Disputes related to the upbringing of children - parents have a preferential right to raise their child over all other persons
A. sued I. to determine the child's place of residence and take the child away, arguing that after K.'s death in 2012, their youngest son, T., born in 2011, remained living with I., his maternal grandmother. By agreement with I. Subsequently, the child must be handed over to the father upon request. The father constantly came to the city of Pavlodar, communicated with his son, provided financial assistance in his maintenance. However, currently And. He refuses to hand over his son to him, illegally detains him, does not allow him to communicate with him, negatively sets the child against him and his older brother. In the village of Irtyshsk, at the place of residence of the father, all the necessary housing and living conditions for the son have been created, there is a separate room, which is confirmed by acts of examination of housing and living conditions. He is not deprived or restricted in his parental rights. He asked the court to determine the place of residence of the minor child T. with him at his place of residence, take the child away from I. and transfer it to him. She filed a counterclaim with the court to determine the child's place of residence with her, arguing that in 2011 her daughter K. became seriously ill and T. from the age of 4 months began to live permanently with her and her second daughter Zh. in the city of Pavlodar. The child was on baby food. During the period of her daughter's illness, A. constantly worked, lived and worked in the village of Aktogay, was not on parental leave, did not take the child to his place, did not visit him often, did not take him on weekends, did not spend holidays together. The child attends one of the best schools in the city of Pavlodar, additionally attends sections, is completely dependent on her. A. has withdrawn from raising a child, does not provide financial assistance, has created a new family, cannot provide the child with the material conditions that he has now.
Disputes related to the upbringing of children - parents have a preferential right to raise their child over all other persons
By the decision of the specialized interdistrict Juvenile Court of the Pavlodar region dated October 1, 2018, A.'s claim was denied, I.'s counterclaim was satisfied. It was decided: to determine the place of residence of the minor child T. S. I. in the city of Pavlodar, in apartment 55 on Astana Street, 7/2, with the registration of custody of I. over the minor child A. By the decision of the judicial board for Civil Cases of the Pavlodar Regional Court dated January 10, 2019, the decision of the court of first instance was canceled with a new decision. It was decided: to satisfy A.'s claim. Determine the place of residence of the minor child T. with father A. Oblige I. to return the child and transfer it to father A. I.'s counterclaim was denied. The Judicial Board for Civil Cases of the Supreme Court upheld the decision of the appellate instance on the following grounds. By virtue of paragraph 1 of Article 74 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" (hereinafter referred to as the Code), parents have the right to demand the return of a child from any person who holds it not on the basis of law or a court decision. In the event of a dispute, parents have the right to apply to the court for protection of their rights. In accordance with paragraph 7 of the normative resolution of the Supreme Court of November 29, 2018 No. 15 "On the application of legislation by courts in resolving disputes related to the upbringing of children" when considering a claim by one of the parents for the transfer of children to him by persons who do not have them on the basis of law or court decision (grandmother, grandfather, aunt, uncle and other relatives) after the death of the parent with whom the children lived, the courts should find out in connection with what circumstances the children lived with the parent before his death, whether the other parent participated in the upbringing and maintenance of the children, the reasons, who prompted them to file a claim for the transfer of children, whether it is in the best interests of the children to return them to the parent.
In particular, the court takes into account the parent's real ability to ensure the proper upbringing of the child, the nature of the parent's relationship with the child, the child's attachment to the persons with whom he is staying, and other specific circumstances affecting the creation of normal living conditions and upbringing of the child by the parent, as well as by the persons with whom the child actually lives and is being raised. It follows from the case file that A. established paternity in relation to minor children: G., born in 2002, and T., born in 2011. The children's mother is K., who died on July 5, 2012. After K.'s death, T.'s minor child, by agreement with the father of the child, A., was brought up by I.'s grandmother, born in 1947. On July 20, 2017, A. was issued a power of attorney in the name of I. for the right to accompany the minor child T. on trips around the Republic, to be his representative. On April 19, 2018, this power of attorney was revoked. Applying to the court for the removal of the child and the determination of the child's place of residence with him, A. indicated that I., being the grandmother of his son T., expressed a desire to temporarily help look after the minor child. He agreed because they had reached an agreement that he would take the child home with him later. At the same time, he communicated with the child, supported him financially. However, And. She delayed the child's return in every possible way, and then completely refused to transfer her son to him for upbringing. By virtue of paragraph 2 of article 70 of the Code, parents have a preferential right to raise their child over all other persons. When making the new decision, the Court of appeal took into account the fact that A. was not restricted or deprived of parental rights in relation to T.'s minor son. At the same time And. She is not the guardian of a minor child, that is, the child is not with her on the basis of a law or a court decision. No evidence was presented to the court that the transfer of minor T. to his parent, father A., was not in the best interests of the child. It is established that the father of the child A. he permanently resides in the village of Irtyshsk in the Irtyshsky district of the Pavlodar region, owns an apartment building located at 3-2 Iskakova Street, in which he lives with his family, is in public service as the head of the Irtysh territorial Inspectorate of the State Inspection Committee of the Ministry of Agriculture of the Republic of Kazakhstan in the Pavlodar region, at his place of work and at his place of residence. positive. A. He has been working in the same field for a long time, by the nature of his work, in connection with translations, he worked and lived in the city of Aksu, in the village of Aktogay and currently lives in the village of Irtyshsk. According to the housing and living conditions survey act dated July 26, 2018, the condition of the housing and living conditions of the A. family is in line with the norms, and all conditions have been created in the house for the adoption of a child into the family.
Disputes related to the upbringing of children - parents have a preferential right to raise their child over all other persons
A special room with the necessary furniture is equipped for the child. The family has a warm and friendly relationship. As established, there were no claims to restrict A.'s parental rights in relation to T.'s son, to recover child support from him, or to establish custody of I. in relation to his grandson in this regard. Thus, I.'s arguments that A. had withdrawn from the child's upbringing, did not provide financial assistance, and could not create the necessary material conditions for the child were not confirmed in court. Taking into account all the above circumstances, the court of appeal legitimately satisfied A.'s claim and denied I.'s counterclaim. The board took into account that since the execution of the decision of the court of appeal and to the present, the minor T., along with his brother G., is being raised by his father, since September 2018 attends secondary school in the village Since February 1, 2019, he has been training at the children's youth sports school of the Irtysh region.
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