Court/Judicial body: Nurinskiy District Court of Karaganda oblast
Date: 12 July 2005 CRC
Provisions: Article 18: Parental responsibilities
Domestic provisions: Law “On Marriage and Family”, Article 60 (Shared parental responsibilities), Article 65 (Right of parent to maintain contact with the child if separated), Article 54 (Child’s right to be heard). Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan “On the application of the law by courts in the resolution of disputes relating to the upbringing of children”, para 5 (the dispute to determine the place of residence of the child).
Background: A.K. asked the Court to award her custody of her nine year old son – N. At the time N. was residing with his father, half-sister and other relatives. The two children were cared for by their grandmother, while the father was not involved in their upbringing. When given the opportunity to express his views, the child initially said that he does not want to live with A.K. as she had left him and he does not know her, but when questioned why he thinks so, he admitted he was told so by the father and grandmother.
Issue and resolution: Determination of child’s place of residence. The Court awarded custody to A.K. on the basis that she would be able to provide better care for the child.
Court reasoning: The Court noted that both parents have equal rights and responsibilities towards their child as stipulated in both Kazakhstan’s national law and in Article 18 of the CRC. The Court also noted that the parent living apart from the child has the right to maintain contact with the child, be involved in their upbringing and decide on the child’s education and that this right must not be interfered with by the parent with whom the child is residing. The Court said that the following factors need to be considered in making decisions regarding the custody of a child: the child’s relationship with each of the parents and their siblings; the child’s age; the moral and other personal qualities of the parents and their capability to provide suitable conditions for the child’s development and education (the occupation, financial and marital status of the parents, and so on). In the current case, the father of the child had shown little interest in the child’s upbringing and he had a record of a criminal conviction. Regarding the views expressed by the child, the Court determined that they were unduly influenced by others and should not be part of the consideration. Therefore, the Court decided to award custody to the petitioner who was deemed able to provide better conditions for the child’s development.
Excerpt citing CRC and other relevant human rights In Russian: “Пунктом 18 Конвенции о правах ребенка указано на необходимость соблюдения принципа общей и одинаковой ответственности и равенства родителей в их правах и обязанностях по отношению к их ребенку”.
As translated by CRIN: “ Article 18 of the Convention on the Rights of the Child indicates that parents should follow the principle of sharing the responsibilities and equality in their rights and obligations in relation to their children”. CRIN comment: CRIN believes that this judgment is partially consistent with the CRC as the Court failed to expressly consider the CRC’s best interests of the child principle and, in particular, the effect of separating the child from his half-sibling.
Citation: Дело № 2-138, 12 июля 2005г., Нуринский районный суд Карагандинской области