New Approaches in Judicial Practice: The Supreme Court Explained How Children Can Live After Their Parents' Divorce

The Supreme Court explained the significance and features of the division of parental custody and responsibility between divorced parents in the Ukrainian legal system.

The Civil Cassation Court noted that disputes between parents regarding the exercise of parental rights and duties are among the most complex in judicial practice, as they involve significant emotional tension, responsibility for the child's fate, family, balancing competing rights and interests, and the uniqueness of each family situation. The Supreme Court emphasized that childhood as a legal value should stand alongside fundamental categories such as life, health, freedom, and safety.

The Parliamentary Assembly of the Council of Europe in Resolution No. 1921 of January 25, 2013, "Gender Equality, Combining Personal and Work Life, Joint Performance of Duties," called on the authorities of the Council of Europe member states to respect the right of parents to bear joint responsibility, ensuring that family legislation provides for the possibility of joint custody of children in cases of separate residence of spouses or divorce for the best interests of the child based on mutual parental consent (para. 8.4).

In Resolution "Equality and Shared Parental Responsibility: The Role of the Father" dated October 2, 2015, No. 2079, PACE emphasized the need for member states' authorities to respect parents' right to bear joint responsibility, ensuring that family law provides for the possibility of joint custody of children in cases of parents living separately or divorce in the best interests of the child based on mutual agreement between parents (para. 2).

Also, in the mentioned PACE Resolution, member states were urged to include provisions in their legislation regarding the possibility of alternating residence of the child with each parent after their divorce, except in cases of abuse or domestic violence against the child by one of the parents. The time the child spends with each parent is recommended to be determined based on the child's needs and interests.

Paragraph 67 of the General Comment on the child's right to priority consideration of their best interests (No. 14 of May 29, 2013) by the UN Committee on the Rights of the Child states that it is advisable to proceed from joint parental responsibility in the child's interests. When making decisions in the child's interests, the judge must consider the child's right to have and maintain relationships with both parents.

Moreover, there is a European Court of Human Rights decision in the case Zaunegger v. Germany (ECHR practice recognized as a source of law in Ukraine), where the Court found the unjustified deprivation of a father’s custody and refusal to apply joint custody discriminatory. The Supreme Court stressed that such issues must be thoroughly examined by national courts.

Characterizing the national legal framework, the Supreme Court noted that the Family Code of Ukraine enshrines the principle of equality of rights and duties of parents and the construction of family relations on parity grounds. At the same time, it is worth noting that Article 161 of the Code does not contain a mandatory provision to determine the child's place of residence only with one parent, and the Civil Code of Ukraine provides for the possibility of a person having several places of residence. These norms, along with the principle of the child's best interests, in the Supreme Court's view, form a sufficient legal basis for applying various models of parental time distribution.

There are three main models that the court may consider when resolving disputes between parents:

• joint parental custody with alternating residence of the child at each parent's home according to an appropriate schedule;
• "bird's nest" custody, where the child remains living in one home, and the parents alternate coming and going;
• the traditional model of the child living with one parent while ensuring proper contact with the other.

Furthermore, the concept of joint parental custody in Ukraine has evolved. In 2022, judges were encouraged to consider joint physical custody and "bird's nest" custody as real alternatives to the traditional model of determining the child's residence with one parent, which may be applied by the court under certain circumstances.

This concept gradually found reflection in judicial practice. Since 2022, the Civil Cassation Court of the Supreme Court in a series of rulings consistently drew attention to the possibility of applying the joint parental custody model (notably in cases No. 750/9620/20, No. 742/2571/21, No. 569/22963/21, No. 750/843/21, No. 208/4667/20, and No. 183/3958/20). This evidenced the formation of new approaches to resolving disputes regarding the child's place of residence.

In the ruling dated February 16, 2024, in case No. 465/6496/19, the Civil Cassation Court of the Supreme Court for the first time directly applied the joint parental custody model, noting that the court, based on international norms and the principle of equality of parental rights, has the right to determine the alternating residence of the child with each parent according to an appropriate schedule in Lviv. Later, in the ruling dated May 22, 2024, in case No. 643/7509/21, the Civil Cassation Court confirmed and developed this approach, concluding that in the absence of another agreement between the parents, it is in the child's best interests to alternate physical custody with each parent. In the ruling dated April 22, 2024, in case No. 754/3063/22, the Civil Cassation Court disagreed with lower courts that unjustifiably rejected the conclusion of the child affairs authority regarding the advisability of applying precisely this model.

Thus, the practice formed by the Supreme Court did not go unnoticed by the legislator. In October 2024, two draft laws were registered in the Verkhovna Rada of Ukraine regarding amendments to the Family Code of Ukraine concerning joint parental custody (No. 12123 dated October 15, 2024, and No. 12132 dated October 17, 2024).

The draft new Civil Code of Ukraine (Part 2 of Article 1551) also provides for clear legislative consolidation of the court's powers to establish alternating residence of the child with each parent or alternating residence of the parents with the child, given circumstances of significant importance and if it corresponds to the child's interests. Thus, the Supreme Court's position has effectively become an impetus for systemic legislative changes in this area.

Speaking about the advantages of joint parental custody, the Supreme Court notes that this model is free from the unconstructive logic of "winner-loser," promotes productive communication between parents, preserves full relationships of the child with both parents, and corresponds to modern social values regarding equal distribution of family responsibilities, prevention of discrimination, and alienation. Possible difficulties in adapting to this model, according to the Supreme Court judge, are temporary and, under appropriate circumstances, are outweighed by the benefits it brings to the child's well-being.

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