When a child can be placed under guardianship if the father-military serviceman is missing: what court practice shows

Families of servicemen who went missing during the war often face not only emotional uncertainty but also legal issues related to their children. One of the most common questions is who and how can represent the interests of the child if the father is missing and another person is actually caring for the child.

The Commissioner for Persons Missing Under Special Circumstances, Artur Dobroserdov, emphasized that the mere fact of being missing does not automatically mean the loss of parental rights. A person legally remains the father or mother of the child until they are declared missing, declared dead, or deprived of parental rights by a court.

That is, even if the father-serviceman has not been in contact for a long time and is officially classified as missing under special circumstances, this does not mean the automatic termination of his rights and responsibilities towards the child.

Legal norms relied upon by guardianship authorities and courts

The main provisions are contained in the Family Code of Ukraine, the Civil Code of Ukraine, the Law "On Child Protection," and the Law "On the Legal Status of Persons Missing Under Special Circumstances."

Article 243 of the Family Code of Ukraine provides for the possibility of establishing guardianship over children under 14 years old and care for children aged 14 to 18 if the child is left without parental care.

At the same time, Article 43 of the Civil Code of Ukraine defines that a person can be declared missing if there is no information about their whereabouts at their permanent residence for one year.

However, the key issue for the state is not the status of disappearance itself, but whether the child has proper care and who actually provides upbringing and representation.

When guardianship or care is not needed

In practice, much depends on the family situation. If the child's mother is alive, not deprived of parental rights, and actually raising the child, separate guardianship is usually not necessary.

In such a case, the mother remains the child's legal representative and can arrange social benefits, apply to state authorities, represent the child's interests at school, hospital, or court, and also handle documents and necessary statuses.

Thus, the disappearance of the father alone does not mean the child is automatically recognized as left without parental care.

When the need for guardianship may arise

A different situation arises if the mother is also absent, deceased, seriously ill, not caring for the child, or deprived of parental rights. The issue of guardianship may also arise if the child actually lives with a grandmother, grandfather, aunt, older siblings, or other persons.

In such cases, there may be a need to arrange guardianship, care, temporary representation, or the status of a child deprived of parental care.

What guardianship authorities check

The child services and guardianship authorities assess with whom the child actually lives, who provides care, whether living conditions are adequate, whether the child's rights are violated, and whether the parents truly cannot fulfill their duties. They also verify the confirmation of the missing status.

In practice, notifications of disappearance, military unit documents, extracts from the Unified Register of Persons Missing Under Special Circumstances, family composition certificates, character references, relatives' explanations, and court decisions recognizing a person as missing may be taken into account.

Such powers of guardianship and care authorities are provided by the Cabinet of Ministers Resolution No. 866 "Issues of the Activities of Guardianship and Care Authorities Related to the Protection of Children's Rights."

Additionally, Cabinet of Ministers Resolution No. 1013 introduced special changes regarding children left without parental care during the war.

What court practice shows

In practice, guardianship authorities and courts usually proceed from the principle of the best interests of the child. The key question is not whether the father is formally missing, but who actually cares for the child, whether the child is left without proper representation, and whether it is necessary to ensure the possibility of arranging documents, benefits, medical or educational issues.

At the same time, courts are cautious about irreversible decisions regarding children of servicemen missing during hostilities.

For example, the Kremenets District Court of Ternopil Region in case No. 601/2366/25 considered the appointment of the grandmother as the child's guardian after the child's father, a serviceman, went missing during hostilities. The court took into account the child's actual residence with the grandmother, her involvement in upbringing and maintenance, as well as documents confirming the missing status.

The Tyvriv District Court of Vinnytsia Region in case No. 145/1408/25 examined the issue of actual care for the child, conclusions of the guardianship authority, and the child's living conditions. As a result, the child was placed under guardianship.

Meanwhile, the Dobrovelychkivskyi District Court of Kirovohrad Region in case No. 396/2141/25 considered the case of a serviceman missing during hostilities in the context of further protection of the child's rights. The court examined military unit documents, circumstances of disappearance, and issues of exercising the rights of the minor child, whose interests were represented by a guardian.

Court practice shows that in such cases, courts assess not only the fact of the father's disappearance but the entire situation around the child: with whom the child lives, who actually supports the child, who is involved in education, treatment, daily care, and whether the guardianship authority supports the candidate for future guardian.

What documents may be needed

Depending on the situation, the birth certificate of the child, applicant's passport, residence documents, notifications of disappearance, military unit documents, extracts from the Unified Register of Persons Missing Under Special Circumstances, medical documents, family composition certificates, character references, income documents, and housing inspection reports may be submitted.

How guardianship differs from adoption

Guardianship does not terminate the legal connection between the child and the father, can be temporary, and allows representing the child's interests without depriving the father of his status.

At the same time, adoption completely changes the child's legal status, terminates the previous legal connection with the biological father, and requires separate legal grounds.

That is why in cases involving children of servicemen missing in action, the issue of guardianship or representation is usually considered first, not adoption.

What is important for families

If the child is actually raised by other relatives, it is advisable not to delay contacting the child services, officially record the circumstances, collect documents regarding the missing status, and arrange the legal mechanism of child representation.

This can be important for arranging social benefits, education, medical support, traveling abroad, inheritance issues, and protecting the child's rights in the future.

Thus, the disappearance of the father during the war does not automatically mean the loss of his parental rights. But if the child is actually left without proper care or raised by others, the law allows arranging guardianship, care, or other forms of representation to protect the child's rights and interests.

In each case, the state and courts primarily assess the child's interests, actual circumstances, presence of proper care, and the possibility of legal representation.

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