The importance of the child‘s opinion in examining the dispute concerning a child
The child who is able to express his or her opinion must be heard when dealing with all matters related to the child. The child's opinion must be taken into account. As result of immaturity, upbringing gaps and for similar reasons, wishes and interests of the child not always coincide. Therefore, in each case it is necessary to find out whether the child's wishes correspond to his or her interests. If wishes of the child are contrary to his or her interests, the court must adopt the judgement in the best interest of the child.
In the light of the best interests of the child the court may apply interim measures:
• to oblige one spouse to live separately;
• to establish the habitual residence of the minor children with one of the parents;
• to establish a temporary procedure of access of the parent who lives separately to the child;
• to order one of the spouses to pay a temporary maintenance to the minor children;
• to seize the property until a settlement of the matter of holding its ownership by one of the spouses is achieved, also to ensure the payment of maintenance;
• to prohibit one spouse from seeing the minor children or from visiting certain places;
• other statutory measures or those taken by the court which may encumber enforcement of a court judgment if not taken or as result of failure to take the said measures the enforcement of a court judgment may become impossible.
The basis for applying for the application of interim measures
At the request of those involved in the proceeding or other interested parties the court may apply interim measures if these persons plausibly justify the claim of their legal action and as result of failure to take these measures enforcement of a court judgment may become encumbered or impossible.
The court may apply at its initiative interim measures only in cases where this is necessary in order to protect a public interest and if failure to take these measures would result in violation of personal, public or state rights and legitimate interests.
When it is possible to apply for the application of interim measures?
The request for the application of interim measures can be filed when:
1) the dispute is already pending before the court;
2) the dispute resolution process is still outside the court.
When filing a request for the application of interim measures when the main legal action has not been yet brought before the court the applicant must specify the reasons why the legal action has not been brought before the court along with this request, furnish the evidences confirming threat to the interests of the applicant. In this case, after having applied interim measures the court shall establish a deadline for bringing a legal action before the court. This deadline cannot be longer than fourteen days. Failure to bring a legal action before the court within the deadline established by the court results in repeal of interim measures. It should be noted that a request for the application of interim measures must be filed at the court which as per the jurisdictional rules must examine the legal action itself.
The person who can apply for the application of interim measures
One of the parents (or both parents) or other interested persons can file a request for the application of interim measures or interim measures can be applied by the court at its own initiative if the dispute concerning a child is already pending before the court.
Examination of the request for the application of interim measures
When the request for the application of interim measures is referred to in the legal action that has been brought before the court, the matter of the application of interim measures shall be dealt with only after the matter of the admissibility of the legal action to which the application of interim measures relates with is resolved. The court shall resolve by written procedure and without delay, but not later than within three working days from the date of receipt of the request, the request for the application of interim measures. If it considers it necessary, the court shall notify the defendant on the examination of the request on the application of interim measures.
Entry into force of the Ruling regarding the application of interim measures
The Ruling regarding the application of interim measures shall enter into force after expiry of the deadline for filing a notice of appeal against this Ruling (cross-appeals shall be lodged through mediation of the court that has adopted the ruling under appeal, within seven days from the date of adoption thereof. When the court ruling under appeal has been adopted under the written procedure, a cross-appeal can be lodged within seven days from the date of service of a certified copy of the ruling). It is necessary to note that the ruling for the application of interim measures is subject to a rapid enforcement, i.e. enforcement of the ruling begins when the ruling has not yet become final and binding. Lodging a cross-appeal against the ruling regarding the application of interim measures does not suspend enforcement of the ruling.