Does a child living with his father give him the right to a deferment from mobilization: the position of the Court of Appeal

The Fifth Administrative Court of Appeal confirmed that the mere fact of a minor child living with his father is not a sufficient basis for granting a deferral from mobilization. The relevant decision was made following the review of the case on appealing the refusal to grant a deferral in accordance with paragraph 4 of part one of Article 23 of the Law of Ukraine “On Mobilization Preparation and Mobilization”.

The essence of the dispute

The plaintiff appealed to the court with a demand to cancel the commission’s decision to refuse to grant a deferral and to oblige it to be granted to the father who is raising his minor daughter on his own. He referred to the fact that the child actually lives with him, and the mother does not participate in raising him.

However, the commission refused to satisfy the application due to the absence of a court decision to deprive the mother of parental rights. The court of first instance supported this position, after which the plaintiff filed an appeal.

Position of the Court of Appeal

The Court of Appeal dismissed the complaint, agreeing with the conclusions of the court of first instance. The court emphasized that in order to obtain a deferral, it is necessary to have the conditions specified by law, in particular:

the presence of a child under the age of 18;
the absence of the other parent for reasons directly stipulated by law (death, deprivation of parental rights, missing, etc.) or independent upbringing of the child confirmed by a court decision.

In this case, it was established that although the child actually lives with the father, the mother is not deprived of parental rights, and there is no corresponding court decision. In itself, applying to the court with such a claim does not create legal consequences.

Conclusions of the court

The panel of judges emphasized: evidence of the child’s cohabitation with the father is not an independent basis for granting a deferral. The law requires clearly defined legal facts, which must be confirmed by appropriate evidence, in particular by a court decision.

Thus, the appellate court recognized the refusal to grant a stay as lawful, and the decision of the court of first instance as compliant with the norms of substantive and procedural law.

The resolution entered into force from the moment of signing and may be appealed to the Supreme Court in accordance with the established procedure.