Determining the place of residence of a child after a divorce is a common situation, but it has a lot of pitfalls and legal nuances that should be taken into account by everyone who has encountered this personally.
- general Statistics
- Consent of spouses
- Judicial order
- Necessary documents and rules for filing a claim
- The procedure for determining the place of residence by the court
- Factors influencing the court's decision
- The main thing is children
- What are the benefits of being a mother?
- Father's Advantages
- The court's decision
- The Supreme Court clarified the living arrangements for children of divorced parents
- Determining the place of residence of the child with the father arguments
- Options for determining place of residence
- Determination of place of residence through the court
- What circumstances does the court consider?
- Argumentation in favor of the father
- How to leave a child with the father during a divorce: legal advice - Step by step
- What needs to be done to leave a child with the father after the spouses divorce
- When can you go to court?
- How to leave a child with his father after a divorce
- Is it possible for a father to divide his children after a divorce?
- How can a father pick up his child after a divorce?
- Determining the place of residence of a child with his mother or father, judicial practice
- Determining the child’s place of residence with his mother or father
- Extrajudicial procedure
- Discussion of the situation
- Preparation of a draft agreement
- Check with a lawyer
- Certificate of agreement
- Judicial order
- Procedure
- Collection of documents
- Drawing up an application
- Jurisdiction of a claim to determine a child’s place of residence
- Trial
- Arguments
- Arbitrage practice
- Need a lawyer
general Statistics
Judicial practice shows that usually in Russia children legally remain with their mother. And this happens even in cases where the father objectively has a better financial situation and living conditions. And this happens because men are usually in no hurry to take responsibility for raising children. Therefore, if they want to raise common children, a lawyer is more necessary for men than for women. When spouses divorce, there are two possible ways to determine the place of residence of common children: the first way is the consent of the parents among themselves, the second way is a court decision.
Consent of spouses
It is not at all necessary for spouses to go to court to file a claim if they have agreed on the place of residence of their common children on their own.
To confirm such an agreement, it is necessary to conclude an Agreement on Determining the Place of Residence, which does not even need to be certified by a notary; a signature of both parties is sufficient. When filing a claim for divorce, this agreement must be placed in a folder with other documents.
When considering a claim, the court checks whether the outcome of the agreement between the parents corresponds to the interests of the children, and if the decision is positive, both the divorce and the agreement between the parents come into force.
Judicial order
In cases where the parents cannot reach a common agreement on determining the place of residence of the children after a divorce, the court takes upon itself to make this decision. And then the court determines not only the place of residence of the minor children, but the order of their communication with the second parent, who will live separately.
The issue of determining the place of residence of minor children must be addressed to the city or district court of the city. It is also mandatory for the guardianship and trusteeship authorities to participate in court.
According to the law, you need to go to court at the place of registration of the defendant in the claim, but often the plaintiff can file a claim and the court at his place of registration.
This is possible if the plaintiff collects documents confirming the children’s residence at that address: the children’s birth certificate, and an extract from housing organizations about the minor’s registration.
Necessary documents and rules for filing a claim
To submit a claim to the court, you must draft it correctly. The statement of claim must contain:
- Full name of the court to which the application is being filed
- Information about the plaintiff and defendant: parents. Full name, registration of both, contact details.
- Data from a marriage certificate, child’s birth certificate, certificate confirming divorce.
- The plaintiff's arguments in favor of the children living with him. You can list arguments ranging from the defendant’s bad habits to his financial condition.
- Links to legal norms confirming the rightness of the plaintiff.
- Formulation of the appeal.
- Indicate all documents provided by the plaintiff in a separate application.
- Date and signature.
In addition to a correctly drawn up statement of claim, it is necessary to collect a package of documents for the court:
- Plaintiff's passport;
- Marriage certificate, divorce certificate;
- Birth certificates of minor children;
- Certificate of registration and place of residence;
- Personal account statement;
- Psychologist's conclusion about predisposition to one of the parents.
The procedure for determining the place of residence by the court
The two parties to the lawsuit, that is, the parents, should remember that for the court the main factor is the interests of the children and their protection. The court objectively considers where and with whom the child will be better off. Not only living conditions and material components play a role here, but also the intellectual and psychological characteristics of the parents.
Factors influencing the court's decision
There are many factors influencing the court's decision. The main ones, of course, are material components, living conditions, children’s relationships with each parent, and so on. If, for example, the child is over 10 years old, the court also asks his opinion.
Factors:
- Psychological attachment. In cases where children are under 10 years old, and the court does not have the right to ask his opinion, a forensic psychological examination is carried out.
- Moral qualities of parents. Everything is important here: references from work, reviews from friends and colleagues, participation in charity, and the like. Having a criminal record or other forms of prosecution also play an important role, but no longer to the benefit of one of the parties.
- Conditions of life and education. The work schedule of both spouses is considered, how much time each of them will be able to devote to the child if they live permanently with him, whether they will be able to provide classes in educational institutions, seek quality medical care on time, what kind of diet is provided, what necessary household appliances are available in the house, is it warm? in the house, whether the house is far from the place of education or kindergarten. And so on. Every nuance can be very important and play a corresponding role.
- Conclusion of guardianship and trusteeship authorities. The involvement of this body is a mandatory condition when considering a claim. The conclusion of the guardianship and trusteeship authorities is made on the basis of conversations with parents and children, after examining the living conditions.
- Experts' opinion. The court may involve the opinion of psychologists, a juvenile affairs inspector, a teacher and other specialized specialists.
After collecting all the factors, the court decides where the child will live after the parents’ divorce: with his father or mother. After a court decision, changing the child’s place of residence is possible only if the circumstances of the case have changed.
The main thing is children
The personal opinion of a minor is a very important point when making a court decision. Children who are over 10 years old legally express their point of view, which is necessarily taken into account by the court. A conversation with a minor can be carried out in court and not only. The main condition is that both parents should not be present during the conversation. Because in front of their parents, children may be afraid to offend and be embarrassed to answer honestly. During such a conversation, a teacher and a psychologist should be present.
What are the benefits of being a mother?
According to the family code, the rights of spouses are equal. That is, the chances of choosing a child to live with them are equal. In practice, everything happens differently. The mother always has a clear advantage. At the same time, according to the factors listed above, she may be inferior to her father. This happens because from a psychological point of view, there is always a stronger and stronger connection between mother and children.
However, it cannot be said that the father absolutely cannot hope for his victory. More on this below. Here is the main evidence that will help a mother keep her children:
- Testimony with arguments and examples.
- Positive characteristics from the child’s place of work, school, and so on.
- Collect as much evidence as possible from friends, colleagues, acquaintances and ask them to testify in court.
- Psychological examination.
- Confirmation of guardianship and trusteeship authorities about normal living conditions.
- Certificate of income.
- Photos, receipts, checks, everything that can confirm about spending time together, that the child is taking courses, learning something, and so on.
Father's Advantages
As already mentioned, a decision in favor of the father is a rather rare case in judicial practice. If there is a strong desire, the father must provide many arguments in his favor. But most importantly, the father must prove that the child living with the mother is in any danger. This may be a riotous lifestyle, immoral behavior, alcohol abuse, inability to feed and clothe children cleanly, inability to show attention and monitor development.
If there is none of this in the mother’s life and no danger threatens the child, you need to collect as many arguments as possible:
- Social status, high income.
- Good living conditions.
- A child has a strong psychological attachment to his father.
- Availability of time for activities with the child.
- No bad habits.
- Testimonies from colleagues and friends.
- Photo with a child.
- Positive conclusions from the guardianship and trusteeship authorities.
The court's decision
Divorcing two citizens is usually not difficult for the court and divorces occur quickly, but it becomes increasingly more difficult when children are involved in the case. Alas, in Russia statistics show that there are often problems with the execution of court decisions. If one of the spouses prevents the other party from communicating and participating in the life of the child, that is, does not allow them to meet, or by their actions contradicts the court decision, which determined who the minor should live with, and with whom and under what conditions the minor should be seen, you must immediately contact the bailiffs . Such actions are practically a violation of the law. You should write a statement about the party’s failure to comply with the terms of the court decision, after which the bailiffs are obliged to change the situation through their intervention.
Source: https://ORazvode.com/deti/mesto-zhitelstva-rebenka-posle-razvoda.html
The Supreme Court clarified the living arrangements for children of divorced parents
A very important decision was made by the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation. She studied the dispute about the “division” of a child whose parents separated, but each of them wants to communicate with the baby as he sees fit, and as much as he sees fit.
Everyone knows the banal truth, written in capital letters in the Family Code of the Russian Federation - the rights and responsibilities in relation to the child are the same for father and mother.
And therefore, in the event of separation, they must decide for themselves which of them the child will live with and with whom to meet, how often this will happen and how long the meetings should last. As domestic judicial practice shows, not all parents manage to resolve this difficult issue peacefully and competently.
Then the only way out is to go to court. According to the law, it is the judge who must, if mom and dad do not agree, decide on the schedule of communication between the parents and the child.
The Supreme Court clarified what is included in the concept of “loss of property”
Our story began in the Krasnodar Territory, where the parents of a little boy filed virtually identical claims with the district court. They separated after the birth of the baby.
Despite the fact that the child is just over a year old, the mother told the court, the father prevents her from communicating with him.
Therefore, she asked the court to determine the child’s place of residence with her, assign alimony and decide when and how much the boy would communicate with his father.
According to the mother, the order of communication between the child and the father should look like this.
They can meet on even days of every month from morning to lunch, both at the mother’s house and in public places - in parks, at children’s attractions, in shopping centers and in other similar establishments.
But everything should happen in the presence of the mother until the baby is three years old. Then father and son can communicate together.
The Supreme Court of the Russian Federation categorically disagreed with the rules for dividing a child, according to which he is forced to move either to his father or to his mother
The father, in a counterclaim, asked to leave the child to live with him, but in case of refusal, the court, in his opinion, should determine a schedule for communication with his son. According to the parent, this is what this lengthy list of communication requirements should look like.
Every week, the father wants to communicate with his son for four days from morning to nine in the evening with the right for the son to visit his father’s house and without the presence of his mother. Once the baby turns two years old, he will have him stay overnight twice a week. If the mother gets sick or goes somewhere, the child must be transferred to the father. But this is not all the requirements.
Russians may be required to pay non-working ex-spouses
Communication with the child on holidays, according to the father, should be divided equally between the parents “with an annual rotation.” A boy should celebrate every odd birthday with his father. The child spends birthdays of relatives at the place of residence of the parent whose relatives are celebrating the birthday. Yes, and the father must spend his annual vacation in the summer with his son, and choose the month at his own discretion.
The court asked the opinion of the guardianship authorities, and they supported the mother’s demands. The Timashevsky District Court made a very original decision. He partially satisfied the claims. The child, who was not yet two years old at the time of the trial, will live with his mother. But he will communicate with the parent according to the schedule invented by the father.
Moreover, the court in its decision warned the mother that if she does not comply with her father’s demands, then “measures will be taken against her as provided for by the legislation on administrative offenses and enforcement proceedings.” And if he does not comply with the court’s decision “maliciously,” the child will be transferred to another parent.
Last spring, the Krasnodar Regional Court fully supported this decision.
According to the Supreme Court, living “in two houses” leads to the formation of a child’s dual perception of reality, manipulation skills and deprives the child of a sense of a real family
The baby's mother went all the way to the Supreme Court of the Russian Federation, which categorically disagreed with the rules for dividing the child, which were adopted by his colleagues. According to their logic, a young child actually had to live in two houses. The civil panel of the Supreme Court decided that this was an incorrect verdict.
This is what the Supreme Court saw in this dispute. An examination of the mother's home showed that she has all the conditions for a normal life for the child. The district administration concluded that it was advisable to hand the child over to the mother. The Ombudsman for Children did not see any “exceptional circumstances” to separate mother and son.
Bailiffs will be prohibited from writing off social payments to pay off debts
The district court wrote in its decision that the father's communication schedule was in the interests of both parents and the child. But the Supreme Court doubted this.
And he reminded his colleagues of the Convention on the Rights of the Child. It states that in all actions regarding children, primary consideration is given to “the best provision of the rights of the child.”
And it doesn’t matter whether we are talking about public or private organizations.
The Family Code says the same thing. It lists what needs to be taken into account when deciding where and with whom the child will stay. Detailed explanations on this matter were also given by the plenum of the Supreme Court (No. 10 of May 27, 1998).
The Plenum analyzed precisely the disputes over the “division” of divorced parents of their children. The Plenum emphasized: according to the parents’ demands to determine the child’s place of residence, a legally significant and subject to proof circumstance is to clarify the question of which parent (father or mother) will most fully correspond to the interests of the child.
When “dividing” the child, the courts ignored the opinion of the guardianship. iStock
The Supreme Court noted that, as required by the Civil Procedure Code, the court's conclusions about facts of legal significance for the case should not be general and abstract. And in our business they were exactly like that.
The boy's mother asked the court to order meetings between the father and the child in her presence until he turns three years old. There are no reasons why the court was not satisfied with this proposal. But the father asked a lot, and the court gave preference to all these demands.
Why this schedule is better - the court remained silent.
Lawyer: I don’t see a problem with a child living in two families
The Supreme Court named as legally significant circumstances the daily routine of a small child, the distance of the father’s place of residence from the mother’s house, the father’s work schedule and, accordingly, his ability to spend as much time with the child as he requested, and the list of close relatives at whose birthdays the child should be present. And the Supreme Court emphasized that the local courts did not establish any of these circumstances. And the opinion of the guardianship was ignored without explanation. The appeal agreed with this decision. Here is the Supreme Court's conclusion: the father's schedule - the baby must live with him four days a week. Moreover, the days are at the father’s choice.
Meetings with dad for 12 hours a day, walks at one and a half to two years with the father, but without the mother, and so on - all this is an unacceptable form of guardianship.
Because it leads to the formation of a child’s dual perception of reality, manipulation skills and deprives the child of a sense of real home.
The boy, as the high court emphasized, is forced to live in two houses, adapt to two different lifestyles, which creates a nervous environment for him.
The guardianship concluded that the mother's option does not contradict the interests of the child, and the father's option is an unacceptable format. Why did local courts leave this conclusion without attention or legal assessment?
The court decided that the dispute should be reconsidered and its explanations must be taken into account.
Source: https://rg.ru/2019/02/11/verhovnyj-sud-raziasnil-poriadok-prozhivaniia-detej-razvedennyh-roditelej.html
Determining the place of residence of the child with the father arguments
Termination of marital relations between spouses entails many consequences, including the need to make decisions about the upbringing and residence of minor children. Often the problem is resolved in court. If the father wants the children to live with him, you need to find out what arguments the court relies on when determining the child’s place of residence other than with the mother?
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Deciding on who the child will live with after the end of the marriage is a very difficult process. When a family relationship ends, not all parents are able to reach a compromise sensibly and peacefully.
Judicial practice shows that the most difficult divorce proceedings take place precisely when there is no agreement on the residence of joint children. Disagreements can arise not only during the process of divorce, but also after its termination.
How does the court determine the place of residence of a child with his father, what arguments need to be given?
Options for determining place of residence
The law provides that each parent has equal rights to raise their children. But after the divorce, the rights of one of the parents who does not have the opportunity to live with the children are significantly reduced.
Parents can determine the place of residence of minor children in two ways:
- on a voluntary basis;
- in a court.
If there is a voluntary agreement between the spouses, the case will not be brought to trial. Only divorce proceedings are dealt with in court. Parents can enter into an agreement regarding the child's residence.
The agreement is drawn up in writing and attached to the divorce petition. Thanks to this agreement, the divorce process is easier and faster.
The court will only approve this agreement.
If during the consideration of the case facts are revealed that are contrary to the interests of the minor, the court may refuse to approve the agreement. These factors include:
- Lack of permanent residence registration.
- Lack of permanent official place of work.
- The presence of a mental illness, which became the basis for registration.
- Leading an unworthy lifestyle.
The presence of these factors may result in the agreement being rejected.
Determination of place of residence through the court
If it is not possible to reach an agreement between the parents, the determination of the place of residence of the child with the father is made in court.
The court not only decides with whom the child will live, but also determines the procedure for communication with the other parent. This point is very important in a conflict situation between spouses.
Often the other party violates the rights of the parent who lives separately from the children and does not allow them to see each other.
Claims to determine the place of residence of children are filed in the district or city courts corresponding to their place of residence. A mandatory condition during the consideration of the case is the presence of a representative of the guardianship and trusteeship authorities.
The claim is filed at the place of residence of the defendant, but if the defendant lives in another city, then the plaintiff can file a statement of claim in court at the place of his residence. In this case, you will need to confirm that the child actually lives with him.
As confirmation, you can provide a certificate from the housing office, the child’s birth certificate and a passport with a mark on the parent’s registration.
It is very important to correctly draft a statement of claim. The outcome of the trial may depend on how correctly it is written. The application must contain the following information:
- the name of the court to which the claim is sent;
- all information about marriage registration, its divorce, complete information about children;
- information about parents: full name, place of residence according to registration;
- Next, arguments must be presented that the plaintiff considers essential to resolve the issue. This could be the child’s affection, the father’s living conditions, financial situation. Convenience of living, availability of infrastructure, school or kindergarten in close proximity;
- further, it is necessary to indicate a request to determine the place of residence of the child with the plaintiff;
- list of documents, date, signature.
The application must be written in several copies. The number of copies will depend on how many parties are involved in the process.
In addition, please attach a set of documents:
- plaintiff's passport;
- certificate of birth of children;
- certificate of termination of marriage;
- a document confirming that the applicant has a permanent income;
- statement of receipt of social benefits, if any;
- certificate of residence;
- characteristics from the place of work;
- bank statements about the availability of accounts.
Note! It can play an important role if you provide the court with the opinion of a child psychologist about who the child is more attached to.
What circumstances does the court consider?
What factors does the court take into account when determining the place of residence of the child with the father? The procedure for considering such disputes is regulated by the Family Code. Certain points are taken into account based on Resolution of the Plenum of the Supreme Court No. 10 of May 27, 1998.
First of all, the court can determine a decision based on the interests of minor citizens. Therefore, it is very important that the plaintiff presents strong arguments that the child should live with him.
The court will take into account:
- child's age;
- attachment to each of the parents, relationships with brothers and sisters;
- personal qualities of each parent, their moral behavior;
- relationship between child and parents;
- opportunities for parents to fully raise their children.
All these circumstances must be proven not only to the plaintiff, but also to government agencies.
In accordance with the law, guardianship and trusteeship authorities must participate in all disputes related to minor children.
It is they who must issue the court an opinion on the possibility of the child living with the father. The court takes this conclusion into account when making a decision, but it is not the decisive factor.
Important! The conclusions of the guardianship authorities are often controversial. For a greater chance of winning the case, it is best for dad to find additional witnesses who can confirm or refute the points in the conclusion.
Often the court orders a psychological examination, which helps to establish family relationships and determine the attachment of children.
Children, due to their age and stressful situation, cannot always adequately decide with whom they would like to stay. This is why an examination is carried out to help the child decide.
Judicial practice shows that in most cases, the results of the examination play a decisive role in determining the place of residence of the child.
An article of the Family Code states that the court is obliged to take into account the child’s opinion when considering a claim. In this case, there is a slight digression; the opinion is asked only from a child who has reached the age of ten years. In practice, courts agree with the child’s opinion only if it coincides with the results of the examination.
If the court has determined the child’s place of residence with the father, the mother must immediately petition to determine the order of communication with the child.
Read also: What payments are due on maternity leave in 2020-2021?
Argumentation in favor of the father
When determining a child's place of residence with his father, what arguments must be presented? First of all, the father must prove to the court that during the period of residence with the mother, the child’s rights will be violated.
This can be done if there are witnesses who indicate that the mother does not pay attention to raising the minor. Abuses alcohol, uses drugs, leads an unworthy lifestyle.
But what to do if the mother’s behavior is normal, she does a lot with the children, but the father wants to sue them for himself. How to determine the place of residence of the child with the father in this case? The father can provide the following arguments in his favor:
- prestigious highly paid job;
- good living conditions to create a comfortable life for the child;
- good moral qualities of the father, balanced character;
- strong attachment of the child to the father;
- having common interests, spending time together often;
- healthy lifestyle and involving children in it;
- the opportunity to devote enough time to children, pick them up from school, and take them on vacation.
To support all these arguments, it may not be enough to provide job descriptions and witness statements. First of all, the decision will be determined on the basis of a psychological examination, which can be organized at the request of the father.
Judicial practice in recent years dispels the myth that children should remain with their mothers. There are many cases of determining the place of residence of a child with his father.
Attention! Due to ongoing changes in legislation, the legal information in this article or material may be out of date!
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Source: https://mestozhitelstva.ru/opredelenie-mesta-zhitelstva-rebenka-s-ottsom-argumenty/
How to leave a child with the father during a divorce: legal advice - Step by step
I am sure you know that mother and father have
absolutely equal rights and responsibilities towards their children.
This norm is specified in the Family Code of the Russian Federation and should be applied by the courts when considering
disputes between parents.
In practice, leaving children with their father during a divorce is quite difficult.
Read about how to change the situation in your favor in this material.
What needs to be done to leave a child with the father after the spouses divorce
First of all, this requires the desire of the father himself. Agree, it would be strange to complain about the judge’s bias if the man ignored agendas and meetings and did not even try to explain his position in the process. But desire and active participation in court will not be enough. Despite the principle of equal rights and responsibilities of parents, children are left with their father in rare cases.
Here are the rules in the Family Code of the Russian Federation on determining the place of residence of children:
- the child
has the right to live with his mother and father (if possible); - when
determining the place of residence of their children, parents have an equal say in
decision-making; - the priority
option for resolving disputes about the transfer of children to one of the parents
is their mutual agreement; - If
a voluntary agreement cannot be reached, either parent has the right to file a lawsuit
.
Note! The child does have the right to participate in resolving general family issues, including the divorce of parents. However, only after reaching 10 years of age is the court obliged to take his opinion into account. Before the specified age, the court may not ask the children at all which parent they want to live with after the divorce.
The ideal option is a mutual agreement between the parents - with whom the common children will live, how financial support will be provided, and how communication will take place.
If these issues are resolved peacefully, and the mother and father maintain normal relations even after separation, you can do without drawing up any agreements.
In my practice, there have been few such cases, since disputes about children regularly end up in court.
To leave a child with the father during
a divorce, you can use the following options:
- agree
with the child’s mother, resolve all issues by verbal agreement or draw up
an agreement to determine the child’s place of residence; - file
a claim in court, there is a mother against leaving the children with her ex-husband; - involve
the guardianship authorities and the prosecutor's office in the process if there are grounds for depriving the mother
of parental rights.
Find out more You’ve been deprived of your rights, but you’ve lost your rights, what to do?
I won’t talk in detail about the first option. A sample agreement on determining the child’s place of residence can be found in the appendices to this article. If you have any questions, you can consult our lawyers. Below we will consider the features of protection in legal disputes when it becomes necessary to leave a child with the father after a divorce.
When can you go to court?
A dispute over determining
a child’s place of residence can be resolved not only after a divorce, but also during marriage.
If spouses live separately or have stopped living together, they are not
required to immediately dissolve the marriage.
In this case, you will have to choose where and with whom
the child will live.
If a claim for divorce is filed, the requirement to determine the place of residence of the children and dissolution of the marriage can be stated in one claim.
In this
case, the district court will consider the case.
A claim to determine the place of residence
can be filed not only by the father, but also by the mother of the child.
In this case, the court is in any case obliged to assess which parent the child will be better off with, who will provide him with decent
living conditions.
In my practice, there were a number of cases when, at the request of the child’s mother, he was eventually transferred to be raised by his father.
To do this, you need to file an objection or counterclaim.
According to established tradition, judicial
practice gives unspoken priority to women.
This is due to the special biological connection between mother and child, which occurs immediately after
pregnancy and childbirth.
Therefore, if the father wants to keep the child during a divorce , he needs to confirm:
- that
the conditions for the child’s upbringing and development will worsen if he is left with his mother; - that
the father has everything necessary for the upbringing, education, games and development of the child, including
permanent living space, children's things and furniture, toys; - that
the man has never refused to support the child, voluntarily allocates funds
for him, and participates in the acquisition of necessary things.
Naturally, they will check
the relationship between father and child, the participation of a man in the life of a child or teenager.
To do this, you can use documents from the child’s place of study, from kindergarten.
You can also always bring witnesses (relatives, mutual
family friends, neighbors) to court.
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Legal advice . If the father wants to keep the child for himself after a divorce, one can prove inappropriate living conditions with the mother, the woman’s immoral or antisocial behavior, or her reluctance to care for the child.
Often the only basis for filing such a claim is the fact of adultery. If a mother cheats, it has nothing to do with her parental rights and responsibilities. The fact of betrayal is purely personal for the spouses.
If you do not present any other arguments to the court, the chances of leaving the child to the father will be quite small.
Below I will tell you why the courts
leave the child with the father, and whether it is possible to divide the children between parents if there are
several of them.
How to leave a child with his father after a divorce
If you are a father and are interested in
continuing to live permanently with your child, you can reach an agreement with your ex-
wife.
It is even possible that the children will live with each parent
for a certain period of time (for example, several months followed by
alternation). But in this case, problems may arise with the guardianship authorities.
If
it is determined that the above option violates the interests of the minor,
the guardianship authority may go to court.
If the wife agrees to leave the child
with the father, there is no need to file a lawsuit.
If a dispute arises and the woman refuses to make contact, the statement can refer to the following arguments:
- of
funds and desire to support the child (this basis does not
apply if the mother does not work for good reasons); - to
commit illegal actions against children (for example, if a woman
was brought to administrative or criminal liability for beatings, torture, or
causing other harm); - if
the mother drinks, uses drugs or other prohibited substances (these facts
must be confirmed by medical documents, acts of the guardianship authority, materials
of criminal cases); - if
a woman involves a child in criminal or antisocial activities (for example,
encourages theft, sends her to beg).
Note! Even if a woman receives alimony, she still must earn money herself and support the child. This rule does not apply if the mother is disabled or disabled, is on maternity leave or on maternity leave.
To support the above
grounds, evidence must be provided.
To do this, it is advisable to involve guardianship specialists in checking housing and living conditions.
The act issued by
this body is always taken into account by the court when making a decision.
If the mother's home does not meet the standards of improvement, she may be forced to make repairs and
purchase furniture and food for the child.
Violation of these regulations gives the father
a good chance to keep the child after the divorce.
Find out more Civil protection of intellectual rights in Russia
Legal advice. If the mother is not interested in the life of the child and leads an illegal and immoral lifestyle, she can be deprived of parental rights.
In this case, the issue of transferring the child to the father or to government agencies will be automatically determined. You can file a claim for deprivation of parental rights yourself, or seek help from the guardianship authorities.
You can read about how to correctly draw up a statement of claim for deprivation of parental rights by following the link.
To resolve issues related to determining the place of residence of children, the court always involves the prosecutor's office and representatives of the guardianship department. The conclusion of these bodies is given after studying the materials and evidence of the case. The court is not obliged to agree with this conclusion. However, usually the positions of the prosecutor's office, the guardianship authority and the court coincide.
A sample statement of claim to determine the place of residence of children can be found in the appendices to this article. Our lawyers will answer all your questions.
Is it possible for a father to divide his children after a divorce?
The most common mistake is to assume
that if parents have several children, the court will automatically
“divide” them between the mother and father.
Since priority is given to the interests of the child, the living conditions at the address of each
parent will be examined.
If conditions are roughly equal, the court may indeed release the children
to mother and father, although this may disrupt the relationship between the siblings.
In
my practice, in almost half of the disputes, the court transferred all the children to one of
the parents who had better living conditions.
How can a father pick up his child after a divorce?
Another important question is how a father can leave
a child after a divorce if the court has made a decision, but the mother hides her place
of residence and tries to prevent execution.
In this case, a man can take the following actions:
- receive
a writ of execution for the transfer of the child, send it to the FSSP to initiate
a case; - submit
an application to the bailiffs to search for the mother and child and forcibly transfer him
to the father; - file
an application with the Ministry of Internal Affairs prohibiting the child from traveling abroad.
The last of these options is extremely
important if there is a risk of a mother and child going abroad for permanent residence.
The travel ban can only be
challenged the children.
If
you have any questions or require assistance with paperwork
or in court, please contact our lawyers for a consultation.
We will offer the most effective protection options to leave the child with the father during a divorce.
Contact us, a lawyer will find a way out even in the most difficult situation!
Read also: Invalidation of a marriage contract: judicial practice, claim, grounds
Source: https://vseposhagam.ru/kak-ostavit-rebenka-s-otcom/
Determining the place of residence of a child with his mother or father, judicial practice
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In the event of divorce, parents must resolve issues about the place of residence of the children and the order of communication with them, as well as divide property. However, the emotional background during the dissolution of a union rarely leads to making an informed decision. Therefore, the parties come into conflict. Let's consider how to determine the place of residence of a minor without harm to the child.
Determining the child’s place of residence with his mother or father
When a child's mom and dad get divorced, in most cases they move away. However, living apart is not a basis for prohibiting contact with a child.
The law establishes the possibility of determining the procedure for communication in relation to:
- a natural child for whom paternity has been established;
- adopted child.
Important! If a minor was born before marriage and the father has not established paternity, then he does not have the right to live with the child in the event of a divorce.
There is an opinion that it is possible to determine the place of residence only in the event of divorce. In fact, the law does not provide for such a restriction. The only condition is that the parents live separately. They may not be married at all. The main thing is that the child is officially registered.
Art. 66 of the RF IC provides for the possibility of resolving a controversial issue as follows:
- Extrajudicial. Agreement on the child’s place of residence.
- Judicial by a court decision or amicable agreement of the parties.
Only parents and adoptive parents have the right to determine the place of residence of children. Other relatives - grandparents, uncles, aunts, brothers and sisters are not given this opportunity.
Extrajudicial procedure
Mother and father should pay attention that disputes between parents have a negative impact on the mental state of children. Divorce is a quite traumatic situation in itself.
Disputes about where to live and how to communicate with a child cause additional damage.
To protect minors from unnecessary injuries, parents can contact a lawyer and resolve all issues without trial.
Procedure for determining the place of residence of a child without trial:
- Discussing the situation with your ex-spouse.
- Preparation of a draft agreement.
- Certificate of agreement.
Discussion of the situation
When determining the place of residence of a minor, parents should be guided not by the desire to annoy each other, but by the interests of the children.
Therefore it is necessary to evaluate:
- Child's wish. The opinion of a minor in court is taken into account from the age of 10. The mother and father themselves probably know which of them the children are more attached to.
- Children's age. If the child is under 3 years old, he must stay with his mother. An exception is the situation if the woman was not on maternity leave or the care was provided by a nanny.
Preparation of a draft agreement
The document must be in writing. It may include the following points at the same time:
- determining the child’s place of residence;
- procedure for communicating with a minor;
- material support for children.
The parties can prepare the project themselves or involve a lawyer. If you need assistance in preparing an agreement, our lawyers will provide the necessary support. Leave a request in the feedback form to receive an initial consultation.
Check with a lawyer
A prerequisite is to agree on the terms of the agreement with a lawyer. The specialist will explain the consequences of the decision made.
It is easier to clarify the details in advance than to challenge a certified document in court. It is important to remember that the agreement is almost impossible to challenge. Therefore, you need to approach the design with all responsibility.
Certificate of agreement
The law provides for the following methods of certifying an agreement:
- Notarial. Applies when a document is drawn up without a divorce or after a divorce. It is given legal force after notarization. The procedure is paid. If the parties have to contact a notary, then it is not advisable to check the project with a lawyer. The parties will still have to pay for the legal services of a notary (from RUR 3,000). A specialist will refuse to certify a document that is not executed in his office.
- Judicial. If the mother and father settle the issue at the time of divorce, it is sufficient to formalize the agreement in simple written form. The judge will review the document and certify it. This option is less expensive. Former spouses only pay divorce fees (RUB 600).
Judicial order
If an agreement cannot be reached, the issue will be resolved in court. Previously, the Family Code provided for a mandatory pre-trial settlement procedure.
The parties had to contact the district guardianship department at the place of registration of the children to conclude an agreement. However, this restriction has now been lifted.
At the same time, the procedure is accessible. One of the parents can still file an application with the district guardianship department. The specialist will call the other parent for a conversation. Based on the results of communication or in the event of the second parent’s failure to appear, the specialist draws up a conclusion.
The document is attached to the statement of claim to the court. It is evidence of the decision of the initiator of the process to peacefully resolve the issue. Which speaks in his favor.
Important! The mother or father may apply to the court to determine the minor's place of residence during the main trial.
Procedure
In case of judicial settlement, the applicant must act as follows:
- Collection of documents.
- Drawing up an application.
- Determine the jurisdiction of the claim to determine the child’s place of residence.
- Attend court proceedings.
Collection of documents
List of documentation for going to court
No. Title of document
1 Civil passport of the initiator of the process 2 Birth certificate of a child 3 Document on marriage or divorce 4 Information on income 5 Title documents for housing (purchase and sale agreement, lease contract) 6 Characteristic information 7 Certificate of inspection of living conditions 8 Conclusion of the district guardianship department 9 Data on the presence of relatives 10 Extract from the house register
Important! The application is submitted in the interests of the child, therefore the applicant is exempt from paying the fee.
Drawing up an application
The claim must be submitted in writing. The document must include the following information:
- name of the court;
- data of the parent – the initiator of the process;
- data of the other parent;
- third party (district guardianship department);
- document's name;
- information about the reasons for the separation of mother and father;
- information about the other parent;
- proposals for child accommodation;
- reference to law;
- claim;
- a list of the attached documentation;
- date and signature.
Sample statement of claim to determine the place of residence of a child
Download the statement of claim to determine the child’s place of residence
Jurisdiction of a claim to determine a child’s place of residence
The documents are sent to the district or city court located at the place of registration of the second parent. The exception is the situation when one of the applicant’s demands is the collection of alimony. Such a claim may be filed at the place of permanent residence of the children.
Trial
When initiating the process, it is advisable to prepare and find a competent lawyer. However, the presence of a representative does not exempt the applicant from participating in the process.
Although the law allows for filing an application for consideration in the absence of the plaintiff, in practice, the court has a negative attitude towards the absence of the applicant in such cases.
If the mother and father do not come to an agreement, then the court orders a psychological examination of the child-parent relationship. It consists of conducting a series of tests with the child that will reveal his affection.
The measure applies to children aged 3 to 10 years. Young children often stay with their mother. The exception is the situation when communication with her has a bad effect on their upbringing and development.
Thus, a minor aged 0 to 3 years remains with his mother at all times, except in the following cases:
- the woman has a mental illness that is dangerous to others;
- the mother was prosecuted for child abuse;
- the woman has a drug or alcohol addiction;
- the mother works a lot and does not pay enough attention to the children, and the father has a more suitable work schedule or is on leave to care for a child under 3 years old.
Arguments
In practice, similar situations rarely occur. Each case is considered individually.
The court evaluates the mother and father according to a number of criteria. The main focus is on the following indicators:
- Age of parents. Mother and father must rationally assess their options. An elderly parent may have limited ability to care for and control their children.
- Parents' health status . The presence of complex diseases does not speak in favor of the mother or father. In addition, the law establishes a list of diseases that interfere with the performance of parental responsibilities. For example, in the presence of alcohol or drug addiction, the presence of cancer in the last stage, HIV and other diseases.
- Presence of relatives. If the relatives of one of the parents live nearby and can provide support in upbringing and care, then this speaks in favor of the mother or father.
- Characteristic. The court examines characterizing materials. Presence/absence of administrative offenses, criminal convictions. Attitude towards work and neighbors. Additionally, the characteristics of the district police officer are studied.
- Having your own home. Although every citizen can live where he wants, children need proper conditions. The question of the availability of suitable living conditions is clarified with the help of an act from the district guardianship department. In addition, a large number of moves are also not good for the child’s body. Therefore, own housing is a priority.
- Having a regular income. The court gives priority to the parent who has a regular income. Moreover, the maximum amount of income does not matter. It is enough to have a minimum subsistence level for a parent and child.
- The opinion of a minor. The court takes into account the wishes of children over 10 years of age. The exception is children with severe mental disabilities.
- Motives of mother and father. The initiation of the process must be based on the sincere desire of the parent to live with the child. However, disputes often arise regarding disabled children, since they are entitled to a pension. The caregiver also receives benefits. In addition, one of the motives may be the desire to annoy the ex-spouse.
Arbitrage practice
Consideration of the application can last from 2 months to six months. The parents may come to an agreement during the trial.
The result of the process will be a settlement agreement. A special feature of this situation is the impossibility of the parties to go to court on this issue again.
Example. Ilya applied to the court to determine the place of residence of his 5-year-old daughter. He wanted his daughter to live with him. He justified his request by the lack of need to work (group 3 disability), living together with his mother and father, and owning a large house and land.
A new kindergarten was built in his locality. The girl's mother was against it. She explained that she had to work in shifts (7 days every 14), but the girl was with her mother. In addition, the child is already attending kindergarten. The parties came to an amicable agreement. The parties determined the order of communication, but the girl remained to live with her mother.
Need a lawyer
The presence of a lawyer in the process of determining a child’s place of residence is important. Initially, such a process is a struggle between specialists. And the child will remain with the parent whose lawyer turns out to be more competent. Therefore, one should not underestimate the importance of a specialist.
In order not to waste time selecting a lawyer, you can leave a request in the feedback form. A specialist will contact you at the specified time.
- Due to constant changes in legislation, regulations and judicial practice, sometimes we do not have time to update the information on the site
- In 90% of cases, your legal problem is individual, so independent protection of rights and basic options for resolving the situation may often not be suitable and will only lead to a more complicated process!
Therefore, contact our lawyer for a FREE consultation right now and get rid of problems in the future!
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