How to obtain access to a child following a divorce

A family attorney in his practice often solves problems occurring after a divorce. One of the most painful ones is the problem of contact with a child after a divorce, when one of the parents starts living separately.

Due to unfriendly relations, and often an honest intolerance, parents can not only agree on time and place to see a child, but also ignore the attempts of an ex-spouse to get in touch and communicate. Moreover, sometimes a parent with whom a child continues to live exerts pressure on a child and turns against another parent. Such injustice is extremely acute if a mother/father faithfully pays child support, sincerely wishes to participate in its upbringing and attempts to find the common language with another parent, who intentionally does not let him/her see a child.

Every party deserves understanding and support, but parents must understand in the first place that such restrictions of contacting father/mother cause irreparable harm to a child.

Since there is a tendency that a child stays with mother after a divorce, there is an idea that women use children as means of revenge to an ex for all insults and failed hopes. But a desire to manipulate ex`s feelings does not depend on gender. Unfortunately, both women and men resort to such cruelty.

The Family Code of Ukraine clearly states that the parent living together with the child may not obstruct the parent who does not live with the child in his/her communication with the child and in his/her participation in the child’s education unless such a communication impedes normal development of the child.

If parents cannot settle the conflict, the law offers two solutions to the question of communication and participation in child’s education:

–        Through the Custody and Care Authority;

–        Through the court

 

Solving the issue of participation in child’s education through the Custody and Care Authority

The father or mother can submit an application to the local Custody and Care Authority which asks to prescribe the ways in which the parent who does not live with the child should participate in the child’s education and communicate with the child. The Custody and Care Authority makes a decision on access schedule after having found out the style of parents’ life, employment, their attitude towards the child, and other essential circumstances.

Important! A parent who does not live with the child submits such an application.

A decision setting access schedule taken by the competent authority in charge of family care is binding.

If a parent who lives with the child avoids following up the decision on access schedule made by the Custody and Care Authority, another parent has a right to seek remedy:

–        In court, to repair material and moral damage

–        In Custody and Care Authority, to conduct a conversation with another parent

–        In police presence, to bring a parents who avoids following up such decision to account by administrative means

–        In court, to eliminate the obstructions in parent`s communicating with the child and educating the child

 

Solving the issue of participation in child’s education by the court

Whenever the parent who lives with the child obstructs the parent who does not live with the child in his/her communicating with the child and educating the child, in particular if he/she avoids following up the decision made by the Custody and Care Authority, the other parent may take a legal action for eliminating such an obstruction.

Such obstructions can be proven by the following evidence:

–        Testimonies of witnesses

–        Seeking protection in the competent authority in charge of family care

–        Seeking protection in the police

–        Correspondence or other communication between parents

Let’s take a closer look at the mentioned kinds of evidence and their features such as the category of disputes.

Witnesses, who may testify, could be any individuals who were present during obstruction, including neighbors, relatives. Such individuals must be ready to appear before the court and prove the fact of obstruction in seeing a child.

An effective piece of evidence is seeking protection in the Custody and Care Authority upon the request of conducting an explanatory conversation or other influence measures with a parent who obstructs communication with a child. Even if the authority did not take the necessary measures, it’s necessary to continue seeking protection, submitting two duplicates, and require to place an acceptance mark on one of them. If the measures are taken, require the Custody and Care Authority to provide the supporting documents.

As for the police, law enforcement authorities usually notify the applicant about absence of elements of crime in father`s/mother`s activities, but record the fact of application.

The modern judicial practice view of evidence in electronic formats varies. In particular, judges often do not accept such evidence, mentioning that it is impossible to identify the individuals and prove the reliability of communication. It is necessary to refer to them, as the court evaluates the evidence as a whole. In such a category of cases the claims may be set up in different ways. In judicial practice there are claims to eliminate the obstructions in communication with a child, in ways of participation in child’s education and giving a child. The rule does not exist, forming a claim depends on the circumstances of a certain case.

Court may prescribe the ways of participation of a parent in child’s education:

–        periodical and systematic access with possible child’s coming to the place of residence of the other parent

–        possibility to rest together

–        child’s coming to the place of residence of the other parent and possibility to stay overnight without mother`s supervision

–        communication with a child by phone or electronically.

The list is not exhaustive. Ways of participation in education may be clearly regulated or be limited to setting place and time of communication with a child.

During resolving such case, the court takes into account how parents discharge their parental responsibilities, personal affection of the child towards each of parents, the child’s age, and state of health. Certainly, the essential matter in such cases is the mental health of each parent, the fact of alcohol and drug abuse. Although disputes regarding a child’s education are painful for both parents, quite often they develop into a war, in which the interests of a child take second place.

Remember when divorcing your spouse, you still remain parents to a child.

Certainly, a good attorney may give an exhaustive consultation, help to set a convenient access schedule, get a court decision for your benefit, but all next is up to you. Because providing the best interests for your child is your moral responsibility and legal obligation.

Frequently asked questions and the answers to them

How long do the court hearings on eliminating the obstructions in parents’ communicating with the child and educating the child take?

Generally, the trial takes from half a year to a few years.

The court allowed the access in the presence of a psychologist. Is it legal?

Yes. Court often allows access in the presence of another individual: father/mother, other family member, psychologist, or teacher. It is for the aim of protecting the interests of a child, for protecting its mental comfort, for the reason of age or a long absence of communication with a parent who lives separately.

If I have a decision of the Custody and Care Authority I will not give a child to a husband, can the police arrest me?

No, such an act is not punished in the form of arrest.

However, avoidance of following up the decision of Custody and Care Authority on ways, in which the parent who lives separately participates in the child’s education and communicate with the child, shall entail imposing a fine amounting to hundred to hundred fifty untaxed minimal personal incomes. If the same acts are committed repeatedly during a year after imposing an administrative penalty, it shall entail imposing a fine amounting to one hundred and fifty to three hundred untaxed minimal personal incomes, temporary restriction of travelling outside Ukraine and restriction in a right to drive. Restrictions are in force to the time of full execution of court decision.

Can I take legal action to see my grandchildren?

Of course, the judicial order also could resolve the dispute about the participation of a grandmother, grandfather, great grandmother, great grandfather, brothers, sisters, step-father, step-mother in a child’s education.

Has the order of providing participation in child’s education changed because of the pandemic?

No, legislation on such issues has not changed.

However, let us mention that because of the quarantine restrictions it has become harder to qualify the acts of parents as obstructions in communication with a child. Because on the one hand such behavior of a parent could be explained as the requirement to keep social distance and other disease-control measures and concern on the security of a child. But on the other hand the rights of the parent who lives separately to participate in child’s education must not be restricted in this period and could be exercised with regards to the rules of WHO.

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