As a result of the war in Ukraine, many children were left without parental care. In January 2023 there were more than 6,000 of them. This number is growing every day.
The Ukrainian Strategy for the Protection of Children’s Rights states that adoption is the primary form of placement for children in difficult life circumstances. This is the adoption of a child as a daughter or son into a family. This approach enables the best possible protection of the child’s right to family upbringing. However, the adoption process is lengthy and multi-stage. The process of obtaining guardianship/custody of a child is relatively easier and quicker.
In Ukraine there is a difference between guardianship and custody. The main difference is the age of the child and the rights of the guardian. Thus, guardianship of a child is established until the age of 14, and the guardian receives extensive rights to support and raise the child and bears full responsibility for him. Between the ages of 14 and 18, a child is under guardianship. At this age, the child can already make certain decisions about himself independently, but if a guardian is appointed, he will continue to be responsible for the child and will take care of his upbringing, education and development. At the same time, the status of a guardian is “automatically” converted to a “guardian” when the child reaches the age of 14. The person does not need to undergo any special procedures.
Guardianship is formalized in two stages:
- Granting the status of an orphan or a child deprived of parental care
- Appointment of a guardian or guardian for the child
The issue of appointing guardianship is considered by the guardianship and custody authorities (hereinafter: Guardianship authorities), which function under local state authorities. Each guardianship authority has a special service for children (hereinafter: Children’s service). Specialists of this children’s service communicate directly with applicants and children regarding the appointment of guardianship. In order to avoid misunderstandings in the guardianship determination process, applicants (potential guardians) can be advised and supported by qualified lawyers.
The decision to grant status as an orphan or as a child deprived of parental care is made by the guardianship authority on the proposal of the children’s service. Potential legal guardians must therefore first submit an application to the children’s office to grant the child the appropriate status.
Orphan status is granted to children whose both parents are deceased or have died. This fact is confirmed by the death certificate of each of them. The status of a child without parental care is granted to a child whose parents are recognized as missing, declared dead, wanted, detained, deprived of parental rights, etc.
The decision to grant a child the status of an orphan or deprived of parental care is made within a month after submitting the necessary documents.
After the child has been granted the appropriate status and before a guardian (caregiver if the child is over 14 years old) is appointed, the child may be temporarily placed with a family of relatives or friends. The temporary placement of a child is carried out by the children’s service, which is subordinate to the local guardianship authority. When making a decision on temporary placement, the relationship between the child and the person in whose family the child is placed is taken into account, the characteristics of such a person, the child’s opinion and other circumstances are determined.
With regard to guardianship, the person concerned must register as a potential guardian in order to make an appropriate decision. Therefore, a potential guardian must submit documents to the Children’s Office confirming his income level, adequate living conditions, a certificate of health and a certificate that he has no criminal record.
After examining the documents, the guardianship authority issues a decision establishing guardianship of the child. It is worth noting that under the current martial law in Ukraine, the establishment of guardianship (as well as adoption) of foreign citizens over Ukrainian children is blocked at the state level. For applicants with Ukrainian citizenship, the guardianship authorities are currently making decisions based on a simplified procedure. For example, there is no obligation for people in family or relative relationships (including godparents) to complete parenting training in a social center.
When appointing guardianship, the child’s opinion is essential if the child is mature enough to express his or her point of view. The child’s opinion is usually clarified from the age of 10. However, if a younger child is in a position to take a stand when appointing guardianship due to his or her mental development, the children’s service professionals are obliged to take his or her opinion into account.
Applicants wishing to become a guardian or carer of a child are recommended, in addition to the general list of documents, to provide the children’s office with additional evidence proving a close and friendly relationship with the child. Qualified family lawyers know what evidence can best confirm a potential guardian’s involvement in the child’s life. The list of such evidence is not exhaustive and depends on the specifics of each situation.
In practice, the successful completion of all stages of the guardianship or custody process depends, among other things, on the interest and initiative of the applicants, proper communication with child protection service professionals, timely provision of the requested documents and constant monitoring of the process.
In conclusion, I would like to note that the simplification (relaxation of formal requirements) of the procedure for appointing guardianship and custody under martial law should not have a negative impact on children in difficult life circumstances. On the contrary, the changes introduced are intended to ensure that the rights of children, who are among the most vulnerable populations, are respected.
Based on my own professional experience, I would like to note that despite the relaxation of procedural requirements, potential guardians and guardians must collect a full package of documents and prove that the appointment of guardianship/custody is in the best interests of the child. Therefore, qualified legal support in the guardianship procedure increases the applicants’ chances of a positive outcome.
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