Publication date: 05.06.2024
lawyer, 23 years of experience in enforcement.
The Supreme Court recognized the importance of protecting the rights of grandchildren in lawsuits involving their grandparents.
A lawsuit to remove obstacles in raising a child and communicating with him is a separate way of protecting the rights of one of the parents, violated by the actions of another person, with the aim of preventing communication of one of the parents with grandchildren.
Refusal to grant a claim to remove obstacles in raising a child and communicating with him (due to the lack of evidence of the existence of obstacles or for other reasons) is not a reason for the court to refuse protection and rights related to Part 2 of Art. . 159, Article 1 of Article 263 of the Civil Code of Ukraine, which determines the methods of participation of the grandfather and grandmother in raising the child, the place and duration of their communication.
The United Chamber of the Civil Court of Cassation as part of the Supreme Court reached such conclusions regarding the application of the law (date of decision: March 25, 2024 in case No. 742/1716/23 (proceedings No. 61-17035svo23). )) in the scenario of the lawsuit grandparents about the obligation not to interfere with communication with the granddaughter and to find an opportunity to participate in the upbringing of the child and communication with her.
Details of the situation:
Considering the situation, after the parents' marriage and divorce, the daughter stayed to live with her mother. The parents of the spouses and the defendant did not reach an agreement on the methods or order of participation of the grandparents in the upbringing of their little daughter, in connection with which they filed this lawsuit with the court.
The first-instance court did not recognize the obstacles that the defendant would have placed in the communication between the plaintiffs and the child, and partially satisfied the claim - it created ways for the grandparents to participate in raising and communicating with the child. granddaughter. The Court of Appeal reversed the previous decision regarding the number of child visits.
The defendant admitted in the appeal that the courts incorrectly interpreted the provisions of Art. 257 of the Criminal Code of Ukraine. Having recognized the absence of obstacles to communication with the granddaughter of the father and mother, the courts incorrectly interpreted the relevant decision of the Supreme Court in terms of partial satisfaction of the claims, and referred to the relevant decision of the Supreme Court.
Position of the Supreme Court:
OP KKS left previous decisions unchanged, which led to the following legal conclusions.
Creation of Art. 159 of the Civil Code of Ukraine, the legislator delineates the need to create a way to participate in the child's upbringing and to eliminate obstacles in communication with the child and his upbringing.
Appreciation of private life and respect for family life is considered an important right, the protection of which is promoted by the Convention for the Protection of Human Rights and Fundamental Freedoms. In the common practice of the European Court of Human Rights, the term "family life" is defined in Art. The eight provisions of the Convention have a rather expansive interpretation, they contain a definition of "family ties" that includes other extramarital relationships, for example between a child and other family members. These rules have a significant impact on family life, in particular, the child and his relatives can play a significant role in it.
The right to family life, which is respected in relation to the grandparents' family, primarily means the right to maintain normal relations with grandchildren through communication with them.
The CC of the Supreme Court noted that the court's disapproval of the petition to eliminate obstacles in the upbringing of the child and communication with her (if there are none) is not a reason for the court's refusal to grant the petition. in other court cases regarding the participation of grandparents in raising a child. Otherwise, it will lead to formal obstacles in the recognition of the rights listed in Part 2 of Art. 159, Article 1 of Article 263 of the Criminal Code of Ukraine, as well as violation of the guarantees listed in Art. 8 of the Convention on the Protection of Human Rights and Freedoms.
A qualified lawyer or lawyer of the Legal Service "Consultant" will provide a qualified legal analysis of the situation and help in drawing up the necessary documents. The services of a lawyer services of a lawyer in the preparation and submission of documents in the category of family legal relations are quite essential. The court proceedings in the specified category of cases can be difficult and long-lasting, in connection with which the services of a lawyer in accompanying such cases are absolutely necessary.
