Disputes about the determination of the child's place of residence when a child leaves the republic with one of the parents for permanent residence
According to subparagraph 6) of paragraph 7 of the Rules for Registration of documents for departure from the Republic of Kazakhstan for permanent residence, approved by Resolution of the Government of the Republic of Kazakhstan dated March 28, 2012 No. 361 (hereinafter referred to as the Rules for Registration of exit documents), when leaving for permanent residence of citizens of the Republic of Kazakhstan under the age of eighteen, together with one a parent (guardian, trustee) must have the notarized consent of the other parent residing in the territory of the Republic of Kazakhstan. In the absence of consent, the departure of a minor may be allowed in court. Part 3 of Article 27 of the CPC provides for the consideration by juvenile courts of cases concerning the determination of a child's place of residence when a child leaves the republic with one of his parents for permanent residence (hereinafter referred to as permanent residence). If one of the parents with whom the minor children live wishes to leave the republic for permanent residence, taking the common minor children with them, and the other parent does not give a notarized consent for various reasons, the parent who is leaving applies to the court with a corresponding claim. As the generalization has shown, the courts of the republic treat such disputes in different ways. Some courts consider claims as indicated in part 3 of Article 27 of the CPC, based on the fact that the earlier court decision on determining the place of residence of a child with one parent cannot apply to the case of a child moving abroad with such a parent, since the existing decision was made taking into account completely different living conditions.
Other courts accept and consider claims by one parent against the other parent for permission for a minor child to leave the republic for permanent residence, for determining the procedure for a minor child to leave the republic for permanent residence, for recognizing as unlawful the refusal of the second parent to grant permission for the child to leave the republic for permanent residence. The practice of courts considering claims for determining the place of residence of a child when a child leaves the republic with one of the parents for permanent residence seems to be correct. In these cases, the plaintiffs provide evidence to the court that they have the opportunity to provide a minor child in another country with the necessary maintenance and upbringing, and provided documents on the availability of housing, work, and property in their new place of residence. The defendant in the case, the second parent, objecting to the departure of the child, submits a counterclaim to determine the place of residence of the child with him in the Republic of Kazakhstan. When making the decision, the courts took into account the possibility of a parent leaving to provide a minor child in another country with the necessary maintenance and upbringing, the presence or absence of alimony arrears from the parent objecting to departure, the ability to provide the child with maintenance and upbringing, his marital status, as well as the fulfillment of his duties to raise the child (meetings, communication). With the involvement of the guardianship authority, a teacher, and a psychologist, the courts clarified the child's attachment to each of the parents and his opinion about the upcoming departure. For example, by the decision of the juvenile court of the Zhambyl region dated January 17, 2017, R.'s claim to H. for determining the place of residence of the children with her in connection with leaving the Republic of Kazakhstan for permanent residence in Germany was satisfied, the counterclaim for determining the place of residence of the children with their father was denied. The court's conclusions are motivated by the fact that the plaintiff provided the court with apostilled documents confirming that her spouse has a home in Germany, a permanent job, a salary certificate, a positive description from the place of work, medical documents confirming the satisfactory state of health of the spouse and the absence of mental illness.
An apostilled document has been submitted confirming the readiness of Dornstetten Elementary School to accept the plaintiff's children for education. A relative of the plaintiff living in Germany acted as a guarantor of financial assistance to the plaintiff and her children while living in Germany. The court also took into account the opinion of minor children who wished to leave with their mother for Germany, the opinion of the representative of the guardianship authority on the satisfaction of the claim of R. The defendant's objection to the children's departure to Germany in court was motivated by the fact that communication with children and participation in their upbringing would become difficult due to the distance and residence in different countries. The Court concluded that the defendant, by refusing to grant consent for the departure of the children, was abusing his parental rights, thereby violating the rights of minor children. The operative part of the decision specifies the determination of the place of residence of minor children when they leave the republic for permanent residence with their mother.
When considering such disputes on claims against a second parent for permission for a minor child to leave the republic for permanent residence, the courts examine evidence confirming the possibility of the child's residence in another country. At the same time, in the absence of evidence about the possibility of providing a minor child with the necessary maintenance and upbringing in another state, about the availability of housing, work, and property in the place of new residence, the courts refused to satisfy the claim (the decision of the juvenile court of South Kazakhstan dated July 7, 2017 on the claim of P. to V.). Thus, the generalization showed that courts have different practices in resolving disputes in this category, which necessitates clarifying these issues in a Regulatory Resolution. It should be clarified that, within the meaning of part 3 of Article 27 of the CPC, determining the child's place of residence when leaving the republic with one of his parents for permanent residence means allowing the child to leave, which is consistent with the Rules for processing Exit documents. When the plaintiff applies for permission for the child to leave, the court should, in order to prepare the case for trial, clarify the subject of the claim and explain to the plaintiff the right to submit additional requirements for determining the place of residence when the child leaves the republic with one of the parents for permanent residence. At the same time, it should be borne in mind that the earlier court decision on determining the place of residence of a child with one parent cannot apply to the case of a child moving abroad with such a parent, since the existing decision was made taking into account completely different living conditions. When resolving a dispute, the courts should keep in mind that the exercise of parental rights should not violate the rights and legally protected interests of children and cannot be made dependent on the parents' desire or unwillingness to allow the child to leave the republic or the contradictions that have arisen between the parents. Otherwise, there will be an abuse of parental rights, the protection of the child from which is carried out in accordance with paragraph 2 of Article 67 of the Code. When considering such disputes, it is also necessary to take into account the opinion of the child.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
