Father after divorce wanted to officially confirm sole custody of the child through court: what the appeal decided

The Chernivtsi Court of Appeal concluded that the minor child's residence with the father and the absence of dispute between the parents are not sufficient grounds for the court to establish the fact of sole custody and support of the child. The court also emphasized that private law instruments should not be used to create grounds for deferment from mobilization or to create prejudicial decisions in public law relations.

The plaintiff applied to the court with claims to dissolve the marriage and establish the fact that he solely raises and supports the minor son. He stated that after the termination of cohabitation, the child remained living with him, and he fully provides for the child's needs. According to the plaintiff, legal establishment of such a fact was necessary to protect the rights and interests of the child.

The court of first instance fully satisfied the claim: dissolved the marriage and established the fact of sole custody and support of the child by the father.

However, this decision regarding the establishment of the mentioned fact was appealed by the Territorial Recruitment and Social Support Center, which was not a party to the case. The appeal stated that such a decision directly affects its rights and powers, since according to Article 23 of the Law of Ukraine "On Mobilization Preparation and Mobilization," a court decision on sole custody and support of a child may be grounds for granting a military reservist a deferment from conscription during mobilization.

What the appellate court established

The panel of judges agreed that the Territorial Recruitment and Social Support Center had the right to appeal, although it was not a party to the case. The court noted that a decision establishing the fact of sole custody and support of a child may create legal consequences in the field of mobilization legal relations and affects the powers of the Territorial Recruitment and Social Support Center regarding the issue of granting deferment.

The appellate court emphasized that private law instruments should not be used to evade public duties or create prejudicial decisions for public law relations. The ruling states that if a civil claim is used not to protect civil rights and interests but to avoid fulfilling a public duty or to create legal consequences in public law relations, such a court decision concerns the rights, interests, and duties of the state. The court also referred to the legal position of the Supreme Court set out in the ruling dated April 1, 2026, in case No. 497/132/23.

Why the court refused to establish the fact of sole custody

The appellate court noted that according to the Family Code of Ukraine, both parents have equal rights and responsibilities regarding the child, and dissolution of marriage or separate residence does not terminate or limit their parental rights and duties.

The case materials showed that the parents had a notarized agreement according to which the child lives with the father, but the mother retains the right to participate in upbringing and communication with the son. Moreover, the mother did not object to the claim, and no evidence was provided to the court that she evades parental duties or does not participate in upbringing or supporting the child. There was also no dispute between the parents regarding the child's residence or exercise of parental rights.

Following the appellate court's ruling, the guardianship authority provided a conclusion that determining the child's place of residence is inappropriate since there is no dispute between the parents, and they independently agreed that the child would live with the father.

The appellate court stated that to confirm sole custody by the father, it is necessary to establish circumstances under which the scope of rights of the other parent is limited or terminated. Examples given by the court include the death of one parent, deprivation of parental rights, declaration of a person missing, deceased, or incapacitated. Such circumstances were not established in this case.

The panel of judges also emphasized that the mere fact of the child living with the father does not mean he exercises sole custody. The plaintiff did not provide proper and admissible evidence that he solely supports the child and that the mother does not participate in the child's financial support. The plaintiff's mere references to such circumstances do not confirm the fact of sole support. Given the presence of a mother who is not deprived of parental rights, does not evade her duties, and participates in the child's upbringing, the child's best interests are served by joint upbringing by both parents.

Court's conclusion

The appellate court agreed with the appellant's arguments that the claim to establish the fact of sole custody and support of the child in this case was artificial and could have been used to create grounds for obtaining a deferment from military conscription during mobilization according to Article 23 of the Law of Ukraine "On Mobilization Preparation and Mobilization." At the same time, the court stated in case 725/12077/25 that the plaintiff did not prove the existence of a violated or disputed family right that required judicial protection.

As a result, the appellate court satisfied the appeal, canceled the decision of the court of first instance regarding the establishment of the fact of sole custody and support of the child, and issued a new decision refusing to satisfy this claim. Since the appeal concerned only this part of the dispute, the decision on the dissolution of marriage was not reviewed. Additionally, the plaintiff was charged with unpaid court fees for filing the claim and court fees for the appeal proceedings.

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