Deprivation of parental rights: order and procedure

Sometimes in life there are circumstances in which a father or mother does not participate in raising a child, evades such participation, or creates a threat to the life or health of the child through their behavior. Such actions may serve as grounds for deprivation of parental rights in relation to a child. In this article, we will analyze in more detail what are the grounds for deprivation of parental rights, the procedure and possible terms of deprivation of parental rights, whether the responsibilities of the parent who is deprived of parental rights remain, and other important nuances in carrying out such a procedure.

What can be grounds for deprivation of parental rights?

It is worth remembering that deprivation of parental rights is an extreme measure of influence on persons who do not fulfill their parental duties. Such deprivation can be applied only before the child reaches the age of majority and can only be decided in court after a full, comprehensive, objective clarification of the circumstances of the case, including the parents' attitude towards the children.
As of today, the Family Code of Ukraine defines a fairly large number of grounds for deprivation of parental rights, namely: 

• when the mother/father did not pick up the child from the maternity hospital or other medical institution and did not show interest in the child for 6 months;
• when the mother/father evades the fulfillment of their duties to raise the child, in particular, such actions may manifest themselves in the following: failure to provide the child with necessary medical care, treatment, nutrition, which directly affects the child's development; failure to provide the child with communication necessary for his/her normal self-awareness; failure to provide the child with access to cultural values, etc. These factors may be a sign of evasion of duties only in the case of intentional, conscious behavior of the mother/father.
• when the mother/father avoids ensuring that the child receives a complete general secondary education;
• when the mother/father treats the child cruelly, which can manifest as physical or mental violence against the child, the use of inhumane methods of raising the child, humiliation of the child's honor and dignity, etc.;
• when the mother/father are chronic alcohol or drug addicts;
• when the mother/father exploits the child for hard labor, prostitution or other criminal activities, or forces them to beg or wander;
• when the mother/father is convicted of committing an intentional criminal offense against the child. 

What is needed to deprive a father of parental rights?

First of all, not only the father, but also the child's mother or both parents can be deprived of parental rights. This process is quite complicated and lengthy, and there must be objective evidence confirming the grounds for depriving the mother/father of parental rights, including:

• the presence of evidence of arrears in alimony payments, a court verdict on malicious evasion of alimony payments, initiation of enforcement proceedings, etc.;
• a certificate from a school or other educational institution, hospital, confirming the fact of lack of care for the child's spiritual development, provision of education, lack of proper medical care, which may negatively affect the child's physical development as a component of upbringing, etc.;
• information from the national police that the mother/father has been abusive towards the child or another family member;
• documents confirming chronic alcoholism, drug addiction, and registration in psychoneurological institutions of the mother/father;
• witness statements;
• audio, photo, video files, etc. 

Case law shows that the court is obliged to obtain the opinion of the child, in particular, the Resolution of the Grand Chamber of the Supreme Court of May 29, 2019 in case No. 357/17852/15-ts states: “…the court must take into account the best interests of the child…hear the child’s opinion and take into account the circumstances that have arisen and exist at the time of the court decision. The provision on the equality of rights and obligations of parents in raising a child cannot be interpreted to the detriment of the interests of the child. Each case requires a detailed study of the situation, taking into account various factors that may affect the interests of the child, including his or her opinion, if he or she is capable of formulating his or her own views in accordance with his or her age…”. Also, Article 171 of the Family Code of Ukraine establishes an imperative norm that a child who can express his or her opinion must be heard in court when resolving a dispute about the deprivation of parental rights. 

Another important point regarding the process of deprivation of parental rights is the mandatory participation in court of the guardianship and trusteeship body, which submits its opinion to the court. Such an opinion highlights the living conditions of the child and his parents, proper treatment of the child, the participation of the parents in his upbringing, etc. To obtain the opinion of the guardianship and trusteeship body, a person should apply to it with a statement on the appropriateness of deprivation of parental rights and attach relevant evidence that would confirm the grounds for deprivation of parental rights. 

 How long does the process of terminating parental rights take?

In order to start the process of deprivation of parental rights, it is necessary to collect a number of evidence that would confirm the grounds for deprivation of parental rights. It takes 1 month to receive the conclusion of the guardianship and trusteeship body. 

After collecting all the necessary documents and evidence, a statement of claim is prepared for the court for deprivation of parental rights, which must meet the requirements of the Civil Procedure Code of Ukraine. The process in the court of first instance can last from 2 to 6 months, but it is worth remembering that the defendant has the right to file an appeal against the claim, in which case the process may drag on for a longer period.

 What happens after parental rights are terminated?

The Family Code of Ukraine establishes the legal consequences of depriving a person of parental rights, including: 

• loss of all personal non-property rights regarding the child and release from raising him/her;
• loss of benefits and other assistance provided by the state for the child;
• loss of status as the child's legal representative;
• inability to be an adoptive parent, guardian or custodian;
• loss of property rights that a person deprived of parental rights could receive in the future: the right to child support, the right to a pension and compensation for damage in the event of the loss of a breadwinner, the right to be the child's heir, and other rights;
• loss of other rights.

It is important that a person who is deprived of parental rights is not released from the obligation to support the child, that is, such a person is obliged to pay alimony in the manner prescribed by law. An analysis of case law shows that when making a decision to deprive parental rights, the court usually also awards alimony for the child. 

It is worth noting that if the child lived with the parent whose parental rights were terminated, the court must decide whether the child can continue to live in the same home. There are cases when the court may decide to divide the home or evict the parent whose parental rights were terminated to another home, if that person has one. 

A person deprived of parental rights has the right to apply to the court for access to the child. The court may grant such access only if it will not harm the child and only if another person is present during such visits. 

Deprivation of parental rights through the court

As already mentioned, the procedure for deprivation of parental rights is carried out exclusively in court in the order of general claim proceedings. In addition to one of the parents, there are other persons who have the right to apply to the court with a claim, namely:

• guardian or custodian;
• educational institution, healthcare institution;
• the person with whom the child lives;
• guardianship and trusteeship body;
• public prosecutor;
• and directly the child himself, who has reached the age of 14.

The court shall be summoned at the place of registration of the Defendant, unless there are grounds for applying alternative jurisdiction.

Deprivation of parental rights is a very laborious and long-term process that includes collecting a huge evidence base, which is determined in a specific case, submitting an application to the guardianship and trusteeship body to obtain a conclusion on the appropriateness of the deprivation, clarifying the marital status of the persons submitting, drafting and submitting a claim to the court. Such a process requires the involvement of a qualified lawyer who can help with the deprivation of parental rights, analyze the current situation and provide full support from "a" to "z". Contact Law firm “INFERNO DLK” for professional legal advice in the relevant category of cases. 

Frequently asked questions:

• Can parental rights be terminated without a trial?

No, deprivation of parental rights occurs exclusively through court proceedings and there are no exceptions. 

• Who can apply for the termination of parental rights?

Not only one of the parents, but also other entities, such as the prosecutor, the guardianship and trusteeship authority, the person with whom the child lives, etc., can file a claim with the court.

• Is a parent who has been deprived of parental rights obligated to pay child support? 

Yes, he is obliged. Deprivation of parental rights does not exempt from the obligation to support the child, in particular to pay alimony. Moreover, in this category of cases, the court is endowed with discretionary powers and may even order alimony for the child without the plaintiff's request.