Return of a child after abduction or illegal departure by one of the parentsIt is possible to return the child by a court decision or the competent authorities in the country where the child is located abroad, it will be faster, but not always possible. You can also return the child without leaving Ukraine. If it is impossible to leave for this country to return the child for any reason, it is necessary to use the international treaty "The Convention on the Civil Aspects of International Child Abduction" (hereinafter the Convention) concluded in The Hague, Netherlands in 1980. Ukraine has acceded to this agreement and its implementation is mandatory in our country and in all countries that have acceded to this Convention.
According to the Convention, if custody rights are violated as a result of moving a child or keeping him abroad (in Ukraine these are parental rights), then such movement is considered illegal. And you can demand to return the child to the country of permanent residence.
Guardianship (parental) rights include:
- ✔ the right to choose the child's permanent residence;
- ✔ the right to participate in the upbringing of a child;
- ✔ the right to visit and spend time with the child to those of the parents who live separately and his relatives.
Also, in the absence of a child, the right to determine the place of residence of a child with one of the parents in court is violated. Since this is difficult to do if the child is not in the country, in some cases the child's participation may be required. At the age from 10 to 14 years old, the opinion of the child in the question with whom he will permanently live can be taken into account. And at the age of 14 years or more, the child can independently choose which of the parents he will live with.
In accordance with the above, a violation of custody or parental rights can be considered not only a violation of parental rights (custody rights) of the parent with whom the child permanently lives (usually the mother), but also all other persons vested with custody rights. It can be:
- ✔ father or mother living separately from the child;
- ✔ other relatives who have custody of the child;
- ✔ children's institution in which the child lived without parental guardianship.
Parental rights of parents living separatelySeparate parents of a child are not automatically deprived of parental rights. They have almost the same parental rights and responsibilities as the co-parent living with the child, except that they live separately from the child.
The choice of the parent with whom the child lives can be determined by a court decision or without it. If a child is already registered (registered) at some address, or has been living there for a long time, then in the absence of a court decision on determining the child's place of residence with one of the parents, this address will be considered his permanent place of residence. If this address coincides with the address of registration (registration) of one or both parents, then in the absence of a court decision, it can be argued that the child permanently lives with one or both of the respective parents.
In the event of a dispute as to which of the parents the child remains to live with, the parents file a claim with the court to determine the child's place of residence, and this issue is resolved in court.
More information about determining the place of residence of a child in court can be found in our separate article by clicking on the link "Determination of the child's place of residence"
Applications for the return of a kidnapped or illegally displaced childAccording to the Convention, in case of illegal movement or detention of a child abroad, it is necessary to submit an application for the return of the child to the country of permanent residence.
The application is submitted to the Central Authorities, which in Ukraine is the Ministry of Justice.
Before submitting, you must make sure that the country in which the child is located has joined the Convention. To date, 55 countries have signed the Convention.
The application will be accepted even if at the time of departure the applicant gave permission to leave or temporary leave the child, but now requires the return of the child.
The application contains all available information regarding the circumstances of the case:
- ✔ proof of custody rights;
- ✔ court decisions or contracts related to the case;
- ✔ data about the child;
- ✔ grounds for claiming the return of the child;
- ✔ information about the location and identity with which the child is.
The Ministry of Justice of Ukraine should facilitate the return of children and provide assistance to applicants.
The Department of Justice will reject the application if the child is 16 years old.
The application and all annexes to it must be translated into the language of the country where the case will be considered, or, if this is not possible, into English or French.
It should be understood that the final decision on the return of the child is made by the court of the country in which the child is located.
Consideration of a case on the return of a kidnapped or illegally removed (retained) childIt is better to submit an application within one year after the child leaves the country of permanent residence, otherwise, if there is evidence, the court may decide that the child has already adapted to the new country during this time and refuse to move the child again.
There are other conditions under which the court can reject an application for a return, if there are grounds for this. For example, if a child has already reached the age at which his opinion can be taken into account, then such an opinion can be evidence in court.
During the consideration of the case, the circumstances of the child's departure will be established:
- ✔ whether the departure took place without the consent of the other parent (or the person / institution with the custody right);
- ✔ whether the applicant exercised parental rights and obligations before the departure of the child;
- ✔ whether there is a risk of physical or mental harm to the child as a result of the return;
- ✔ information on the child's social status is taken into account.
Legal consequences of returning a childThe decision to return the child is solely aimed at returning the child to his permanent place of residence and does not address other issues such as:
- ✔ custody of the child;
- ✔ deprivation of parental rights;
- ✔ determination of the child's place of residence with one of the parents;
- ✔ alimony;
- ✔ property and any other issues.
More information about obtaining alimony can be found in our separate article by clicking on the link "Alimony in Ukraine"
You can get help in returning a child from abroad from our lawyers. You can order a full case management or a separate application through our website - by phone or through the service order form on our website https://www.yurdopomoga.com.ua.
We will be happy to help.
Quick order return of the child from abroad to Ukraine "Turnkey"
Return of the child from abroad to Ukraine "Turnkey"