In 2020, over 9 thousand couples in Kyrgyzstan filed for divorce, according to the National Statistical Committee. The process may be complicated by separation of joint property and children.
On October 25, 2021, Alina Baturova, who had a severe form of cancer, addressed Facebook users. In her video message, she asked to help her see her five-year daughter, who was taken to Kazakhstan by Alina’s ex-husband.
Ualikhan Baturov, ex-husband of the woman, refused to take the girl to the woman and did not want to have nothing to do with the child’s mother. The woman died on October 28, 2021 without saying goodbye to her daughter.
In addition to cases when ex-husband does not let see the child, there are many stories when father takes a child from mother by force.
On the same day, October 25, the Interior Affairs Office of Leninsky district of Bishkek reported that the man dragged his wife on the bonnet of the car. The woman did not let her husband take their son and blocked his way.
According to Nazgul Turdubekova, head of the League of Children’s Rights Defenders, often women (and sometimes men) ask them to help them see their child who lives with another parent, or help them regain custody over their child.
Together with the lawyer of the Association of NGOs on promotion of rights and interests of children in Kyrgyzstan, Mirlan Medetov, we will see how the divorce process works if the couple has children.
According to the law of Kyrgyzstan, parents have equal rights and responsibilities regarding their children. Divorce usually takes place in court if the couple has minor children.
But if parents agree, they can make an arrangement in writing where they should set forth the parental rights of a parent living separately from the child (it’s better to notarise or have the document approved by court decision).
If parents cannot reach an arrangement, the case will be handled by court within the claim limits. However, the court may, at its discretion, determine the procedure of child visitation by each parent.
Please note that the court shall listen to the opinion of a child who reached the age of 10 and decides in their best interest.
In this case, the decision will be made the same way. Usually, children are separated in exceptional cases.
In this case, the child’s sex and age will be taken into account. For example, boys and children who already can take care of themselves will stay with father, and new-borns and girls will stay with mother.
Only in case when one of the parents is deprived of parental rights. However, the law provides for circumstances that allow to restore parental rights in court.
Some parents may be restricted in parental rights. In this case, a parent loses their right to raise a child personally. Restriction of parental rights is usually a tool of temporary influence on a parent.
The reason for restriction of parental rights may be the fact of the parent doing harm to the child or forcing the child to vagabond and beg. Also, the parent may be restricted in rights if he/she is a chronic alcoholic or drug user, but this fact should be proven by medical examination only.
Such disputes shall be settled by court based on children’s best interests and their opinion. Moreover, the court will take into account:
- The child’s attachment to each of the parents, brothers and sisters;
- The relations between each of the parents and the child;
- The age of the child;
- The moral and other qualities of parents;
- The possibility to create the conditions for the child’s upbringing and development (kind of activity, working hours, financial and marital status of parents, and other).
If one of the parents does not own a house and has no income, it shall be no reason for taking the child away. However, you should provide the court with your right of habitation at any address (rent, relatives have provided you with the premises to live in, etc.).
- Statement of residence,
- Certificate of study (the certificate should prove the child’s place of study, it can also contain the characteristics of parents, and witness statement)
- Housing inspection report made by an authorised child protection body,
- Any other evidences proving that the child’s stay with the applicant meets the best interests of the child (witness statements, reference letter from the place of study, etc.),
- Evidences of circumstances specified in the petition. Here, you can include all examinations, documents and certificates that prove the illegal acts (if any) committed by the parent against the child, which are described in the petition.
The list of evidences varies on a case-by-case basis. For example, if one of the parents subjected the child or another parent to violence, you should provide police reports, reports of authorised child protection body (removal of child custody, protection order, order on institution of criminal proceedings, etc.).
Parental rights and responsibilities are set forth in the law of the country where they live together.
If parents do not have joint place of residence of parents and children, the law of the state, of which the child is a citizen, shall fix the rights and responsibilities.
The same principle works here. The crucial factor is the location of the child and their citizenship.
If the child is the citizen of Kyrgyzstan and remains on its territory, one can easily bring a case or make an arrangement in the Kyrgyz Republic.
If the child is the citizen of Kyrgyzstan, but remains on another territory of another country, you can always go to court in the Kyrgyz Republic. If your child stays in the countries-signatories to Minsk, Kishinev agreements (Kazakhstan, Russia, Belorussia), judicial acts of the courts of the Kyrgyz Republic are binding upon courts of these countries.
The child has a right to express their opinion. Usually, when the child reaches the age of 10, the authoritative body listens to the child’s opinion and takes it into account when making a decision. However, it happens sometimes that opinion of young children is taken into account, but they should be talked to by child psychologist.
However, if the child was subjected to pressure from one of their parents, he/she can be restricted in their opinion.
You can always apply to the court to carry out a forensic psychological and psychiatric examination and ask relevant questions to the expert. If clear evidence (video, etc.) is available, you can apply to the court to restrict parental rights of another parent.
The court determines the arrangements for contacts between the child and the parent based on the claim. However, the court, at its initiative, will determine the arrangements in the best interests of the child and based on other circumstances.
If the parent is written in the birth certificate as mother or father, their parental rights may be challenged in court only by request of another parent/guardian or the adult child.
If the natural parent is not indicated as a parent in birth records, he/she does not have parental rights regarding the child.
The law of Kyrgyzstan does not specify how much time the parent must spend with the child. However, the ex-spouse has every right to get information about the child, take part in choosing the educational institution for the child, etc.
In this case, you should apply to the child protection body at the place of the child’s residence. If ex-husband or ex-wife prevents each other from having contact with the child, you should go to court to determine the visitation shifts.
If you have the court judgment at hand, you should produce the enforcement order to judicial enforcement agents who will make the perpetrator parents execute it.
If it does not help, you can file a suit to change the child’s place of residence. It is advisable to give proofs of the fact that ex-spouse prevents contacts. A video or testimony of witnesses will be a good proof.
If you have the court judgement saying that the child is under your custody and the case was delivered to judicial enforcement agents for enforcement, you should notify the judicial enforcement agent immediately.
If you do not have the court judgement, you should go to court as soon as possible. At the same time, you can report this fact to the interior affairs bodies and the authorised child protection body for them to take measures.
According to the rules, the parent accompanying a minor child crossing the border must have:
- A document proving the child’s identity (birth certificate, passport),
- Consent of another parent for the child to cross the border (or a court decree on deprivation of parental rights).
The border service should not allow the child leave without these documents. These rules are effective only if parents and the child are citizens of the Kyrgyz Republic.
If one of the parents is a foreign citizen, the child’s citizenship will be taken into account. However, the border service will not allow the child leave the country without another parent’s consent and the power of attorney for the child.
In this case, you should immediately file a report to the State Committee for National Security about the illegal border crossing by the child and ask them to take measures.
If the child is not the citizen of Kyrgyzstan, you can apply to the Ministry of Interior and Foreign Affairs and ask them to return the child back to Kyrgyzstan.
This publication was prepared under the mentorship programme of the Development of New Media and Digital Journalism in Central Asia Project implemented by the Institute for War and Peace Reporting (IWPR) with the support of the UK Government. The content of this publication does not necessarily reflect the official position of IWPR or the Government of the United Kingdom.