Disputes about the return of a child held not on the basis of a law or a court decision to parents, guardians, or foster carer
Paragraph 6 of the Regulatory Resolution clarifies that, by virtue of the Code, parents have a preferential right over other persons to raise their children (paragraph 2 of Article 70 of the Code) and have the right to demand the return of the child from any person who holds it not on the basis of the Code or a court decision (paragraph 1 of Article 74 of the Code). The court has the right, taking into account the opinion of the child, to reject the parent's claim if it comes to the conclusion that the transfer of the child to the parent is contrary to the interests of the minor (part two of paragraph 1 of Article 74 of the Code). The opinion of the child is taken into account by the court in accordance with the requirements of the law (article 62 of the Code). If during the trial it is established that neither the parents nor the persons with whom the child is located are able to ensure his proper upbringing and development, the court dismisses the claim and transfers the minor to the custody of the guardianship authority so that measures are taken to protect the rights and interests of the child and the most appropriate an acceptable way of arranging his future fate (paragraph 2 of Article 74 of the Code).
From the certificates compiled by the regional courts, it was established that the cases of this category were considered only in the juvenile court of the Zhambyl region. The mother of the child, R., appealed to the court with a claim for the return of the minor child, born in 2012. The claim was filed against the child's grandfather on the part of the father, Sh., and was motivated by the fact that the court's decision determined the place of residence of the two minor children with the mother. The father of the children, O., is a group 2 disabled person, suffers from a mental illness, and has been declared incompetent. With her permission, the spouse's brother took the children to the village of Sarykemer for two days to communicate with their father, but after this period, defendant Sh. (grandfather) kept her daughter, born in 2012, and holds her, refusing to return the child to the mother. The claim was satisfied by the decision of the specialized inter-district juvenile Court of Zhambyl region dated February 27, 2017. The court decided to take away the minor N., born in 2012, from the defendant Sh. and transfer the child to the mother. In satisfying this claim, the court stated in its decision. That according to the principles enshrined in paragraph 6 of the Declaration of the Rights of the Child, adopted by the UN General Assembly on November 20, 1959, a child needs love and understanding for the full and harmonious development of his personality. He should, whenever possible, grow up under the care and responsibility of his parents, in any case in an atmosphere of love and moral and material security; a young child should not, except in exceptional circumstances, be separated from his mother.
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