Deprivation of Parental Rights: Grounds and Procedure

People usually come with a question about deprivation of parental rights when reaching an agreement outside court is no longer possible: the other parent takes no part in the child's life, does not pay maintenance, or poses a threat to the child's health and development. The first thing established at a consultation is whether there is a lawful ground, because a mere wish to end the legal tie with the child is not enough for a court.

The article covers the grounds for depriving the mother and the father of their rights, how this measure differs from restriction of rights, who may file the application, the procedure for hearing the case and the list of evidence. It separately explains whether the obligation to pay maintenance remains, what consequences follow for the parent and the child, and on what conditions rights can be restored.

Deprivation of Parental Rights: What It Is and How It Differs from Restriction

Deprivation of parental rights is the most extreme measure of family-law liability. It is applied only by a court and only on proven grounds listed in the Code on Marriage (Matrimony) and Family. It is a finding that the parent fails to perform the duties of raising and maintaining the child or abuses their rights. Until the court decision takes effect, the parent retains all rights, including the right to contact.

Deprivation and restriction of parental rights differ in substance and in consequences. Restriction does not end the family tie: the parent loses the right to personally raise and have contact with the child, but remains obliged to pay maintenance and also retains the right of inheritance and the right to maintenance from the child. Deprivation of parental rights ends the entire set of rights based on kinship with that child. Restriction is more often applied where the parent's dangerous behaviour is caused by reasons that can be removed.

• loss of the right to raise the child and to live with them
• loss of the right to contact with the child
• loss of the right to protect the child's interests and to represent them
• loss of the right to receive maintenance from the child in the future
• loss of the right to inherit by law after the child
• the obligation to pay maintenance remains

Grounds for Depriving the Mother and the Father of Parental Rights under the Law

The grounds for deprivation of parental rights are listed in the Code of the Republic of Kazakhstan on Marriage (Matrimony) and Family and are exhaustive. A court may not extend the list, so deprivation of the mother's or the father's rights is possible only where at least one fact is proven. Gender is irrelevant: the requirements for the mother and the father are the same, and deprivation of the father's rights applies on the same grounds.

Evasion of duties includes failure to care for the child's maintenance, upbringing, health and development, and malicious non-payment of maintenance without valid reasons. Abuse of rights means using them to the detriment of the child's interests, including obstructing the child's education and contact with close relatives. Both grounds apply to each parent regardless of which parent the child lives with.

• evasion of parental duties, including malicious non-payment of maintenance;
• abuse of parental rights;
• cruel treatment of a child, including physical and mental violence;
• chronic alcoholism or drug addiction of a parent;
• commission of an intentional crime against the life and health of the child or the spouse.

The list of grounds is the same for both parents; the differences concern only the factual circumstances of the case, not gender.

Deprivation of parental rights for non-payment of maintenance and malicious evasion

Non-payment of maintenance does not in itself entail deprivation of parental rights. The court assesses the conduct as a whole: the evasion must be malicious, that is, systematic, despite a real ability to pay. The ground is not a one-off delay but a sustained unwillingness to support the child, confirmed by enforcement proceedings before a court enforcement officer.

Malicious evasion is confirmed by: a court decision on the recovery of maintenance that has entered into force, a ruling on the initiation of enforcement proceedings, the court enforcement officer's calculation of the arrears, information on the debtor's income and property, and instances of concealing earnings or leaving without notification. Repeated warnings of liability and failure to take steps to repay the debt are also relevant. These documents form the basis of a claim for deprivation of parental rights for non-payment of maintenance.

• the existence of a court act on the recovery of maintenance that has entered into force
• the ongoing nature of the arrears and their calculation by the court enforcement officer
• concealment of income, property or place of residence
• failure to participate in the upbringing and support of the child
• warnings of liability for non-fulfilment of maintenance obligations
• absence of valid reasons for non-payment

Deprivation of parental rights and maintenance: the obligation to pay remains

Deprivation of parental rights does not release a person from the obligation to support the child: a person deprived of rights pays maintenance in the same manner and amount as before the court decision. The Code on Marriage (Matrimony) and Family expressly states that deprivation of parental rights does not terminate the maintenance obligation. Even if a father is deprived of parental rights, maintenance is withheld until the child reaches the age of majority.

The support of a child is an obligation arising from kinship. Deprivation of parental rights for non-payment of maintenance is possible, but the maintenance debt is not annulled: arrears recovered before the court decision remain. Maintenance continues to be paid to the child's account or to the other parent.

• The maintenance obligation remains until the child reaches the age of majority, even after deprivation of parental rights.
• Maintenance arrears arising before deprivation of rights are not written off and are recovered in the ordinary manner.
• Contesting paternity terminates the maintenance obligation, but the return of sums already paid requires a separate claim.
• Deprivation of parental rights does not release a person from paying maintenance, and malicious non-payment of maintenance may become a ground for deprivation of rights.
• The court decides the question of the return of maintenance after contesting paternity taking into account the good faith of the recipient and the rules on unjust enrichment.

Restriction of parental rights: when it is applied instead of deprivation

Restriction of parental rights is applied if deprivation is premature but leaving the child with the parent is dangerous to the child's life, health or upbringing. The measure is temporary. The court restricts rights where the danger is caused by removable circumstances or by the parent's conduct without culpable non-fulfilment of duties, and also where the parent has not been deprived of rights but poses a threat to the child.

Grounds: a mental disorder or other chronic illness of the parent, a combination of severe circumstances, or insufficient data for deprivation of rights where there is a danger in leaving the child. The mother and the father are considered under the general rules. The parent retains the obligation to support the child but loses the right to personal upbringing and to benefits and allowances for parents.

• The risk of leaving a child with a parent where there are no grounds for deprivation of rights
• Mental disorder or chronic illness of the parent
• A combination of severe life circumstances
• Other circumstances creating a threat to the child's life, health or upbringing
• No culpable failure to perform duties, but a real threat to the child

Deprivation of parental rights is not a way to punish a former spouse, but a protection of the child's interests, so the court examines each ground strictly on the evidence, not on the parties' emotions.

Who may file an application for deprivation of parental rights

The application to the court may be filed by the other parent, regardless of whether they live with the child, as well as by a guardian or curator, or the guardianship and curatorship authority. The prosecutor brings a claim where the rights of a minor need protection.

The child themselves may raise the matter upon reaching the age established by the family legislation of the Republic of Kazakhstan. The case is heard with the mandatory participation of the prosecutor, who gives an opinion on the merits of the dispute. The guardianship authority prepares an opinion on the child's living conditions and the appropriateness of the claim, starting with an examination of the living conditions and drawing up a report. The guardianship authority's opinion does not replace the court's decision, but serves as evidence.

• the other parent, including one living separately;
• the child's guardian or curator;
• the authority performing guardianship and curatorship functions;
• the prosecutor in defence of the interests of the minor;
• the child themselves upon reaching the age established by law;
• other persons who are granted by law the right to protect the rights of the child.

Court for deprivation of parental rights: procedure and evidence

A claim for deprivation of parental rights is filed with the district court at the defendant's place of residence; if the defendant lives outside Kazakhstan — at the last known place of residence or at the child's location. The child's birth certificate, documents on the parent confirming the relationship, and written evidence of the grounds are attached. The case is heard with the mandatory participation of the prosecutor and a representative of the guardianship and curatorship authority, who give an opinion on the merits of the dispute.

The court examines the parties' evidence, the report on the examination of the child's living conditions and the guardianship authority's opinion; the opinion is assessed together with the case materials and has no predetermined weight. Where the defendant has been duly notified and there is no information of valid reasons for non-appearance, deprivation of parental rights is possible in their absence.

• written materials on malicious evasion of maintenance and upbringing of the child
• a report on the examination of the child's living conditions drawn up by the guardianship authority
• the opinion of the guardianship and curatorship authorities on the merits of the dispute
• medical and other documents on the child's state of health
• witness testimony on facts of violence, abuse or leaving the child without supervision
• information on administrative and criminal proceedings against the parent

Deprivation of parental rights of both parents and in favour of the other parent

Deprivation of parental rights of both parents is considered by the court when neither the mother nor the father fulfils their duties to bring up, maintain and care for the child, abuses their rights, or has committed an intentional crime against the child. This is possible in cases of chronic alcoholism or drug addiction of both, cruel treatment, or prolonged non-participation in the child's life without valid reasons. If the claim is satisfied, the child is left without parental care, and the court simultaneously decides the question of transferring the child to the care of the guardianship and trusteeship authority for further placement.

Deprivation of the mother's parental rights in favour of the father, or of the father's in favour of the mother, occurs more often and is connected with a conflict between former spouses. The former spouse is entitled to make such a claim if the other parent evades upbringing, refuses to maintain the child, does not collect the child from the maternity hospital or hospital, or abuses parental rights. The court assesses the evidence: character references, reports on housing conditions, witness testimony, and the conclusion of the guardianship and trusteeship authority.

• Evasion of parental duties, including malicious non-payment of alimony.
• Refusal without valid reasons to collect the child from the maternity hospital, hospital or other institution.
• Abuse of parental rights, cruel treatment of the child, physical or mental violence.
• Chronic alcoholism or drug addiction of the parent, confirmed by a medical report.
• Commission of an intentional crime against the life or health of the child or another family member.
• Prolonged separate residence and complete withdrawal from the upbringing and maintenance of the child without valid reasons.

Consequences of deprivation of parental rights for the parent and the child

Deprivation of parental rights terminates the parent's personal non-property rights: participation in upbringing, representation of the child's interests, receipt of information about the child, and consent to travel abroad. The right to maintenance from the child in the future, and to benefits and payments connected with upbringing, are lost. The obligation to maintain the child remains: alimony is recovered in the previous manner, and if it was not being recovered, a claim is filed after the decision enters into force.

Kinship is not severed, and the record of the parents is not changed. The parent does not inherit by law after the child: they are excluded from the heirs of the first order. The reverse is possible only upon restoration of rights through the court. The child retains the right to inherit the property of the deceased parent. The status of the parent and the status of the child in inheritance relations are assessed separately.

• Loss of the right to personally bring up the child and to live with the child.
• Termination of the right to receive benefits, allowances and payments connected with the child.
• Loss of the right to inherit by law after the child.
• Retention of the obligation to pay alimony for the child's maintenance.
• Retention of the child's housing rights to the premises where the child lived.
• The possibility of restoration of parental rights only through the court.

Restoration of parental rights and protection of parental rights

Restoration of parental rights is possible if the parent has changed their behaviour, lifestyle and attitude to the child's upbringing. The case is considered by the court on the application of the parent deprived of rights, with documents on the changes attached: character references, certificates, information on housing and income.

The participation of the authority performing the functions of guardianship or trusteeship is mandatory: it examines the living conditions and gives a conclusion on the substance of the dispute. The court takes into account the opinion of a child who has reached ten years of age; without the child's consent, rights cannot be restored. Restoration is not permitted if the child has been adopted and the adoption has not been annulled.

• change in the parent's behaviour and lifestyle
• conclusion of the guardianship and trusteeship authority
• consent of the child from ten years of age
• participation of the prosecutor in the case
• evidence of participation in upbringing and maintenance

In both cases the court examines the interests of the child and the evidence of the parties.

Deprivation of parental rights after majority and on divorce: what to expect

Parental rights and obligations under the Code on Marriage and Family apply until the child reaches majority. After that, deprivation of parental rights is meaningless: the legal link ends without a court. The court will refuse the claim, since the subject matter of the dispute is absent.

Divorce and deprivation of parental rights are different proceedings. Dissolution of marriage does not affect the rights of parents. The ground for a claim is culpable conduct, not the fact of divorce itself. A parent living separately retains their rights.

A claim to deprive a father or mother of rights because of a conflict between former spouses is hopeless. Evidence is required of evasion, malicious non-payment of alimony, ill-treatment or other culpable behaviour. The child reaching majority closes off that possibility.

• after the child reaches majority, deprivation of rights is impossible — the link ends automatically
• Divorce in itself is not a ground; there must be culpable actions by the parent
• Deprivation of rights does not replace the recovery of alimony and does not cancel the debt
• The claim is considered by the court with the participation of the guardianship authority
• The question of deprivation of rights is decided solely in the interests of the child