The Mere Fact of a Child Living with the Father Does Not Justify Considering That He Is Raising the Child Independently — Supreme Court

The Supreme Court, sitting as a panel of the Civil Cassation Court, upheld the decision of the Chernivtsi Court of Appeal, which denied the establishment of the fact of independent upbringing and maintenance of a minor son by the father.

The court emphasised that the mere circumstance of the child living with the father, as well as a notarised agreement between the parents regarding the child's place of residence and the exercise of parental rights, is not evidence that the mother has ceased to fulfil her parental duties.

Furthermore, the Supreme Court confirmed that the Territorial Recruitment and Social Support Centre has the right to appeal a court decision if establishing such a fact may affect the grounds for deferment from conscription or exemption from military service.

Circumstances of the case

The man filed a lawsuit seeking divorce and the establishment of the fact of independent upbringing and maintenance of his minor son.

The spouses had effectively ended their family relationship. They concluded a notarised agreement according to which the daughter lives with the mother, and the son lives with the father. The plaintiff stated that he independently provides for all the needs of his son and that establishing the corresponding legal fact is necessary to protect the rights and interests of the child.

The court of first instance dissolved the marriage and granted the claim to establish the fact of independent upbringing of the children. At the same time, it established the fact of independent upbringing of the daughter, although the plaintiff did not request this.

After that, the Territorial Recruitment and Social Support Centre filed an appeal.

The appellate court overturned the decision regarding the establishment of the fact of independent upbringing of the children and denied this claim. The plaintiff appealed this decision to the Supreme Court.

What the Supreme Court decided

The Civil Cassation Court dismissed the cassation appeal.

The Supreme Court noted that family law is based on the equality of rights and obligations of both parents regarding the child. The mere fact of divorce or the child living with one parent does not terminate the parental rights and obligations of the other parent.

The court stated that family duties are inalienable. Parents cannot agree to fully assign the responsibilities of raising the child to only one of them unless there are legal grounds for limiting or terminating the parental rights of the other.

The Civil Cassation Court emphasised that the mere fact of the child living with one parent does not confirm the fact of independent upbringing. For such a conclusion, evidence is needed that the other parent is actually not fulfilling their parental duties or that there are legal grounds limiting or terminating their parental rights.

In case No. 725/5332/25, no such evidence was presented.

The Supreme Court agreed with the appellate court's conclusion that the notarised agreement between the parents only defines the procedure for exercising parental rights and the child's place of residence. It alone does not confirm that the mother ceased to fulfil her duties regarding the upbringing and maintenance of the child.

There was also no evidence that the mother evades her parental duties, refuses to communicate with the child, or participate in their upbringing.

The Supreme Court separately noted that the separate residence of the parents and the determination of the child's place of residence with one of them cannot automatically be considered as independent upbringing of the child. Such a fact can only be established by the court as one of the circumstances subject to proof in a dispute between the parents regarding the fulfilment of their parental duties.

Regarding the participation of the Territorial Recruitment Centre in the case

The Supreme Court also confirmed the right of the Territorial Recruitment and Social Support Centre to appeal such a decision.

The panel of judges noted that if a conscripted person files a claim to establish the fact of independent upbringing of a child during martial law and mobilisation, and such a decision may potentially affect the grounds for deferment from conscription or exemption from military service, it concerns not only private family legal relations but also the interests of the state in the sphere of military duty fulfilment. Therefore, the relevant Territorial Recruitment and Social Support Centre has the right to appeal such a decision.

At the same time, the Supreme Court supported the appellate court's conclusion that in this case, the claim was effectively filed by the conscript during mobilisation to create conditions that could serve as grounds for deferment or exemption from military service for family reasons. The court also confirmed the previously established legal position that private law mechanisms cannot be used to avoid public duties or create prejudicial decisions for public law relations.

In conclusion, the Civil Cassation Court left the decision of the Chernivtsi Court of Appeal unchanged and dismissed the plaintiff's cassation appeal.

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