On the application of legislation by the courts in resolving disputes related to the upbringing of children Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 29, 2018 No. 15.

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On the application of legislation by the courts in resolving disputes related to the upbringing of children

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated November 29, 2018 No. 15.

In order to ensure the protection of the rights and legally protected interests of minors in the resolution by the courts of disputes related to the upbringing of children, as well as the correct and uniform application of the norms of the Code of the Republic of Kazakhstan "On Marriage and Family" (hereinafter referred to as the Code), the plenary session of the Supreme Court of the Republic of Kazakhstan decides to provide the following clarifications.

When considering disputes related to the upbringing of children, courts should be guided by the Code and other regulatory legal acts. In cases where international treaties ratified by the Republic of Kazakhstan establish rules other than those contained in regulatory legal acts, they should be followed.

When deciding whether to accept a statement of claim for disputes related to the upbringing of children, it should be borne in mind that, in accordance with subparagraph 8) of paragraph 1 of Article 1 of the Code, a child is recognized as a person who has not reached the age of eighteen (majority).

If the child has reached the age of eighteen or acquired full legal capacity before reaching the specified age as a result of emancipation or marriage (Articles 17, 22-1 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code)), the judge, taking into account the provisions of paragraph 2 of Article 68 of the Code, refuses to accept the statement of claim on the basis of subparagraph 1) of the first part of Article 151 The Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), and if proceedings are initiated, they are subject to termination in accordance with subparagraph 1) of Article 277 of the CPC.

When preparing a case for trial, the judge should correctly identify the circumstances relevant to resolving the dispute and subject to proof by the parties, paying special attention to those that characterize the personal qualities of the parents or other persons raising the child, as well as the established relationship between these persons and the child.

Consideration of cases on determining the child's place of residence, on the procedure for exercising parental rights by a parent living separately from the child, on restoration of parental rights, on restriction of parental rights, on cancellation of the consequences of restriction of parental rights, on the return to parents, guardians (trustees), foster carer of a child held not on the basis of a law or a court decision, it is carried out by a court with the participation of bodies performing guardianship or trusteeship functions, and the consideration of cases of deprivation of parental rights, in addition, with the participation of the prosecutor (paragraph 2 of Article 76 of the Code).

The bodies performing the functions of guardianship or guardianship are obliged, on the basis of a court ruling, in accordance with the established procedure, to conduct an examination of the living conditions of the child and the person(s) claiming to raise him, as well as to submit to the court an examination report and a conclusion based on it on the merits of the dispute.

The issue of conducting an examination is subject to resolution at the stage of preparing the case for trial.

The court evaluates the body's conclusion in conjunction with other evidence in the case. Disagreement with the conclusion must be motivated in the decision taken in the case.

When resolving a dispute related to the upbringing of children, the courts should take into account the provisions of article 12 of the Convention on the Rights of the Child (New York, November 20, 1989, Resolution of the Supreme Council of the Republic of Kazakhstan dated June 8, 1994 "On Ratification of the Convention on the Rights of the Child") and article 62 of the Code, according to which the child independently Regardless of age, he has the right to freely express his opinion on all issues affecting his interests, as well as to be heard during any judicial or administrative proceedings.

The survey should be conducted taking into account the age and development of the child in the presence of a teacher and/or psychologist, in an environment that excludes the influence of interested parties on him. At the same time, it is necessary to find out whether the child's opinion is the result of the influence of one of the parents or other interested parties on him, whether he is aware of his own interests when expressing this opinion and how he justifies it.

The presence of a representative of the guardianship or guardianship authorities during the child's interview does not exempt the court from fulfilling the requirements of part five of Article 77 of the CPC on the mandatory participation of a teacher and (or) psychologist in clarifying the child's opinion.

In accordance with paragraph 3 of Article 73 of the Code, parents have the right to conclude in writing an agreement on the procedure for exercising parental rights by a parent living separately from the child. If the parents cannot come to an agreement, the dispute is resolved by the body performing the functions of guardianship or guardianship, and in case of disagreement with its decision, through mediation or a court with the participation of this body and the child's parents. In this regard, the courts should keep in mind that the plaintiff must comply with the procedure established by law for this category of cases of preliminary pre-trial dispute resolution.

In case of non-compliance with the procedure for preliminary pre-trial or out-of-court dispute resolution and if the possibility of applying this procedure has not been lost, the judge should, in accordance with subparagraph 1) In the first part of Article 152 of the CPC, return the statement of claim and explain the need to apply to the bodies performing guardianship or trusteeship functions.

According to article 61 of the Code, a child has the right to communicate with both parents, grandparents, brothers, sisters and other relatives.

Based on the right of a parent living separately from a child to communicate with him, as well as the need to protect the rights and interests of a minor when communicating with this parent, the court, taking into account the circumstances of each specific case, determines the procedure for such communication (time, place, duration of communication, etc.) and sets it out in the operative part of the decision.

When determining the order of communication between a parent and a child, his age, state of health, attachment to each of the parents and other circumstances that can affect the physical and mental health of the child, his moral development are taken into account.

In exceptional cases, when communication with a separate parent may harm the child, the court, based on paragraph 1 of Article 73 of the Code, which does not allow the exercise of parental rights to the detriment of the child's physical and mental health and moral development, refuses to satisfy this parent's claim to determine the procedure for his participation in the upbringing of the child, stating the reasons for the decision solutions.

Similarly, the requirements for removing obstacles to parents who are not deprived of parental rights in raising children who are with other persons on the basis of a law or a court decision should be resolved.

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 application of measures provided for by law in case of non-compliance with the court decision. In case of malicious non-enforcement of 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 (paragraph 4 of Article 73 of the Code).

The procedure established by a court decision for the participation of a single parent in the upbringing of a child may be reviewed by the court at the request of one of the parents in the event of a change in the actual circumstances and conditions of the child's upbringing.

When resolving disputes related to determining the order of communication between relatives and a child (grandfathers, grandmothers, etc.), it should be borne in mind that since a child has the right to communicate with grandfathers, grandmothers, brothers, sisters and other relatives, they are accordingly endowed with such a right. If the said relatives cannot come to an agreement with the parents or one of them, the dispute is resolved by the body performing the functions of guardianship or guardianship, and in case of disagreement with its decision - by mediation or court with the participation of this body, parents and relatives of the child.

The footnote. Paragraph 4 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/15/2021 No. 1 (effective from the date of the first official publication).

When resolving a dispute between estranged parents about the minor's place of residence (regardless of whether they are married), the court, based on 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.

In cases where the child lived with one of the parents, and the court's decision determined his place of residence with the other parent, the operative part of the decision should indicate the obligation of the parent with whom the child lives to transfer him to the other parent.

Disputes about the place of residence of children can be considered repeatedly, and if parents have filed a lawsuit with the court to determine (change) the place of residence of the child on other grounds, pointing to a change in the actual circumstances and conditions of upbringing of children, the judge has no right to refuse to accept the statement of claim on the basis of subparagraph 2) of the first part of Article 151 of the CPC or the court (the judge) has no right to terminate the proceedings on the basis of subparagraph 2) of Article 277 of the CPC.

According to subparagraph 6) of paragraph 7 of the Rules for Registration of documents for departure from the Republic of Kazakhstan for permanent residence, approved by Resolution of the Government of the Republic of Kazakhstan dated March 28, 2012 No. 361 (hereinafter referred to as the Rules for Registration of documents for departure), when citizens of the Republic of Kazakhstan who have not reached the age of eighteen leave together with one a parent (guardian, trustee) must have the notarized consent of the other parent residing in the territory of the Republic of Kazakhstan. In the absence of consent, the issue of the departure of a minor may be considered in court by filing a claim for determining the place of residence.

Part three of Article 27 of the CPC provides for the consideration by specialized inter–district juvenile courts of cases concerning disputes concerning the determination of a child's place of residence when a child leaves the republic with one of his parents for permanent residence (hereinafter referred to as permanent residence).

Determining the child's place of residence when leaving the republic with one of the parents for permanent residence means allowing him to leave.

When the plaintiff applies for permission for the child to leave, the court should, in order to prepare the case for trial, explain to the plaintiff the right to change the subject of the claim to a claim for determining the place of residence when the child leaves the republic with one of the parents for permanent residence.

When resolving a dispute on determining the place of residence of a child when leaving the republic with one of the parents for permanent residence, the courts should keep in mind that the earlier court decision on determining the place of residence of a child with one of the parents cannot apply to the case of a child moving with this parent outside the Republic of Kazakhstan, since it was taken taking into account other living conditions.

The exercise of parental rights should not violate the rights and legally protected interests of children and cannot be made dependent on the parents' desire or unwillingness to allow the child to leave the republic or the contradictions that have arisen between the parents.

When making a decision, 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 parents and the child, the ability of parents to create conditions for the development and upbringing of the child (occupation, work schedule, their financial and marital status, etc.), the conditions in which the child will be raised at the place of departure (the presence of permanent housing, permanent work and the amount of remuneration, the marital status of the parents and other circumstances), as well as the opinion of the child and the conclusion of the body performing the functions of guardianship or guardianship.

Parents have a pre-emptive right over all other persons to raise their child (paragraph 2 of Article 70 of the Code) and have the right to demand the return of the child from any person who holds it not on the basis of a law or a court decision (paragraph 1 of Article 74 of the Code).

When considering claims by parents for the transfer of children to them by persons with whom they are located on the basis of a law or court decision (guardians, trustees, foster carers, children's institutions, etc.), the courts should find out whether the circumstances that served as the basis for the transfer of children to these persons or children's institutions had changed by the time the dispute arose, and whether it was in the interests of the children their return to their parents.

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 a 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 that prompted the claim to transfer the children, and 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.

The court has the right, taking into account the opinion of the child, to refuse to satisfy the claim of the parents (parent) if it comes to the conclusion that the transfer of the child to the parents (parent) does not meet the interests of the child. The opinion of the child is taken into account by the court in accordance with the requirements of article 62 of the Code.

If, during the trial, it is established that neither the parents nor the person with whom the child is located are able to ensure his proper upbringing and development, the court dismisses the claim and transfers the child to the custody of the guardianship or guardianship authority in order to take measures to protect the rights and interests of the child and the choice of the most acceptable way of arranging his future fate (Article 74 of the Code).

In order to protect the rights of the child and taking into account his interests, parents may be restricted in their parental rights by the court (article 79 of the Code).

Parental rights may be restricted if leaving a child with his parents is dangerous for him due to circumstances beyond the control of the parents (mental disorder or other chronic illness, a combination of difficult circumstances). At the same time, the law does not link the possibility of restrictions on parental rights with the recognition of parents as legally incompetent or with limited legal capacity.

The court may also decide to restrict parental rights if leaving a child with his parents as a result of their behavior is dangerous for the child, but there are insufficient grounds for depriving the parents of parental rights.

When deciding on the limitation of parental rights, the court should proceed from the nature and degree of danger, as well as possible consequences for the life or health of the child if he is left with his parents, as well as take into account other circumstances. When parents behave culpably, which poses a danger to the child, it is necessary to find out whether the parents are aware of the culpability of their behavior and whether they have a firm intention to change it for the better, and what specific measures they intend to take or have taken to correct their behavior.

By virtue of article 79 of the Code, cases of restriction of parental rights are considered on the claims of close relatives of the child, organizations performing functions to protect the rights of the child (orphanages, boarding schools, family-type children's villages, youth homes, support centers for children in difficult situations, centers for the adaptation of minors), as well as on the claim of the prosecutor.

The legislation does not specify a period for which parents (one of them) may be restricted in parental rights, such a period cannot be objectively determined due to the uncertainty of the date by which the circumstances that necessitated the restriction of parental rights will disappear, and therefore the court makes a decision without specifying the period of limitation of parental rights.

When satisfying a claim for restriction of parental rights in connection with the culpable behavior of the parents (one of them), the court should explain to the parents (one of them) that if they do not change their behavior, the body performing the functions of guardianship or guardianship is obliged to file a claim against them for deprivation of parental rights in the manner and within the time limit, provided for by paragraph 2 of Article 79 of the Code.

This obligation applies to cases where parents are restricted in their parental rights due to their culpable behavior.

A claim for the deprivation of parental rights of a person who has been restricted in parental rights due to circumstances beyond his control (mental disorder or other chronic illness, a combination of serious circumstances) is not subject to satisfaction.

Parental rights, which parents may be deprived of, should be understood as the rights granted to them before their children reach adulthood: to bring up, to take care of their health, to represent and protect their interests, to claim children from other persons, to consent or refuse to consent to transfer the child for adoption, to consent to the commission of transactions by minors between the ages of fourteen and eighteen, with the exception of transactions referred to in paragraph 2 of Article 22 of the Civil Code, to file an application to the court for the restriction or deprivation of minors to independently manage their earnings, scholarships, other incomes and objects of intellectual property rights created by them, etc.

Making a decision on the deprivation of parental rights entails the loss by the parents (one of them) of not only the above-mentioned, but also other rights based on the fact of kinship with the child, arising from both family and other legal relations (to receive maintenance provided for in Article 145 of the Code, to benefits and state benefits established for citizens having children, inheritance by law, etc.).

In accordance with article 76 of the Code, cases of deprivation of parental rights are considered at the request of one of the parents or other legal representatives of the child, bodies or organizations charged with protecting the rights of minor children (bodies performing guardianship or guardianship functions, commissions for minors, institutions for orphans and children left behind without parental care, in particular, orphanages, boarding schools, orphanages, support centers for children in difficult situations, homes for the disabled, boarding schools for children with physical disabilities and others), as well as at the request of the prosecutor.

When preparing for the trial of a case on the deprivation or restriction of parental rights of one of the parents, a judge, in order to protect the rights of a minor and ensure appropriate conditions for his further upbringing, as well as to protect the rights of a parent who does not live with the child, is obliged to notify this parent of the time and place of the trial, to clarify that he has the right to make a claim about the transfer of the child to him for upbringing.

Parents may be deprived of parental rights by a court on the grounds provided for in article 75 of the Code only if they behave culpably.

Parents' avoidance of fulfilling their responsibilities for raising children can be expressed in a lack of concern for their moral and physical development, education, preparation for socially useful work, and malicious evasion of alimony payments.

When deciding whether a parent has maliciously avoided paying alimony, it is necessary, in particular, to take into account the duration and reasons for their non-payment.

The malicious nature of alimony evasion may be evidenced, for example, by the presence of alimony arrears due to the fault of the alimony payer, paid by him on the basis of a notarized alimony payment agreement or a judicial act on the recovery of alimony; concealment of the actual amount of earnings and (or) other income from which alimony should be withheld; search for a parent who is obliged to pay alimony due to his concealment of his location; bringing a parent to administrative or criminal responsibility for non-fulfillment of obligations to pay funds for the maintenance of children (Article 669 of the Code of the Republic of Kazakhstan on Administrative Offenses, article 139 of the Criminal Code of the Republic of Kazakhstan).

When considering a claim for deprivation of parental rights in connection with a refusal without valid reasons to take their child from a maternity hospital (department), from organizations for orphaned children, children left without parental care, and other organizations, the court, in particular, should check: what reasons were given for such a refusal and whether they are valid; whether the parents maintain a relationship with the child; whether the parents have taken any measures to overcome the circumstances that gave rise to the refusal to take the child, and (or) whether these circumstances have changed.

Abuse of parental rights should be understood as the use of these rights to the detriment of children's interests, for example, creating obstacles in education, inducing begging, theft, prostitution, the use of alcoholic beverages or narcotic drugs, psychotropic substances and (or) their analogues, etc.

Child abuse can manifest itself not only in the parents' physical or mental abuse of them or in an attempt on their sexual integrity, but also in the use of unacceptable methods of education (rude, neglectful, degrading treatment of children, insulting or exploiting children).

The fact of committing an intentional criminal offense against the life or health of one's child, spouse, or other family members must be confirmed by a court verdict that has entered into legal force, or by a court order or a decision of the pre-trial investigation body to terminate the criminal case on non-rehabilitating grounds.

Deprivation of parental rights is an extreme measure, therefore, in exceptional cases, when the guilty behavior of a parent is proven, the court, taking into account the nature of his behavior, personality and other specific circumstances, has the right to dismiss the claim for deprivation of parental rights and warn the defendant about the need to change his attitude to the upbringing of children, assigning to the bodies performing the functions of guardianship or guardianship, control over the fulfillment of parental duties.

The courts should bear in mind that, regardless of the existence 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 grave circumstances) cannot be deprived of parental rights.

In these cases, as well as when, during the consideration of the case, sufficient grounds are not established for depriving the parents (one of them) of parental rights, the court may decide to restrict parental rights by taking the child away and transferring him to the care of the guardianship or guardianship authorities, provided that leaving the child with the parents is dangerous. for him (Article 79 of the Code).

Within the meaning of Article 48 of the CPC, recognition of a claim is the defendant's right. At the same time, in accordance with the second part of Article 48 of the CPC, the court does not accept the recognition of the claim by the defendant if these actions contradict the law or violate someone's rights, freedoms or legitimate interests. The court's decision to satisfy a claim for deprivation of parental rights cannot be based solely on the recognition of the claim by the defendant, since the parent's desire to lose parental rights in relation to his child in the absence of grounds provided for in article 75 of the Code is not grounds for deprivation of parental rights.

In accordance with paragraph 2 of Article 77, paragraph 2 of Article 80 of the Code, deprivation or restriction of parental rights does not release parents from the obligation to support their child, therefore, when considering a case on deprivation or restriction of parental rights, the court decides to recover child support, regardless of whether such a claim is filed.

The plaintiff's refusal to collect child support is contrary to the law and violates the rights of the child, and therefore, in accordance with the second part of Article 48 of the CPC, such a refusal cannot be accepted by the court.

In case of deprivation or restriction of parental rights of one parent and transfer of the child to the upbringing of another parent, guardian or trustee or foster carers, alimony is collected and paid to these persons.

If the children have already been placed in organizations for orphans and children left without parental care before the issue of deprivation or restriction of parental rights is resolved, as well as in the case of deprivation or restriction of parental rights of both parents or one of them, when it is impossible to transfer the child to another parent and the child is placed in organizations for orphans and children Alimony payments collected from parents for such children who are in educational, medical and other institutions are credited to the accounts of children who are in organizations for orphans and children., left without parental care. Heads of organizations for orphaned children and children left without parental care are not allowed to withdraw funds received from alimony, allowances and other social benefits from the bank accounts of pupils.

The amounts of alimony payments for children placed under guardianship or guardianship by a foster carer are credited to the deposit accounts of these children opened in second-tier banks (Article 142 of the Code).

The court's decision on the deprivation or restriction of parental rights must specify the subject to whom the child is being transferred for upbringing: to another parent, to the body performing the functions of guardianship or trusteeship, or to the guardian (trustee), if he has already been appointed in accordance with the established procedure. The transfer of a child to relatives and other persons for upbringing is allowed only if these persons are appointed as his guardians and guardians.

If it is impossible to transfer the child to another parent, the deprivation or restriction of the parental rights of both parents, when the guardian (trustee) The child has not yet been appointed, and is being transferred to the custody of the guardianship or trusteeship authorities. The courts do not determine the specific procedure for the placement of a child (placement in a children's institution, boarding school, appointment of a guardian, etc.), since this issue falls within the exclusive competence of these authorities.

An extract from the court decision on deprivation of parental rights within three days from the date of its entry into force in accordance with paragraph 5 of Article 76 of the Code must be sent by the court to the registration authority at the place of state registration of the child's birth and to the body performing the functions of guardianship or guardianship at the child's place of residence.

Considering that a person deprived of parental rights loses the right to receive pensions, allowances, other payments assigned to children, as well as alimony collected for a child (paragraph 1 of Article 77 of the Code), and a person limited in parental rights loses the right to benefits and state benefits established for citizens with children (subparagraph 2) paragraph 2 of Article 79 of the Code), the court, after the entry into force of the decision on the deprivation or restriction of parental rights, must also send a copy of it to the body making the specified payments., or to the court at the place of making the decision (issuing the order) or to the territorial body for the execution of judicial acts to consider the issue of transferring payments to the accounts of children in organizations for orphaned children and children left without parental care and placed under guardianship or guardianship for foster care.

In accordance with paragraph 2 of Article 78 of the Code, the issue of restoration of parental rights is decided by the court at the request of a parent deprived of parental rights. Such a requirement is imposed on the other parent or guardian (trustee), foster carer or children's institution, depending on whose care the child is in.

When considering claims for restoration of parental rights, the courts should find out whether the behavior and lifestyle of parents and their attitude towards raising children have changed. The claim is not subject to satisfaction if the restoration of rights is contrary to the interests of the child, as well as in cases where the child has already been adopted and the adoption has not been canceled or invalidated; a child who has reached the age of ten objects to this, regardless of the reasons for which he does not agree to the restoration of parental rights (paragraph 3 of article 78 The Code).

Simultaneously with the claim for restoration of parental rights, the claim of the same person for the transfer of the child to him may be considered. If the court concludes that the return of the child to the parent(s) is not in the best interests of the child, the court has the right to refuse to satisfy this requirement, including in the case of satisfaction of the claim regarding the restoration of parental rights.

By analogy with paragraph 5 of Article 76 of the Code, an extract from a court decision on restoration of parental rights must be sent by the court to the registration authority at the place of state registration of the child's birth and to the body performing guardianship or guardianship functions at the child's place of residence within three days from the date of entry into force of the decision.

In accordance with paragraph 1 of Article 81 of the Code, the cancellation of the consequences of the restriction of parental rights is carried out by the court at the request of parents with limited parental rights. Such a requirement is imposed on the person in whose care the child is.

The court may decide to return the child to the parents and cancel the consequences of the restriction of parental rights if the grounds on which the parents were restricted in parental rights have disappeared and the return of the child to the parents is in the interests of the child.

The court refuses to satisfy the claim if, taking into account the opinion of the child, it comes to the conclusion that the return of the child to his parents is contrary to his interests.

By satisfying a claim for the lifting of restrictions on parental rights or for the restoration of parental rights and the return of the child to the parents, the court resolves the issue of ending the recovery of child support from these parents.

Claims for deprivation of parental rights cannot be brought against adoptive parents and persons who actually raise a child, but are not listed as parents in the birth certificate, since their rights and obligations do not arise as a result of the origin of their children.

The adoptive parent's evasion of duties, abuse of parental rights, and mistreatment of adopted children are grounds for the cancellation of an adoption, but not for the deprivation of parental rights.

In cases of improper performance by the guardian (trustee) of the duties assigned to him, including the use of guardianship or guardianship for selfish purposes or leaving the ward without supervision and necessary assistance, the said person may be removed from the duties of the guardian (trustee), and not deprived of parental rights. The issue of the removal of a guardian (trustee) from the performance of his duties is resolved by the bodies performing the functions of guardianship or trusteeship. If a person who has been removed from custody refuses to transfer a child, a claim may be brought against him for his removal.

Where necessary, courts in cases of child abduction should determine the procedure for the execution of decisions, providing for the application of measures to facilitate the transition of a child from one person to another. If it is impossible to execute a court decision on the transfer of a child without prejudice to his interests, the child may, by court order, in accordance with Article 238 of the CPC, be temporarily placed in an educational, medical or other institution.

When approving a mediation agreement, a settlement agreement, or an agreement to settle a dispute through a participatory procedure in a dispute related to the upbringing of children, the court (judge) must ensure that its terms do not contradict the law and do not violate the rights of the child (part four of Article 177 of the CPC, part two of Article 180 of the CPC, part two of Article 182 of the CPC). Before approving the agreement, the court should examine the living conditions of the child and the person claiming to raise him, as well as, in compliance with the requirements of article 62 of the Code, find out the child's opinion on the terms of the agreement.

The footnote. Paragraph 21 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/15/2021 No. 1 (effective from the date of the first official publication).

According to the facts established at the court session of the late adoption by the body performing the functions of guardianship or guardianship of measures to protect the rights and legally protected interests of minors, illegal actions by other persons entailing violations of children's rights, the courts should issue private rulings to the relevant organizations or officials.

Invalidate them:

1) 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";

2) Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 22, 2008 No. 12 "On Amendments to Resolution of the Plenum 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"";

3) Paragraph 2 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated May 31, 2012 No. 2 "On Amendments and additions to certain regulatory Resolutions of the Supreme Court of the Republic of Kazakhstan";

4) Paragraph 8 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated March 31, 2017 No. 2 "On Amendments and Additions to Certain regulatory Resolutions of the Supreme Court of the Republic of Kazakhstan on civil and civil procedural legislation";

5) paragraph 5 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2018 No. 7 "On Amendments and Additions to Certain regulatory Resolutions of the Supreme Court of the Republic of Kazakhstan on civil and civil procedural legislation".

According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, is generally binding and enters into force from the date of the first official publication.

Chairman of the Supreme Court of the Republic of Kazakhstan

J. Asanov

Judge of the Supreme Court of the Republic of Kazakhstan, Secretary of the plenary session

G. Almagambetova

Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases

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