Judicial practice in cases involving the upbringing of children
The summary was carried out in accordance with the work plan of the Supreme Court for the first half of 2018. The purpose of the generalization is to identify problematic issues in the consideration of cases in this category, to develop proposals for the formation of uniform application of legislation, to identify gaps that are not regulated by law, and to analyze them. The generalization was carried out in accordance with the Methodological Recommendations on the organization and conduct of generalizations of judicial practice in civil cases, approved by Order of the Chairman of the Supreme Court No. 115 dated June 20, 2005, based on a study of 600 civil cases considered by the courts of the republic in 2017, and information on the results of generalizations by regional and equivalent courts.
Judicial practice in cases involving the upbringing of children
Judicial practice has been studied on the following categories of disputes related to the upbringing of children: on determining (changing) the child's place of residence when the parents are separated; on determining the order of communication between the parent (other close relatives) and the child; on returning to the parents, guardians (trustees), foster carer of a child who is not being held on the basis of a law or a court decision; on the deprivation of parental rights and on the restoration of parental rights; on the restriction of parental rights and on the abolition of restrictions on parental rights; on determining the child's place of residence when the child leaves the republic with one of the parents for permanent residence. The main regulatory legal act regulating child-rearing relations in the Republic of Kazakhstan is the Code "On Marriage (Matrimony) and Family" (hereinafter ‒ The Code). According to article 4 of the Constitution of the Republic of Kazakhstan, international treaties ratified by the Republic have priority over its laws.
The norms governing child-rearing relations are contained in the Convention on the Rights of the Child (ratified by the Resolution of the Supreme Council of the Republic of Kazakhstan dated June 8, 1994). The provisions of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of January 22, 1993 (hereinafter referred to as the Minsk Convention) and the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of October 7, 2002 (Chisinau) also apply to legal relations involving CIS citizens. The provisions of the Law of the Republic of Kazakhstan "On the Rights of the Child in the Republic of Kazakhstan" dated August 8, 2002, No. 345 (hereinafter referred to as the Law) are also applied when resolving disputes on the upbringing of children by the courts. Clarifications on the application of marriage and family legislation are contained in the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 28, 2000 No. 4 "On the application of legislation by courts in resolving disputes related to the upbringing of children" (hereinafter referred to as the Regulatory Resolution). The procedure for exercising the functions of the State in custody and guardianship of minors is determined by the Rules for Exercising the Functions of the State in Custody and Guardianship, approved by Resolution of the Government of the Republic of Kazakhstan dated March 30, 2012 No. 382 (hereinafter referred to as the Rules). The rules establish that local executive bodies of districts, cities of regional, republican significance, and the capital perform the functions of the state for guardianship and guardianship of minors through authorized education and health authorities (hereinafter referred to as the guardianship and guardianship authority). An analysis of judicial practice has shown that the courts correctly determine the legislation to be applied when considering cases related to the upbringing of children.
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