Consideration of disputes on limitation of parental rights
In accordance with the clarifications in paragraph 1 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 4 dated April 28, 2000 "On the application of legislation by Courts in resolving disputes related to the upbringing of children" as amended by the regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 12 dated December 22, 2008, it follows that the courts, when considering disputes related to The Law of the Republic of Kazakhstan "On Marriage and Family" should guide the upbringing of children, including the deprivation, restoration and restriction of parental rights. In connection with the introduction of the new Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" dated December 26, 2011, it should be understood as the norms of Chapter 12. Deprivation and restriction of parental rights.
79 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family", the court may, taking into account the interests of the children, decide to restrict parental rights by taking the child away from the parents without depriving them of parental rights. Restriction of parental rights is allowed if leaving a child with his parents is dangerous for them due to the behavior of the parents, but there are no sufficient grounds for the deprivation of parental rights.
As it has been established, in the vast majority of cases, the initiators of lawsuits in disputes related to the restriction of parental rights are state authorized bodies charged with protecting the rights of minors, and there are also individual cases of such cases being considered by prosecutors.
Paragraphs 12 and 14 of the Resolution of the Supreme Court of the Republic of Kazakhstan "On the application of legislation by courts in resolving disputes related to the upbringing of children" state that persons who fail to fulfill their parental duties due to a combination of difficult circumstances and for other reasons beyond their control (for example, mental disorder or other chronic diseases, with the exception of people suffering from chronic alcoholism, drug addiction, or substance abuse). In these cases, as well as when, during the consideration of the case, sufficient grounds are not established for depriving the parents (one of them) of parental rights, the court may, by way of limiting parental rights, decide to take the child away and transfer him to the custody of the guardianship and guardianship authorities, provided that leaving the child with the parents is dangerous for him. When considering a case on the restriction of parental rights, the court must also resolve the issue of collecting child support from the parents (one of them). At the same time, the courts should take into account that the deprivation of parental rights is an extreme measure. In exceptional cases, if the parent's culpable behavior is proven, the court, taking into account the nature of his behavior, personality and other specific circumstances, has the right to dismiss the claim for deprivation of parental rights and warn the defendant about the need to change his attitude to raising children, entrusting the guardianship and guardianship authorities to monitor the fulfillment of his parental duties.
In the vast majority of cases, appeals to the court in this category of cases are related to the termination of the parent's parental duties towards the child. In accordance with article 80 of the Code, the restriction of parental rights entails the loss of all rights based on the fact of kinship with children, including the rights to receive funds for their maintenance, as well as benefits and State benefits established for citizens with children. In this regard, the courts, taking into account the constitutional right of a parent to raise children, correctly applied restrictions on parental rights due to insufficient evidence.
In accordance with paragraph 12 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On the application of legislation by courts in resolving disputes related to the upbringing of children", when considering a case on the restriction of parental rights, the court must resolve the issue of collecting child support from parents. This requirement is also reflected in Article 79 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family".
For claims for deprivation of parental rights, valid reasons are required by law. For example: by the decision of the specialized inter–district Juvenile Court of Astana dated March 13, 2014, the claims of S.M.G. against D.M.S. on the restriction of parental rights in respect of a minor child, S. Ilyas Maratula, born on June 19, 2005, were denied on the following grounds.
Mr. M.G. filed a lawsuit with the court to restrict the parental rights of the mother of a minor child, Dr. Ilyas Maratula, born on June 19, 2005, Dr. Madina Slyamovna, stating that he married the defendant on January 29, 2005, and have a child with Ilyas Maratula. Life together did not work out, because since 2006, Dr. M.S. has been in a religious sect, she stopped taking care of the child, the hygiene of the child annoyed her, and repeatedly left the child alone in the apartment. After four years of persuasion and requests, he was forced to expel her from home, and on April 15, 2011, the marriage was annulled. On August 3, 2011, a settlement agreement was concluded with Dr. M.S. on the issue of determining the child's place of residence. The court's decision of January 27, 2012, which ordered the determination of the child's place of residence with the father, was violated by her. On March 16, 2012, she abducted a child from school before she could finish the school year. The State bailiff sent an application for bringing Dr. M.S. to criminal responsibility under art.362 of the Criminal Code of the Republic of Kazakhstan for non-enforcement of the court decision. Since March 2013, Dr. M.S. began to violate the definition of the guardianship council on the order of communication with the child, after which he filed a lawsuit, which decided to determine the order of communication with the father from Friday to Sunday. But the defendant, again violating the court's decision, took the child with documents from school No. 64, where he studied. Currently, the child is not studying anywhere, which is confirmed by the response of the Astana City Office for the Protection of Children's Rights dated January 22, 2014. All these actions by Dr. M.S. regarding the child, as well as the conclusion of the psychologist that the child lives in fear, the child's level of internal anxiety is above average, confirm that it is dangerous for the child to be with Dr. M.S. and her actions fall under Article 79 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family", restriction of parental rights.
At the hearing, MS.G. asked the court to consider the case in the absence of the defendant, due to the uncertainty of her place of residence, in accordance with art.135 of the CPC at the last known place of residence, and also fully confirming the requirements set out in the statement of claim, additionally stated that in the apartment he According to the donation agreement, he gave it to his minor son, and a fire broke out, which also indicates the defendant's lack of concern not only for the child, but also for the property belonging to him. He currently has another family and a child. In addition, he submitted an application to the Department of Internal Affairs of Astana to announce the search for his minor child.
The defendant, D-ova M.S., did not appear at the court session, her place of residence is unknown, the court took measures to establish her location and notify her of the day of the hearing in court, but her place of stay was not fixed, therefore, the court, in accordance with art.135 of the CPC, considered it possible to consider the case at the defendant's last known place of residence..
The representative of the State Institution "Department for the Protection of Children's Rights of Astana", Zh-bai T.A., explained to the court that the child was suffering due to hostility and lack of mutual understanding between the former spouses. However, he does not see any grounds for restricting the parental rights of Dr. M.S., he asks to resolve the dispute in the interests of the child. The prosecutor involved in the case also insisted that there were no legal grounds.
From the documents attached to the case file, it was established that the marriage between Mr. M.G. and Dr. M.S. was dissolved by the decision of the Saryarkinsky District Court of Astana dated April 15, 2011, which is confirmed by a copy of the divorce certificate dated August 12, 2011, issued by the Registry Office of the Saryarka district of Astana.
According to the birth certificate, S. Ilyas Maratuly was born on June 19, 2005, the father is S. Marat Gaisauly, the mother is Dr. Madina Slyamovna.
Since there was no agreement between the parents: the parties to the dispute, Mr. M.G. and Dr. M.S., on the place of residence of the minor son of Mr. M.S., the dispute was adjudicated 4 times.
So, on August 3, 2011, the specialized inter-district juvenile Court of Astana approved a settlement agreement between the parties on the claim of Dr. M.S. against Dr. M.G., according to which the child's place of residence was determined alternately by both sides.
By a decision of the same court dated January 27, 2012, on the claim of Dr. M.G. against Dr. M.S. and the counterclaim of Dr. M.S. against Dr. M.G. for determining the place of residence of the child, the place of residence of Mr. Ilyas was determined with the father at his residence address before August 1, 2012.
By a court decision dated December 7, 2012 on the claim of S-ova M.G. to Dr. M.S. the child's place of residence was determined with the mother, Dr. M.S. The last court decision dated November 13, 2013 on the claim of S-ova M.G. to Dr. M.S. on determining the order of communication with the child, the court determined the order of communication between the father and the child.
All these decisions have entered into force.
According to Article 71, Part 2 of the CPC RK, it follows that the circumstances established by a court decision that entered into force in a previously considered case are binding on the court. These circumstances are not proven again and are not subject to dispute when considering another case involving the same persons.
The decision of the specialized inter-district Juvenile Court of December 7, 2012 on the claim of S.M.G. to Dr. M.S. on determining the place of residence of the child established the circumstances indicating that: the argument of S. M. about Dr. M.S. belonging to a sectarian community was not confirmed. There are no grounds for asserting that Dr. M.S. is mentally ill, as well as the presence of his high attachment to his mother, the opinion of Ilyas himself that he wants to live with his mother, which were taken into account by the court when determining the place of residence of the child with his mother. These circumstances are not proven again and are not subject to dispute, they have been assessed by previous court decisions.
According to Article 67, Part 1 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" (hereinafter referred to as the Code), a child has the right to protect his rights and legitimate interests. The protection of the rights and legitimate interests of a child is carried out by the parents (persons replacing them), and in the cases provided for by this Code, by the guardianship and guardianship authority, the prosecutor and the court.
It follows from Article 70 Part 2 of the Code that parents have the right and duty to raise their children. Parents have a preferential right to raise their children over all other persons.
79 Part 2 of the Code, restriction of parental rights is allowed if leaving a child with his parents (one of them) is dangerous for the child due to circumstances beyond the control of the parents (one of them) (mental disorder or other chronic illness, combination of serious circumstances, etc.), as well as in cases where leaving a child with his parents (one of them) as a result of their behavior is dangerous for the child, but there are no sufficient grounds for depriving the parents (one of them) of parental rights.
Evaluating the explanations of the participants in the case in conjunction with written evidence in accordance with the requirements of Article 77 of the CPC RK, the court correctly concludes that the basis for applying to the court was the hostile relationship of the parents, resulting from long-term litigation between the former spouses that did not correspond to the interests of the child, the complete lack of mutual understanding between them and unwillingness come to an agreement in the best interests of the child.
At the same time, the plaintiff did not provide the court with evidence indicating that the defendant leads a lifestyle that harms the mental and physical health of the child and his moral development. There is no evidence that the defendant's behavior poses a threat to the life, health and upbringing of the child. On the contrary, the testimony of witness K.Z.K. that the child was an excellent student, had good behavior, did not miss lessons, and the child's appearance was neat, testifies to the proper care of the mother for the child.
Therefore, there is no reason to restrict the defendant's parental rights. Thus, the court correctly concluded that the claims were unfounded and were subject to rejection.
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