Deprivation of parental rights
In accordance with the requirements of art. 75 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and family" KoBSiS, parents are deprived of parental rights if they: evade the duties of parents, including maliciously evade the payment of alimony, refuse without valid reasons to take their child from a maternity hospital, from organizations for orphans, children left without parental care, and other organizations abuse their parental rights, mistreat a child, including physically or mentally abusing him, encroaching on his sexual integrity, they abuse alcoholic beverages or narcotic drugs, psychotropic substances and (or) their analogues. Parents are deprived of parental rights if they commit an intentional crime against the life and health of their child, spouse, or other family members. In accordance with Part 1 of Article 77 of the Code of Civil Procedure, deprivation 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.
The requirements of Articles 70, 72 (KoBSiS), according to which parents are obliged to take care of the health of their children, educate them, provide living conditions necessary for the physical, mental, moral and spiritual development of children, are obliged to ensure that children receive secondary education. Parental rights may not be exercised in conflict with the interests of the children. Ensuring the interests of children should be the main concern of their parents. When exercising parental rights, parents have no right to harm the physical and mental health of children and their moral development. Ways of raising children should exclude neglectful, cruel, rude, degrading treatment, insult or exploitation.
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.
As an example, attention should be paid to the correct decision of the specialized interdistrict juvenile court of the Kostanay region dated July 10, 2015, on the claim of K-voy I.Y. to N-ovu E.S. on deprivation of parental rights. The parties' contention that the defendant does not take care of or participate in the upbringing of the child, and also does not feel a sense of affection for him, as well as the fact that the defendant does not consider himself the father of the child, are not yet indisputable grounds for depriving or restricting parental rights, since ensuring the interests of the child is under which understand various kinds of vital needs of the child, without the realization of which he cannot live and develop, is a moral duty and a constitutional obligation of the defendant, the refusal of which on his part is unacceptable. Despite the fact that various types of sanctions are provided for non-fulfillment of the duty to raise a child, which are aimed not only at depriving the relevant rights, but also at forcing them to actually perform their duties. According to the certificates, the defendant Novoselov E.S. is not registered in psychiatric drug dispensaries, and he has not previously been brought to administrative or other responsibility, including for evading parental responsibilities for the upbringing and maintenance of a child. In this case, the court correctly noted that there were no objective and reliable grounds provided by law for depriving the defendant of parental rights in the case. Depriving the defendant of parental rights does not meet the interests of a minor child, since this lawsuit was initiated by the child's mother in order to get her on the waiting list for an apartment as a single mother. which will also save her from having to find a defendant in order to give her consent to leave in the future. In this regard, taking into account the insufficiency of the evidence presented to deprive the child's father of parental rights, as well as the established circumstances that do not meet the interests of the minor child, the court reasonably decided to dismiss the claim.
In addition, it was established at the court session that there is a dispute between the parties about the paternity of the defendant in relation to a minor child. The procedure for challenging paternity was also legitimately explained to the parties.
As established, in the vast majority of cases, the initiators of lawsuits in disputes related to the deprivation of parental rights are one of the parents of minor children or state authorized bodies charged with protecting the rights of minors. For such treatment, the plaintiffs indicate many reasons. But as follows from the analysis, these are mainly the dissolution of marital relations between the parties, the child's separate residence with the mother from the father, the father's avoidance of financial support for the child, abuse of parental duties, chronic alcoholism and drug addiction, violation of moral norms and the commission of crimes, as well as the entry of the child's mother into a new marriage and others.
Of particular note is paragraph 11 of the Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan dated April 28, 2000 No. 4 "On the application of legislation by courts in resolving disputes related to the upbringing of children", according to which it is explained to the courts that parents can be deprived of parental rights by the court only in case of their guilty 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 community service.
In support of their claims, the plaintiffs pointed out that the defendant (the father or mother of the child) did not provide adequate financial support, or one of the child's parents, upon remarriage, wanted to change the child's parent.
However, in order to make a decision on the deprivation of a parent's natural right to raise a child, guaranteed by the Constitution of the Republic of Kazakhstan, compelling reasons specified in the Law are necessary.
The plaintiffs in the interests of minors, in most cases, were state authorized bodies, represented by the State Institution "Department of Education of Kokchetava", the State Institution "Department of Education of Tselinograd district", the State Institution "Department of Education of Zerendinsky district", etc. At the same time, in accordance with the requirements of art. 76 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and the courts have made an appropriate recovery of alimony, since the deprivation of parental rights does not release a parent from the obligation to support their child, regardless of the presence or absence of such a claim.
The decision of the specialized inter-district juvenile Court of the North Kazakhstan region dated May 28, 2014 denied the claim, but it was necessary to leave the application without consideration. Thus, by the appellate judicial board for civil and administrative cases of the North Kazakhstan Regional Court of June 10, 2014, the decision of the specialized inter-district juvenile Court of the North Kazakhstan region of the court of May 28, 2014 on the claim of M.chyan G.Vrezhovich on the deprivation of parental rights of M.K.Surikovna, born on September 30, 1993, a citizen of the Republic of Armenia, regarding the son of M. Yan V.Grigorievich, on August 13, 2011, the claim was dismissed and the application was left without consideration.
The court found that the defendant M.chyan K.Surikovna, born on September 30, 1993, is a citizen of the Republic of Armenia. According to the passport of a citizen of the Republic of Armenia, a copy of which was attached to the statement of claim, she entered the Republic of Kazakhstan as a minor on September 04, 2010, temporarily for a period until October 04, 2010. By the resolution of the specialized administrative court of On July 16, 2013, she was brought to administrative responsibility for violating the rules of entry and stay of immigrants in the Republic of Kazakhstan, after which she returned to the Republic of Armenia. During his illegal stay in the territory of the Republic of Kazakhstan, M.Yang K.Surikovna gave birth to a son, M.Yan V.Grigorievich, on August 13, 2011, the plaintiff Mkrtchyan G.V. voluntarily recognized himself as the father of this child, the child is currently in the plaintiff's family, and due care is being taken by the plaintiff's father, grandparents, and parents.
In these circumstances, when the defendant, M.chyan K.S., was a citizen of the Republic of Armenia at the time of filing the claim and did not have a place of residence in the territory of the Republic of Kazakhstan, and the court of the Republic of Kazakhstan had no right to accept the case and consider it on its merits, violating the rights of the defendant, a citizen of another state – the Republic of Armenia.
Under the specified circumstances and provisions of art.416 part 1 of the CPC RK, the court was obliged, in accordance with art.154 part 1, paragraph 2), to return the statement of claim to the plaintiff as beyond the jurisdiction of this court, but did not do so, accepted and considered the case on its merits, without notifying or informing the defendant of the initiated case. without interviewing the defendant by way of a separate court order on the merits of the claim.
In addition, the court made an unenforceable decision to warn the defendant about the need to change his behavior towards a minor child, and entrusted the guardianship and guardianship authorities with the duty to monitor the performance of M.yang K.S., a citizen of the Republic of Armenia who does not have a place of residence in the Republic of Kazakhstan, parental duties towards the child M.yang V.G., 13 born in August 2011.
In accordance with the requirements of art.366, part 1, paragraphs 1), 4) of the CPC RK, the court's decision is subject to cancellation regardless of the arguments of the complaint if the case is considered by a judge who does not have the right to consider the case; the court resolved the issue of the rights and obligations of persons not involved in the case.
The court's reference to the possibility of considering the case in accordance with the requirements of art.32, Part 1, art.135 of the Civil Procedure Code of the Republic of Kazakhstan at the defendant's last known place of residence is not applicable in this case, since proceedings involving foreign persons are regulated by a special section 5 of the Civil Procedure Code of the Republic of Kazakhstan – "International procedure", Chapter 45 "Proceedings on cases involving foreign citizens", art.416 part 1 of the CPC RK. In addition, the temporary entry into the Republic of Kazakhstan for 1 month and the subsequent illegal stay of the defendant at the plaintiff's address is not her last known place of residence, her known place of residence is the registration address indicated in the passport of a citizen of the Republic of Armenia.
Moreover, the premature rejection of the claim without clarifying the actual circumstances of the case, without questioning and clarifying the defendant's attitude to the circumstances indicated in the claim, prevents the plaintiff Mkrtchyan G.V. in the future, in the interests of his minor son, to apply to the court of the Republic of Armenia at the place of residence of the defendant M.yan K.S. with a similar claim. In this connection, the court of second instance explained to M.Yan G.V. his right to file a similar claim with the court of the Republic of Armenia at the defendant's place of residence. The plaintiff's appeal, Mkrtchyan G.V., was correctly dismissed. At the same time, the court issued a private ruling in order to prevent future conclusions of the guardianship and guardianship authority in cases related to the upbringing of children and compliance with the requirements of art.209 of the CPC RK that are not objective and do not correspond to the circumstances of the case.
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