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Ukraine: Family Law

UKRAINE AND CHILD ABDUCTION

 

On September 1, 2007, the 1980 Convention on the Civil Aspects of International Child Abduction entered into force between the United States and Ukraine. 

The Convention will not apply to parental child abduction cases between the U.S. and Ukraine that took place prior to September 1, 2007.  Wrongful retentions or removals that occurred after September 1 may qualify to be Hague Abduction Convention cases. 

The Convention cannot be applied retroactively.  Ukraine’s accession to the treaty is an important step that will improve the possibility of resolving future abduction cases.

In general, the Convention has two main provisions:  to secure the prompt return of children wrongfully removed to or retained in any signatory country; and to ensure that the rights of parents for custody and access to their children under the law of one signatory country are respected in other signatory countries.

JANUARY 2011

General Information:  Ukraine is a signatory to the Hague Abduction Convention on the Civil Aspects of International Child Abduction.  Ukraine was not cited in the 2009 U.S. Compliance Report on the Convention.

Court decisions regarding parental responsibility, access, and contacts are made according to the welfare of the child. 

The Department of State’s Office of American Citizens Services and Crisis Management (ACS) posts additional information on Ukraine at:  http://www.travel.state.gov/travel/cis_pa_tw/cis/cis_1053.html

Legal System:  Ukraine follows a civil law legal system, in which there is judicial review of legislative acts.

Absent a court order, parents in Ukraine have equal rights and responsibilities toward their children, regardless of whether they ever marry.

There are no separate family courts that hear custody disputes.  According to current Ukrainian legislation, custody cases are first considered by children’s welfare offices (custody and care offices), whose decisions can be appealed and reconsidered by the local Ukrainian court of general jurisdiction.  Hague return and access cases are handled by local courts of general jurisdiction.

In Ukraine, the police handle searches for missing children.  There is no national coordinating agency for such searches.

The State Execution Service of the Ministry of Justice of Ukraine enforces court decisions.  If needed, the Execution Service involves other relevant agencies, such as local police or children’s services. 

Retaining an Attorney:  The U.S. Embassy in Kyiv maintains lists of attorneys in Kyiv and in the regions, including those that specialize in family law, available at: http://photos.state.gov/libraries/ukraine/895/pdf/Kyiv_Law_Firms.pdf and http://photos.state.gov/libraries/ukraine/895/pdf/Law%20Firms%20Ukraine.pdf.  These lists are provided as a courtesy service only and do not constitute an endorsement of any individual attorney. The Department of State assumes no responsibility or liability for the professional ability or reputation of, or the quality of services provided by the following persons or firms.  Professional credentials and areas of expertise are provided directly by the lawyers.

Ukraine offers legal assistance to Ukrainian citizens who qualify.  In Hague Abduction Convention proceedings, the Ukrainian Central Authority provides legal representation at no cost to left behind parents to process applications; however, if a private attorney is preferred one can be retained at the left behind parent’s expense.

Citizenship & Passport Matters:  Birth in Ukraine does not automatically confer citizenship.  Citizenship can be obtained by a child born in Ukraine to at least one Ukrainian-citizen parent or when the child has not acquired by birth the citizenship of either one of his or her parents. A child born outside of Ukraine is a Ukrainian citizen if at least one parent is a citizen of Ukraine. 

Ukraine does not recognize dual nationality.  Ukrainians who have immigrated to the United States without obtaining the proper exit visa from Ukrainian authorities may be subject to civil penalties, and will be required to obtain an exit visa before returning to the United States.

The consent of both parents is required to obtain a Ukrainian passport for a child if the parents are married.  If not, a passport application can be filed by the parent who has physical custody of the child.  If a Hague petition has been filed, the Ministry of Justice alerts the Ukrainian State Border Control that the taking parent should not be permitted to leave the country.  However, this notification is not a guarantee that the child will successfully be prevented from exiting Ukraine.  

International Passports are issued only to citizens of age 18 and older (16 and older in case of permanent foreign residency). Prior to that age, Ukrainian citizens can be included in a parent’s passport or may be issued a Child’s Travel Document, which looks like a passport, is valid for three years, and has only eight pages in it.  In some very rare cases Ukrainians are allowed to have an International Passport before the age of 18 or 16.  In certain situations, more than one valid international passport is allowed to be issued to a person who travels abroad frequently.

Exit Permits:  Ukraine does have exit controls. When travelers enter or exit Ukraine, their passports are checked by Ukrainian border control officers and the information is data-entered into a computer system. There is no public access to this system.  Court and other official requests for entry/exit information must be made in writing to the Ukrainian State Border Control Service. Ukrainian citizen children under the age of 16 can exit Ukraine only if both parents consent, either in person while traveling with a child or by providing written consent witnessed by a Ukrainian notary. This does not apply to children without Ukrainian citizenship. If a child travels on a foreign passport, but the border guards have reasons to believe that a child obtained Ukrainian citizenship at birth (e.g. at least one of the parents is Ukrainian), parental consent to travel is generally required.

The entry/exit database system contains information on warrants and other lookouts. Ukrainian law-enforcement and other authorities contact the State Border Control Service to request lookout information be entered into the system. The Embassy was advised by the Ukrainian Ministry of Justice that “only courts have the authority to temporarily deny exit of a person from Ukraine.”  When a Hague application has been filed by a left behind parent, the Ministry of Justice (Central Authority for Hague cases) petitions the Ukrainian court to satisfy the Hague Case return/access request and to take necessary precautions to prevent the child from leaving the country.

Mediation:  There are no governmental or non-governmental organizations that offer family mediation services in child custody disputes.  Parties may wish to contact an attorney for assistance with mediation as an alternative to formal court processes.

Hague Abduction Convention:  The Hague Convention on the Civil Aspects of International Child Abduction came into force between the United States and Ukraine on September 1, 2007. The Hague Convention provides a civil legal mechanism for parents to seek access to or the return of children wrongfully removed or retained in Ukraine. Ukraine was not cited in the 2009 U.S. Compliance Report on the Convention.

The Ukrainian Central Authority is located at:

Ministry of Justice of Ukraine
13, Horodetskogo Street
KYIV 01001
Ukraine
e-mail: ilad@minjust.gov.ua or ilatu@minjust.gov.ua
website: www.minjust.gov.ua
Tel.: +38 044 279 5674
Fax: +38 044 279 5674

For detailed eligibility and application information, please see: http://travel.state.gov/abduction/solutions/hagueconvention/hagueconvention_3854.html .

Hague Application Instructions:  Parents whose children have been abducted to or retained in Ukraine are strongly urged to contact the Department of State’s Office of Children’s Issues for guidance on filing a petition under the Hague Abduction Convention.

In general, a parent or legal guardian will be asked to submit the following in English and Ukrainian:

  • The U.S. Central Authority application form available from the Office of Children’s Issues or at http://www.state.gov/documents/organization/80021.pdf.  The Ukrainian Central Authority will accept an application in English only, but it does require translation for further processing.  To expedite an application, it is recommended to obtain translations prior to submitting the application package.  Translations need to be certified, but do not require any additional authentication to be accepted by a Ukrainian court.
  • Originals or certified copies of the child’s birth certificate, its parents’ marriage certificate, and divorce decree, as appropriate.
  • A certified copy of the custody order in effect when the child was taken to Ukraine or a copy of the state law that establishes the right to custody, and any agreements regarding custody or access. Note: It is not necessary to have sole custody to apply for assistance under the Hague Convention. If no custody order exists, and laws of the parent’s or legal guardian’s state are silent as to a parent’s right of custody, an affidavit of law from an U.S. attorney may be acceptable.
  • Article 28 Authorization Form empowering the Ukrainian Central Authority to work on your International Parental Child Abduction case.   Although the left-behind parent’s (LBP's) authorization is included into both the Ukrainian child return request and the child access request forms, it is highly recommended that this authorization goes on a separate page, so that it can be further used in the court as a separate document.
  • Photos of the child and of the taking parent. These photos will not be returned.

Once the Ministry of Justice receives the application, it takes measures to locate the child and taking parent, approaches local authorities to arrange a meeting to attempt to achieve voluntary child return and makes arrangements with the local children’s welfare office (custody and care office) to check the child’s living conditions.  If the taking parent refuses to return the child, the case is submitted to the court. The local court decision can be appealed in any general appeals court.   Appeals court decisions can be further appealed to the Supreme Court.

By law, the case should be finalized within two months of the application date.  In rare cases, this can be prolonged by court decision for one more month.  Appeals may take up to three months.  In practice, the average processing time for Hague cases is two to four months. 

The Ukrainian Central Authority provides legal representation at no cost to left behind parents; however, if a private attorney is preferred one can be retained at the left behind parent’s expense.

All expenses foreseen by the Hague Convention, Article 26, involved are covered by the Ukrainian Central Authority, with the exception of the costs associated with the child’s return and any private legal costs the left-behind parent incurs.  The Ukrainian Central authority suggests that a left-behind parent can indicate at his/her earliest opportunity that he/she cannot afford payment for the child's return so that if the left-behind parent’s application is successful, the charge may be imposed on the taking parent as part of the decision of the court (if successful).

Civil Remedies:  A U.S. court decision must be submitted to the local court of jurisdiction over the taking parent’s Ukrainian residence for re-attestation in order to be recognized in Ukraine. There is no U.S. - Ukraine treaty covering recognition of court decisions.

If parents who are separated disagree about where their minor child will live, either parent can raise the issue with the local children’s custody and care office in Ukraine, or petition the court to determine the location in the best interest of the child.  The court takes into account each parent’s relationship with the child, the way each parent has fulfilled his or her parental responsibilities, the child’s age, state of health, and other relevant circumstances.  The court cannot find for a parent who has no income, has a substance abuse problem, or when another issue exists that would negatively affect the child’s physical or emotional development.

An official English translation of the Ukrainian Family Code is available online at: http://www.mfa.gov.ua/data/upload/publication/usa/en/7148/family_kideks_engl.pdf.

Criminal Remedies:  Parental child abduction is not a criminal offense in Ukraine.

There is no extradition treaty between the United States and Ukraine.  Article 25 of the Ukrainian Constitution forbids extradition of Ukrainian citizens to other countries.

The Ukrainian Interpol Bureau, a part of the Ministry of Internal Affairs of Ukraine, takes action on Interpol notices for missing children and taking parents.  Warrant information is also shared with the Ukrainian State Border Control Service.

Visitation/Access Rights:  A parent or legal guardian can file a Hague application for access, thereby seeking to enforce visitation rights pursuant to the Hague Abduction Convention.

Alternatively, access rights are determined by the custody and care office and/or the local court as part of a custody decision.

The State Execution Service of the Ministry of Justice of Ukraine enforces court decisions, including visitation/access rights.  If needed, the Execution Service involves other relevant agencies (e.g. local police or children’s services).

Embassy Contact Information

U.S. Embassy in Ukraine:

6 Mykoly Pymonenka St.
Kyiv 01901 Ukraine

Phone: (+38-044) 490-4445, 490-4422
Fax: (+38-044) 490-4040
E-mail: kyivacs@state.gov

http://ukraine.usembassy.gov/

The Ukrainian Embassy in Washington, D.C.:

Embassy of Ukraine
3350 M Street, NW
Washington, D.C. 20007
Tel: (202) 333-0606
Fax: (202) 333-0817

Ukrainian Central Authority in Kyiv, Ukraine

Ministry of Justice of Ukraine
13, Horodetskogo Street
KYIV 01001
Ukraine
e-mail: ilad@minjust.gov.ua or ilatu@minjust.gov.ua
website: www.minjust.gov.ua
Tel.: +38 044 279 5674
Fax: +38 044 279 5674

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