Father filed a lawsuit to determine the son's place of residence with him – the Supreme Court saw grounds for evasion of military service

The Supreme Court explained that a lawsuit filed by a serviceman serving by conscription during mobilization to determine the place of residence of a minor child may be qualified as an abuse of procedural rights if it is established that its purpose is to artificially create conditions for exemption from military service during a special period, rather than to protect the interests of the child.

Case details

The father filed a lawsuit against the mother for divorce, determination of the child's place of residence with him, and alimony collection, due to the father's independent upbringing of the child without the mother's participation. The lawsuit was motivated by the fact that he was in a registered marriage in which the son was born. He noted that the marital relations were effectively terminated, there was no joint residence or household management. The minor son lived with him for a long time, where proper conditions were created. He independently raised and supported the child. The mother moved to her parents, did not properly participate in the upbringing and support of the child, no agreement on alimony payment was reached, although she is able to work and has no other dependents.

The court of first instance satisfied the claim, in particular determining the child's place of residence with the father at his permanent residence address.

Disagreeing with the decision of the court of first instance, the military unit, which did not participate in the case consideration, appealed the decision.

The Court of Appeal disagreed with the conclusions of the court of first instance regarding the determination of the child's place of residence and alimony collection, annulled the decision in this part, and issued a new court decision refusing to satisfy these claims, stating that the lawsuit to determine the child's place of residence was filed by a conscripted serviceman with the purpose of evading military service. It noted that the military unit is a party for whom the court decision created obligations that did not exist before the first instance court decision, and therefore its rights were violated by the appealed court decision.

Position of the Supreme Court

The Supreme Court agreed with the conclusions of the Court of Appeal.

Defense of the Fatherland, independence, and territorial integrity of Ukraine is a constitutional duty of Ukrainian citizens (Article 65 of the Constitution of Ukraine).

The procedure for exemption from military service is defined by Article 26 of the Law of Ukraine "On Military Duty and Military Service."

In fact, in this case, the lawsuit to determine the place of residence of a minor child was filed by a serviceman serving by conscription during mobilization for a special period with the aim of artificially creating conditions and circumstances that could be grounds for exemption from military service during a special period under part 4 of Article 26 of the Law of Ukraine "On Military Duty and Military Service."

The Supreme Court noted that the appellate court rightly drew attention to the fact that the plaintiff in this case tried to use methods of protecting family rights and the interests of the child to avoid fulfilling military duty (serving in the military).

Supreme Court ruling in case No. 495/2284/23 (proceeding 61-17583sv23).

Separate ruling of the Supreme Court

It should be noted that in case No. 495/2284/23 (proceeding 61-17583sv23), the Supreme Court issued a separate ruling dated 13.03.2024, notifying the High Council of Justice about violations of substantive and procedural law committed during the consideration of this case by the judge of the Bilhorod-Dnistrovskyi City District Court of Odesa Oblast.

According to the information set out in the separate ruling, on 13.03.2024 the Supreme Court opened disciplinary proceedings against the judge of the Bilhorod-Dnistrovskyi City District Court of Odesa Oblast. The High Council of Justice informed the Supreme Court about this in compliance with the mentioned separate ruling of the Supreme Court's Civil Cassation Chamber dated 13.03.2024 in case No. 495/2284/23 (proceeding 61-17583sv23).

The separate ruling noted that the lawsuit in case No. 495/2284/23 concerns a sensitive category of cases where the court faces the issue of ensuring the best interests of the child.

The court of first instance, in particular, did not comply with the provisions of Article 19 of the Family Code of Ukraine, did not notify the relevant guardianship and custody authority about the court's consideration of the case regarding the determination of the minor child's place of residence and removal from the mother, did not ensure the participation of such authority in the case, and did not request an opinion from the guardianship and custody authority.

The court of first instance did not assess the ability/inability of each parent to personally care for the child; did not establish the level of emotional relationships between the child and each parent; did not clarify the child's wishes, place of residence, education, etc. The court of first instance also did not take into account that the plaintiff, based on the order of the commander of the military unit dated 09.09.2022 No. 203, was accepted for all types of support, and therefore lives at the place of direct military service.

According to explanations provided to the Supreme Court by the child services of the Karolino-Buhaz Village Council, the plaintiff did not contact the guardianship and custody authority regarding the determination of the minor child's place of residence with him, no documents from the court regarding the disputed legal relations were received by the guardianship and custody authority, and the measures taken by the child services to check the living, upbringing, and maintenance conditions of the child were ineffective, since the child does not live at the address indicated in the claim, does not attend educational institutions, and was not registered with local medical institutions in the urban-type settlement of Zatoka.

Furthermore, the acceptance of the defendant's statement recognizing the claims without establishing whether such recognition contradicts the law or violates the rights, freedoms, or interests of other persons indicates non-compliance with the provisions of part 4 of Article 206 of the Civil Procedure Code of Ukraine.

The Supreme Court drew attention to the arguments of the military unit, which were confirmed during both the appellate and cassation review of the case, regarding the artificial nature of the disputed legal relations and the plaintiff's attempt to use methods of protecting family rights and the interests of the child to be exempted from military service during a special period.

During the period of martial law in Ukraine and the functioning of all state authorities and the Armed Forces of Ukraine under special period conditions, when there is an urgent need for proper fulfillment by Ukrainian citizens of their constitutional duty to defend the Fatherland, independence, and territorial integrity of Ukraine, consideration of a case based on a serviceman's claim establishing a fact that may be grounds for exemption from military service without actual involvement of the child services authority, third parties for whom the court decision will create obligations, and without proper establishment of all case circumstances and notification of the parties about the hearing in accordance with civil procedural law, indicates significant violations of substantive and procedural law that cannot be ignored.

In this context, the Supreme Court also noted the arguments in the military unit's response to the cassation appeal regarding the quantitative criterion of cases considered by the Bilhorod-Dnistrovskyi City District Court of Odesa Oblast on claims by men to determine the place of residence (independent upbringing of the child) (about 676 court decisions), as well as the fact of a pre-trial investigation in a criminal proceeding registered on 15.11.2023 in the Unified Register of Pre-Trial Investigations.

Therefore, in the separate ruling, the Supreme Court decided to notify the High Council of Justice about the identified violations of substantive and procedural law.

Separate ruling of the Supreme Court in case No. 495/432/23 (proceeding 61-17583sv23).

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