Disputes related to parenting
According to article 62 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family", a child has the right to express his opinion when resolving any issue affecting his interests in the family, as well as to be heard during any judicial or administrative proceedings. Taking into account the opinion of a child who has reached the age of ten is mandatory, except in cases where this is contrary to his interests. G. filed a lawsuit against J. to determine the place of residence of the children, arguing that after the dissolution of the marriage, minor children I., A. and T. live with him. He takes care of their upbringing, education and maintenance, pays for sports clubs, additional classes, buys things. Taking into account the opinions of the children who wish to live with him, he asked to determine the place of residence of the children with their father. By the decision of the specialized inter-district Juvenile Court of Almaty dated July 16, 2020, the claim was satisfied. The place of residence of minor children: I., born on September 18, 2002, A., born on July 8, 2005, and T., born on November 15, 2007, was determined with the father – G. at his place of residence. By the decision of the Judicial Board for Civil Cases of the Almaty City Court dated November 9, 2020, the decision of the court of first instance was changed. Regarding the satisfaction of the claim for determining the place of residence of minor children: A., born on July 8, 2005; T., born on November 15, 2007 with his father, G. at his place of residence was canceled with the adoption of a new decision to dismiss the claim in this part. The place of residence of the minor children: A., born on July 8, 2005; T., born on November 15, 2007, was determined with the mother – J. at her place of residence. The rest of the decision of the court of first instance remains unchanged.
Disputes related to parenting
The Judicial Board for Civil Cases of the Supreme Court overturned the decision of the appellate instance, upholding the decision of the court of first instance on the following grounds. It follows from the case file that since June 7, 2002, the parties have been married and have three children: G., born on September 18, 2002, A., born on July 8, 2005, and T., born on November 15, 2007. The marriage between the parties was dissolved by the decision of the Medeu District Court of Almaty on April 11, 2019. The place of residence of the minor children has not been determined, currently all the children live with their father. In this regard, the plaintiff appealed to the court with the claim under consideration. In granting G.'s claim, the Court of First instance took into account the opinion of minor children over the age of ten who expressed a desire to live with their father and refused to live with their mother. At the same time, the court recognized that the children's opinion did not contradict their interests. At the time of the case, the children live with their father, they positively perceive the environment around them at their place of actual residence (with their father), their place of residence is determined in the comfort zone. Also, the court, together with other evidence, took into account the conclusion of a psychologist, according to which the children's relationship with their father and with each other is trusting and close, characterized by psychological and emotional closeness, and the children's relationship with their mother for the current period is characterized by distancing, distrust of her. The Court of appeal, changing the court's decision, motivated by the fact that the court infringed on the rights and legitimate interests of the native mother, J. Minor children are deprived of maternal care, affection and love, which in the future will contribute to the formation of children's persistent rejection of their mother. The court of first instance did not provide evidence indicating that Zh. did not have a permanent job and stable income; had a criminal record; was registered in a psychiatric clinic and a drug treatment clinic. Zh. she graduated from the Alma Ata State Medical Institute, holds the academic title: Candidate of Medical Sciences in Dentistry, is the founder of the Small Planet Clinic network of dental clinics in Almaty and Atyrau; group of companies: SP GROUP Medical Holding; Global Stom Industrial trading company (Almaty) for the sale of medical equipment; children's multidisciplinary clinic "Villa Kids Clinic" (Almaty). The judicial board of the Supreme Court considers these conclusions of the court of Appeal to be based on the incorrect application of substantive law and the factual circumstances of the case on the following grounds.
According to article 62 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" (hereinafter referred to as the Code), a child has the right to express his opinion when resolving any issue affecting his interests in the family, as well as to be heard during any judicial or administrative proceedings. Taking into account the opinion of a child who has reached the age of ten is mandatory, except in cases where it contradicts his interests. According to paragraph 5 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated November 29, 2018 No. 15 "On the application of legislation by courts in resolving disputes related to the upbringing of children", when resolving a dispute between separated parents about the place of residence of a minor (regardless of whether they are married), the court, based on the established article 68 of the Code of Equality of Rights and Duties of Parents, must make a decision that would be in line with the interests of the child. The court takes into account the attachment of the child to each of the parents, brothers and sisters, his age, the moral and other personal qualities of the parents, the relationship existing between each parent and the child, the possibility of creating conditions for his development and upbringing (occupation, working hours of the parents, their financial and marital status, etc.), as well as other circumstances that characterize the situation that has developed in the place of residence of each parent. The advantage in the financial and living situation of one of the parents is not an absolute basis for meeting the requirements of this parent. During the trial in the court of first instance, all three children were interviewed in order to clarify their desire for a place of residence. All the children unanimously expressed their desire to live with their father. At the same time, they were categorically against living with their mother. According to the conclusions of K., a psychologist at the Republican Scientific and Practical Center for Mental Health, given on the basis of a court ruling, the children's relationship with their father and with each other is trusting and close, characterized by psychological and emotional closeness. The relationship of children with their mother for the current period is characterized by distancing, distrust of her. These relationships have persisted to the present day. At the court hearing of the court of cassation, the parties confirmed these circumstances, including the defendant. It also follows from the psychologist's conclusion that children currently have emotional and psychological attachment to both parents, but in relation to the father, attachment is significantly more pronounced, and in relation to the mother, against the background of existing attachment to the mother, negative feelings and resentment towards the mother come to the fore, which are dominant in the current period. all three children. The place of actual residence is currently determined in the comfort zone. Children positively perceive the environment around them today at their place of actual residence (with their father).
Disputes related to parenting
Children express a reasoned and categorical desire to live with their father, while experiencing a pronounced need for cohabitation or regular communication with each other. Thus, the conclusions of the psychologist, as well as the explanations of the children given at the court session, indicate the attachment of the children to the father, as well as to each other. According to the psychologist's conclusion, there are no circumstances preventing G. from living and communicating with children. In the situation of parenting, it is possible to predict the positive mental development of children and their positive formation as individuals. At the same time, according to the conclusion of the psychologist in relation to the defendant, sudden changes in the state, mood and instability of criticism of A. can have a negative impact on the psycho-emotional state of children, while taking into account information about going to a psychiatrist, information about sudden changes in behavior and condition of A., there are some characterological features that go beyond the norm, for A psychiatric evaluation is recommended for a more accurate assessment of the impact of existing features on children and a long-term prognosis. From a psychological point of view, mood swings, pronounced emotional and volitional lability and instability of criticism of A. can have a negative impact on the psycho-emotional state of children. According to the act of inspection of housing and living conditions at the place of residence of minor children, it was established that the house was clean, cozy, and the house was renovated. There are all necessary conditions for education and recreation for children. Thus, it follows from the case file that the plaintiff is able to provide the necessary living conditions for the physical, mental, moral and spiritual development of children. A representative of the guardianship authority also confirmed in the court of appeal that the children were more attached to their father and wanted to live with him. A.'s arguments, expressed at the hearing of the cassation instance that the father exerted pressure on the children, therefore they are so negatively disposed towards her, are not supported by anything. Moreover, in the conclusion of the psychologist, it was noted that there were no signs of pressure on children from parents in order to form a negative image of the mother or father, turning children against the other parent, influencing their opinion during the survey. When considering the case in the court of appeal, the defendant did not provide evidence to conclude that the children want to live with their mother.
The Court of Appeal took into account only the interests of the mother, while the opinion of the children was not taken into account. The stated circumstances indicate that the appellate instance ignored the evidence in the case and violated the norms of legislation related to the upbringing of children. The contested judicial act is based solely on the arguments of the defendant in whose favor the decision was made, and does not contain evidence refuting the arguments of the opposing party, the plaintiff. Meanwhile, by virtue of article 68 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), each evidence is subject to assessment taking into account its relevance, admissibility, reliability, and all the evidence collected together is sufficient to resolve a civil case. The totality of evidence is considered sufficient to resolve a civil case if acceptable and reliable evidence has been collected that indisputably confirms the circumstances relevant to the case, and they have not been refuted by the other party. The above provisions of the procedural law were grossly violated by the court of appeal when resolving the dispute under consideration. At the same time, the requirements established by Article 68 of the CPC were sufficiently fulfilled by the court of first instance, the decision is based on the arguments of both sides and contains the evidence necessary to resolve the dispute related to the upbringing of children.
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
