A situation in which a child lives in Ukraine with the mother while the father is a foreign national residing abroad does not automatically mean that the child must continue living with the mother. The father’s foreign citizenship does not, by itself, prevent him from seeking to have the child live with him in another country.
At the same time, an international family dispute cannot be resolved simply by comparing the parents’ incomes, housing conditions or general standards of living in two countries. The court must determine which arrangement best serves the interests of the particular child, taking into account the child’s relationship with each parent, established social environment, education, health, safety and the likely consequences of relocation.
Situations that appear similar at first may require very different legal strategies. If the child has lived in Ukraine for a long period and the father, after the parents separate, wants the child to move abroad and live with him, this is one type of dispute. If, however, the child had been habitually resident in another country and was later taken to Ukraine without the other parent’s consent or was not returned after a temporary stay, the rules on international child return may become relevant.
Does the mother have priority simply because the child currently lives with her?
Ukrainian law does not establish a rule that a young child must, in all circumstances, live with the mother.
In Case No. 402/428/16-c, the Grand Chamber of the Supreme Court departed from an approach that had effectively given mothers priority in child residence disputes. The central consideration is not the parent’s gender, but the best interests of the child.
When deciding such a dispute, the court considers each parent’s attitude towards parental responsibilities, the child’s attachment to the mother and the father, the child’s age and health, established social environment, education, everyday living conditions, psychological well-being and other relevant circumstances.
A father’s case therefore cannot be reduced to the argument that he earns more, has a larger home or lives in a wealthier country. Equally, it is not enough for the mother to argue that the child already lives with her and that the existing situation should therefore never change.
The court must assess which living arrangement is most stable and beneficial for the particular child.
When is it a residence dispute, and when is it an international child return case?
In international family disputes, it is important not to confuse two different legal mechanisms: determining where a child should live and seeking the child’s international return.
If the child has been living in Ukraine and the father resides in another country and wants the child to live with him in the future, the case will generally concern determination or change of the child’s place of residence.
A different situation arises where the child had a habitual residence abroad and one parent later moved the child to Ukraine without the other parent’s consent or failed to return the child after a temporary trip.
In that situation, the 1980 Hague Convention on the Civil Aspects of International Child Abduction may apply. The purpose of such proceedings is not to make a final determination as to which parent is “better” or with whom the child should ultimately live. The issue is whether there has been wrongful removal or retention and whether the child should be returned under the Convention.
International jurisdiction and the child’s habitual residence are therefore critical. Before proceedings are commenced, it is necessary to determine which country the child’s life is actually connected with and which country’s authorities have jurisdiction to decide the relevant dispute.
Grandliga has considered this issue in more detail in a separate publication: “Child’s habitual residence abroad: how jurisdiction is determined in a family dispute”.
If the child originally lived in Ukraine
A common situation may look like this: the family lived in Ukraine and the child was born or spent a substantial part of childhood there. After the parents’ relationship ended, the father — a citizen of another country — returned to his home country, while the child remained in Ukraine with the mother.
Later, the father wants the child to move abroad and live with him.
If the child has never previously lived in the father’s country, this is not a case of “returning” the child there. The court must decide whether relocation and residence with the father would be in the child’s best interests.
Relevant factors may include the child’s actual relationship with the father, the father’s previous involvement in parenting, the child’s current environment, age, education, language skills, health, ability to adapt after relocation and the possibility of maintaining meaningful contact with the mother.
The father’s proposal should also be specific. It is not enough for the court to know the name of the country where he lives. The court should be able to understand where the child would actually live, where the child would attend school, who would provide day-to-day care, what immigration or residence status the child would have and how ordinary life would be organised.
If the child previously lived abroad and later came to Ukraine
Another category of cases concerns children who lived abroad with their parents for several years, attended school or kindergarten there and had an established social environment before coming to Ukraine following a conflict between the parents.
In such cases, the circumstances of the move are particularly important.
The move may have been agreed by both parents. One parent may have consented to the child permanently relocating to Ukraine. The trip may originally have been temporary — for example, for a holiday — but the child was not returned at the end of the agreed period. In other cases, the child may have been moved without the other parent’s knowledge or against that parent’s wishes.
These circumstances can determine the appropriate legal remedy.
Case No. 718/1867/23 is illustrative. The father, an Italian citizen, sought the return of a child who had previously lived in Italy and later remained in Ukraine with the mother.
The courts did not limit their assessment to the fact that the child had previously lived in Italy. They also examined possible risks to the child’s psychological well-being, the relationship with the mother and other family members, and the fact that the child had lived in Ukraine for a substantial period and had become integrated into the new environment.
The case illustrates an important principle: even where the child previously lived in the father’s country, the outcome is not automatic. The court considers the full set of legally relevant circumstances.
What should a father prove if he wants the child to live with him abroad?
In an international dispute, the father should present more than a general promise of a “better life abroad”. The court needs a concrete and verifiable picture of the child’s future life after relocation.
Relevant evidence may include:
- the exact address where the child would live;
- ownership or tenancy documents relating to the home;
- information about the size and condition of the accommodation and the other people living there;
- evidence of the father’s employment, stable income and financial position;
- information about a specific school or kindergarten;
- the possibility of education in an appropriate language;
- medical insurance and access to healthcare;
- the child’s citizenship, residence permit or other lawful immigration status;
- the father’s working schedule and arrangements for daily childcare;
- close relatives and other members of the child’s potential social network;
- evidence of the father’s previous involvement in the child’s upbringing;
- a realistic plan for the child’s continued contact with the mother after relocation.
The aim is not simply to submit a collection of documents, but to show the court how the child’s everyday life would actually work.
Why a good home and a high income are not enough
Case No. 756/8947/21, considered by the Supreme Court in 2024, is particularly relevant to foreign parents.
The father, an Egyptian citizen, asked the court to determine that his son should live with him. However, he did not provide sufficient information about the specific address where the child would live in Egypt, the actual living environment or his own financial circumstances.
The case demonstrates a recurring issue in international family disputes: the name of a country and general statements about a good standard of living are not enough.
If a father wants the child to move abroad, the court must be able to assess the real conditions in which the child would live rather than relying on an assumption that life abroad will necessarily be better.
How can a Ukrainian court assess the father’s living conditions abroad?
In Ukrainian proceedings concerning a child’s place of residence, the guardianship and custody authority participates in the case and provides the court with a written opinion. In preparing that opinion, the authority may examine the parents’ living conditions and other circumstances relevant to the child.
An obvious practical difficulty arises in an international case: a Ukrainian child welfare authority cannot inspect an apartment in France, Italy, Germany or the United States in the same way it could inspect accommodation in Ukraine.
This does not mean that the father’s living conditions cannot be examined.
A father living abroad should therefore consider preparing a comprehensive set of documents from the country where he lives, including evidence of housing, income, schooling arrangements, healthcare, household composition and other relevant circumstances.
Depending on the country and the individual case, documents issued by local social services, municipal authorities or other competent bodies may also be relevant.
International treaties also provide mechanisms for cooperation between competent authorities in different states, including the exchange of information concerning the child’s circumstances. Whether a particular mechanism can be used, and how it should be initiated, needs to be assessed separately in each case.
Can the child’s adaptation to life in Ukraine affect the outcome?
If, after coming to Ukraine, the child begins attending school, makes friends, develops a stable daily routine and lives for a substantial period in an established environment, these circumstances cannot simply be ignored.
At the same time, the court should examine not only how well the child has adapted, but also how the present situation came about.
Did the other parent agree to the move? Did that parent know where the child was? Was contact with the child possible? When did the parent begin taking steps to seek the child’s return or residence with them? Were there existing court orders that were not complied with?
Case No. 554/11879/21 is relevant in this context. The Supreme Court indicated that factual circumstances created through prolonged non-compliance with an existing court judgment should not automatically create a legal advantage for the party responsible for that non-compliance.
Long-term residence in Ukraine may therefore be an important factor, but it should be considered together with the history of the dispute and the conduct of both parents.
What if the father did not know where the child was?
More difficult situations arise where one parent changes the child’s location, refuses to disclose the new address or terminates communication, and the other parent only discovers the child’s whereabouts many months later.
In such a case, evidence showing that the lack of contact was not the result of the father’s voluntary inactivity can become especially important.
This may include messages and correspondence, attempts to call or otherwise contact the child, communications with relatives, reports to police or other authorities, documents relating to efforts to establish the child’s location, and records from foreign court or administrative proceedings.
If the father did not know where the child was for a prolonged period, it is preferable to prove those circumstances rather than merely state them.
This can be particularly important where the other parent later argues that, during the period spent in Ukraine, the child became fully integrated into the new environment.
How does the war in Ukraine affect a child residence dispute?
The security situation in Ukraine is one of the factors that may be taken into account when determining where a child should live. However, it does not automatically give an advantage to a parent living abroad.
The court should assess the actual circumstances of the particular child rather than make an abstract comparison between two countries.
Relevant factors may include the region where the child lives, the real level of security, access to shelter, the format of schooling, the child’s health, psychological response to security threats, access to necessary medical care and the overall stability of the child’s environment.
At the same time, the court should assess the conditions proposed by the father abroad and the consequences of relocation itself, including a change of school, language and social environment, as well as any impact on contact with the mother.
The argument that “there is no war abroad, therefore the child should live there” is therefore too simplistic. Safety is important, but it forms part of the wider assessment of the child’s best interests.
The child’s age and views
The older the child, the more significant the child’s own views may become.
The Family Code of Ukraine applies different rules depending on age. Once a child reaches the age of ten, the child’s place of residence is no longer determined solely by agreement between the parents; the child’s own position also becomes relevant. From the age of fourteen, where the parents live separately, the child has the right to determine with which parent to live.
A child also has the right to be heard in matters concerning them personally.
In Case No. 759/8056/22, the Supreme Court emphasised the need to properly establish the child’s position when resolving a dispute concerning the child’s residence.
This can be particularly important in an international case. The court may consider how the child feels about relocation, whether the child speaks the language of the father’s country, whether the child has previously lived there, whether relatives or friends live there and what the child’s actual relationship with the father is.
The child’s views are assessed together with the child’s age, maturity and the other circumstances of the case.
What can be done if there is a risk that the child will be moved again?
In international family cases, it may be necessary not only to formulate the main claim correctly, but also to prevent the factual situation from changing before the proceedings are completed.
If there is a real risk that one parent may move the child to another country again or conceal the child’s whereabouts, interim measures may need to be considered.
In Case No. 711/4569/23, the Supreme Court accepted a temporary restriction on the child leaving Ukraine without the father’s consent in proceedings concerning international return.
In Case No. 759/11905/23, the court also accepted measures aimed at preventing a change in the child’s place of residence where there was a substantiated risk that the child could be moved.
Such measures are not granted automatically. The court must be shown that the risk is real and that, without interim protection, effective enforcement of the eventual judgment may be jeopardised.
What mistakes can weaken a foreign father’s position?
In international family disputes, difficulties often arise not only because of unfavourable facts, but also because of an incorrectly chosen legal strategy.
A father’s position may be weakened by:
- starting proceedings without first checking international jurisdiction;
- confusing a child residence dispute with an international return procedure;
- failing to provide concrete evidence of the child’s future living conditions;
- relying primarily on higher income or better material conditions;
- ignoring the child’s emotional relationship with the mother;
- failing to propose a realistic arrangement for continuing contact with the other parent;
- remaining inactive for a prolonged period after losing contact with the child or learning of the child’s relocation;
- attempting to remove the child personally without using the appropriate legal procedure.
A strong case is rarely built around a single argument. It requires a coherent evidential picture showing why the proposed living arrangement serves the interests of the particular child.
What should be prepared before going to court?
Preparation for an international family dispute should usually begin with a clear chronology of the child’s life.
It is important to establish where the child lived during different periods, where the child attended school, when and under what circumstances the child moved between countries, whether the other parent agreed to those moves, and how contact was maintained after the parents separated.
Documents demonstrating the father’s actual involvement in the child’s life should also be collected. These may include evidence of financial support, joint travel, participation in education and medical care, correspondence, regular communication and other forms of involvement in parenting.
It is equally important to prepare a specific plan for the child’s future life abroad: accommodation, education, healthcare, legal residence status, day-to-day care and continued contact with the mother.
This allows the court to assess a real proposed living arrangement rather than general promises about the child’s future.
Conclusion
A foreign father may seek to have a child living in Ukraine reside with him abroad. His foreign citizenship is not, by itself, an obstacle, just as the fact that the child currently lives with the mother in Ukraine does not automatically give the mother priority.
The central question for the court is which arrangement best serves the interests of the particular child. The child’s actual relationship with each parent, history of residence, stability of the social environment, age and views, and the specific conditions available after relocation may all be important.
If you are involved in a dispute over where your child should live, or you need legal assistance in a similar international family matter, Grandliga family lawyers can review the circumstances of your case, assess the available legal options, help prepare the evidential and procedural strategy, and represent your interests before Ukrainian courts.
