One of the most difficult categories of cases — both in terms of emotional strain and procedural subtleties — is the deprivation of one or both parents of their parental rights (German: elterliches Sorgerecht). Every state, in shaping its domestic law, seeks to protect the interests of the child while balancing the need to raise the child within an intact family against the need to take extreme measures against parents who persistently fail to fulfil their duties toward the child. Moreover, a country's domestic legislation is often grounded in international instruments the state has ratified. Among the documents adopted to protect children's interests, the UN Convention on the Rights of the Child holds particular importance, having become the foundation for the development of legislation in this field.
Parental rights are understood to mean the right to raise the child, to protect the child's legitimate interests, the right to reclaim the child from other persons unlawfully withholding them, the right to receive maintenance from an adult son or daughter, and other rights granted to parents until the child reaches the age of majority and based on the fact of their kinship with the child.
Ukrainian courts hear more than fifteen thousand cases on the deprivation of parental rights every year. Article 165 of the Family Code of Ukraine sets out the list of persons entitled to bring a claim in court for the deprivation of parental rights. These include one of the parents, a guardian, a custodian, the person in whose family the child lives, the healthcare facility, educational institution or other childcare institution where the child is placed, the guardianship and custody authority (German: Vormundschafts- und Pflegschaftsbehörde), the public prosecutor, and the child themselves, once they have turned fourteen. Ukrainian law also allows a grandmother, grandfather, sister, brother, stepmother or stepfather to apply to the guardianship and custody authority or to the court to protect the child's interests, without any special authorization.
Alexandra (name changed), a Ukrainian citizen, came to our law firm. At the time, she was preparing to marry a German citizen and later relocate permanently to Germany. From her first marriage, Alexandra had an 8-year-old son, Andrey (name changed). After the divorce, Alexandra's first husband, Yegor (name changed), began seeing the child less and less often, and eventually stopped contacting him altogether, even though the boy missed his father greatly and kept asking to see him. Alexandra's attempts to encourage contact between her ex-husband and the child came to nothing, and after a few years she and her son simply had to accept the situation.
Alexandra raised and supported the child on her own, so there was no need to stay in contact with Yegor — until the situation changed when Alexandra decided to take her son abroad on holiday.
Under clause 4 of the Rules for Crossing the State Border by Citizens of Ukraine, approved by Resolution No. 57 of the Cabinet of Ministers of Ukraine dated 27 January 1995, a citizen under 16 years of age may leave Ukraine accompanied by one parent, or by another person authorized by one parent under a notarized consent, only with the other parent's notarized consent specifying the destination country and the length of the stay there — if the other parent is not present at the border crossing point.
Having learned that she needed her ex-husband's consent to travel abroad with their son, Alexandra set out to find Yegor. She managed to track him down through mutual acquaintances, but Yegor refused to meet or communicate with her. He would not even hear of having his consent notarized, insisting that this was entirely Alexandra's problem and none of his concern. It was only when Alexandra promised to cover the notary fees and reward Yegor generously himself that he agreed to meet her.
For the next several years, our client's contact with her ex-husband followed exactly this pattern, with Yegor demanding an ever-larger sum of money each time in exchange for his consent to the child's travel abroad. He never once asked about seeing his son.
Eventually our client's patience ran out, and after discussing it with her fiancé, she decided to consult a lawyer about the possibility of depriving the child's biological father of his parental rights.
Alexandra was advised that, in the view of the Supreme Court of Ukraine, depriving a parent of their parental rights is an extreme measure against persons who fail to fulfil their parental duties, and that the question of applying such a measure should only be decided once the court has fully, comprehensively, and objectively established the circumstances of the case — with the parents' attitude toward their children carrying particular weight.
Under Article 164 of the Family Code of Ukraine, a court may deprive parents of their parental rights if, without good cause, they failed to take the child home from the maternity hospital or another healthcare facility and showed no parental care for the child for six months, if they treat the child cruelly, are chronic alcoholics or drug addicts, subject the child to any form of exploitation, or have been convicted of an intentional criminal offense against the child.
However, the most common ground for depriving a parent of their rights — and the one directly applicable to Alexandra's situation — is evasion of one's duties to raise the child.
The lawyer explained that since this ground is fairly broad, Alexandra would need to provide the court with concrete evidence that the child's father had failed to fulfil his obligations — but that the case had a real chance of success. Relieved at finally having a way to resolve a problem that had dragged on for years, Alexandra instructed us to represent her interests in the proceedings.
A distinctive feature of parental-rights deprivation proceedings is that, under Art. 19(4) of the Family Code of Ukraine, the participation of the guardianship and custody authority is mandatory in such cases. In the proceedings, the guardianship and custody authority acts as the body legally empowered to protect the child's rights, freedoms, and interests, and submits to the court a written opinion on how the dispute should be resolved, based on information obtained from an assessment of the living conditions of the child, the parents, and any other persons wishing to live with the child and take part in raising them, as well as on other documents relevant to the case.
Our client was very anxious, knowing how much could depend on the guardianship authority's assessment, but the lawyer advised her on the best way to work with the state authorities, and recommended gathering written statements — for instance from the homeroom teacher and school principal, from the head of the music school Andrey attended, and from neighbors and friends who could give the court relevant information — to confirm that the child's father had not been in contact with him for years, showed no interest in his life, and took no part in raising him. Once Alexandra had obtained these statements, the lawyer submitted them for review both to the guardianship authority and to the court, and also filed a motion to have these individuals called as witnesses on the claimant's side.
The guardianship authority often opposes depriving a parent of their rights where the situation does not clearly amount to a gross violation of the child's rights, but in our case, based on the information gathered and the assessments carried out, the court received an opinion confirming the need to deprive our client's ex-husband of his parental rights. At the hearing, which Yegor failed to attend despite having been duly notified, the court examined the case file and heard the witnesses' testimony, after which it ruled in our client's favor.
As a result, Alexandra gained the ability to make all decisions concerning her child independently. The deprivation of parental rights terminated not only Yegor's rights but also his obligations to raise his son. His duty to support the child financially, however, remains in place, so Alexandra retains the right, should she wish, to apply to the court at any time to recover child support for Andrey from the father — even though he has been deprived of his parental rights.
From Our Firm's Practice
Parental rights are understood to mean the right to raise the child, to protect the child's legitimate interests, the right to reclaim the child from other persons unlawfully withholding them, the right to receive maintenance from an adult son or daughter, and other rights granted to parents until the child reaches the age of majority and based on the fact of their kinship with the child.
This example shows how important it is not only to know your rights and obligations under the law in force, but also to be able to argue your position convincingly when asserting particular claims against another person. For this reason, we recommend that anyone facing a difficult situation consult a qualified lawyer who combines theoretical knowledge with practical experience in the relevant field — someone who can help resolve your matter quickly and effectively.
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