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Oleg PROSTYBOZHENKO,

Lawyer, Coach, Department of Civil and Labor Law, Kyiv University of Law, National Academy of Sciences of Ukraine, Chairman of the Center for Family Law Research

THE TENDER YEARS DOCTRINE AND THE CHILD’S BEST INTERESTS DOCTRINE IN LIGHT OF NATIONAL COURT PRACTICE

The paper is devoted to analyzing of the tender years doctrine and the child’s best interests doctrine that are used to resolve disputes concerning custody over child and/or his or her residency between parents. Within the research there are examined national court practice related to provisions of the above-mentioned doctrines.

First and foremost, the author analyzed appearance conditions and essence of these doctrines. The tender years doctrine is a judicial presumption that operates in divorce cases to give guardianship of a tender (young) child to the mother. The best interest doctrine does not give one gender priority over the other and usually supposes using by courts a checklist to guide them on how to decide cases involving childguardianship. The tender years doctrine was commonplace in the 20th century, however it was reduced as the 21st century approached, and the child’s best interests doctrine became the norm.

After, the author researched numbers of international documents and national legislation of Ukraine in relation to adaptation of the above-mentioned doctrines’ provisions. The author emphasized that the child’s best interests doctrine is implemented in the Ukrainian national laws.

Finally the author examined Ukrainian jurisprudence and concluded that national courts are often influenced by the tender years doctrine because of applying the principle 6 of the Declaration of the Rights of the Child (1959). Despite some positive trend in resolving disputes on child’s domicile in accordance with the best interests doctrine, the Supreme Court of Ukraine decided in favor of the tender years doctrine.

Key words: Guardianship, child’s residence, child’s best interests, presumption.

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