of September 11, 1998 No. 23
About practice of application by courts of the legislation in case of the dispute resolution, the children connected with education
According to Art. 63 of the Constitution of the Republic of Uzbekistan the family is cell of society and has right of defense of society and state. Protection of family in which private and public concerns of citizens of the republic are harmoniously combined, - one of the major national objectives.
Education of children in the spirit of respect of universal values, commitment to international legal regulations about maternity welfare and legal protection of the child, preserving and development of moral heritage, true patriotism, honesty and decency, preparation them to socially useful work is the constitutional obligation and moral imperative of parents.
The family code of the Republic of Uzbekistan enacted since September 1, 1998 provides strengthening of family, priority protection of interests of minor children and disabled family members.
The correct permission courts of the disputes connected with education of children promotes ensuring protection of the rights of children and parents, increase in responsibility of parents for proper education of children, stops use by parents of the rights in contradiction with interests of children, is one of measures of the prevention of offenses of minors.
Due to the adoption of the Family code of the Republic of Uzbekistan, for the purpose of ensuring the correct application of the family legislation and explanation of the questions arising at courts in the course of consideration of family disputes, the Plenum of the Supreme Court of the Republic of Uzbekistan decides:
1. Draw the attention of courts to need of strict observance of the laws by consideration of the disputes connected with education of children, meaning that the correct and their timely permission is one of important guarantees of protection of interests of children and family.
2. The disputes connected with education of children are subject to judicial review: between separately living parents about that in case of which of them children will live; about removal of obstacles to participation in education of children of the parent who is separately living from them; about transfer to parents of the children who are on education at other persons; about deprivation of the parent rights and recovery in the parent rights; about confiscation of children without deprivation of the parent rights; about restriction of the parent rights; communication of the child with parents whose parent rights are limited to court; about cancellation of restriction of the parent rights; about cancellation of adoption and others.
3. In case of the dispute resolution between separately living parents about that with which of them and which of children it will be necessary to live, court, proceeding from the Family code of the Republic of Uzbekistan of equal rights and obligations of the father and mother established by Art. 71, shall make the decision which would correspond to interests and desire of minors. At the same time the court considers affection of the child for each of parents, brothers and sisters which of parents show big care and attention to children, their age, moral and personal qualities of parents, the relations existing between each of parents and the child, possibility of creation to the child of conditions for education and development (occupation, operating mode of parents, financial and marital status of parents and another), meaning that the benefit in itself in material and household provision of one of parents is not the determining condition for transfer of children to it.
The court can take into account and desire of the child who reached 10 years to live with one of parents.
4. In that case when in case of permission together with the action of rescission of scrap of dispute on that in case of which of parents their minor children will live it becomes clear that children are on education at other persons who interfere with return to their parents, the court shall discuss question of allocation of this dispute in separate production.
5. Owing to Art. 73 of the Family code parents have the right, preferential before other persons, to personal education of the children and have the right to demand return of children from any person holding them at itself not based on the law.
By consideration of these requirements court of the child having the right to refuse taking into account opinion in satisfaction of the claim of parents if comes to conclusion that transfer of the child to parents is not equitable to its interests.
The court also considers possibility of the parent to provide proper education of the child, nature of relations of the parent with the child, affection of the child for persons at whom it is, and other specific circumstances.
If it is determined that neither parents, nor persons who have child who is not able to provide his proper education the court in the claim of guardianship and custody bodies or the prosecutor transfers the child to care of guardianship and custody bodies. If such requirement is not imposed, the court private determination draws the attention of these bodies to need of its presentation.
6. By consideration of claims of parents for transfer of children to them persons at whom they are based on the law or the judgment (guardians, custodians, child care facilities, etc.) to courts should find out: whether the transfers of children to specified persons or child care facilities which formed the basis changed by the time of emergence of dispute of circumstance, whether their return to parents is equitable to interests of children.
7. According to Art. 76 of the Family code the parent living separately from the child has the right to communication with the child, participation in his education and the solution of questions of receipt of education by the child.
Parents have the right to sign in writing the agreement on procedure of the parent rights the parent living separately from the child. If parents cannot come to the agreement, the dispute is resolved by court with participation of guardianship and custody body upon the demand of parents (one of them).
The court determines procedure for participation of separately living parent in education of the child and obliges other parent not to make it in it difficulties.
By preparation of cases of this category for legal proceedings, court it is necessary to determine the circumstances which are important for the dispute resolution and subject to proof by the parties, having paid special attention on 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 consideration in judicial session only after receipt of the statements of guardianship and custody bodies of inspection of living conditions of persons applying for education of the child which are drawn up and approved in accordance with the established procedure.
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