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.

You may like
A new law on virtual assets: the picture is formed, but without details. On September 8, 2021, the Verkhovna Rada has finally adopted the long-awaited law "On Virtual Assets", which clarified many ambiguous points. This is especially true for the status of cryptocurrency and the rules of its circulation in the country. Let`s take a closer look at novelties. An ambiguous term Let's start with what the legislator actually means by "virtual assets". There are the following features:  they are an intangible good (cannot be represented on tangible media)  fall under the list of objects of civil rights (that is, they can be owned and be disposed of)  represent an electronic form of a set of data (essentially, they are blocks of information put in order);  the existence and circulation of assets are due to software tools (specific electronic environment). From these features we can draw the following conclusion: virtual assets are not limited to cryptocurrency. Digital currency is part of the concept, but other instruments, such as tokens, NFTs, or even in-game items, fall under the definition. Actually, the actual existence of most digital products, having a certain value, is due to the software environment (ecosystem), either it is blockchain technology, a trading platform, or an online game server. It should be noted that the attempt to define virtual assets was already made in the adopted Law of Ukraine in counteracting money laundering. In this act, they understand it as digital means of payment, which goes against the new definition. As a result, there are now two different explanations for virtual assets, which causes significant confusion not only in regulation but also in interpretation. It is definitely necessary to expect clarifications from competent state bodies. Let's return to the new law. Its application covers legal relations in which the "Ukrainian element" is present:  provider or recipient of services represented in Ukraine;  an agreement according to which the turnover of virtual assets is carried out in accordance with Ukrainian legislation;  the acquirer of assets (or both counterparties) is a resident(s) of Ukraine. The law also introduces an interesting division of all virtual assets into two groups: secured and unsecured. Here again, there is a problem of interpretation. The first category includes products exchanged for (state) currency, the second category includes instruments that can be exchanged only for other digital assets. There is an alternative opinion: that the turnover of secured assets is supported by real goods (money or other property), while unsecured ones are not supported by anything. The latter interpretation is the most credible, as the new law stipulates that virtual assets are NOT means of payment. Moreover, they cannot be exchanged for real goods, be they property, services or money. This significantly narrows the potential for the use of virtual assets not only for commercial but also for civilian purposes. About obligatory licensing The new law states that in some cases, the use of virtual assets will require licensing. The 4 types of activity are mentioned:  storage and management of virtual assets (or its` keys)  servicing of exchange operations with virtual assets (both for other analogues and for real goods);  translation of digital assets;  any intermediary services. A list is quite impressive, but there are some important exclusions:  if your service works with cryptocurrency wallet (it means users can dispose of accumulations into cryptocurrency independently);  If your service works on smart contracts or decentralized protocol, based on which internal transfers are performed. As to intermediary services, everything is more compicated. Actually, any mediation is based on the public share offering. That is why it is subject to licensing. How to get a license? A company that wishes on legal grounds to engage in virtual assets must satisfy legislative requirements. The key role is played by the minimum amount of the statutory capital, which equals 1,19 million hryvnyas (for non-residents it is 5,95 million hryvnyas) in case of storage and administration. For other types of activity (trading, translation and mediation services) the minimum size of the statutory capital amounts to 595 thousand hryvnyas (for non-residents is 2,98 million hryvnyas). The order of the registration of license:  to compose an application and prepare documents.  to pay state fee (68-136 thousand hryvnyas for residents and 340-680 thousand hryvnyas is for non-residents).  to pend review of the request (30 days).  to get a license. The duration of the license is 1 year. No norms about the continuation of legal force of permission are set (we are expecting amendments or explanations from the Ministry of Digital transformation of Ukraine). Notably that non-residents must pay a far greater sum, than domestic companies. The Ukrainian legislator obviously encourages an internal market, getting rid of a strong foreign presence (that, in fact, coincide with modern politics of the state on the whole). Together with an application, the following documents must be prepared: The access code to the copy of the Statute of the company (or the foundation agreement) kept in an electronic file in the database of the Unified State Register of Enterprises and Organizations (USREO);  Funding sources of the statutory capital (where the money are taken from);  confirmation of the actual injection of money;  information about beneficiaries (special attention must be paid to business reputation);  the information about the director and founders;  the check about payment of state fee;  the internal regulations, in accordance with which ones, the privacy policy rules are regulated. In the terms of volume of necessary documentation of licensing is very alike with complete registration of legal entity. It is understood that the state wants the severe adjusting of activity of organizations that will engage in virtual assets. Is it already possible to get a license? The adoption of the law by the parliament is a significant step forward in adjusting and legal market of virtual assets creation in Ukraine. However, the new rules haven`t come into effect yet - their term of introduction depends on making amendments in the Internal Revenue Code. It is yet unknown, when a legislator will decide to enter the renewed system of taxation for such assets. Being "IT-hub" and territory, where cryptocurrency enjoys large popularity, the question of taxes must be decided maximally safely. Despite the presence of obvious gaps in interpretation, a new law on virtual assets gives the official narrative of what takes place and that, how the legal relationships related to cryptocurrency will be regulated. It is to be hoped that in the nearest time the Ministry of digital information will give out the detailed explanations concerning debatable norms.
We will
call you