Child living with the father alone does not confirm grounds for postponement from mobilization — Supreme Court

The Civil Cassation Court of the Supreme Court confirmed that a child's residence with the father alone is not sufficient proof of independent upbringing and maintenance. If the other parent has not been deprived of parental rights, has not withdrawn from fulfilling their duties, and participates in raising the child, there are no grounds to establish such a fact. The Supreme Court also agreed that the TRSSC has the right to appeal court decisions that may affect postponement from mobilization or exemption from military service.

Case circumstances

A man filed a lawsuit for divorce and requested that after the divorce, the minor daughter remain living with him under his independent upbringing and maintenance. He also asked to establish the fact that he independently raises and supports the child.

The plaintiff stated that the daughter actually lives with him, and the mother does not object to this arrangement. Additionally, the parents had a notarized agreement regarding the child's place of residence, conditions of maintenance, and parental involvement in upbringing.

The court of first instance fully granted the claim, dissolved the marriage, determined the child's residence with the father, and established the fact of her independent upbringing and maintenance by the father.

However, the TRSSC, which was not a party to the case, appealed this decision regarding the child. The appellate court agreed with the complaint, canceled the decision in this part, and denied the relevant claims.

Why the TRSSC gained the right to appeal

The appellate court noted that the claim was filed by a conscript during martial law and general mobilization.

The court reasoned that establishing the fact of independent child upbringing may affect the issue of granting postponement from mobilization or exemption from military service for family reasons. Therefore, the decision concerned the state's interests in ensuring the fulfillment of military duty.

The Supreme Court agreed with the appellate court's conclusion that the TRSSC, as a military administration body responsible for enforcing legislation on military duty, mobilization training, and mobilization, has the right to appeal such decisions if they may affect postponement or exemption from military service.

The court also referred to established Supreme Court practice in similar cases recognizing the right of military units and the TRSSC to appeal decisions establishing facts that may be relevant to military service.

Why the court refused to establish the fact of independent child upbringing

The Supreme Court reminded that family law is based on the principle of equality of parental rights and duties regarding the child. The mere fact of a child living with one parent does not mean the other parent has ceased participating in upbringing.

The court stated that to confirm independent upbringing by one parent, circumstances must indicate the other parent’s failure to fulfill duties or legal facts affecting the scope of parental rights and duties.

In this case, such circumstances were not established. The mother was not deprived of parental rights, did not refuse to raise the child, and did not withdraw from parental duties. On the contrary, the parties concluded a notarized agreement regulating parental rights regarding the child.

The Supreme Court agreed with the appellate court that the evidence only confirmed the child's residence with the father but did not prove independent upbringing and maintenance by him.

Supreme Court on inadmissibility of using family disputes to create grounds for postponement

The Supreme Court separately noted that private law mechanisms should be used to protect family rights and interests, not to achieve other goals.

The court agreed with the appellate court’s conclusion that the claims were filed by a conscript during mobilization and could have been aimed at creating conditions that might later be used as grounds for postponement or exemption from military service for family reasons. At the same time, the evidence did not confirm that the mother failed to fulfill her parental duties.

According to the Supreme Court, the parents’ agreement on the child's residence with one parent or separate residence of the parents cannot automatically indicate independent upbringing by one parent.

Supreme Court decision

The Civil Cassation Court dismissed the cassation appeal and left the Chernivtsi Appellate Court ruling unchanged.

Thus, in case 725/9150/25, the Supreme Court effectively confirmed established practice that a child's residence with one parent alone is not grounds to establish independent upbringing and maintenance. To reach such a conclusion, it must be proven that the other parent actually does not fulfill parental duties or that other legally significant circumstances affect the scope of their rights and duties regarding the child.

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