In brief. Ukrainian law makes no award of custody: the court determines the child's place of residence, and both parents keep the full scope of parental rights either way. A child's place of residence is determined by agreement between the parents, by a decision of the guardianship authority or by a court (Article 160 and Article 161(1) of the Family Code of Ukraine), depending on how far the parents are able to agree. There is no presumption in favour of the mother: a mother and a father have equal rights and duties towards their child (Article 141 of the Family Code), and by its judgment of 17 October 2018 in case No. 402/428/16-ц the Grand Chamber of the Supreme Court expressly departed from the earlier approach that a young child should not be separated from the mother. Separately from permanent residence, the parent who lives apart has the right to personal contact with the child and to take part in the child's upbringing (Article 157(2) of the Family Code) — this is a self-standing claim decided by the guardianship authority (Article 158 of the Family Code) or by a court (Article 159 of the Family Code).
Custody, visitation and the terms Ukrainian law uses
Clients arriving from the United States, Canada, the United Kingdom or the EU normally describe this dispute as a question of custody and visitation rights. Ukrainian law reaches the same practical result through different concepts, and the difference determines what can actually be claimed in court. There is no award of custody here: the court determines the child's place of residence — which parent the child lives with — while both parents retain the full scope of parental rights and duties regardless of that determination (Article 141 of the Family Code of Ukraine). What common-law systems divide into legal and physical custody is not divided in Ukraine: decisions on the child's upbringing are taken by the parents jointly (Article 157(1) of the Family Code).
One term needs to be kept apart. "Opika", the literal Ukrainian equivalent of custody, is a separate institution: guardianship is established over orphans and children deprived of parental care, with a guardian appointed in place of the parents (Article 243 of the Family Code). It has no application to a dispute between two parents. What corresponds to visitation rights is the right of the parent living apart from the child to personal contact and to take part in the child's upbringing (Article 157(2) of the Family Code); the schedule for it is referred to below as contact arrangements, and it is set by the guardianship authority (Article 158 of the Family Code) or by a court (Article 159 of the Family Code).
When a child's place of residence has to be determined
The question arises when the mother and the father live apart and cannot agree between themselves which of them the child will live with permanently. While the parents are married and run a common household, this is usually not a legal problem — it becomes one at the point of divorce, of actually living separately, or of a conflict that prevents the child from living peacefully with either parent. In legal terms the dispute arises precisely where a mother and a father who live apart have not reached agreement on which of them a young child will live with — that is the wording used in Article 161(1) of the Family Code of Ukraine.
If the parents live apart and cannot agree
The most common situation: the spouses are divorcing or already divorced, the child in fact stays with one parent, and the other either wants to formalise that position legally or, conversely, to have the child live with them. Without the other parent's consent the question cannot simply be "settled" unilaterally: under Article 160 of the Family Code a child's place of residence is determined by agreement between the parents, and where there is no agreement the dispute is resolved by the guardianship authority or by a court (Article 161(1) of the Family Code). All three routes are described below.
If one parent has taken the child or is obstructing residence with the other
It happens that one parent takes the child without the other's consent, or does not return the child after a visit or the holidays. That does not resolve the substance: the fact that the child is currently with one parent does not in itself determine where the child is to live under the law. In this situation the other parent may apply to the guardianship authority or to the court, so that the question is decided against the established criteria rather than on a first-come basis. Where the child's place of residence has been changed unilaterally — without the consent of the parent with whom the child was living under the law or a court judgment, including by abduction — Article 162 of the Family Code allows the court, on the application of an interested party, to order immediately that the child be taken and returned to the previous place of residence. The child is not returned only where remaining at the previous place would create a real danger to their life and health, or where circumstances have changed so that return would be contrary to the child's interests.
If a previously determined place of residence needs to be changed
Neither a court judgment nor a parental agreement on the child's place of residence is final for the whole of childhood. If circumstances have changed materially — living conditions, the health of one parent, or grounds to consider that continued residence with that parent is harmful to the child — the question can be raised again, by the same route as the original determination. Age is treated separately: a child who has reached fourteen determines their own place of residence (Article 160(3) of the Family Code), and in its judgment of 3 September 2026 in case No. 359/10024/21 the Supreme Court confirmed that this provision is directly applicable — a fourteen-year-old is entitled to determine their place of residence regardless of how a court determined it earlier.
Who the child will live with after a divorce
The divorce itself does not decide who the child will live with — that is a separate question, decided under its own rules irrespective of whether the marriage has been dissolved. Spouses with children may file a divorce petition together with a written agreement on which of them the children will live with, how the parent living apart will contribute to the conditions of their life, and on what terms that parent will exercise the right to take part in raising them (Article 109 of the Family Code). Without such an agreement, the divorce alone leaves the question unresolved.
Does the mother have priority over the father
No. For a long time the courts relied on Principle 6 of the Declaration of the Rights of the Child, under which a young child should not be separated from the mother save in exceptional circumstances. In its judgment of 17 October 2018 in case No. 402/428/16-ц the Grand Chamber of the Supreme Court departed from that approach and stated two conclusions expressly: the Declaration of the Rights of the Child is not an international treaty binding consent to which has been given by the Verkhovna Rada of Ukraine, and Ukrainian legislation contains no provision conferring on either parent a priority right to live with the child. A mother and a father have equal rights and duties towards their child regardless of whether they were married to each other (Article 141 of the Family Code), and what comes first in a dispute is not the sex of one of the parents but the best interests of the child under Article 3 of the Convention on the Rights of the Child. What decides the case is the specific circumstances: each parent's ability to provide the child with proper conditions, stability and safety.
When a court may rule that the child lives with the father
A court may determine that a child lives with the father in any case where this corresponds to the child's interests — for example, where it was the father who in fact provided the day-to-day care, where his housing and living arrangements are more stable, where the mother is unable or unwilling to perform parental duties in full, or where the child has a settled attachment to the father. The law sets no formal restriction based on the sex of the parent with whom residence is determined: the list of circumstances in Article 161(2) of the Family Code is neutral — each parent's attitude to performing their parental duties, the child's personal attachment to each of them, the child's age, state of health and other circumstances of material significance.
What weight the child's own wishes carry
The child's personal attachment to each parent and their own opinion are among the criteria taken into account directly. The law draws three age thresholds (Article 160 of the Family Code): the place of residence of a child under ten is determined by agreement between the parents; for a child who has reached ten, by joint agreement of the parents and the child; and a child who has reached fourteen determines their place of residence themselves. In court proceedings a child able to express an opinion must be heard (Article 171(2) of the Family Code), and from the age of ten, as the Grand Chamber of the Supreme Court noted in its judgment of 17 October 2018 in case No. 402/428/16-ц, the child acquires not only the right to be heard but the right to take an active part in deciding their own future. In its judgment of 29 January 2025 in case No. 759/8056/22 the Supreme Court confirmed that the court is obliged to establish the opinion of a child who has reached ten. At the same time the child's opinion does not operate automatically: the court assesses it together with the other circumstances of the case and may give judgment contrary to that opinion where the child's interests so require (Article 171(3) of the Family Code). A child under fourteen is not a claimant in such proceedings — this is a dispute between the parents, and it is they who represent the child's interests (judgment of the Joint Chamber of the Civil Cassation Court of the Supreme Court of 31 July 2023 in case No. 761/19046/22).
How a child's place of residence can be determined
There are three separate routes (Article 160 and Article 161(1) of the Family Code), differing in form, speed and in how far the parents are able to agree between themselves.
Agreement between the parents
The quickest and least adversarial option: under Article 160 of the Family Code the place of residence of a child under ten is determined by agreement between the parents, and of a child who has reached ten, by joint agreement of the parents and the child. No application to a court or to the guardianship authority is required. Where the marriage is being dissolved at the same time, the agreement is set out in a written contract filed with the court together with the divorce petition (Article 109 of the Family Code); an agreement on the amount of child maintenance must be notarised, and if it is not complied with, maintenance is recovered on the basis of a notary's writ of execution. The drawback of this route is that it works for as long as both sides keep to the agreement voluntarily.
Application to the guardianship authority
If direct agreement is not possible, the parents may apply to the guardianship authority: Article 161(1) of the Family Code names it alongside the court as a body that resolves this dispute. This is an administrative, out-of-court route — the authority examines the situation, inspects each parent's living conditions and adopts a decision. A decision of the guardianship authority is binding if, within ten days of it being issued, the person concerned has not applied to a court for protection of their rights or interests (Article 19(2) of the Family Code). At the same time, applying to the guardianship authority does not remove the right to go to court, and once a claim is filed the authority discontinues its consideration of the application (Article 19(3) of the Family Code).
Determining the place of residence through the courts
Where agreement is impossible and the decision of the guardianship authority does not satisfy one of the parties or is not complied with voluntarily, the question is decided by the courts (Article 161(1) of the Family Code). This is the only route that ends in a decision with binding legal force, subject to compulsory enforcement under the Law of Ukraine "On Enforcement Proceedings".
What the court takes into account when determining a child's place of residence
The criteria the court applies are set out in the law and concern each parent's actual ability to provide the child with proper living conditions, rather than any formal advantage. The list is given in Article 161(2) of the Family Code and is not exhaustive: the law adds "other circumstances of material significance" to those named.
How each parent has performed their parental duties
The court assesses how each parent in fact performed their duties before the dispute arose: who looked after the child's health, took them to school or kindergarten, took part in day-to-day upbringing, and who in practice withdrew from this. This is the first of the criteria named in Article 161(2) of the Family Code.
The child's attachment and opinion
The law names the child's personal attachment to each parent directly among the criteria (Article 161(2) of the Family Code). Attachment to siblings and grandparents and the child's settled circle of contacts are taken into account within the wider category of other circumstances of material significance. Separately, and with regard to the child's age and maturity, the court considers the child's own position as to whom they would like to live with (Article 171 of the Family Code).
Living conditions and stability of the child's environment
The court assesses each parent's housing — floor area, safety, a separate space for the child — and how stable the child's daily life will be: whether they will have to change school, social circle and familiar surroundings without substantial reason. The Supreme Court consistently applies two criteria drawn from the European Court of Human Rights here: it is in the child's best interests for ties with the family to be maintained, except where the family is shown to be unfit or dysfunctional, and for the child's development in a safe, settled and stable environment to be secured (judgments of the ECtHR in Mamchur v. Ukraine of 16 July 2015, application No. 10383/09, and M.S. v. Ukraine of 11 July 2017, application No. 2091/13; applied, among others, in the judgment of the Supreme Court of 21 July 2021 in case No. 404/3499/17). The right to respect for family life is also guaranteed by Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Income, working hours and the ability to care for the child in practice
Financial capacity matters, but is not decisive in itself: the court looks at whether that parent is able to meet the child's basic needs and whether their working hours allow them to devote time to the child rather than merely to live with them formally. Article 161(3) of the Family Code sets one direct restriction: a child may not be placed to live with a parent who has no independent income, who abuses alcohol or drugs, or whose immoral conduct may harm the child's development.
Health, safety and the child's social environment
The court takes into account the parents' state of health so far as it affects their ability to care for the child, the safety of the surroundings — including the absence of alcohol or drug abuse and of immoral conduct capable of harming the child's development — and the general social environment in which the child will live. The same grounds are named directly in Article 161(3) of the Family Code, and for disputes about participation in upbringing the law additionally refers to the mental health of a parent and to abuse of alcohol or drugs by that parent (Article 159(2), third paragraph, of the Family Code).
What evidence is needed in a dispute over a child's place of residence
The court and the guardianship authority proceed from documentary proof rather than from the parties' assertions. The time limits are set by law: the claimant files evidence together with the statement of claim and the defendant together with the defence, and evidence filed out of time without good reason is not admitted (Article 83 of the Civil Procedure Code of Ukraine). Below is a practical list of what supports a position.
Documents on housing and income
Title documents for the housing or a tenancy agreement, certificates of income or of place of work, and documents confirming the financial stability of the parent seeking to have the child live with them. A certificate of income serves a double purpose here: it evidences not only capacity but also the absence of a ground for refusal under Article 161(3) of the Family Code.
Records from school, kindergarten and medical institutions
Certificates showing who in fact took the child to and collected them from the educational institution, references from the place of study, and medical records confirming the mother's or father's involvement in the child's treatment and medical care.
The housing and living conditions inspection report
Drawn up by the guardianship authority when inspecting each parent's living conditions; it records the state of the housing, whether the child has a separate sleeping and study space, and the general domestic conditions. It is on the information obtained through such an inspection that the guardianship authority bases its written report to the court (Article 19(5) of the Family Code); the procedure itself is laid down by the Procedure for activities of guardianship and custody authorities relating to the protection of children's rights, approved by Cabinet of Ministers Resolution No. 866.
Correspondence, photos, video and witness testimony
Correspondence between the parents about the child, photographs and video recordings showing the nature of each parent's involvement in the child's life, and testimony from relatives, carers, teachers or neighbours able to confirm specific circumstances. Messenger correspondence, photographs and video are electronic evidence (Article 100 of the Civil Procedure Code): they are filed in the original or as an electronic copy bearing a qualified electronic signature; a paper print-out counts as a copy of electronic evidence rather than as documentary evidence, and the court may require the original.
A psychologist's report or a court-ordered examination in complex disputes
In high-conflict cases the parties may put in a practising psychologist's report on the child's emotional state and attachment to each parent. The court orders an expert examination only where several conditions coincide: special knowledge in a field other than law is required, and the parties have not produced expert reports on the same questions or the reports produced raise doubts as to their correctness (Article 103 of the Civil Procedure Code). Separately, in its judgment of 21 July 2021 in case No. 404/3499/17 the Supreme Court noted that the conversation with the child should be conducted by a psychologist whose principal task is to establish the child's true psycho-emotional state and to obtain their opinion.
The role of the guardianship authority in the dispute
The guardianship authority takes part in disputes over a child's place of residence both on a direct application by the parents and within the court proceedings. In cases concerning a child's place of residence and a parent's participation in upbringing its involvement is mandatory (Article 19(4) of the Family Code) — a requirement of the law, not a matter for the court's discretion.
How the inspection of living conditions is carried out
Representatives of the guardianship authority visit each parent's home, inspect the living conditions, speak with the parents and, where necessary, with the child, and record the results in an inspection report — in accordance with the procedure approved by the Cabinet of Ministers of Ukraine.
What the guardianship authority's report contains
The report describes the inspected living conditions of each parent and gives a recommendation as to which of them, in the authority's view, the child should live with, together with the reasoning for that position. It is prepared on the basis of information obtained through inspection of the living conditions of the child, the parents and other persons wishing to live with the child or take part in the child's upbringing, and on the basis of other documents in the case (Article 19(5) of the Family Code).
Is the guardianship authority's report binding on the court
No. The law expressly allows the court to disagree with the guardianship authority's report where it is insufficiently reasoned or contrary to the child's interests (Article 19(6) of the Family Code). The report is therefore an important but not a decisive item of evidence: the court assesses it together with the rest, and its inconsistency with the child's interests is a self-standing ground for setting it aside.
How the court case proceeds
Court proceedings on a child's place of residence run through several consecutive stages.
Preparing the claim and the legal position
The subject matter of the claim is formulated, the initial evidence is gathered and the legal position is settled by reference to the criteria the court applies. This is also the stage at which it is decided whether interim relief is needed — for example, a prohibition on changing the child's place of residence or taking the child abroad pending the outcome (Articles 149–151 of the Civil Procedure Code); in disputes arising out of family relations the court may not only prohibit certain acts but also impose an obligation to perform them (Article 150(1)(3) of the Civil Procedure Code).
Gathering evidence and involving the guardianship authority
The court involves the guardianship authority to provide its report — in this category of cases this is mandatory (Article 19(4) of the Family Code). The parties file evidence within the time limits under Article 83 of the Civil Procedure Code, and where necessary obtain documents from educational institutions and medical bodies or apply for an expert examination (Article 103 of the Civil Procedure Code).
The hearing and the child's participation
The court examines the evidence filed and hears the parties. The opinion of a child who has reached ten is established as a matter of obligation (judgment of the Supreme Court of 29 January 2025 in case No. 759/8056/22); the opinion of a younger child is established where the child is able to express one (Article 171(2) of the Family Code). Contact with the child takes place in a manner that does not cause additional psychological harm — as a rule with a psychologist present and without the parents (judgment of the Supreme Court of 21 July 2021 in case No. 404/3499/17). A parent who is abroad may take part in the hearing by video conference (Article 212 of the Civil Procedure Code).
The judgment and its enforcement
A judgment determining a child's place of residence is subject to enforcement. Where compulsory enforcement is required, the procedure for judgments obliging the debtor to perform or refrain from certain acts applies: the enforcement officer verifies compliance, and where the judgment is not complied with without good reason issues a decision imposing a fine together with a demand to comply and a warning of criminal liability; on repeated non-compliance the officer notifies the pre-trial investigation body of a criminal offence (Article 63 of the Law of Ukraine "On Enforcement Proceedings").
When a determined place of residence can be changed
A fresh application is possible where circumstances have changed materially — as with the original determination, the question is resolved by agreement, through the guardianship authority or by the courts (Article 160 and Article 161(1) of the Family Code).
Contact (visitation) arrangements after a divorce
A mother, a father and a child have the right to unobstructed contact with each other, save where that right is restricted by law (Article 153 of the Family Code). The parent who lives apart from the child is obliged to take part in the child's upbringing and has the right to personal contact with the child, and the parent the child lives with has no right to obstruct this, provided the contact does not interfere with the child's normal development (Article 157(2) and (3) of the Family Code). This is not a consequence of residence having been determined with the other parent, but a separate claim, which may be heard alongside a residence dispute or independently of it.
Agreeing on contact without going to court
Parents have the right to conclude an agreement on the exercise of parental rights and the performance of parental duties by the parent who lives apart from the child — when, how often and in what form meetings, telephone or online contact take place. The law imposes a specific requirement on such an agreement: written form and notarisation (Article 157(4) of the Family Code). A parent who lives with the child and evades performance of the agreement is obliged to compensate the other for pecuniary and non-pecuniary damage.
Setting a schedule through the guardianship authority
Where there is no agreement, on the application of the mother or the father the guardianship authority determines the ways in which the parent who lives apart takes part in the child's upbringing and has contact with the child; the decision is adopted on the basis of a study of the parents' living conditions, their attitude towards the child and other circumstances of material significance (Article 158(1) of the Family Code). That decision is binding, and a person who evades it is obliged to compensate pecuniary and non-pecuniary damage to the parent who lives apart from the child (Article 158(2) of the Family Code).
Setting a visitation schedule through the courts
Where agreement is impossible or the guardianship authority's decision is not complied with, the schedule is set by the court: it determines the ways in which one parent takes part in the child's upbringing — periodic or regular meetings, the possibility of holidays together, visits by the child to that parent's home — as well as the place and time of contact (Article 159(2) of the Family Code). In individual cases, where the child's interests so require, the court may make contact conditional on the presence of another person.
What a visitation schedule may cover
The law does not lay down a single "standard" schedule — its content always depends on the circumstances of the particular family, the child's age and each parent's availability. Guidance is given by Article 159(2) of the Family Code, which refers to periodic or regular meetings, the possibility of holidays together and visits by the child to the home of the parent who lives apart.
Weekdays, weekends and public holidays
The schedule may set out particular days of the week, weekends or public holidays on which the child spends time with the parent who lives apart.
School holidays and time away together
The terms for spending the school holidays may be agreed separately, including the possibility of trips or holidays away with the child.
Telephone and video contact
The schedule may also include remote contact — calls and video links — particularly where meetings in person are limited by distance or by circumstances.
What to do if the other parent obstructs contact (visitation)
Obstruction of contact is a separate problem calling for its own legal response rather than a repeated request. The prohibition is set out directly: the parent the child lives with has no right to obstruct the other parent's contact with the child or participation in the child's upbringing (Article 157(3) of the Family Code).
How to document the obstruction
Each instance should be documented: correspondence showing refusal or requests for meetings being ignored, testimony of third parties, records of scheduled meetings that did not take place. Correspondence is preserved as electronic evidence (Article 100 of the Civil Procedure Code) — with the original or a properly certified copy, not merely a screenshot.
Applying to the children's services department
The children's services department can respond to instances of obstruction of contact, including by carrying out checks and taking measures within its competence. It is also through this body that the guardianship authority's power to determine the ways of taking part in a child's upbringing under Article 158 of the Family Code is exercised.
A claim to remove obstacles to contact
If the obstruction continues, the parent whose right to contact is being infringed may apply to the court with a separate claim for the removal of obstacles to contact with the child and to participation in the child's upbringing — a self-standing claim, distinct from a residence dispute. The basis is Article 159(1) of the Family Code, which names among the instances of obstruction the evasion of a decision of the guardianship authority.
What to do if the judgment is not complied with
For judgments establishing contact with a child the law provides a separate procedure: the state enforcement officer verifies compliance at the time and place of contact, and where the judgment is not complied with without good reason draws up a report and imposes a fine together with a warning of criminal liability; on repeated non-compliance the officer imposes a fine at double the amount, notifies the pre-trial investigation body of a criminal offence, applies for a temporary restriction on the debtor's right to leave Ukraine and issues a decision restricting the right to drive vehicles (Article 64-1 of the Law of Ukraine "On Enforcement Proceedings"). Wilful failure to comply with a court judgment that has entered into legal force is a criminal offence (Article 382 of the Criminal Code of Ukraine). The Family Code provides a further consequence: where the person the child lives with evades compliance with the judgment, the court may, on the application of the parent who lives apart, transfer the child to live with that parent (Article 159(4) of the Family Code).
Legal consequences of determining a child's place of residence
Determining a child's place of residence entails a number of related but legally separate questions.
Child maintenance
The duty to maintain a child until the age of majority rests on the parents (Article 180 of the Family Code); the manner of performing that duty is determined by their agreement, and by a court judgment maintenance is awarded either as a share of income or as a fixed sum — at the choice of the parent the child lives with (Article 181(1)–(3) of the Family Code). The minimum guaranteed amount of maintenance for one child may not be less than 50 per cent of the subsistence minimum for a child of the relevant age (Article 182(2) of the Family Code). Maintenance is dealt with in separate proceedings and does not follow automatically from the determination of the place of residence.
Education, medical treatment and day-to-day decisions
Both parents retain equal rights to take part in the most significant decisions concerning the child — the choice of educational institution and of treatment — regardless of whom the child has been determined to live with. This follows directly from Article 157(1) of the Family Code, under which questions of a child's upbringing are decided by the parents jointly, and from Article 141 of the Family Code, under which living apart from the child does not affect the scope of a parent's rights or release them from their duties.
Travel and taking the child abroad
The determination of the place of residence has a direct bearing on travel. The parent with whom the child's place of residence has been determined by a court judgment or confirmed by a report of the guardianship authority decides independently on temporary travel abroad for up to one month for the purposes of treatment, study, participation in competitions, festivals, olympiads and contests, recuperation and holidays, notifying the other parent by registered letter (Article 157(5) of the Family Code). The parent who lives apart, performs their parental duties properly and has no maintenance arrears applies for notarised consent by registered letter with acknowledgement of receipt; if consent is not given within ten days of delivery, that parent may apply to the court for permission to take the child abroad without the other parent's consent.
How long the case takes and what the timeframe depends on
The Civil Procedure Code sets statutory time limits: the court must begin the hearing on the merits no later than sixty days from the opening of proceedings, and the hearing on the merits itself runs for thirty days (Article 210 of the Civil Procedure Code). The actual duration depends on the particular circumstances: how far the parties are prepared to compromise, whether a guardianship authority report and an expert examination are required, and how heavy the caseload of the court hearing the matter is. No precise period can be stated in advance — the attorney gives an indicative assessment after reviewing the specific situation.
How a DISPUTES attorney can help in a custody or visitation dispute
Assessing prospects and choosing the right claim
The attorney analyses the situation and identifies which claim matches the client's objective — determination of the place of residence (Article 161(1) of the Family Code), removal of obstacles and establishment of the manner of participation in upbringing (Article 159 of the Family Code), or both at once — and which route (agreement, guardianship authority, court) is the most realistic.
Preparing the evidence and the documents
The attorney helps to gather and put in order the evidence confirming the client's ability to provide the child with proper living conditions and to take a real part in the child's upbringing.
Dealing with the guardianship authority and the children's services department
The attorney handles interaction with the guardianship authority and, where necessary, with the children's services department — from filing applications to taking part in the inspection of living conditions.
Representation in court
The attorney prepares the statement of claim or the defence, builds the legal position and represents the client's interests at every stage of the proceedings.
Support with enforcement of the judgment
Where the judgment is not complied with voluntarily, the attorney handles the compulsory enforcement procedure and applications to the relevant authorities.
