Parents have a preferential right over other persons to raise their children 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.
M. filed a lawsuit against E. to determine the child's place of residence, arguing that, according to the certificate of paternity, he is the father of D., born on February 24, 1998. The mother of this child, U., died on July 08, 2007. Acting on the court's decision to determine the time of communication, on January 01, 2012, he sent the child D. to the defendant E., who lives at the address: Almaty city, in the Aksai-3 microdistrict. From January 11 to January 23, 2012, D.'s daughter was being treated at a medical institution in Almaty. Currently, the defendant is E. My daughter is being held illegally in the city of Almaty, contrary to a court decision. She is at an advanced age, is not D.'s own grandmother, and cannot give the child a future. In this connection, I asked the court to determine the place of residence of the child D. with him. By the decision of the specialized inter-district Juvenile Court of Almaty dated April 25, 2012, the claims of M. were satisfied, It was decided to determine the residence of the minor child with her father M., who lives at the address: Astana city, apartment on Sauran Street, 5 "a". By the decision of the Appellate judicial Board of the Almaty City Court dated June 15, 2012, the court's decision was overturned with the adoption of a new decision to dismiss the claim. By the decision of the cassation judicial board of the same court dated August 09, 2012, the decision of the appeals board remained unchanged.
In the petition, the applicant requests to cancel the decisions of the appellate and cassation judicial boards as illegal and unfounded, while upholding the decision of the court of first instance, indicating that the judicial boards violated the norms of substantive and procedural law. In the response to the petition, defendant E. requests that the contested judicial acts remain unchanged and the petition be dismissed. The Supervisory judicial board overturned the decisions of the appellate and cassation judicial boards of the Almaty City Court, and upheld the decision of the specialized interdistrict Juvenile Court of Almaty on the claim of M. to E. on determining the child's place of residence, stating the following. As indicated in the case file, the plaintiff M. is D.'s father, according to the certificate of paternity issued by the Registry Office Department No. 2 of the Zhetysu district of Almaty dated June 15, 2004. The mother of this child is U. She died on July 08, 2007, as evidenced by the death certificate dated July 09, 2007.
Parents have a preferential right over other persons to raise their children 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.
By the decision of the Almaty District Court of Astana on June 23, 2008, which entered into force, the court determined the order of communication of the defendant E. (the sister of the deceased U.) with the child in the following order: annually, during the winter holidays during the first 5 days and during the summer holidays from August 01 to August 15. Acting in accordance with the court's decision, on January 01, 2012, M. sent the child to E. in Almaty. In the period from January 11 to January 23, 2012, child D. was being treated at a medical institution in Almaty. Currently, the defendant is E. The child is being held illegally in the city of Almaty, contrary to a court decision. The court of first instance found that E. the child is not a parent and is not a biological grandmother, nor is she a guardian or trustee. E. argued that M. does not exercise his parental rights in relation to the child at the proper level. Meanwhile, the inconsistency of the defendant's arguments is indicated by the evidence examined in the case, on the basis of which the court of first instance found it established that the plaintiff is not deprived or restricted in parental rights to the child, and he has every right to raise his child.
During the consideration of the case by the court, it was reliably established that M. had been involved in the upbringing of the child from her young age together with U., and after her death, the plaintiff with the participation of his wife X. At the same time, the child had previously known H., since she was E.'s daughter-in-law, indicating that the plaintiff's spouse was not an outsider to the child. In accordance with 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. According to paragraph 6 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan "On the application of legislation by courts in resolving disputes related to the upbringing of children" No. 4 dated April 28, 2000, by virtue of the law, parents have a preferential right over other persons to raise their children and have the right to demand the return of the child from any person who does not based on a law or a court decision. In accordance with article 60 of the aforementioned Code, every child has the right to live and be raised in a family, the right to know his parents, the right to their care, and the right to live together, except in cases where this is contrary to his interests. By virtue of article 72 of the Code, parental rights cannot be exercised in conflict with the interests of the child. Contrary to the requirements of the above-mentioned law, the appellate judicial board, overturning the decision of the court of first instance, left the child's situation in an uncertain state. Child D. From the beginning of last year to the present, he has been staying with defendant Ye in Almaty. She does not attend school properly, which is also reliably established in the court of first instance. The conclusions of the appeal and cassation judicial boards that the decision of the court of first instance was made contrary to the interests of the child are untenable, since the claim for determining the place of residence was filed by the legitimate father of the child, his paternity has not been revoked or invalidated by anyone. In addition, as established by the courts, M. He is not limited and is not deprived of parental rights in relation to his child, which gives him the right to participate in the upbringing of the child.
Also, these judicial boards did not take into account that D. has a brother I., born on July 12, 2002, who lives and is raised in the family of his father, that is, the plaintiff M. The separation of siblings is unacceptable in the interests of children. Having studied the arguments of the plaintiff's petition, the evidence collected in the case in their entirety, the board came to the following conclusion. The plaintiff M. is D.'s father and, by virtue of the current Code, has the right to demand the return of his child from any person who holds him on the basis of a law or a court decision. In order to comply with the decision of the Almaty District Court of Astana dated June 23, 2008, the plaintiff sent D. to Almaty at the end of 2011 and since then she has been living there, without legal grounds. M. is not deprived of parental rights in relation to his child and is not limited in the manner prescribed by law in parental rights, accepts all measures are taken to establish proper contact with the child. Defendant E. is not the guardian or trustee of the minor D. The plaintiff's representative explained to the court that currently D. U. E. He does not live, but lives in the defendant's daughter's house, helps take care of a newborn child, and does not attend school properly. In accordance with article 62 of the Code, the child has the right to express his opinion and be heard during the judicial process. Taking into account the opinion of a child who has reached the age of ten is mandatory, except in cases where it contradicts his interests. During the court proceedings, D. explained that she did not want to live with her father in Astana, she wanted to live in Almaty.
At the same time, she does not claim that she wants to live with Grandmother E. The above circumstances indicate that the minor D. is in an uncertain state and her situation requires the intervention of adults to make the right decision in this difficult situation for her. Therefore, D.'s opinion that she does not want to cohabit with her legal father, where her brother is also being raised, as well as live in the city of Almaty, contradicts her interests. By the will of the deceased U. – D.'s mother, the plaintiff is recognized as her father, and during her lifetime, the mother wanted her daughter and son to be raised in the same family. The hostile relationship that has developed between the plaintiff M. and U.'s relatives affects D.'s psychological and physical development, and her right to receive a decent upbringing and education. As noted above, D. wants to constantly communicate with his brother I., who lives in Astana with his father. When deciding on this case, the supervisory judicial board proceeded from the interests of D. Taking into account the complicated relationship that had developed and D.'s place of residence, the board concluded that she should live and be raised with her legal father, that is, the plaintiff M., and such a decision was in the best interests of the child. In these circumstances, the decisions of the appellate and cassation judicial boards cannot be recognized as legitimate and justified, meeting the requirements of Articles 218 and 221 of the CPC, and therefore they are subject to cancellation. Since the decision of the court of first instance was made on the basis of evidence examined at the court session, the objectivity of which is beyond doubt, it must be upheld.
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