Trust, but verify. Can a father prohibit a child from travelling outside of Ukraine

Due to the imposition of martial law in Ukraine, there is no longer a requirement to obtain notarized permission from the other parent for a child to travel outside of Ukraine.

Considering that men are restricted from leaving Ukraine due to mobilization, it is evident that mothers of children, not restricted by the need for permission from the father for the child's departure, may abuse their rights and effectively determine the child's place and country of residence.

Article 141 of the Ukrainian Family Code states that both the mother and father have equal rights and responsibilities towards the child, regardless of whether they are married to each other, and the dissolution of the marriage between the parents, as well as separate living arrangements of the parents from the child, do not affect the extent of their rights and obligations towards the child.

In this regard, parents (read: fathers) seek effective protection of their rights by searching for "free legal consultation" on the Internet.

The Internet responds with various consultations from free lawyers on this topic, one of which states:

The father has the right to submit a written application to the State Border Guard Service to prohibit the child from leaving Ukraine, and the latter, apparently, can impose such a prohibition.

Our current client approached us, concerned about the possibility of the child's father preventing her from freely leaving the territory of Ukraine after a short visit to relatives.

On the Internet, you can find consultations from lawyers on this issue. Most of them rely on statements from representatives of the State Border Guard Service, who claim that an oral prohibition on departure cannot be imposed. However, a written submission can serve as a legal basis for prohibiting the child's departure. Here, lawyers propose two options for a parent wishing to prohibit the child's departure:

  • Submit a written application to the Administration of the State Border Guard Service, specifying and substantiating the reasons for prohibiting the child's departure abroad.
  • Obtain a court decision that establishes such a prohibition.

Let's consider each option in order.

First and foremost, it is impossible to prohibit the child's departure by one of the parents through a written application to the Administration of the State Border Guard Service.

Why? Because it is not provided for by laws, the Constitution, or relevant regulatory acts that border guards adhere to.

If the father or mother of the child submits a written request to the Administration of the State Border Guard Service asking to prohibit the underage child from traveling abroad, it will not be implemented. This is the response we received in a letter directly from the Administration of the State Border Guard Service, which was sent in response to a request from the "Disputes" Law Firm.

The Administration emphasized that according to paragraphs 2-3 of the Rules for Crossing the State Border by Ukrainian Citizens, approved by the Resolution of the Cabinet of Ministers of Ukraine No. 57 of January 27, 1995, the departure of children under 16 years of age from Ukraine, accompanied by one of the parents, grandparents, adult siblings, stepmothers, stepfathers, or other persons authorized by one of the parents through a written statement certified by the guardianship and custody authority, is allowed without notarized consent from the second parent and with the presence of a Ukrainian citizen's passport or the child's birth certificate (in the absence of a Ukrainian citizen's passport)/documents containing personal information, based on which the State Border Guard Service allows crossing the state border.

The only way to prohibit the child's departure from Ukraine is through a court order, which the court issues to secure the claim.

For this purpose, one of the parents must file a lawsuit with the court, for example, regarding the determination of the child's place of residence, participation in upbringing, or the child's return in accordance with the Hague Convention on the Civil Aspects of International Child Abduction of 1980. Simultaneously with filing such a claim, the father or mother submits an application for securing the claim by prohibiting the underage child from leaving the territory of Ukraine until the end of the judicial proceedings.

If the court grants this application and the issued ruling becomes legally effective, in this case, there will be a prohibition on the child's departure abroad.

Thus, the prohibition on the departure of minors from the territory of Ukraine is possible exclusively based on a court decision.

Submitting a written application to the Administration of the State Border Guard Service to prohibit the child's departure will have no effect.