Determining the order of communication with children

There have been cases where judges unreasonably returned a statement of claim, mistakenly believing that the plaintiff had not lost the possibility of a pre-trial settlement of the dispute.

So, A.zhina Zh.S. appealed to the guardianship and guardianship authority, which refused to establish the procedure for mother-child communication, due to the lack of consent from the father with whom Tomiris' daughter lives, born on June 30, 2012. After that, A.zhina Zh.S. filed a lawsuit to determine the order of communication with the child. Judge of the district court No. -2 of the Auezovsky district of the mountains. Almaty, returning the statement of claim in accordance with paragraph 1 of part 1 of Article 154 of the Civil Procedure Code of the Republic of Kazakhstan, indicated that the plaintiff A.noi Zh.S. It is necessary to show procedural activity to defend their interests and obtain a decision from the guardianship authority.

The position of the appellate judicial board for civil and administrative cases of the Akmola Regional Court is considered correct, which, having overturned a similar ruling on the return of B.V.V.'s statement of claim to B.N.A. on determining the procedure for communicating with the child, indicated that the plaintiff had followed the procedure established by art.73 of the Code. The defendant does not want to enter into an agreement, but does not give a written refusal. Therefore, the plaintiff, acting in accordance with the procedure established by art. 73 of the Code, appealed to the court.

The decision of the Kokshetau City Court of the Akmola region determined the procedure for communication between B.V.V. and his son Vyacheslav, born on September 23, 2009, on Saturday from 12:00 to 21:00, on Sunday from 10:00 to 19:30, and also by prior agreement of the parties at any time convenient for the parties at the place At that time, the plaintiff requested to establish the following procedure for communicating with the child - in winter and in summer, one month at the place of his residence.

In determining the specified procedure for communicating with the child, the court took into account his age (4 years) and state of health (suffering from mental retardation from the moment of birth). In addition, the court took into account that the child receives medical treatment at his place of residence, in order to maintain stability in treatment and his psychological state, it is necessary to leave him to live and stay with his mother. If treatment is interrupted, the usual environment is changed, or doctors are replaced, regardless of their professionalism, treatment may be ineffective and less effective for the child, which may also affect his mental state.

The courts also considered cases involving claims by the child's relatives against the child's parents for removing obstacles to communication with the child. The plaintiffs in this category of cases were: grandmother, grandfather. Most of the claims were satisfied when it did not contradict the interests of the child.

The trial of civil cases on determining the order of communication with a child has its own specifics, due to the fact that the consideration protects the right of a child who is not involved in the process.

If the court needs to interview the child, this can be done both at a court hearing and with the participation of a teacher. Questioning a child at a court hearing is acceptable when clarifying the issues of his upbringing, his parents' attitude towards him, and their behavior in a court setting can significantly affect the resolution of the dispute on the merits. The child's opinion is evaluated in conjunction with the rest of the evidence in the case. At the same time, taking into account the child's opinion is mandatory, if it does not contradict his interests.

In the course of the study, it was established that the child's interview and the identification of his opinion are conducted both by the guardianship and guardianship authorities and by the court at the trial stage. In these cases, the age criterion applies. A child under the age of 10 is interviewed by representatives of the guardianship authority. At the same time, other persons can also find out the opinion of the child (teachers, educators of children's institutions at the place of study and the child's stay in kindergarten, etc.). The results are recorded in the relevant documents submitted for review during the consideration of the case at a court hearing.

The court of Appeal of the Atyrau region, overturning the decision of the court of first instance on determining the procedure for communication between the estranged parent of D.V. A.I. and his minor son and leaving the application without consideration, referred to art.249 para.1 of the CPC, namely, the need for the plaintiff to appeal to the guardianship and guardianship authorities for the purpose of pre-trial settlement of the dispute. However, it is clear from the contents of the judicial act that there is a decision by the state body to determine the order of communication between a mother and her son, but communication is prevented by the grandmother of a minor child. In this case, the court's explanation of the need for D.V. A.I. to apply to the guardianship and guardianship authority to ensure the execution of the decision of this state body cannot be considered correct, since the party preventing the communication of a separate parent with a minor child can be held accountable for non-execution of a judicial act. In addition, on the grounds provided for in paragraph 1 of Article 249 of the CPC, the application can be left without consideration if the possibility of a pre-trial settlement of the dispute has not been lost. In the above example, such an opportunity is lost, there is a decision of the guardianship authority. Therefore, the courts, ensuring the restoration of the rights of a separate parent to communicate with a minor child, must strictly comply with the requirements of both substantive and procedural law.

Prosecutors are involved in the case when considering disputes concerning the determination of the order of communication with minor children.

 

 

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