NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of April 28, 2000 No. 4

About application of the legislation by courts in case of the dispute resolution, the children connected with education

The code of the Republic of Kazakhstan "About scrap (matrimony) and family" of December 26, 2011 (further - the Code) affirmed the right of the child to live and be brought up in family, to know the parents, and also the right to care of parents and accommodation, joint with them. For the purpose of ensuring the most complete protection of the rights and the interests of minors protected by the law in case of permission with courts of the disputes connected with education of children, and also the correct and uniform application of the regulations of the above-named Code regulating the listed legal relationship, the plenary session of the Supreme Court of the Republic of Kazakhstan decides:

1. Explain that the disputes connected with education of children are subject to judicial review: about the residence of the child in case of separate accommodation of parents (Item 2 of article 73 of the Code); about implementation of the parent rights by the parent living separately from the child (Item 3 of article 73 of the Code); about return to parents of the child withheld not based on the Code or the judgment (Item 1 of article 74 of the Code); about return to guardians (custodians) of the ward from any persons holding at themselves the child without legal causes (Item 2 of article 126 of the Code); about return to the foster tutor of the child withheld by other persons not based on the Code or the judgment (Item 1 of article 135 of the Code); about deprivation of the parent rights (Item 1 of article 75 of the Code); about recovery in the parent rights (article 78 of the Code); about restriction of the parent rights (article 79 of the Code); about cancellation of restriction of the parent rights (article 81 of the Code), about cancellation of adoption (adoption) and recognition its invalid (Articles 103, 107 Codes) and others.

Considering disputes on children, courts shall be guided by the Code. In cases if the international treaties ratified by the Republic of Kazakhstan establish other rules, than those which contain in the specified Code it is necessary to be guided by them.

2. By preparation of the case connected with education of children for legal proceedings the judge should determine correctly the circumstances which are important for permission of the arisen dispute and subject to proof by the parties, having paid special attention on those from them which characterize personal qualities of the parents or other persons who are bringing up the child and also the developed relations of these persons with the child. Such cases are appointed to trial in judicial session only after obtaining from the bodies performing functions on guardianship or custody of the acts of inspection of living conditions of the child and person (persons) applying for his education constituted in pursuance of determination of the judge in accordance with the established procedure.

Hearing of cases about procedure of the parent rights by the parent living separately from the child about recovery in the parent rights, about restriction of the parent rights, is made by court with participation of the bodies performing functions on guardianship or custody (Item 3 of Article 73, of Article 78, 79 Codes), and hearing of cases about deprivation of the parent rights, about cancellation of adoption (adoption) of the child, besides, with participation of the prosecutor (Item 2 of Article 76, article 107 of the Code).

The state performs the functions on guardianship or custody concerning minors through local executive bodies. Coordination of activities and the organization of interaction of state bodies and the organizations for guardianship or custody over minors is performed by authorized body in the field of protection of the rights of children of the Republic of Kazakhstan and their territorial subdivisions.

The conclusion of the body performing functions on guardianship or custody on dispute on education of children court estimates in total with other case papers. Disagreement with the conclusion shall be motivated in the decision made on case.

3. If in case of the dispute resolution, connected with education of children, the court comes to conclusion about need of poll for judicial session of the minor for the purpose of clarification of his opinion on case in point (article 62 of the Code), then it is necessary to find out previously opinion of the body performing functions on guardianship or custody about whether its presence at court will make adverse effect on the child.

Survey should be carried out taking into account age and development of the child in the presence of the teacher, in the situation excluding influence on it of interested persons. At the same time it is necessary to find out whether the opinion of the child is consequence of impact on it one of parents or other interested persons, whether he realizes own interests in case of expression of this opinion and as he proves it.

4. In case of decision about annulment of marriage (matrimony) of the spouses having general minor children, court proceeding from Item 2 of article 22 of the Code, shall take measures to protection of interests of minors irrespective of whether the dispute on children is initiated. For this purpose it is necessary to explain to the parties that separately living parent has the right and the parent with whom the minor having no right to interfere with it lives shall take part in education of the child, and. In substantive provisions of the decision it is necessary to specify the right and obligation of the parent living separately from the child to participate in his education and after annulment of marriage (matrimony).

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