Disputes related to the deprivation of parental rights, parents are deprived of parental rights if they evade the duties of parents, including if they maliciously evade the payment of alimony
S. appealed to the court to N. for the deprivation of parental rights, arguing that N. had been evading parental responsibilities for the upbringing, maintenance and education of a minor child since 2010. She had previously filed a similar lawsuit with the court, but it was refused, and the court warned the defendant about the need to change his attitude to parental responsibilities, but he continues to evade parental responsibilities, does not provide financial assistance, is not interested in the fate of his child, does not maintain a relationship with his son, and is in arrears in the payment of alimony. The decision of the specialized inter-district juvenile Court of the North Kazakhstan region dated June 20, 2019 denied the claim. By the decision of the Judicial Board for Civil Cases of the North Kazakhstan Regional Court dated September 11, 2019, the court's decision remained unchanged. The Judicial Board for Civil Cases of the Supreme Court overturned the judicial acts of the local courts, with the adoption of a new decision in the case to satisfy the claim of S. N. deprived of parental rights in respect of his minor son A., born on September 5, 2006, a native of the North Kazakhstan region, the city of Petropavlovsk, on the following grounds.
Disputes related to the deprivation of parental rights, parents are deprived of parental rights if they evade the duties of parents, including if they maliciously evade the payment of alimony
According to the requirements of Article 224 of the Civil Procedure Code of the Republic of Kazakhstan and paragraph 5 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated July 11, 2003 No. 5 "On judicial decision", the judicial act by which the case is resolved on the merits must be rendered in compliance with the norms of procedural law and in full compliance with the norms of substantive law applicable to this case. a legal relationship that reflects facts relevant to the case, confirmed by evidence examined by the court that meets the requirements of the law on their relevance., admissibility and reliability, collectively sufficient to resolve the dispute. The contested judicial acts do not comply with the above-mentioned provisions of regulatory legal acts. It can be seen from the case file that the parties are the parents of minor A., born on September 15, 2006, who lives with his mother S. The courts of the first and appellate instances motivated the refusal to satisfy the claim by the fact that a court decision that had previously entered into force denied the claim for deprivation of parental rights, and no new circumstances and grounds for satisfying the claim were presented to the court, the defendant's behavior at the juvenile affairs commission on the issue of non-fulfillment of parental duties was not considered. the defendant was not brought to administrative or criminal responsibility. In addition, the courts pointed out that the defendant's avoidance of parental duties was not caused by a combination of difficult circumstances or for other reasons beyond his control, but was his conscious culpable behavior and attitude towards fulfilling parental duties, and it was impossible to change his behavior.
Such conclusions of the local courts contradict the circumstances established in the case, and an error was made in the application of substantive law. By virtue of subparagraph 1) of paragraph 1 of Article 75 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" (hereinafter referred to as the Code), parents are deprived of parental rights if they evade the duties of parents, including if they maliciously evade the payment of alimony. According to paragraph 12 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" (hereinafter referred to as the Regulatory Resolution), parents' avoidance of fulfilling their duties to raise children may be expressed in a lack of concern for their moral and physical development, education, training for socially useful work, for malicious evasion of alimony payments. It follows from the case file that N. Since 2012, he has not been involved in the upbringing and education of his minor son due to leaving the Republic of Kazakhstan and starting a new family, having a child together born in 2013. This circumstance indicates that he is evading his parental responsibilities for raising a child. From the decision of the specialized interdistrict juvenile Court of the North Kazakhstan region dated November 21, 2012, it follows that, by refusing to satisfy the claim for the deprivation of the defendant's parental rights, the court warned the defendant about the need to change his attitude to the performance of parental duties, with the assignment to the authorized body of duties to monitor the fulfillment of parental duties by the defendant in relation to a minor the child.
Disputes related to the deprivation of parental rights, parents are deprived of parental rights if they evade the duties of parents, including if they maliciously evade the payment of alimony
However, this court decision was not enforced, the defendant has not changed his attitude to parental duties, continues to evade his parental duties, and has alimony arrears in the amount of 1,316,300 tenge. In addition, N. was put on the wanted list by a private bailiff, during which it was established that he left for permanent residence in the Russian Federation in 2017, and only after that, on April 5, 2019, he repaid 39,600 Russian rubles from the resulting debt. In this regard, it follows that the conclusions of the local courts on the absence of any new circumstances and grounds for the deprivation of parental rights of the defendant are not based on the materials of the case and the plaintiff's claims. It is established that the defendant does not comply with the earlier court decision of November 21, 2012, has not changed his attitude to his parental duties and continues to evade them, does not provide any financial assistance, is not interested in the fate of his child, does not care about his moral and physical development, education, preparation for socially useful work, has alimony arrears. In addition, the case file contains correspondence between the parties via the messenger "What'sapp", which shows that N. I agree to give permission for adoption on condition that S. waives the existing alimony debt, revokes the court order for the recovery of alimony, and removes restrictions on his movement. These circumstances indicate that only money and freedom of movement are important to the defendant, that is, he is ready to change his parental rights and obligations for the amount of alimony debt and future payments.
The conclusions of the lower courts that the defendant's avoidance of parental duties is his conscious culpable behavior and attitude to the performance of parental duties and that it is impossible to change his behavior also contradict the case materials. As can be seen from the case file, the defendant has a permanent place of work, receives a salary, as evidenced by proper certificates. Knowing about the obligation to pay alimony, he moved to a permanent place of residence in the Russian Federation, does not make payments for the maintenance of the child. As a result, he was put on the wanted list, which confirms N.'s deliberate evasion of his legal duties to maintain a minor child. According to paragraph 13 of the regulatory decree, courts should keep in mind that regardless of the grounds provided for in paragraph 1 of Article 75 of the Code, persons who fail to fulfill their parental duties due to circumstances beyond their control (mental disorder or other chronic illness, a combination of serious circumstances) cannot be deprived of parental rights. But in this case, these circumstances have not been established, and the defendant has not provided the court with evidence confirming his avoidance of parental duties due to a combination of difficult circumstances. In this regard, the judicial board considers that the contested judicial acts were issued in violation of the norms of substantive law.
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