A group of lawyers at the Ukrainian Bar Association and at the Office of the President’s Commissioner on Children’s Rights are drafting the changes to legislation on child support provision that are called to provide increased protection for children and more serious liability for child support payers.
The changes were presented by authors of the draft law at a press-briefing at Ukraine Crisis Media Center. “Each third claim we receive at the Office of the President’s Commissioner on Children’s Rights concerns child support and settlement of disputes between the parents. Almost seven million court claims regard collection of child support,” said Mykola Kuleba, President’s Commissioner on Children’s Rights. “The draft law is a step towards more conscious and responsible parenthood. A child needs to be maintained appropriately to become a full-fledged society member in the future,” added Svitlana Savytska, attorney-at-law, PhD in Law, associate professor of Justice at the Law Faculty of the Kyiv State Maritime Academy named after hetman Petro Konashevich- Sahaydachniy.
The key novelty the draft law introduces is making child support the child’s property. “The law defines the child, not the adult as an owner of the child support like never before. The adult with whom the child lives can manage child support,” Kuleba explained. It is also planned to turn the child support debt into the child’s ownership right to the immovable property of the child support payer; to engage reluctant payers in community service in case the debt exceeds the established limit. The law foresees the mechanism of inheriting the child support obligation if the payer dies – to make sure the child is entitled to a part of the estate implemented in the form of continued child support payment. It is also suggested to widen the minor’s participation in managing child support as well as to introduce civil liability of an adult managing child support in case the money is used inappropriately.
The draft law establishes a simplified procedure to collect child support. “The law suggests allowing the person with whom the child lives to file the claim to the court by the simplified procedure – according to the law it should take three days from when the simplified proceeding is opened to when the court’s ruling on assignment of the child support is out. It considerably speeds up the receiving of child support,” said Svitlana Savytska. Moreover, in this case the person who files the claim on child support collection does not have to attend the court hearings and may file the claim from where they reside. In the framework of the simplified civil proceeding the court may assign up to 25 per cent of the child support payer’s salary meant for one child, one third for two children and half of the salary for a bigger number of children. In cases when the salary of the child support payer is much higher than the average one, child support will amount to not more than 10 minimum living wages. “It does not mean that a child cannot get more. […] The claimer has the right to file a claim and prove that the child needs a bigger amount of money to be collected,” the lawyer added.
The minimum amount of child support is increased from 30 per cent of the minimum living wage per child to 50 per cent. Another novelty is that the court will take into consideration the fact whether the child support payer is in possession of moveable and immovable property as well as money. It is called to better protect the child when the child support payer is hiding his/her actual income and is paying child support from the minimum wage amount. “If one of the parents is in possession of expensive property and vehicles, lives in a luxury house, often travels abroad and at the same time claims to be getting a minimum wage, child support payee may demand a bigger payment upon the presentation of the proof to the court,” said Oleh Prostybozhenko, attorney-at-law, head of the Center for family law studies, head of the section for property-related and non-property disputes at the Ukrainian Bar Association. In this case a full-fledged court proceeding should be opted for instead of the simplified one. The form of the child support collection – a lump sum or percentage from the payer’s income, is to be now chosen neither by the payer nor by the court but by the payee. However the child support payer may decrease the amount through the court.
Some innovations also concern additional payments set to cover additional expenses the child may incur. No court fee should be paid and the claim can be filed from where the claimer resides in case it concerns additional payment for the child. A fine will be introduced for the child support payer if the additional payment is not made. In case child support payers are private entrepreneurs paying taxes according to the simplified procedure, or are actually paying a single income tax, as well as those who are officially unemployed, fail to pay in time, they will be paying the debt based on percentage from the average salary in the area. Similar mechanism is applied to the persons residing abroad.
Liability of the child support payer commences not when the payee gets the court decision on collection of additional payment but seven days after the payee informs him/her that a certain sum is to be paid for the child. If he/she fails to pay the money in the defined period of time the fine for non-payment will be calculated starting from the next day not from the moment when the court decision was received.
“The draft law clearly defines that the proceeding on child support collection cannot be suspended motivated by the ongoing disputes on the child’s custody, residence place or on one of the parent’s participation in the child’s bringing up,” noted Ganna Garo, attorney-in-law, PhD, head of the family law committee at the Ukrainian Bar Association.
Authors of the law are considering a possibility to add reinforced liability measures in the future for non-payment of child support such as travel ban or even imprisonment, said Mykola Kuleba. It is also foreseen for families with low income that the state will take up the role of the claimer, as the state will also reimburse the non-payment of child support.