the defendants and transfer to the natural father would be contrary to the child's interests.

Resolution of the Supreme Court of 11 December 2024 in case No. 373/120/23 (proceedings No. 61-6928св24) - https://reyestr.court.gov.ua/Review/123779903.

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.