Disputes about determining the order of communication with minor children
The practice of resolving a dispute on determining the order of communication between a single parent and minor children, separately residing relatives (grandparents) with minor children is regulated by the Marriage and family Legislation of the Republic of Kazakhstan is based on the Constitution of the Republic of Kazakhstan, the Code "On Marriage (Matrimony) and the Family", the Law "On the Rights of the Child in the Republic of Kazakhstan", Declaration on the Rights of the Child, Normative Resolution of the Supreme Court of the Republic of Kazakhstan No. 4 dated 04/20/2000 "On the application of Legislation by Courts in Dispute Resolution, related to the upbringing of children." According to article 27 of the Constitution of the Republic of Kazakhstan, the family is protected by the State. Taking care of children and their upbringing is the natural right and responsibility of parents.
Article 61 of the Code on Marriage and Family (hereinafter referred to as the Code) establishes the right of a child to communicate with both parents, grandparents, brothers, sisters and other relatives. If the parents live separately, the child has the right to communicate with each of them. A child has the right to communicate with his parents also if they live in different countries.
Article 73 of the Code establishes the right of a parent living separately from a child to communicate with him, to participate in his upbringing and to resolve issues related to the child's education and other issues important to the child.
Clarifications on the procedure for exercising parental rights by a parent living separately from a child are listed in the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 4 dated 04/20/2000 "On the application of legislation by courts in resolving disputes related to the upbringing of children."
Determining the order of communication with a child is derived from determining the child's place of residence. Initially, the place of residence of the child is determined and only then the order of communication with the child of the other parent.
Disputes over the definition of the order of communication with children are resolved by specialized inter-district juvenile courts.
The note to Article 30 of the CPC RK states that if a specialized interdistrict juvenile court has not been established on the territory of the relevant administrative–territorial unit, the district (city) court has the right to consider cases within its jurisdiction.
When accepting statements of claim, it should be borne in mind that the parties to disputes on determining the order of communication with the child, by virtue of civil procedure legislation, are not deprived of the opportunity to agree on the consideration of the case at the place of residence of each of them or at the location of the child, if this is caused by his interests. That is, we are talking about contractual jurisdiction (Article 34 of the CPC).
Part 3 of article 73 of the Code provides for the right of parents to conclude in writing an agreement on the procedure for exercising parental rights by a parent living separately from the child. It is in this written document that the parents may specify that in case of violation of the terms of the agreement, the dispute is resolved according to the rules of contractual jurisdiction.
The Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 21 dated 12/13/2001 "On the preparation of civil cases for trial" draws the attention of judges to the fact that the preparation of civil cases for trial is an obligatory part of the stage of proceedings in the court of first and appellate instance and creates the necessary conditions for a full, comprehensive and objective examination at the court session of the submitted evidence provided by the parties, the actual rights and obligations of the parties, subject to the application of substantive law, and the issuance of a lawful and reasoned judicial act.
The judge in each case related to determining the order of communication with the child is obliged to summon the defendant to court, explain to him the rights and obligations, and find out his objections. The mandatory summoning of the defendant allows the judge during the pre-trial proceedings to find out his attitude to the claim, which helps to get an idea of his personality, his attitude towards the child, even to find out the reasons that prompted the plaintiff to go to court.
Paragraph 7 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 4 dated 04/20/2000 "On the application of legislation by courts in resolving disputes related to the upbringing of children" draws the attention of judges to the fact that a dispute between parents on the exercise of parental rights in court is resolved in case of disagreement with the decision of the guardianship and guardianship authorities. During the generalization, cases were identified when judges appointed cases for trial in the absence of such an act, which led to the dismissal of the claim without consideration with reference to art.249 para.1 of the CPC RK.
When preparing cases related to the upbringing of children for trial, the judge should correctly identify the circumstances relevant to the resolution of the dispute that must be proved by the parties, paying special attention to the personal qualities of the parents or other persons raising the child, as well as the established relationship between these persons and the child.
In accordance with paragraph 3 of Article 73 of the Code, parents have the right to conclude in writing an agreement on the procedure for exercising parental rights by a parent living separately from the child.
If the parents cannot come to an agreement, the dispute is resolved by the body performing the functions of guardianship or guardianship, and in case of disagreement with its decision, by a court with the participation of this body and the child's parents.
The main provisions on the exercise of parental rights by a parent living separately from a child are set out in Article 73 of the Code. According to Article 73, paragraph 1 of the Code, a parent living separately from a child has the right to communicate with the child, participate in his upbringing and resolve issues related to the child's education and other issues important to the child.
Living with one of the parents of a child does not deprive the other parent of the right and obligation to participate in his upbringing. A parent living separately from a child has the right to communicate with him and is obliged to participate in his upbringing, and the parent with whom the child lives has no right to prevent the other parent from doing so.
to assist the other parent in this. When resolving disputes between parents about the procedure for exercising parental rights by a parent living separately, the courts are guided by the explanations contained in paragraph 7 of the Regulatory Decree of the Supreme Court of the Republic of Kazakhstan No. 4 dated 04/20/2000 "On the application of legislation by courts in resolving disputes related to the upbringing of children", according to which, when determining the procedure for parent-child communication, Attention should be paid to the child's age, state of health, attachment to each parent, and other circumstances that may affect the child's physical and mental health., on his moral development.
73, paragraph 2 of the Code, the dispute is resolved based on the interests of the child. At the same time, the court takes into account the attachment of the child to each of the parents, brothers and sisters, the age of the child, the moral and other personal qualities of the parents, the relationship existing between each parent and the child, the possibility of creating conditions for the child's development and upbringing (occupation, working hours of the parents, the financial and marital status of the parents and other similar conditions).
Practice has shown that, in addition to these circumstances, the courts also took into account the presence or absence of conditions for the upbringing and development of a child according to the act of examination of housing and living conditions (availability of sleeping and playing places), the regime for a young child, the remoteness of the plaintiff's place of residence from the child's place of residence, the length of time during which the child did not communicate with the parent, and others circumstances.
In some cases, the court, taking into account the young age and the fact that the child had not seen his father for a long time, had become unaccustomed to him, appointed a different order of communication for the first time, and for subsequent communication. For example, the specialized inter-district juvenile court of the Zhambyl region, when determining the order of communication between father S. and son A., born on June 6, 2011, determined the order of communication in the presence of the mother for 3 hours on weekends and clarified that after the child gets used to the father, the time of communication can be adjusted by agreement of the parties.
In another case, for example, the specialized inter-district juvenile Court of Almaty, rejecting the claim of N.'s father, proceeded from the interests of a three-year-old child who had not communicated with his father since the beginning of 2015 and took into account the conclusion of a psychologist, who pointed out the need for professional psychological work in order to create a positive image of the father and the formation of There is a harmonious father-mother relationship between the parents, which may take a month or more.
The court explained to the father the resolution of the issue of how to communicate with the child after the child's internal psychological stress was relieved. This position of the court is recognized as correct, since the procedure for communicating with the child is established on the day of dispute resolution, taking into account the age, psychological state of the child and other significant circumstances.
The procedure for communicating with a child, if necessary, may be changed by the court at the request of any parent, taking into account the specific circumstances on the day of dispute resolution, and upon reaching the age of 14 by the child at the request of the child himself (paragraph 2 of Article 67 of the Code).
Therefore, when new circumstances are indicated, it is correct to accept the statement of claim and resolve the dispute on its merits, rather than canceling the decision on newly discovered circumstances or refusing to accept the statement of claim.
According to the claims of the child's relatives to the child's parents for the removal of 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.
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