After 14 years, the child decides who to live with: The Supreme Court puts an end to the dispute between mother and grandmother

The Supreme Court overturned the decision of the appellate court, which ordered the transfer of the 14-year-old girl from her grandmother to her mother, and upheld the first instance court's decision to deny such a claim. The court emphasized that after reaching 14 years of age, a child has the right to independently determine their place of residence, and when resolving such disputes, courts must consider the child's will along with other circumstances concerning the best interests of the child.

The Civil Cassation Court of the Supreme Court in case No. 195/533/24 concluded that the appellate court mistakenly prioritized the mother's right to live with the child without giving due weight to the child's age, her will, and other circumstances of the case.

Circumstances of the case

The mother filed a lawsuit demanding the immediate removal of the daughter from the grandmother and her return. She stated that due to difficult life circumstances, the daughter began living with her father in the grandmother's house in 2018. Later, due to quarantine restrictions and the full-scale war, the parties agreed that it was safer for the child to remain in Tomakivka. The woman claimed that she maintained contact with her daughter, participated in her upbringing, and provided financial support.

In 2021, the guardianship authority filed a lawsuit to deprive the parents of parental rights. After the corresponding decision, the child was granted the status of being deprived of parental care, and the grandmother was appointed guardian. Later, the mother succeeded in having the case reviewed. The appellate court canceled the decision to deprive her of parental rights, and the Supreme Court left this decision unchanged. Meanwhile, the father remained deprived of parental rights.

After restoring her rights, the mother purchased an apartment in Kamianske and decided to take her daughter to live with her. According to her, the grandmother began to interfere with communication with the child and did not allow her to see her daughter. For this reason, the woman turned to the court demanding the removal of the child and her transfer to the mother.

What the courts established

The Tomakivka District Court denied the claim. The court noted that at the time of the decision, the girl was already 14 years old, and Article 163 of the Family Code of Ukraine provides the right of parents to demand the removal of a minor child. Since after reaching 14 years of age a person is no longer a minor, the court saw no grounds to satisfy the claim.

The appellate court overturned this decision and granted the claim. It reasoned that the mother was not deprived of parental rights, had adequate living conditions, and should maintain contact with her daughter, therefore the child should be transferred to her care.

Position of the Supreme Court

The Supreme Court disagreed with the conclusions of the appellate court.

The court recalled that according to Article 160 of the Family Code of Ukraine, if parents live separately, a child who has reached 14 years of age independently determines their place of residence. A similar right is provided by part two of Article 29 of the Civil Code of Ukraine.

During the case review, it was established that the girl clearly expressed her desire to live with her grandmother. During a conversation involving a psychologist, she stated that she feels comfortable and safe at her place of residence and does not wish to move to her mother. The child confirmed the same position in court.

The Supreme Court also took into account the conclusion of the guardianship authority, which deemed it inappropriate to remove the child from the grandmother. Additionally, the case materials included a school reference indicating that the grandmother pays proper attention to the upbringing and education of her granddaughter, and the girl has good and trusting relations with her.

Referring to the practice of the European Court of Human Rights and the provisions of the Convention on the Rights of the Child, the Supreme Court emphasized that when resolving disputes regarding children, primary attention must be given to the best interests of the child. It is necessary to consider the child's stable social ties, place of study, psychological state, established living environment, and other circumstances of the specific case.

According to the court's assessment, living with the grandmother does not contradict the child's best interests. Considering that at the time of the case review the child had already reached 14 years of age and exercised her right to independently determine her place of residence, there were no grounds for her removal. At the same time, the Supreme Court specifically emphasized that the mother is not deprived of the right to communicate with her daughter and participate in her upbringing.

What the court decided

The Supreme Court satisfied the grandmother's cassation appeal, canceled the decision of the Dnipro Appellate Court, and upheld the decision of the Tomakivka District Court to deny the mother's claim regarding the removal of the child. Also, the mother was ordered to pay the grandmother 2,422.40 UAH in court fees for filing the cassation appeal.

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