Глава 3.9. Процесуальні особливості розгляду справ про позбавлення батьківських прав та порядок виконання рішень у цих справах

Abstract

The procedural features of consideration of cases on deprivation of parental rights and the order of execution of decisions were studied. Having analyzed the legislation and the existing views of scientists, the grounds for applying to the court with a claim for deprivation of parental rights have been established.The expediency of applying alternative territorial jurisdiction (jurisdiction) to cases of deprivation of parental rights and giving the opportunity to consider such cases also to the courts at the registered placeof residence or stay of the child has been proven.Since the conducted research, it was established that the case of deprivation of parental rights is considered exclusively in a court procedure in civil proceedings, in general legal proceedings with the mandatory participation of guardianship and guardianship authorities to provide a conclusion on the case. The point of view of those authors who note the impossibility of applying a settlement agreement in cases of deprivation of parental rights is supported.On the basis of legal doctrines and analysis of current legislation, it was determined that the plaintiff in cases of deprivation of parental rights is the minor child himself, and persons who have the right to file a lawsuit for deprivation of parental rights in accordance with Art. 165 of the Civil Code of Ukraine are either legal representatives (one of the parents, guardian, custodian), or bodies and persons authorized by law to protect the rights, freedoms and interests of other persons (a person in whose family a child lives, a health care institution, educational or other children’s institution in which she is, guardianship and care authority). It is additionally argued that the prosecutor does not have the right to apply to the court with a statement of claim in cases of deprivation of parental rights in accordance with the Constitution of Ukraine, but only has the right to continue participating in those cases that were opened in accordance with his application before the Law of Ukraine «On the Introduction of amendments to the Constitution of Ukraine (regarding justice)».Based on the analysis of legislation and judicial practice, it has been proven that courts must very carefully evaluate all available evidence in the case in their totality and taking into account the opinion of the child, in the context of determining his best interests, take into account the grounds for forming such an opinion, since in most cases the opinion of the child does not correspond to her interests.The procedural order of preparation for the trial of cases and consideration of the case on the merits of deprivation of parental rights was analyzed, and the essence of the court decision on deprivation of parental rights and its implementation was determined.Theoretically grounded proposals regarding the improvement of the current civil procedural legislation of Ukraine on the researched topic have been formulated.