При вирішенні питань участі батьків у вихованні суд виходить виключно
з інтересів дитини; наділений повноваженням визначення побачень з дитиною
у присутності іншої особи на засадах розумного балансу на участь обох батьків
у вихованні дитини. Питання встановлення факту самостійного виховання дитини
не може з’ясовуватись безвідносно до дій другого з батьків та може вирішуватись
у межах спору про право між батьками дитини за загальним правилом у позовному
провадженні.
The article is devoted to the disclosure of scientific and applied aspects
of the procedure for determining the best interests of a child by courts in civil cases
related to child-rearing. Results of the research. It is determined that the obligation to
bring up a child is imposed on parents and consists in the implementation of a system of
educational measures aimed at forming a fully and harmoniously developed personality. It
is substantiated that sometimes, in the process of raising a child, divorced parents cannot
agree on certain aspects of a joint approach to upbringing. It is not uncommon for one
of the parents to demonstrate a state of concern (or indeed to be in such a state) about
the possible negative impact on the child by the other parent, and therefore may initiate
a claim to change the manner of participation in the child's upbringing determined by a
court decision.
It is proved that a father and mother have equal rights and obligations and when
deciding on the frequency of visits, the possibility of joint recreation, and visits to
the place of residence of the parent with whom the child does not live, one should
proceed solely from the interests of the child. In certain cases, if it is in the child's best
interests, the court may condition visits with the child on the presence of another person,
maintaining a reasonable balance between the participation of both parents in the child's
upbringing. The right of a father to communicate with his child is his indisputable right,
and communication between a minor child and his father is in his best interests. In the absence of a stable psychological connection between the father and the child, the child
may not fully perceive him as a father, and meetings between the father and the child
without the mother's presence may negatively affect the child's psycho-emotional state.
It takes time to establish a trusting relationship between a father and a child, during
which time communication will gradually be established and the daughter's emotional
attachment to her father will be formed.
It is stated that the legal regime of martial law has made adjustments to the procedure
for consideration of cases in which the best interests of the child are realized and ensured.
Cases involving the establishment of the fact of independent upbringing of children are
considered both in separate proceedings and in the course of action, depending on the
issue to be established by the courts. With regard to the first issue – in particular, cases
of establishing the fact that children are fully dependent on one of their parents – the
problem has become more relevant with the introduction of the legal regime of martial
law in Ukraine.
It is proved that an application for establishing a fact of legal significance is not subject
to judicial review in a separate proceeding, since there is a dispute about the right of one
of the parents to participate in the upbringing and maintenance of the child. Given the
principle of inalienability of family responsibilities in family law and the impossibility
of waiving them, including the responsibilities of raising a child, the issue of establishing
the fact of independent upbringing of a child cannot be clarified without regard to the
actions of the other parent and may be resolved within the framework of a dispute on the
right between the child's parents under the general rule in an action.
