Оновлено: 28 черв 2019 р.
This is a sad topic. Unfortunately, not all adoptions last long and happy. Such cases don’t happen often yet often enough for us to have a client with such a need.
When a Ukrainian child is adopted by foreigners, dissolution of adoption and returning the child to Ukraine is rather a difficult task. In this article we will share practical issues, we faced working on a similar case.
Ukrainian legislation distinguishes two different ways for termination of adoption:
by declaration of adoption as null and void; or
Re declaration of adoption null and void
Article 236 of the Family Code of Ukraine (hereinafter the “FCU”) prescribes that adoption is declared null and void by a court decision if:
a) this adoption was executed without the child’s consent and without of his/her parents (if such a consent was required);
b) the adopter did not intend to create legal rights and obligations originating from adoption (fictitious adoption);
c) this adoption was executed based on forged documents;
d) there was no consent for adoption from the other spouse, custodian, guardian, health protection institution of educational facility;
e) at the moment of adoption one of the spouses did not intend to continue their marriage (for cases when a child of one of the spouses is adopted by the other spouse).
Declaration of adoption null and void is a legal fact that has the following legal consequences prescribed by article 237 of the FCU:
adoption declared null and void is annulled from the moment of its origination;
all rights and obligations that have originated before to be ceased;
rights and obligations between the child and his/her parents and other relatives by origin should resume;
a child under 14 years old to be returned to his/her parents or to other relatives if they will so. A child older than 14 years can decide where he/she wants to live. If it is impossible to hand the child over to his/her parents or to other relatives, then the child to be transferred to tutorship and guardianship authorities;
the child resumes his/her family name, name and patronymic name that the child had had before adoption. If the child wills so, he/she can keep the family name, name and patronymic name obtained due to adoption;
court can award alimony to be paid within up to 2 next years by the person being the child’s adopter, provided that this person can afford this financial support and that the child does not have parents or the parents cannot support the child.
Re dissolution of adoption
Ukrainian legislation provides only one possible way of dissolution of adoption – by a court decision (art. 238 of the FCU). A Ukrainian court can dissolve adoption only in the following cases:
a) adoption is against interests of the child and does not ensure his/her family upbringing;
b) the child suffers from dementia, mental illness or from another serious illness that cannot be cured and the adoptive parent did not know and could not have known about such an illness at the time of adoption;
c) despite willingness of the adoptive parent, he has not been on good terms with the child that makes their further common habitation as well as fulfilment of the adoptive parent’s obligations impossible.
*Dissolution of adoption is prohibited after a child becomes 18 years old. There is only one exception from this rule: if illegal actions of the adoptee/adopter threaten life and health of the adoptee/adopter or his/her family members (art. 238 of the FCU).
Dissolution of adoption is a legal fact that has the following legal consequences prescribed by article 239 of the FCU:
all rights and obligations arisen out of adoption between the adoptee, adopter and his/her relatives should cease;
all rights and obligations between the child, his/her parents and other relatives by origin should resume;
the child should be transferred to the child’s parents or other relatives or, if this is not possible, then – to the tutorship and guardianship authority;
when adoption is against of the child’s interests, does not ensure his/her family upbringing, if the child is not transferred to his/her parents, then the child should retain the right to live at a dwelling where he/she has lived after his/her adoption;
the child has a right to retain the family name, name and patronymic obtained due to the adoption. If the child wishes, then he/she can take the family name, name and patronymic obtained before the adoption;
when adoption is against of the child’s interests, does not ensure his/her family upbringing, if the child is not transferred to his/her parents, then court can award alimony to be paid by the person being the child’s adopter, provided that this person can afford this financial support.
The law (art. 240 of the FCU) specifies that not any person can file a lawsuit to dissolve adoption. Persons who have such a right are:
tutorship and guardianship authority;
adoptee that is 14 years old or older.
Practical issues of dissolution of adoption
Dissolution is dissolved after the respective court resolutions takes effect.
Pursuant to the Civil Procedural Code of Ukraine, a court decision comes into force after expiration of time for filing an appeal, if the appeal has not been filled. If an appeal was filed, then the decision, if it was not canceled, comes into force after the appeal was resolved by the appellate court.
It is important to understand, that a right to file for dissolution of adoption does not mean that a person can at his/her discretion terminate adoption at any time by filing a lawsuit. Adoption will be dissolved by court only if it is in the child’s paramount interests to dissolve this adoption. Therefore, a plaintiff has to specify and prove a good reason for dissolution.
Re return of a child to Ukraine
In accordance with clause 113 of the Procedure of Carrying Out Activity of Adoption and Supervision Over Observing Rights of Adopted Children, approved by the regulation of the Cabinet of Ministers of Ukraine dated October 08, 2008, No. 905, after the adoption has been dissolved, the relevant consulate or diplomatic office of Ukraine assists in returning the child to Ukraine. Further placement of this child is carried out by the Office of Children's Services by the place of the child’s origin.
In accordance with the Procedure of Return to Ukraine of Children Who are Citizens of Ukraine and Deprived of Parental Care, approved by the Cabinet of Ministers of Ukraine dated April 23, 2003, No. 569, orphans or children deprived of parental care who are citizens of Ukraine and who due to different reasons are outside of Ukraine are subject to return to Ukraine if there is no reasons for their adoption or transfer under custody (guardianship) abroad. Such children to be returned to Ukraine within 2 months after Ukrainian authorities settle this matter with competent authorities of the state of location of the children.
A child is returned to Ukraine at expense of the state budget of Ukraine.
A foreign diplomatic institution of Ukraine informs the Ministry of Foreign Affairs of Ukraine about the fact of the child being outside of Ukraine and that this child should be returned to Ukraine. The Ministry of Foreign Affairs of Ukraine, in its turn, informs the national police, the Ministry of Social Policy of Ukraine and other competent authorities (if necessary) to find the parents and other relatives of the child or the residence place of the child before his/her departure abroad.
*International treaties executed between Ukraine and another state can provide for another procedure of returning children to Ukraine.
After being informed by the national police, a relevant local authority (relevant municipal state administration) arranges return of the child to his/her parents, custodians (guardians) or placement of the child to a facility of social protection (based of the child’s age and health condition).
The foreign diplomatic institution of Ukraine, via the Ministry of Foreign Affairs of Ukraine, notifies the Council of Ministers of the Autonomic Republic of Crimea or a relevant municipal state administration on the time and place of arrival to Ukraine of the child aged between 14 to 18 years old. An authorized representative meets the child on the territory of Ukraine.
Children under 14 years old and handicapped children are returned to Ukraine being accompanied by an authorized representative of the Council of Ministers of the Autonomic Republic of Crimea or a relevant municipal state administration.
Practical issues of returning a child to Ukraine
One may think that when adoption is dissolved and a child is no longer adopted, then it is all over and Ukraine and the adoptive country will take care of the child. However, it is only a new, and maybe the most challenging, phase.
Problems may vary from country to country as every sovereign state has its own legislation. Thus, based on our practical experience we will explain problems with returning a child to Ukraine from the Unites States of America.
The main issue in dealing with the US and Ukraine is that these two countries do not have a common international treaty on recognition of foreign court decisions. So, the first problem appears when a Ukrainian court dissolved adoption but this adoption is still legal and in force under US laws so a separate court hearing is required to dissolve the same adoption in the US.
The second problem is that the US bestows the US citizenship by default on foreign children adopted by US citizens. Therefore, even though the child is still a Ukrainian citizen under Ukrainian law, Ukrainian authorities cannot just take the child away from the US because the US does not give away its minor citizens.
Sadly, as the practice is, Ukrainian authorities are not pro-active enough in their desire to return children to their home land when it is necessary. Lack of state financing and poor qualification as well as not adequate legal liability of state officials result in general inactivity of Ukrainian authorities in matters pertinent to returning of Ukrainian children after dissolution of their adoption.
That is why, no time should be wasted after adoption is dissolved. It is very important to take all possible and fast actions to ignite the process of returning the child to Ukraine. There is none state body that is solely responsible for the process and it is important to get involved all relevant authorities like the Ministry of Social Policy, the Ministry of Foreign Affairs, the Ministry of Justice, a relevant Ukrainian consulate, a relevant municipal state administration, tutorship and guardianship authorities, and so on.
If a child is not returned to Ukraine prior to his/her 18 birthday, then chances for return are close to zero.
Contact Legal Ideas law firm to get advice on your personal case.