Interrogation or questioning of a minor child in disputes about determining the order of communication

 

The trial of civil cases on determining the order of communication with a child has its own specifics, due to the fact that the consideration protects the right of a child who is not involved in the process.

If the court needs to interview the child, this can be done both in court and outside, with the participation of a teacher. Questioning a child at a court hearing is acceptable when clarifying the issues of his upbringing, his parents' attitude towards him, and their behavior in a court setting can significantly affect the resolution of the dispute on the merits. The child's opinion is evaluated in conjunction with the rest of the evidence in the case. At the same time, taking into account the child's opinion is mandatory.

The child is interviewed and his opinion is revealed both by the guardianship and guardianship authorities and by the court at the trial stage. In these cases, the age criterion applies. A child under the age of 10 is interviewed by representatives of the guardianship authority. At the same time, other persons can also find out the opinion of the child (teachers, educators of children's institutions at the place of study and the child's stay in kindergarten, etc.). The results are recorded in the relevant documents, which are submitted for review during the consideration of the case at a court hearing.

A child who has reached the age of 10 may also be interviewed in the same manner, in cases where the guardianship and guardianship authority, represented by its representative who conducted the examination, is convinced that questioning the child in a judicial setting can significantly affect his psyche, the completeness and truthfulness of the facts reported by him. It is advisable to avoid the presence of parents and other persons in cases where the judge is convinced that the results of the child's interview may have negative consequences. If a child between the ages of 14 and 16 is interviewed in court, then his opinion should be clarified and the survey should be conducted with the participation of a teacher who is summoned to court.

260 of the CPC, is the failure to appear at the court session of the defendant, who was notified of the time and place of the court session, did not inform about the valid reasons for non-appearance and did not ask for consideration of the case in his absence.

With reference to the existence of grounds provided for in Article 260 of the CPC, the courts made decisions on determining the order of communication with the child in the absence of the parent with whom the minor child lives.

The absence of one of the parties at the stage of the trial can lead to negative consequences, since the court is deprived of the opportunity to use the evidence available to the absent party, as well as to take into account its objections to the claim, to challenge the statements of the other party.

The legislative regulation of the exercise of parental rights by a parent living separately from a child is reflected in Article 73 of the Code, which stipulates that a parent living separately from a child has the right to communicate with him, the right to participate in his upbringing and resolve issues of education. It follows from this article that it does not contain an exhaustive list of rights. Therefore, when resolving a dispute about the procedure for exercising parental rights by a parent living separately from the child, the court, based on the interests of the child, as well as taking into account the specific circumstances of each case, must proceed from the existence of the full range of parental rights of this parent, not only to determine the procedure for parent-child communication, but to discuss issues related to the realization of other parental rights by a separate parent, explaining to him the possibility of clarifying the claims if the claim is filed by this parent.

Indeed, paragraph 3 of Article 73 of the Code does not contain an indication of the court's obligation to warn the other parent about the possible consequences of non-compliance with the court's decision on the procedure for exercising parental rights. According to the above-mentioned rule of the law, in case of non-compliance with a court decision, the measures provided for by the civil procedure legislation are applied to the guilty parent. In case of malicious failure to comply with a court decision at the request of a parent living separately from the child, the court may decide to transfer the child to him, based on the interests of the child and taking into account the opinion of the child. Since the law provides for the responsibility of a parent for non-compliance with a court decision on the procedure for exercising parental rights by a parent living separately from the child, which the parents either do not know about or forget under the influence of hostile relations that have developed between them after the breakup of the family, in order to exclude cases of non-compliance with a court decision, and, consequently, in the interests of the child whose rights are affected By this court decision, the Supreme Court, in its Decision No. 4 (paragraph 7) of April 28, 2000, clarified to the courts that, having determined the procedure for the participation of a single parent in the upbringing of a child, the court warns the other parent about the possible consequences of non-compliance with the court's decision. Ignoring by some courts of this clarification of the Normative Decision of the Supreme Court is unacceptable.

 

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