My bride living in Ukraine divorced more than two years ago. She has an eight-year old daughter living with her in Ukraine. I want us all to live in France where I live, after we get married. But she consulted two lawyers in Ukraine, and they both told her that without her ex-husband`s consent she would not be able to take her child from Ukraine. Meanwhile, it has no difference if we are married or not.
Please, explain to me how the Ukrainian law handles this situation. Does she really have to wait 10 years until her daughter is 18 to be able to build her further life? She sees it impossible to immigrate without her daughter.
Can she and her daughter go for a short holiday to France? Or is the child`s father`s consent is necessary in this case as well?
Please, tell me about it in detail. Could you possibly help?
Your issue could be solved favorably by way of concluding an agreement with the child`s father or in court. It is only a valid court decision that can allow the mother to take her child abroad without obtaining the father`s permit.
As a rule, a child`s parents have equal rights to upbringing of their child and equal obligations as to his/her maintenance. Pursuant to Clause 157 of Ukraine`s Family Code, issues of upbringing of children are jointly solved by parents. The parent living with the child has no right to prevent the parent living separately to communicate with the child and participate in his/her upbringing, unless such communication inhibits the child`s normal development. Parents also have equal rights when they solve the issue of determining the place where the child will live. Pursuant to Clause 160 of Ukraine`s Family Code, the place of residence of a child who is under 10, shall be determined upon consent of both parents, When determining the place of residence of a child at the age of 10 of older, the child`s opinion is also considered. If parents live separately, the place of residence of a child of 14 or older is to be determined by him/her independently.
If parents cannot come to agreement as to where their child should live, this issue can be solved by a tutorship and guardianship authority or by court.
Provisions of Ukraine`s laws on the procedure for travel of under-age children within the territory of Ukraine and exit of children outside Ukraine also imply obtaining consents from both parents (Clause 313 CC RF). Otherwise might be agreed upon by a contract between parents or by court decision.
Pursuant to Item 2-1 of the Regulations of crossing the state border by Ukraine`s citizens approved by the Resolution of Ukraine`s Cabinet of Ministers, # 57 dated 27.01.1995, citizens under the age of 16 can cross the state border with the purpose to exit outside Ukraine only with both parents` consent and accompanied by them or by people authorized by them, or by a court decision.
Thus, until the child is 16 years old, his/her exit outside Ukraine with one of the parents is requires the second parent`s consent certified by a notary, and, in the absence of same, - a decision of the competent court to that effect.
However, Ukraine`s legislation provides for cases when the child`s exit abroad is possible without the second parent`s consent. Subject to par. 2, part 1 of Item 2-2 of the Regulations of crossing the state border by Ukraine`s citizens without the child`s other parent`s consent certified by a notary, a child under the age of 16 can go outside Ukraine in case the child`s travel document contains an entry of leaving for permanent residence outside Ukraine or a note of consulate registration with a diplomatic mission of Ukraine abroad.
Besides, a child`s exit abroad without the child`s other parent`s consent certified by a notary is possible in case the other parent has been deprived of parent rights, or a court decision is produced about the court issuing a permit to exit outside Ukraine without the other parent`s accompanying and consent.
The court can issue such permit considering specific circumstances of a case. However, the prerequisites for obtaining such a permit are as follows:
• To produce evidence of the proper living conditions for a child abroad (housing conditions different from the housing conditions in Ukraine in terms of better quality);
• guaranteed income of the parent accompanying the child abroad;
• often – a foreign spouse` s affidavit providing guarantees to ensure a high level of living to his/her family, including housing conditions, school education, leisure arrangement and other life areas.
• Guarantees of a child getting, if necessary, medical assistance abroad (insurance);
• Financial guarantees of covering expenses related to living abroad;
• Data on geopolitical situation in the country (no military actions, strikes, revolts);
• Guarantees of enrolment of a child to school and provision of him/her with a better education than in Ukraine.
Meanwhile, it is important to confirm that the parent staying in Ukraine cannot or does not want to ensure the proper living conditions for the child, nor participates in the child`s life or is indifferent as to how the child is doing.
The law does not provide an exact list of such documents, and in each separate case this issue should be approached individually, based on the necessity to produce the maximum amount if evidence that can convince the court to pass a favorable decision.
As to a holiday abroad, even short-term travels require the child`s father`s consent. To obtain a court decision allowing the exit is as hard in case of short-term travels and in case of an exit for permanent residence abroad. That is why, in my opinion, it is expedient that you at once apply to court for a permit to an exit abroad for residence.
We will be happy to help you and represent your bride`s interests in the Ukrainian court, if is necessary.