How to get child visitation after divorce
А family lawyer deals with different problems that arise after a divorce. One of the most painful is a child visitation since one parent starts living separately.
Due to the bad relationship, parents not only cannot agree on the time and place of the visitation, but also block any attempts of the former partner to get in touch and talk. Moreover, the parent living with the child often pressure the child psychologically and turn a kid against the other parent.
It is very unfair that father or mother regularly and conscientiously pays child support, wants to participate in child-raising, and attempts to reach an agreement with the other parent who intentionally prevents seeing the child. Each parent deserves understanding. However, it is important for parents to think first of all about the irreparable harm such restrictions in communication with a father or a mother inflict on the child.
In Ukraine, children are still mostly stays with their mothers after divorce, which is why it is believed that women use children to revenge ex-husband for all the wrongs and unjustified hopes. However, the desire to manipulate the feelings of the former partner is not depend on sex. Unfortunately, both women and men resort to such cruelty.
The Family Code of Ukraine states that the parent with whom the child lives does not have the right to prevent one of the parents who live separately from participation in raising and communicating with the child, if such communication does NOT harm the normal development of the child.
If it is not possible to agree peacefully, the law offers two ways to resolve the problems of communication and participation in raising a child:
• in the guardianship authority
• in a court
Dispute Resolution in the guardianship authority
Father or mother can apply to the local guardianship authority asking them to identify ways to participate in the child’s upbringing. The guardianship authority examines the living conditions, attitudes to the child, employment and other characteristics, on the basis of which it decides to establish a visitation schedule.
Please pay attantion! Such application is submitted by the parent who lives separately from the child.
The decision of the guardianship authority is mandatory.
If one of the parents with whom the child resides does not comply with the decision, the other parent can appeal to:
• the court for pecuniary and non-pecuniary damage
• the guardianship authority for an educational conversation with another parent
• the police to bring to justice the person who fails to comply with such a decision
• the court to eliminate obstacles in communication with the child
Dispute resolution of participation in the upbringing of the child by court
You can go to court if the parent, who live with the child, evades the guardianship authority decision, or otherwise interferes the other parent in contacts with the child and in its upbringing.
Such obstacles must be proven by appropriate evidence:
• witness statements
• appeals to the guardianship authority
• appeals to the police
• correspondence or other communication between parents
Any person who was present during the interference can testify and be a witnesses (including neighbors, relatives). These people should be prepared to appear in court and confirm .
Effective evidence is to apply to the guardianship authority with a request for an explanatory interview or other measures to influence the spouse who prevents communication with the child. Even if the body has not taken the necessary measures, it is necessary to continue to apply, submitting two copies of the application, one of which requires a mark of acceptance. If the measures are still taken, ask the guardianship authority for supporting documents.
With regard to the police, the law enforcement authorities usually informed the applicant that there was no criminal offense in the mother’s or father’s actions, but recorded the fact of the appeal.
Modern case law is ambiguous about evidence in the form of electronic communication. In particular, judges often do not accept such evidence, noting that it is impossible to identify individuals and confirm the authenticity of communication. It is still worth filing against them, because the court evaluates the evidence as a whole.
The jurisprudence meets the requirements for removing obstacles in communication with the child, determining ways to participate in the upbringing of the child and transferring the child. There is no algorithm or rule. Legal action depends on the circumstances of the particular case.
The court may determine the following ways for a parent to participate in the upbringing of a child:
• possibility of joint rest
• visiting the parent’s place of residence and ability to stay overnight without the other parent
• telephone and electronic communication with the child
This list is not closed. Ways to participate in upbringing can be clearly regulated or only to determine the place and time of communication with the child.
During the hearing of the case, the court takes into account the parents’ attitude to their duties, the child’s personal attachment to each of them, the child’s age and health status. Certainly, the mental health of each parent, the fact of alcohol or drug abuse is essential in such cases.
Although parenting disputes are painful for both parents, they often grow into a real war, in which the interests and desires of the child are sidelined.
Remember, if you divorced your husband or wife, you cease to be married, but you remain the parents of a common child.
Of course, a good lawyer will give you legal advice, help you to set a convenient visitation schedule, get a court decision in your favor, but further enforcement is your job. As well taking care of your child’s best interests is your moral responsibility and legal obligation.
Frequently asked questions and answers
• How long does it take to hear in court the case about obstacles in raising a child?
As a rule, the duration of such cases is several months, but sometimes it can take several years.
• The court allowed child visitation in the presence of a psychologist. Is it legal?
Yes, it’s legal. Quite often, the court allows visitation in the presence of another person: mother/father, other relative, psychologist or teacher. This is done to protect the interests of the child in order to preserve its psychological comfort, due to the child’s age or the long-term absence of communication with the parent living separately.
• If, with the decision of the guardianship authority, I do not give the child to my husband, can the police arrest me?
No, arrests are not punished for such actions.
However, failure to comply with the decision of the guardianship authority entails a fine of one hundred to one hundred and fifty tax-free minimum incomes. If the same actions are repeated within one year after the administrative penalties, this will result a fine of one hundred and fifty to three hundred tax-free minimum incomes, a temporary restriction on the right to travel outside Ukraine and restrictions on the right to drive a car. The restrictions apply to the full implementation of the decision.
· Can I go to court to resolve my grandchildren visitation?
Yes, you can. Grandmother, grandfather, great-grandmother, great-grandfather, brothers, sisters, stepfather, stepmother can go to court to resolve a dispute about participation in child-rearing.
• Has the pandemic changed vizitation process?
No, the legislation on this issue has not changed.
However, due to quarantine restrictions, it has become more difficult to classify the parents’ actions as obstacles to communication with the child. On the one hand, such behavior of the mother or father can be explained by the requirements for social distance or other anti-epidemiological measures and concerns about the safety of the child. But on the other hand, the right of a parent who lives separately to participate in the upbringing should not be restricted during such a period and can be exercised in compliance with WHO requirements