Statement of claim for disputes related to the upbringing of children
As the study of cases has shown, judges generally correctly resolve the issue of the possibility of accepting a statement of claim for their proceedings on disputes related to the upbringing of children. In accordance with subparagraph 1) In Part 1 of Article 152 of the CPC, the judge returns the statement of claim if the plaintiff has not complied with the pre-trial dispute settlement procedure established by law for this category of cases and the possibility of applying this procedure has not been lost. According to paragraph 3 of Article 73 of the Code, if the parents cannot come to an agreement on the procedure for exercising parental rights by a parent living separately from the child, 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. Based on these provisions of the law, paragraph 7 of the Regulatory Resolution clarifies that the plaintiff must comply with the procedure for preliminary pre-trial dispute resolution established by law for this category of cases and the possibility of applying this procedure has not been lost.
In case of non-compliance with the procedure for preliminary pre-trial dispute resolution, the courts return the applications and explain the need to apply to the guardianship and guardianship authorities. Example: By the ruling of the Shardarinsky District Court of South Kazakhstan Region dated May 2, 2017, I. K. T.'s statement of claim on the procedure for communicating with children was returned on the basis of part 1 of subparagraph 1) of Article 152 of the CPC. The ruling indicates the need for the plaintiff to comply with the pre-trial dispute settlement procedure in accordance with paragraph 3 of Article 79 of the Code. At the same time, facts have been established when judges accepted and considered on the merits claims for determining the procedure for communicating with a child if the plaintiffs did not comply with the procedure for preliminary pre-trial dispute resolution established by law for this category of cases. For example, A.'s claim against T. for determining the order of communication with the child was accepted for court proceedings, while the plaintiff did not apply to the guardianship and guardianship authority for dispute resolution, that is, the pre-trial dispute settlement procedure (the juvenile court of South Kazakhstan Region) was not observed in the case. The same violations occur in the courts of Atyrau, Karaganda, Kostanay, Aktobe, West Kazakhstan (hereinafter – West Kazakhstan region) regions, Astana city.
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