When a child leaves Ukraine and begins living in another country, parents may eventually face a practical legal question: if the child has been abroad for a considerable period of time, which country’s courts should hear a dispute concerning the child’s residence, parental responsibility, or other protective measures?
At first glance, the answer may appear straightforward: if the child is living abroad, the case should be dealt with there. In international family disputes, however, the child’s physical presence in a particular country, Ukrainian citizenship, registration in Ukraine, or immigration status abroad does not by itself determine which state has jurisdiction.
One of the key concepts is the child’s habitual residence. Determining habitual residence requires an assessment of the child’s actual centre of life: where and for how long the child has lived, attended school, received medical care, maintained family and social relationships, why the move took place, and how integrated the child has become into the new environment. The circumstances of the relocation, the date on which court proceedings were commenced, and the existence of proceedings in another country may also be significant.
Therefore, before arguing which parent the child should live with, it is necessary to answer a more fundamental question: which country’s authorities have international jurisdiction to determine the dispute in the first place?
What Does “Habitual Residence of a Child” Mean?
The 1996 Hague Convention does not equate habitual residence with citizenship or formal registration at a particular address. As a general rule under Article 5 of the Convention, the judicial or administrative authorities of the Contracting State of the child’s habitual residence have jurisdiction to take measures directed to the protection of the child.
Where a child’s habitual residence changes to another Contracting State, jurisdiction may also shift to the authorities of the new state, subject to the special rules contained in the Convention.
Habitual residence is therefore primarily a factual concept. It is not enough simply to refer to the child’s nationality or official registration. The relevant question is where the child has actually been living and to what extent the child has become integrated into a particular family and social environment.
As a result, two situations that appear very similar may lead to different legal conclusions.
One child may have left Ukraine relatively recently while maintaining most of his or her established connections with Ukraine. Another child may have lived continuously in another country for several years, attended school there, developed a stable social environment and effectively established a new centre of daily life.
Accordingly, neither of the following assumptions should be applied automatically: “the child is abroad, so only a foreign court has jurisdiction” or “the child is a Ukrainian citizen, so Ukrainian courts always have jurisdiction.”
How Is the Child’s Actual Centre of Life Established?
When determining habitual residence, a court does not usually rely on a single document. It considers the circumstances as a whole.
Relevant factors may include attendance at school or kindergarten, extracurricular activities, medical care, friendships, stable family connections, the duration and regularity of the child’s stay in the country, the reasons for the relocation, language skills, educational arrangements and the child’s broader social relationships.
The concept of habitual residence is intended to reflect a meaningful level of integration into a particular social and family environment.
In practice, useful evidence may include school or kindergarten records, medical documents, proof of actual accommodation, documents confirming the legal basis of residence in the country, evidence of extracurricular activities and other materials showing what the child’s day-to-day life actually looks like.
The circumstances surrounding the relocation may also be important. For example:
- when the child left Ukraine;
- whether the other parent agreed to the departure or to a prolonged stay abroad;
- whether the parents had agreed that the child would return;
- whether any application for the international return of the child was made.
This is why temporary protection status, a residence permit or another immigration document is only one part of the overall evidence. Habitual residence cannot normally be established solely on the basis of one administrative document.
Can a Ukrainian Court Hear the Case If the Child Is Abroad?
The fact that a child is living outside Ukraine does not automatically mean that Ukrainian courts lose jurisdiction.
In its judgment of 11 December 2023 in case No. 607/20787/19, the Joint Chamber of the Civil Court of Cassation of the Supreme Court addressed a situation involving a child living abroad. The Court indicated that the child’s residence outside Ukraine was not, in itself, sufficient to prevent a Ukrainian court from resolving a dispute concerning the child’s place of residence. Nor was the child’s physical return to Ukraine necessarily a prerequisite for consideration of the dispute.
At the same time, this conclusion should not be interpreted as meaning that Ukrainian courts always have jurisdiction whenever the child is a Ukrainian citizen.
In a cross-border case, it is necessary to determine the child’s habitual residence, whether that habitual residence has changed, which international rules apply, and whether any special circumstances affect jurisdiction.
The case law therefore distinguishes between situations in which the child’s habitual residence remained connected with Ukraine when proceedings were commenced and situations in which the child had already established a new habitual residence abroad. Those scenarios may lead to different procedural outcomes.
How Does Displacement Caused by the War Affect Jurisdiction?
For children who left Ukraine following the full-scale invasion, jurisdiction may involve additional considerations.
Article 6 of the 1996 Hague Convention contains a special rule for refugee children and children who, due to disturbances occurring in their country, have been internationally displaced.
Under the circumstances covered by that provision, the authorities of the Contracting State on whose territory the child is present as a result of the displacement may have jurisdiction to take measures for the protection of the child.
Therefore, in an individual case it is not enough simply to calculate how many months or years the child has been living in Germany, Poland, the Czech Republic or another country. It is first necessary to establish which jurisdictional provision of the Convention applies to the child’s particular circumstances.
The consequences of war and questions of safety may also be relevant when the substantive dispute is considered. However, safety concerns should not automatically replace an assessment of other important circumstances, including the child’s living conditions, education, social relationships, family environment and views.
What Changes in Cases of Wrongful Removal or Retention?
A different analysis is required where one parent alleges that the child was taken to another country, or retained there, in breach of that parent’s rights of custody.
Article 7 of the 1996 Hague Convention provides special jurisdictional rules in cases of wrongful removal or retention. Under certain circumstances, the authorities of the state in which the child was habitually resident immediately before the wrongful removal or retention continue to retain jurisdiction.
For this reason, the mere fact that one year has passed since the child moved abroad does not automatically transfer jurisdiction to another country.
Under one of the mechanisms provided by Article 7, several conditions must be considered together. These include the child having acquired a habitual residence in another state, having lived there for at least one year after the person with rights of custody knew or should have known the child’s whereabouts, the absence of a qualifying pending request for return, and the child having become settled in the new environment.
Accordingly, the idea that “once the child has lived abroad for a year, jurisdiction automatically changes” is legally misleading.
In case No. 545/2247/18, the Supreme Court considered a situation in which there was already an enforceable judgment requiring the return of the child under the 1980 Hague Convention, but the decision had not been implemented. In the circumstances established in that case, the Ukrainian courts did not have jurisdiction to determine the child’s place of residence.
A dispute between parents about where a child should live and an international return procedure following an alleged wrongful removal are therefore legally different proceedings, even though the underlying facts may overlap.
Why It Is Important to Check for Proceedings in a Foreign Court
Another common mistake is to focus exclusively on where the child lives without checking whether proceedings have already been commenced in another country.
Article 75 of the Law of Ukraine “On Private International Law” provides, as a general principle, that the jurisdiction of Ukrainian courts in a case involving a foreign element is determined at the time proceedings are opened.
The same legislation also addresses situations in which proceedings involving the same parties, the same subject matter and the same grounds are already pending before a foreign court.
If the existence of such foreign proceedings is known before proceedings are opened in Ukraine, this may prevent the Ukrainian proceedings from being commenced. If the circumstance is discovered after the Ukrainian case has already been opened, different procedural consequences may follow.
Case No. 753/4392/23 provides a practical example. During the proceedings in Ukraine, a dispute involving the same parties and concerning the child was already pending before a family court in Frankfurt am Main, Germany. The existence of the foreign proceedings had to be taken into account when deciding the procedural issue in Ukraine.
Before filing a claim, it is therefore important to investigate not only the child’s actual centre of life, but also the full history of court proceedings concerning the child in all relevant jurisdictions.
Why the Date on Which Proceedings Are Commenced Can Be Critical
In an international family dispute, the chronology of events can be just as important as the evidence itself.
It may be necessary to establish:
- when the child left Ukraine;
- when the child began attending school on a regular basis in another country;
- when one of the parents filed a claim;
- when the court formally opened proceedings;
- whether foreign proceedings already existed at that time;
- whether an application for the return of the child had been submitted.
Article 75 of the Law of Ukraine “On Private International Law” contains the general rule that jurisdiction in a case involving a foreign element is determined at the time proceedings are opened, even if the relevant circumstances subsequently change.
However, this rule cannot be applied in isolation.
Article 3 of the same Law provides that where an international treaty of Ukraine establishes rules different from those contained in domestic legislation, the rules of the international treaty apply.
Therefore, where a dispute falls within the scope of the 1996 Hague Convention, the Ukrainian rules on jurisdiction must be considered together with the relevant provisions of the Convention.
An error at this stage may result in lengthy proceedings that ultimately end without the court determining the underlying dispute on its merits.
Jurisdiction and the Child’s Place of Residence Are Two Different Issues
Even where it has been established that a Ukrainian court has jurisdiction, this does not automatically determine which parent the child should live with.
Once the procedural question of jurisdiction has been resolved, the court must separately consider the substantive circumstances affecting the best interests of the child.
Ukrainian family law requires consideration of factors such as the parents’ fulfilment of their parental responsibilities, the child’s personal attachment to each parent, the child’s age and health, and other relevant circumstances.
A child who is capable of expressing his or her own views should also have an opportunity to be heard in a dispute concerning upbringing and residence.
It is therefore important to distinguish between two separate questions.
Jurisdiction determines which country’s authorities are legally entitled to hear the dispute.
Determination of the dispute on the merits concerns where the child should live and which outcome best serves the child’s interests.
Confusing these two stages can lead to an incorrect legal strategy and considerable loss of time.
What Documents Should Be Collected Before Going to Court?
Before choosing the country and the particular court in which to file, it is advisable to reconstruct the complete chronology of the child’s life and prepare the relevant evidence.
In practice, this may include:
- dates of the child’s residence in each country;
- school and kindergarten records;
- medical records;
- evidence of accommodation;
- documents confirming the child’s immigration or residence status;
- evidence of family and social connections;
- correspondence between the parents concerning the move and any anticipated return;
- information concerning foreign court or administrative proceedings;
- documents relating to any application for the international return of the child.
These materials are not required only for the eventual dispute over which parent the child should live with.
Some of them may be decisive at the preliminary stage, when the court must determine whether it has international jurisdiction at all.
What Should Parents Do If the Child Has Been Living Abroad for a Long Time?
Before commencing proceedings, it is generally sensible to proceed in the following order:
- Reconstruct the exact chronology of the child’s movements and residence.
- Identify the facts demonstrating the child’s actual centre of life.
- Determine whether the 1996 Hague Convention applies between Ukraine and the particular country and identify the relevant jurisdictional rule.
- Establish whether there are grounds to allege wrongful removal or retention and whether the 1980 Hague Convention mechanism may apply.
- Check whether any foreign proceedings have already been commenced.
- Only then determine the appropriate country, court and procedural remedy.
- Separately prepare the evidence required to resolve the substantive dispute in accordance with the child’s best interests.
Where a dispute involves several countries, parallel proceedings or the possible application of the Hague Conventions, obtaining legal assistance in an international family dispute before filing a claim may be particularly important. Jurisdiction and the documentary record are better assessed before proceedings begin, rather than after the other parent has already challenged the court’s authority to hear the case.
Conclusion
The fact that a child is physically living abroad does not, by itself, determine which country’s courts have jurisdiction over a family dispute. Citizenship, Ukrainian registration or immigration status abroad likewise cannot replace an assessment of habitual residence and the applicable rules of international jurisdiction.
The relevant circumstances may include the child’s actual centre of life, the reasons and circumstances of the relocation, the degree of integration into the new environment, the date proceedings were commenced, any international return procedure and the existence of parallel proceedings in another country.
For that reason, the first question in an international child dispute is not which parent the child should live with. The first question is which country’s authorities are legally entitled to decide the case.
Only after jurisdiction has been correctly established does it make sense to proceed to the evidence concerning the child’s best interests.
