Does a Stepfather of a Child with a Disability Have the Right to a Deferral — Court Decision

The Poltava District Administrative Court considered an administrative lawsuit filed by a conscripted person against the commission of the territorial recruitment and social support center regarding the recognition of actions as unlawful and the obligation to perform certain actions.

Circumstances of case No. 440/6888/25

The plaintiff applied to the court demanding to recognize the commission's actions as unlawful regarding the refusal to grant a deferral from military conscription during mobilization, for a special period based on paragraph 5 of part one of article 23 of the Law of Ukraine "On Mobilization Preparation and Mobilization," and also to oblige the commission to issue such a deferral.

The plaintiff justified his claims by stating that he is in a registered marriage with the mother of a minor child with a disability from childhood, subgroup "A," and jointly with his wife raises this child. In January 2025, he was granted a deferral until May 8, 2025, but by the commission's protocol dated April 11, 2025, No. 13, the deferral was subsequently denied on the grounds of the absence of a family relationship with the child with a disability. On April 24, 2025, the plaintiff again applied for a deferral, but the commission did not make a decision on this application.

The commission of the territorial recruitment and social support center, in its response to the lawsuit, requested to deny the claims, arguing that the plaintiff is a stepfather of a minor child with a disability and therefore does not have the right to a deferral according to paragraph 5 of part one of article 23 of the Law of Ukraine "On Mobilization Preparation and Mobilization."

The court established that on June 28, 2024, a marriage was registered between the plaintiff and the child's mother. The child's birth certificate contains information about the father according to part one of article 135 of the Family Code of Ukraine (as indicated by the mother). The child has a confirmed disability from childhood, subgroup "A." The plaintiff's wife is under medical supervision for a mental illness. The child's grandfather is deceased, the grandmother is a pensioner and lives separately. The plaintiff, together with his wife, raises the minor stepdaughter, which is confirmed by family composition certificates.

Court decision

The Poltava District Administrative Court partially satisfied the claim, going beyond the scope of the claims.

The court recognized as unlawful and canceled the decision of the commission of the territorial recruitment and social support center, recorded in protocol No. 13 dated April 11, 2025, regarding the refusal to grant a deferral from military conscription during mobilization, for a special period based on paragraph 5 of part one of article 23 of the Law of Ukraine "On Mobilization Preparation and Mobilization."

The court also recognized the commission's inaction as unlawful for not making a decision on the plaintiff's application dated April 18, 2025 (incoming No. 1881 dated April 24, 2025) and obliged the commission to consider the mentioned application and make a decision taking into account the legal assessment provided by the court.

The court denied the satisfaction of the other part of the claims.

The court concluded that the plaintiff, as a stepfather living in one family with a minor stepdaughter with a disability and participating in her upbringing and maintenance in the absence of real involvement of the biological father, has the right to a deferral. The court took into account the severity of the child's illness, the health condition of the child's mother, and the actual circumstances of cohabitation and upbringing.

The court noted that the commission's decision did not meet the criteria of reasonableness as it did not consider all circumstances relevant to the case. Moreover, the commission violated the procedure by refusing the deferral instead of canceling the previously granted one.

The decision is based on the norms of the Constitution of Ukraine, the Law of Ukraine "On Mobilization Preparation and Mobilization," the Procedure for conscription of citizens for military service during mobilization approved by the Cabinet of Ministers of Ukraine Resolution No. 560, and the provisions of the Family Code of Ukraine regarding the rights and duties of a stepfather.

The court also relied on the Supreme Court's practice regarding the criteria of reasonableness of decisions by authorities.

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