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11 September 2018, 11:22

Ukraine tightens liability for child-support debtors and changes procedures for children's travel abroad

Olga Lepikhina
Olga Lepikhina «Asters, ЮФ» senior associate

Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine on the Creation of Economic Preconditions for Strengthening the Protection of the Child's Right to Proper Maintenance" of 3 July 2018, No. 2475-VIII (the "Law") came into force on 28 August 2018.

The Law is aimed at improving the existing mechanisms to influence child-support debtors and introducing new ones. The legal novelties, inter alia, include:

Restrictions have been introduced for debtors placed on the Unified Register of Debtors with respect to the disposal of property, particularly: 1) bodies of the Ministry of Internal Affairs of Ukraine are required to refuse re-registration or de-registration of a vehicle as requested by the debtor for the purpose of its alienation and to report such request to a public or private enforcement agent; 2) a notary or an official performing notarial actions is required to refuse to perform notarial action with respect to the alienation of the debtor's property; and 3) a public registrar is required to refuse state registration of changes to the Unified State Register of Legal Entities, Private Entrepreneurs and Public Organisations in relation to the  share of the debtor (as a founder or member) in the authorised capital of a legal entity, unless such changes are aimed at increasing that share.

When an individual opens or closes an account, banks are required to check whether such person is on the Unified Register of Debtors and to inform a public or private enforcement agent of such individual's opening or closing his or her account on the same day. The enforcement agent freezes money in the debtor's bank accounts not later than on the next working day after the day of receipt of such notice.

A parent who is awarded custody of the child in a court order or whose custody of the child is confirmed by a custody and guardianship authority, is now entitled to decide individually on the child's temporary travel abroad for a period of up to one month for medical treatment, education, health improvement and recreation purposes, including as a member of an organised group of children, subject to (1) notifying the other parent to that affect by a registered letter if the latter duly performs the parental duties; and (2) obtaining form a public or private enforcement agent a certificate showing that the other parent is in child-support arrears the total amount of which exceeds a four-month's child support, where the other parent avoids child support payments. Wilful failure to comply with the restriction on the period of the child's stay abroad by the custodial parent leads to administrative liability.

To obtain the consent to the child's travel abroad for medical treatment, education, health improvement or recreation purposes, including as a member of an organized group of children, the non-custodial parent is required, provided that he or she duly performs the parental duties and is not in child-support arrears,  (1) to send to the custodial parent a registered letter with acknowledgement of receipt requesting the latter's consent to the child's travel abroad for any of the abovementioned purposes, or (2) to file an action with a court asking to consider, in separate proceedings, the issuance of the permit for the child's travel abroad without the other parent's consent 10 days after the receipt of the registered letter is acknowledged.

New circumstances have been added to be taken into account by a court when determining the amount of child support, including whether a child-support provider owns, possesses and/or uses any property or enjoys any interests in such property, including any personal or real property, money, exclusive intellectual property rights, or corporate rights.

The terms "guaranteed minimum child-support amount" (not less than 50% of the subsistence level for a child of respective age) and "recommended minimum child-support amount" (that is equal to the subsistence level for a child of respective age and may be awarded by court where the child-support provider has sufficient income (revenues)). Further, in addition to the income (revenues) of the child-support provider, the court also takes into account expenses incurred by the child-support provider in excess of his or her income (revenues) and in respect of which the child-support provider has failed to explain the origin of funds used to cover such expenses.

The powers of custody and guardianship authorities have been spelled out in more detail with respect to checking whether child-support payments are used for intended purposes. In particular, a custody and guardianship authority makes scheduled inspection visits to a child-support creditor, or, at the request of the child-support provider, who is not in child-support arrears, unscheduled inspection visits that should take place not more frequently than quarterly.

The limitation period for claiming child-support in court has been increased (from 3 to 10 years). To claim child-support for that period, the plaintiff should submit evidence showing that he or she took measures to receive the same from the defendant, but failed to do so due to the latter's avoidance of paying it.

Children are now exempted from the obligation to maintain their parents and share additional expenses if it has been found that their parents did not pay child maintenance resulting in arrears the total amount of which exceeds a 3-year's amount of respective payments and that such arrears remain due and payable at the time of giving judgment on the amount of maintenance for the parents.

Failure to pay child support for children with disabilities and children with serious diseases will now lead to a tightened administrative liability with child-support debtors being subject to community service if the total amount of arrears they owe exceeds 3-month's child-support payment (or 6 month's child-support payment in other cases).

Those avoiding their administrative penalty in the form of community service will be held administratively (administrative arrest for a period of up to 10 days) or criminally (imprisonment for a period of up to 2 years) liable.

Parents or persons in loco parentis will now face increased fines for failure to perform their upbringing or fostering duties such as providing conditions necessary for the living, studying and upbringing of minors; commission of an administrative offence by minors aged from 14 to 16; commission by minors of acts that fulfil the elements of a crime if they have not reached the minimum age of criminal liability.

Failure of the non-custodial parent to comply with the decision of the custody and guardianship authority on the custody and visitation arrangements, or failure of the custodial parent to comply with legitimate requirements of officials (officers) of the custody and guardianship authority, in particular, failure to allow them to inspect the child's living conditions, will now lead to administrative liability in the form of a fine.

Persons who are in arrears with child-support payments will be prohibited from taking elective or public offices, including those of local council members, first deputy or deputy ministers, and that of the director of the National Anti-Corruption Bureau of Ukraine or the Prosecutor-General, etc., where the total amount of such arrears exceeds the amount of respective child-support payments for a period of 6 or 12 months depending on a post.

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