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Family Law: adoption, guardianship (Ukraine)

Question

We have adopted three children from Ukraine that want to return to their grandparents. We are in agreement with this. The parents lost custodial rights due to drinking. We have made contact with the grandparents who have been trying to find the children since we adopted them four years ago. How would we do this? Would we set up the grandparents as custodians or guardians? Is there another way to do this?

I have decided to try reconnecting with the paternal grandparents, who are in their mid 50's, to approach them about letting the kids live with them in Ukraine. The maternal grandmother died when the mom was 14 and the maternal grandfather never visited them in the orphanage and lived too far away. The paternal grandparents live just in Ukraine, where the kids were born.

Our adopted kids are biological siblings and have told us non-stop they miss the paternal grandparents and want to go back to Ukraine. They have even told us over and over they would run away so they could get to Ukraine, or "go to jail", so the jail would send them back to Ukraine. They obviously miss Ukraine a huge amount since being adopted 4 years ago.

Also I have found I have worsening health (Lupus) and very poor eye sight (I have had 17 eye surgeries now) and I really want these kids to be happy and safe. My health is so bad I cannot easily care for them and I cannot see. My husband works very late each day so they will need someone.

The grandparents told a translator a few weeks ago (when we asked him to find them) that these children were their ONLY grand kids and they missed them very much. I did not get to ask them about transferring guardianship or letting them "adopt" the kids, because the translator was only talking to them without me present (after I wrote letters). The translator was upset we did not want to just "visit", but to instead try letting the kids stay in Ukraine. He said it would never work out to try to give the grandparents guardianship and the kids had to wait till each reached 18 to reconnect with their family. Is this true or can we give guardianship to the grandparents?

Please let me know if you can help us. Our adopted kids are healthy and happy, but miss family in Ukraine a lot. It was very helpful to receive pictures of family a few weeks ago from Ukraine, but it has only made them more homesick for their biological family.

Let me know if we can do something to return children to Ukraine. They repeatedly said 4 years ago they did not want to be adopted and taken away from their family in Ukraine, but we did not know Russian and did not understand what they were saying. John of course was too young to talk, but he would rather die than be split off from his brother and sister.

Please let me know if you can help us.

Answer

Cancellation of adoption is regulated by Art. 238 of the Family Code of Ukraine. Adoption can be annulled only by court order in following cases:

1) When the adoption is against the interests of the child; when it doesn’t provide family upbringing

(if you are seriously ill, it is contrary to the interests of children. This fact can be used as grounds for cancellation the adoption).

2) If the child is mentally defective, suffers from a mental illness or other irremediable disease of which the adoptive parent was not and could not be aware at the moment of adoption;

3) If the relationship between the adoptive parent and the child are such (despite the adoptive parent’s efforts) that their living together or performance of parental duties by the adoptive parent is impossible.

According to Art. 18 of the Family Code of the Ukraine each party to the family legal relationship is entitled to take legal action in court in order to protect his/her rights and legal interests. The court determines the remedy including inter alia termination of the legal relationship (Art. 18, part 2, clause 3 of the Family Code of the Ukraine).

According to Art. 17, 19 of the Family Code of the Ukraine the guardianship and custody authorities shall assist a person in performance of his/her family duties and exercise of his/her rights. Assisting you in handling your issue is a direct obligation of the guardianship and custody authorities. You may apply to the guardianship and custody authorities before taking legal action in court. Applying to the guardianship and custody authorities doesn’t prevent further production before court. During the legal proceedings the guardianship and custody authorities shall present a written report containing recommendations regarding resolution of the case based on the information collected as a result of study of the child’s, parents’, adoptive parents’ living conditions and other documents relevant to the case. In most cases the court agrees with the conclusions of the guardianship and custody authorities.
Therefore, I think you should first of all contact the guardianship and custody authorities personally or through a representative, obtain their support and approval of cancellation of the adoption.

The guardianship and custody authorities may initiate legal proceedings, in such case you will act as defendants. The guardianship and custody authorities may also request appoint the children’s grandfather and grandmother their guardians. In such case the grandfather and the grandmother will be parties to the proceedings and the court will have no grounds to reject the claim if the parties to it have reached mutual agreement.

However, you have no legal right to request appointment of guardians if you and not the guardianship and custody authorities initiate the proceedings in order to annul the adoption. You have no right to request the court to make the children’s grandfather and grandmother the parties to the proceedings.

Therefore, it is in the best interests of the children if you request that the guardianship and custody authorities initiate the legal proceedings in order to annul the adoption and appoint guardians of the children.

However, when you decided to adopt the children you accepted both rights and obligations including an obligation to support the children financially. This obligation will survive the cancellation of the adoption and the court is entitled to recover child support starting from the date of initiation of the legal proceedings until the children reach the legal age. Child support may be terminated if the children are adopted by other persons.

We are at your service if you need any legal assistance in your communications with the guardianship and custody authorities and/or in courts in the Ukraine.
Karina Duvall
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