Child Withdrawal From Parents: Problems Of Theory And Practice

Abstract

The article researches the substantive and procedural aspects of the removal of a child from parents. Views of scientists and practitioners about essence, concept and nature of family law sanctions of the removal of a child are analyzed. The procedural peculiarities of the execution of a court's judgement about the removal of a child by the State Enforcement Service are considered and summary of court rulings on the issue is done.

The analysis of the Family code of Ukraine clearly shows that the removal of the child from the parents should be viewed as the family law sanction for the illegal behavior and guilty conduct of parents.

The removal of the child from parents without terminating parental rights occurs in a number of cases: 1) commitment of an offence by parents, id est their illegal behavior and guilty conduct; 2) behaviors that is not an offence itself but it poses a danger for a child as it may cause a psychological breakdown, chronic illness, confluence of reduced circumstances and other circumstances that do not constitute guilty conduct (inactivity) of parents.

The author subscribes to the position of scientists according to which not any removal of the child from parents can be determined as the sanction of the family law norm, but only the following removal: а) from one of the parents and return of the child to the previous place of residence through legal proceedings (in this case the simultaneous pecuniary and non-pecuniary damages to the one the child lived with can be provided); б) from parents (a mother, a father, other persons a child currently lives with) without terminating parental rights. The sanction mentioned above can be temporary in relation to parents who exercise their parental duties improperly as the one that precedes the termination of parental rights as well as independent family law sanction. In the majority of cases the sanction in the form of removal of the child is the preventive (temporary) measures of children safeguarding, and precedes the termination of parental rights.

It is proved that a court cannot decide to remove the child from one of the parents or both of them and foster the child to another person required by the Law as provisional remedy in case of danger or loss of life for the child before deciding the dispute over the place of residence of a child of tender years or the termination of parental rights.