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On judicial practice regarding child-rearing disputes

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Court/Judicial body:  Plenum of the Supreme Court of the Republic of Belarus
Date: 30 September 2004 CRC
Provisions:  General reference to the CRC without specific articles cited
Other international provisions: Convention on the legal assistance and legal relations in civil, family and criminal matters of 22 January 1993 and 7 October 2002
Domestic provisions: Constitution of the Republic of Belarus Family and Marriage Code Law “On the rights of the child” Guardianship and custody bodies Statute Resolution

Case summary

Background: This resolution was prepared by the Plenum of the Supreme Court by virtue of the authority conferred on it by art. 51 of the Courts and Court System Code of the Republic of Belarus. According to art. 51, Supreme Court’s Plenum considers the materials relating to the judicial practice and statistics and provides judicial interpretation of the applicable legislation.

Issue and resolution: Child custody. The Court issued recommendations after reviewing judicial practice regarding child-rearing practice with a view to achieving correct and uniform application of the relevant legislation in courts.

Court reasoning: After reviewing the judicial practice of the lower courts, the Supreme Court made the following recommendations with regard to the process of deciding child-rearing disputes: Courts shall make decisions maximising the protection of the child’s rights and interests and creating the best possible living conditions and upbringing. Child-rearing disputes include the following: disputes regarding the child’s place of residence if their parents are living separately, disagreements concerning the child’s upbringing, establishing exclusive custody over a child, restricting the parental rights of one of the parents, participation of a parent separated from the child in their upbringing, impediments to the child’s relations with grandparents and returning a child from persons who withhold the child illegally. The participation of guardianship and custody bodies is compulsory in child-rearing disputes. Guardianship and custody bodies can participate in the case as state bodies authorised to provide an expert opinion on the case. The court is not allowed to conduct a hearing before receiving the opinion of the guardianship and custody body. The courts must take into account the domestic and housing conditions of the child and the persons claiming to be awarded guardianship or custody over a child. When resolving a dispute concerning the child’s place of residence, the court must take into consideration the child’s age, their affection to each of the parents, brothers, sisters and other family members, moral and other qualities of the parents, existing relations between each parent and the child, the degree of care and attention to the child by each of the parents considering their activities, working schedule, living conditions and the possibility of each of them to provide adequate conditions for the child’s upbringing and development. The higher living conditions of one of the parents alone cannot be the reason for granting them custody of the child. A child over 10 years old can decide which parent they wish to live with. The child’s wish is ascertained by the guardianship and custody bodies and reported to the court. If necessary, the child’s opinion can be also heard during preparation to the case hearing or in the court hearing with the participation of the pedagogue.

Excerpt citing CRC and other relevant human rights as in full-text resolution in Russian: “При рассмотрении споров, связанных с воспитанием детей, судам надлежит руководствоваться Конвенцией о правах ребенка, принятой Генеральной Ассамблеей ООН 20 ноября 1989 г. (ратифицирована Республикой Беларусь 1 октября 1990 г.), Конвенциями о правовой помощи и правовых отношениях по гражданским, семейным и уголовным делам от 22 января 1993 г. и от 7 октября 2002 г.”
CRIN English translation: “When considering child-rearing disputes, the courts must be guided by the provisions of the UN Convention on the Rights of the Child (ratified by the Republic of Belarus on 1October 1990) and the Convention on the legal assistance and legal relations in civil, family and criminal matters of 22 January 1993 and 7 October 2002…”

CRIN comments:  CRIN believes this resolution is partially consistent with the CRC. The resolution recognises that decisions on custody must recognise the child’s interests. Article 3 of the CRC requires the best interests of the child to be a primary consideration in all matters affecting the child. Although the resolution states that children aged over 10 can decide which parent to live with, Article 12 of the CRC guarantees children’s right to be heard in any proceedings affecting them, without specifying an age limit. States must assure to the child who is capable of forming their own views the right to express those views freely in all matters affecting them, the views of the child being given due weight in accordance with their age and maturity.

Citation:  Постановление Пленума Верховного Суда Республики Беларусь от 30 сентября 2004 г. №11 “О практике рассмотрения судами споров, связанных с воспитанием детей”

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