Appeal against the court's decision on the denial of deprivation of parental rights

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To the Appeal Board for Civil Cases of the Almaty Regional Court

Taldykorgan, Tauelsizdik str., 53 8 7282 558 770  

The applicant:gr. ...................... IIN: .............. 050063, Almaty, md. ....., ul. ......, d. 34. +7 (708) ....................

The defendant: .............. IIN ............. Location: Almaty region, ............... the area.

THE APPEAL

on the Decision of the Specialized Inter-district Juvenile Court No. 2 of the Almaty region dated April 18, 201.. years

April 18, 201.. Specialized Inter-district Juvenile Court No. 2 of the Almaty region, composed of the presiding judge ........, with the secretary of the court session ............., with the participation of the prosecutor of the Karasai district Prosecutor's Office ............, a representative of the guardianship and guardianship authority at .......... district Department of Education ........, plaintiff gr. .............., defendant gr. .............., having considered the civil case in a closed court session with the use of audio-video recording the case on the claim of gr. .............., to the defendant gr. .............., on the deprivation of parental rights, the Court decided: The claims of gr. ………....., to the defendant gr. .............., about the deprivation of parental rights - to refuse.We consider the decision of the court of first instance to be illegal, unjustified and subject to cancellation on the following grounds:The defendant motivates his arguments by the fact that he recognizes the Plaintiff's claims for deprivation of parental rights in relation to children and clearly explained in court sessions that he did not want to communicate with children and intended to abandon them, and did not want to provide moral and material assistance, as evidenced by audio and video recordings of the court session.

 

As well as the defendant's arguments that he is ready to help children, they are not confirmed, since to this day, since the divorce, he has not participated in the upbringing of children, has not provided moral and material support, and explains in court sessions that he is ready to help, while he has a steady income from his place of work, however, he did not voluntarily consider It is necessary to help children.The Code of the Republic of Kazakhstan "On Marriage and Family" has established the right of a child to live and be raised in a family, to know his parents, as well as the right to parental care and cohabitation with them. However, this circumstance of the case completely contradicts the rights of the child, enshrined in the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family"According to paragraph 1 of Part 1 of Article 75 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" parents are deprived of parental rights if they evade the duties of parents, including maliciously evade from paying alimony.

Also, the court's arguments that the defendant gr. ………....., does not shy away from fulfilling his parental duties in relation to minor children, provides financial assistance as much as possible, takes care of their health, tries to provide children with normal living conditions necessary for physical, mental, moral and spiritual development- We consider them unjustified because the defendant did not provide a single piece of evidence about his role as the father of the children in the upbringing of the children and, moreover, in moral and material support, in addition, the prosecutor and the guardianship authority were behind the deprivation of the defendant's paternity.To date, the defendant has another family and children with whom he lives together, and accordingly, the Defendant does not want to visit the children and support them morally and financially from his first marriage.According to paragraph 14 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 4 dated 04/28/2000. /as amended on 12/22/2008/ "on the application of legislation by courts in resolving disputes related to the upbringing of children" - deprivation of parental rights is an extreme measure.

As well as paragraph 4 of the Regulatory Resolution, it says that when deciding on the dissolution of a marriage (matrimony) of spouses with common minor children, the court, based on paragraph 2 of Article 22 of the Code, must take measures to protect the interests of minors, regardless of whether a dispute about children has been initiated. To this end, it should be clarified to the parties that a single parent has the right and duty to participate in the upbringing of a child, and a parent with whom a minor lives has no right to interfere with this. And this leads to the erroneous opinion of the court that the Plaintiff does not allow the Defendant to help the children, whereas the Defendant has never been committed and has provided financial assistance on a voluntary basis or about the intention to visit the children.According to paragraph 11 of the Regulatory Decree, Parents may be deprived of parental rights by the court on the grounds provided for in article 75 of the Code only in the case of their culpable behavior. Parents' avoidance of fulfilling their responsibilities for raising children can be expressed in a lack of concern for their moral and physical development, education, and preparation for socially useful work.

 

In accordance with Articles 75-78 of the Constitution of the Republic of Kazakhstan, everyone has the right to be heard in court; Courts do not have the right to apply laws and other normative legal acts that infringe on human and civil rights and freedoms enshrined in the Constitution. If the court finds that a law or other normative legal act to be applied infringes on the rights and freedoms of a person and citizen enshrined in the Constitution, it is obliged to suspend the proceedings and apply to the Constitutional Council with a motion declaring this act unconstitutional., and art. 15 of the Civil Procedure Code of the Republic of Kazakhstan, civil proceedings are conducted on the basis of competition and equality of the parties, which can be fully realized only if each of the persons involved in the case is given the opportunity to attend the court session. also in article 13. Equality of all before the law and the court it is stated that Justice in civil cases is carried out on the basis of equality before the law and the court, during civil proceedings, none of these citizens can be given preference and none of them can be discriminated against on the grounds of their origin, social, official and property status, gender, race, nationality, language, religious beliefs, place of residence, or any other circumstances; legal entities may not be preferred and none of them may be discriminated against based on their location, organizational and legal form, subordination, form of ownership and other circumstances.

 

According to Article 8 of the Civil Code of the Republic of Kazakhstan, the exercise of civil rights: Citizens and legal entities, at their discretion, dispose of their civil rights, including the right to their protection. Failure to exercise the rights belonging to citizens and legal entities does not entail the termination of these rights, except in cases provided for by legislative acts.  The exercise of civil rights should not violate the rights and legally protected interests of other subjects of law, and should not cause damage to the environment. Citizens and legal entities must act in good faith, reasonably and fairly in exercising their rights, observing the requirements contained in the legislation, the moral principles of society, and entrepreneurs - also the rules of business ethics. This obligation cannot be excluded or limited by the contract. Good faith, reasonableness and fairness of the actions of participants in civil law relations are assumed. Actions of citizens and legal entities aimed at harming another person, abusing the right in other forms, as well as exercising the right in contradiction with its purpose are not allowed. In case of non-compliance with the requirements provided for in paragraphs 3 to 5 of this article, the court may refuse to protect the person's right.        

According to Article 8 of the CPC of the Republic of Kazakhstan, Judicial protection of the rights, freedoms and legitimate interests of a person: Everyone has the right, in accordance with the procedure established by this Code, to apply to the court for protection of violated or disputed constitutional rights, freedoms or legally protected interests. State bodies, legal entities, or citizens have the right to apply to the court for the protection of the rights and legally protected interests of other persons or an indefinite circle of persons in cases provided for by law.According to Article 224 of the CPC, the court's decision must be lawful and justified.

A decision is lawful when it is made in compliance with the norms of procedural law and in full compliance with the norms of substantive law applicable to this legal relationship, or is based on the application, if necessary, of a law governing a similar relationship, or proceeds from the general principles and meaning of civil legislation and the requirements of good faith, reasonableness and fairness.A decision is considered justified if it reflects the facts relevant to the case, confirmed by the evidence examined by the court., satisfying the requirements of the law on their relevance, admissibility and reliability, or being well-known circumstances that do not need to be proved, and collectively sufficient to resolve the dispute.The Universal Declaration of Human Rights (articles 7, 8 and 10), the International Covenant on Civil and Political Rights (article 14) and the Convention for the Protection of Human Rights and Fundamental Freedoms (article 6) establish, That everyone is equal before the law and the court, and that everyone, in determining their civil rights and duties, has the right to a fair and public hearing within a reasonable time by a competent, independent and impartial court established by law.Based on the above, and guided by the CPC RK.,

I ASK THE COURT:

 

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