How to leave a child with his father after a divorce

Divorce is a rather painful process for couples, and if minor children become hostages in it, then this complicates the procedure even more. Legally, there are a number of rules for initiating divorce proceedings if there are children under 18 years of age, and age is also taken into account in the procedure. What are the rules for divorce?

Rules and conditions for divorce in the presence of young children

The very essence of dissolving family ties implies that the couple will also consider the question of who the child will stay with, who and how will provide for his needs not only financially, but also devote time to his upbringing. Legally, in the Russian Federation, only a court can dissolve the marriage of a couple with minor children, even if the spouses do not have any claims against each other.

Expert opinion: If partners have disputes regarding the future child and his provision, then the court, in essence, protects the rights of the child on the battlefield of his parents. The court decides the issue of his residence, the collection of alimony, and the participation of parents in his upbringing. Once the parents reach consent, this process takes place as quickly as possible and with conditions beneficial to all parties.

Procedural features depend on the age of the child, so first of all, it is important to know what rights a man and woman who decide to divorce have.

General divorce procedure

As already mentioned, the Family Code of the Russian Federation states that if minor children are being raised in a family, such a case will only be considered in court on a general basis. There are no age-related features if the child is over 1 year old. However, the mother of the child has the right to demand the establishment of alimony for her own maintenance if the child is under 3 years old.

The issue of alimony for both the child and the mother is considered in a separate statement of claim; we wrote about this in detail in our article.

Child under one year old

If the spouses wish to divorce if they have an infant child, Art. 17 of the Family Code of the Russian Federation introduces a number of restrictions on the rights to initiate a procedure. However, they all refer to a man:

• the husband does not have the right to file for divorce if his wife is pregnant;
• a man has no right to divorce if he has a child under 1 year of age;
• the restriction also applies if the child is stillborn or if he subsequently dies within 1 year from the date of birth.

These restrictions were introduced to protect the rights of the spouse and child, since this process can be caused by stress and lack of sleep in the first months after the birth of the baby. In addition, the psychological state of a woman after childbirth can be complicated by physiological problems.

The restrictions come into force from the moment the fact of pregnancy or the birth of a child is established and up to 1 year, provided that the woman does not agree to divorce. A man can challenge this provision of the law only if he has doubts about his right to paternity.

However, with the woman's consent, divorce is still possible.

If the child is not alone

The procedure for dissolving marital relations between spouses does not depend on the number of children. However, this may affect the number of hearings as the amount of information examined and evidence considered will increase.

Exceptional cases

Sometimes the law allows situations in which divorce is possible through the registry office. These include situations when:

• one of the spouses is declared incompetent;
• one of the spouses is declared missing;
• one of the partners was sentenced to imprisonment for a term of more than 3 years.

In these circumstances, an application should be made to the registry office.

Divorce procedure with minor children

When making a difficult decision, spouses must collect a package of documents and go to court. The outline of this process very briefly looks like this:

1. Drawing up a statement of claim.
2. Applying to court with a package of documents.
3. Trial.
4. Decision on divorce.

Statement of claim

Drawing up a statement of claim is a rather difficult task, since it is necessary to indicate all the requirements and, based on articles of law, present the whole picture of what is happening. It is necessary to draw it up correctly and take into account all the nuances, because the future of your children will depend on the content of the agreement, both materially and psychologically.

The application must indicate the requirements regarding:

• children's places of residence;
• material support for minors;
• how exactly the second spouse will participate in the process of raising children and the mode of communication.

Also, it is important to correctly indicate the name of the court, its address, personal data of the plaintiff and defendant, information about the marriage - when it was concluded and where, as well as indicate the reasons for the divorce.

It is usually difficult for the parties to formulate all the necessary terms of the contract on their own. Trust our lawyers, who have invaluable experience in preparing these types of documents.

The statement of claim, depending on the circumstances, is filed with the Magistrates' Court or the District Court.

Sample statement of claim

We have provided a sample statement of claim relevant in 2020 for divorce with minor children. However, please note that this sample is typical and in case of a more complex situation, it is best to contact a lawyer.

Divorce documents with minor children

The list of documents required for divorce is regulated in the Civil Procedure Code of the Russian Federation, namely in Art. 132. It is quite typical, since situations always differ, and in some cases other documents may be needed. So, the court will need to provide:

• a copy of the plaintiff's passport;
• receipt of payment of state duty;
• marriage certificate - original and copy;
• certificate of residence and family composition;
• a copy of the application for the defendant.

If the plaintiff is unable to attend the trial and his interests will be represented by a third party, a power of attorney with a full list of his powers must be issued to the representative.

If disputes arise about children, the following documents may be needed:

• conclusion of the guardianship and trusteeship authority;
• documents confirming the material and living condition of the defendant’s place of residence;
• information about the leisure time of minors, documentary evidence of the possibilities of their material support and quality time.

In case of disputes regarding the division of property, you will need to provide the court with:

• certificate of ownership of a house, apartment, car, etc.;
• purchase and sale agreement, documents confirming expenses for joint purchases;
• certificate from property appraisers.

Payment of state duty

The plaintiff is required to pay a state fee when filing an application. In some cases, the court may impose obligations on the defendant to reimburse these expenses, but without a receipt for payment, the application will not be accepted.

• In case of divorce with minor children, the state duty is 600 rubles from the plaintiff, and the same amount is collected from the defendant.
• When considering cases requiring determination of the place of residence of children, the process is not subject to state duty, and when dividing property, a state duty is charged, regulated by law in this situation.
• Also, both spouses will be required to pay another state fee when applying to the registry office to register the divorce and receive a certificate.

How does the trial work?

After the claim is filed, the judge schedules a hearing on the case. As a rule, the procedure takes place in 1-2 court sessions, but sometimes in more controversial situations more meetings in court may be necessary.

At the first hearing, the judge asks the defendant whether he agrees with the claim. If the answer is yes and the court has provided sufficient reasons for divorce, the procedure ends there.

In case of disagreement with the divorce, the spouses are given a period of up to 3 months for the possibility of reconciliation.

In the absence of a divorce agreement, regarding children and their support, the court independently makes decisions on the following issues:

• who will be the child's legal guardian;
• based on the above point, who will pay alimony and in what amount;
• other issues at the oral request of the plaintiff (alimony for spousal support, etc.).

After the process is completed, the judge makes a decision, which is given to both spouses in writing. The document indicates absolutely all the nuances of this process.

It is important to understand that a court decision is not a point in the history of a social unit. Legally, the marriage is considered completed only after the appropriate stamp is affixed to the passport.

Registration of divorce

A court decision on divorce comes into force 30 days from the date of its issuance. This period is given so that one of the spouses has the opportunity to protest it if necessary.

The court independently sends an extract of divorce to the registry office, but the spouses must contact the district office with the following documents:

1. Application on form No. 10.
2. Receipt for payment of state duty - 650 rubles. in 2020.
3. A copy of the court decision.
4. Passport for marking.

The marriage is considered dissolved after the spouses have this mark in their passports and have a divorce certificate in their hands.

Who does the child stay with after divorce?

As a rule, in the Russian Federation, minor children remain with their mother after a divorce, and the father is required to pay child support. However, the following factors are taken into account in the legal process:

• the desire and capabilities of the parents: the father does not always refuse his own obligations and wants to leave the baby to the mother;
• the child’s opinion is taken into account provided that he has already reached 10 years of age;
• the court evaluates the financial capabilities of the spouses and social and living conditions.

How is property divided in a divorce with minor children?

The principles of division of property according to the Law are the same in situations with and without children. As a rule, joint property is divided in half, in addition, debt obligations are also divided in half.

Finally

In summary, parents who decide to divorce should think carefully and weigh their claims and evaluate how these requirements will correspond to the interests of the children.

PreviousNextAttention! If you have any questions, you can chat for free with a lawyer at the bottom of the screen or call the hotline: +7 (800) 550-39-71 Free call for all of Russia.

Source: https://yurist-rossiya.ru/semejnoe-pravo/razvod-nesovershennoletnie.html

How to leave a child with his father in Russia during a divorce: judicial practice

As a result of divorce, in most cases the child remains with the mother, but according to the law, the rights of parents regarding upbringing, maintenance and communication with children are equal. Therefore, the father also has the right to claim cohabitation with his children. How can a man get such an opportunity legally? You need to know some legal norms and prepare a good evidence base.

General provisions

It should be noted that even the court, if there is a healthy, wealthy and prosperous mother, will never give the child into the care of the father, so this situation may seem almost hopeless. However, each such case is purely individual, and therefore, in order to win it, it is necessary to take into account all possible options.

How to leave a child with the father during a divorce: reasons

There are a number of situations in which the father can persuade the court to favor his side. Usually they are associated with certain problems that the ex-wife has:

1. Alcohol or drug addiction. This argument is the strongest because people who use drugs cannot claim to be good parents. The presence of a problem must be confirmed by test results. If a woman refuses to voluntarily undergo examination, then the court can force her to undergo these procedures.
2. Mental problems. The fact of such disorders should be proven in the same way as drug addiction - an appropriate medical opinion is required.
3. Lack of conditions necessary for the normal development of the baby. If a woman is unemployed, does not have her own home, or her apartment is in a deplorable condition, then all this can play in favor of a more affluent father.
4. Aggressive behavior towards children. In practice, this is observed quite rarely. Proving this is also quite difficult, and an appropriate medical opinion is required. If it is impossible to obtain it for some reason, witnesses should be brought to the hearing.
5. Child's opinion. It can only be taken into account when the minor reaches a certain age. For example, during the trial, the opinion of children who have reached their 10th birthday is taken into account. If the minor has passed the age of 14, then his desire will be the main one when making a court decision.

Read also: Division of land during divorce

Any of the arguments presented above requires evidence. It would also be a good idea to enlist the support of a legal practitioner. He can radically change the course of a case, having professional influence over the judge.

Unfortunately, most fathers want to achieve cohabitation with their children only in order to complicate the life of their ex-wife. However, personal motives will clearly not be enough to obtain a legal opportunity to leave children. First of all, you should act in the interests of the child, and only then encourage the desires of your own ego.

What can a father do?

If dad is absolutely sure that the children will be better off with him, then he can achieve his goal in two ways:

1. First of all, you should try to come to an agreement with your wife. By reaching a mutual agreement, ex-spouses can avoid a lengthy and complex legal process.
2. If you cannot reach an agreement, then your only option is to go to court. At the same time, the issue regarding the residence of children can be resolved both during the divorce process and at the end of the official marital relationship.

In any case, one should not immediately abandon the opportunity to reach an agreement peacefully. Most mothers want their children to live with them, but there are exceptions, which are present in the following situations:

1. The ex-wife wants to devote herself to science or a career, which becomes much more difficult due to the presence of a child.
2. It will be much easier for a woman to arrange her personal life without a minor. And in some situations, ex-spouses themselves even ask fathers to take their children for upbringing in connection with the prospect of creating a new family.
3. If there are two children, then you can agree on separate upbringing. One of them stays with mom, and the second with dad.

The psychological aspect is very important when negotiating. A man should not show his interest in raising children together. Otherwise, the opposite effect is possible.

If mutual understanding has been reached, the issue cannot be left at the level of a verbal agreement.

It is necessary to confirm the agreement with a notary, which will protect both parties from further changes in the decision.

Even if a woman insists “until the last” that the children should be with her, the man may invite her to take them away for a while. In addition to the fact that this rational decision will allow the mother to “get back on her feet” by finding new housing and work, it has the following advantages for the father:

1. If the fact that the children live with their father is documented and supported by testimony, it can become a powerful argument in favor of the father in court.
2. If children have reached the age of 10, their opinion will also be taken into account during the proceedings. During their time together, dad can win them over to his side.

An additional advantage for the father will be the fact that after the divorce he remains to live in the old place in which the joint children were born and grew up.

Accordingly, the situation becomes more complicated if a man lives in a rented apartment or has no housing at all, temporarily staying with friends.

In this case, one should not rush to resolve the issue of children until the father receives a permanent place of residence with acceptable conditions. In most cases, a man desires to take a child some time after the divorce for the following reasons:

• The ex-wife in every possible way prevents the children from communicating with their dad, turning them against him.
• The mother does not provide the children with proper care and attention, as evidenced by the poor appearance of the minors, their constant problems at school, drunken groups that often gather in the apartment, etc.
• The woman spends the money she receives from her father for personal needs.

Proving the latter is often very difficult even with evidence. If, when receiving large amounts of alimony, children seem to be neglected, then this is grounds to convict their mother of misuse of the money received.

In any of the situations described above, the ex-husband will only be able to achieve his goal through the court. And to satisfy the claims, he will have to prepare strong evidence of his words.

Features of drawing up a voluntary agreement

This path is the simplest, since issuing such a document is not difficult. In addition, both parents and children in this case avoid months of proceedings that provoke stress and moral tension. This is especially observed when children experience the same attachment to both parents.

• with which parent the minor is planned to live;
• time and conditions for visiting the child by the other parent;
• distribution of obligations regarding maintenance and upbringing.

If there are several children, then it is possible to draw up personal documents for each of them. In the case of identical terms, they can all be contained in one agreement.

It is allowed to draw up the document by hand, in two copies signed by each party. In this case, it is advisable to notarize the agreement, thanks to which it will receive the force of a writ of execution.

If one of the parents evades their obligations, a correctly drawn up document will be the basis for making an appropriate court decision.

It is very difficult to challenge a notarized agreement.

Resolving the issue through court

As mentioned above, if parents are not able to independently determine the place of residence of their children, then the father can try to sue the child from his wife during a divorce in Russia. Filing a claim is also possible in the following cases:

• if a previously concluded agreement infringes on the rights of one of the parties;
• in case of non-compliance by the mother or father with the subject of the contract.

Going to court usually involves three stages:

1. Preparation.
2. Submitting an application.
3. Direct trial.

If a claim is filed by a father in order to achieve cohabitation with his children, then he should think about properly justifying his claims. There must be strong evidence showing that the minors would be better off living with their dad. This could be witness testimony, a medical report, income certificates, etc.

Once the general plan of action has been determined, a statement of claim is drawn up and filed. It is drawn up in accordance with the sample and must contain a list of reasons why children should live with their father. We are talking about the following arguments:

• Bad habits and negative qualities of the mother, which can affect the physical and emotional development of the child.
• Dad has better living conditions and a higher income.
• No need to change schools, give up extra classes, etc.
• Insufficient maternal attention, which led to certain consequences.
• The mother’s conditions or work schedule do not allow her to provide the minor with sufficient attention and care.

The final stage is the trial. At the meeting, all factors that can improve/deteriorate the child’s quality of life are taken into account. If the child has reached the age of 10, then the judge will definitely find out his opinion on living with one of the parents.

Situations when a mother cannot claim children as a result of divorce

In some cases, the father's position is initially advantageous. A woman must leave her children with their father during a divorce in the following situations:

• abuse of alcohol or drugs;
• in case of leading an immoral lifestyle;
• in the absence of income that is necessary to provide the child with minimal benefits;
• as a result of deprivation of parental rights;
• in the presence of mental illness;
• in case of recognition of incapacity.

It was discussed above in which cases during a divorce the child remains with the father. They are mainly associated with maternal dysfunction. However, any of the above reasons must be documented. For example, drug abuse is confirmed by a certificate from a narcologist, and an antisocial lifestyle is confirmed by the protocols of the local police officer.

Thus, the father has the opportunity to live with the children after divorcing their mother. However, there should be certain reasons for this. And first of all, you need to think about the children. They should not become bargaining chips for parents.

Source: https://FamAdviser.ru/prekrashhenie/deti/kak-pri-razvode-ostavit-rebenka-s-otcom.html

Five reasons why a child may be left with his father after a divorce

Photo by Evgeny Smirnov, Kublog

The divorce of a married couple with minor children always raises a rather painful issue - with whom their offspring will live. Moreover, it is resolved only through the court, and if a settlement agreement is not concluded between the parents, it is the judge’s verdict that becomes the basis for determining the subsequent place of residence of the children.

Family law lawyer Elena Boytsova advises on what reasons may force the court to hand over the children to the father and how this can be avoided.

Equal rights of parents to children - truth or myth

Article 54 of the Family Code of the Russian Federation states that every child has the right to live and be raised in a family. But in the event of a divorce, he must remain living with one of the parents.

• If a settlement agreement is not concluded between the spouses regarding the “division” of children, then their dispute is resolved by the court, based on the interests of the minors and taking into account their opinions.
• When making a decision, the following are taken into account:

• child's age;
• his affection for each of his parents and siblings, and his relationship with each of them;
• moral and other personal qualities of parents;
• the possibility of creating conditions for the child’s upbringing and development (occupation, work schedule of parents, their financial situation, etc.).

However, judicial practice in the Russian Federation has developed in such a way that in most cases the court sides with the mother, “by default” leaving the children with her. The rights of fathers are practically ignored. Thus, statistics show that about 94-95% of divorces end in the children being awarded to the parent. This is due to the common belief that the mother has a stronger emotional connection with them, is more responsible and is psychologically better prepared to raise babies.

However, not all fathers agree with this position, and can defend their position in court. And achieve a positive result if they are able to collect evidence - examination results, witness testimony, etc.

For what reasons can the court hand over the children to the father?

The decision to leave children after a divorce from their father is, frankly speaking, atypical for Russian reality: only 5-6% of cases out of the total number of court decisions.

What may influence a verdict in favor of the father:

1. When the mother, due to mental, health or lifestyle reasons, is unable to take care of the children;
2. Regular manifestation of aggression towards the child, physical and mental violence on the part of the parent;
3. The mother's leading an immoral, asocial lifestyle;
4. She lacks a place to live with her children;
5. Lack of funds for their maintenance.

All arguments must be supported by evidence: certificates from government agencies and medical institutions, characteristics, expert opinions, testimony of witnesses and others.

What should a mother do to defend her rights?

Sometimes a spouse, angry with circumstances, does everything possible to sue the children. I can also use illegal methods - falsifying documents and examination results in order to prove the wife’s insanity, collecting negative reviews about her from neighbors, etc.

Situations are common when the husband hires a nosy lawyer to prove that the mother is breaking the law.

In such cases, it is necessary to order an examination from independent experts and submit its results to the court.

It makes sense to get a positive review from her place of work, obtain testimony from witnesses (neighbors, teachers at school, etc.) that she is fulfilling her parental responsibilities, make a certificate of income, and collect documents on ownership of the apartment.

It would be useful to attract people who are ready to confirm that the spouse is not involved in raising their common children.

If the child is 10 years old, the court questions him along with adults, clarifying with whom he wants to stay during the divorce - and necessarily takes into account his answer. Children under 10 years of age are interviewed by representatives of the guardianship and trusteeship authorities.

Right to communicate

Even if a child, by court order, remains with his father, this does not mean that the mother loses the right to communicate with him and participate in his upbringing.

The father is obliged (except in cases of threat to the life and health of the baby) to provide his ex-wife with the opportunity for such meetings.

To avoid scandals, parents have the right to enter into a written agreement on the procedure for exercising parental rights by a mother living separately from the child. If no agreement is reached on this issue, the procedure for communication will be determined by the court.

Deprivation of parental rights

However, the problem may go so far that the court will be asked to deprive the mother of parental rights in relation to her minor children. If this happens, it is important to know that the process is reversible and rights can be restored.

To do this, you need to submit an application to the district authority at your husband’s place of residence, indicate in it on what grounds you are applying for the restoration of parental rights, and attach documents that will confirm your words. If the verdict is positive, the court decision comes into force one month after consideration.

How to leave children with father during divorce

Despite the fact that Art. 54 of the RF IC indicates the right to communicate and raise a child by both parents; the question often arises of how to leave the child with the father during a divorce. Judicial practice shows that in 95% of cases children are left with their mothers, but former spouses have several ways to take them into their own care.

Parents' rights to children

According to Art. 61 of the RF IC, both parents have the same rights to their common children. If the child was born in a previous marriage, in the event of a divorce between the mother and stepfather, he remains only with the woman, with the exception of deprivation of parental rights.

Also, the rights and responsibilities of parents are regulated by other articles of the RF IC:

Article Explanation Art. 63 RF IC The responsibilities of parents include raising and educating children. They bear equal responsibility for the upbringing and development of the child, which ends when he reaches the age of majority Art. 65 of the RF IC The exercise of parental rights is possible only in the interests of a minor. Parents must resolve all disagreements regarding the upbringing and maintenance of a child peacefully or in court Art. 66 RF IC If a parent lives separately from a child, his right to communicate remains with him. The presence or absence of an official divorce from the mother does not matter. The parent with whom the minor lives does not have the right to prevent him from communicating with his ex-spouse, unless there is a corresponding court decision banning meetings Art. 68 RF IC If one parent holds a child and does not allow him to communicate with his ex-spouse, the latter has the right to defend his interests through the court

Important! Despite the fact that the legislation gives parents the same rights to their children, the courts, when determining the place of residence of the child, most often take the side of the mother, believing that she is the one who has a psychological connection with him, and she will be able to give him a decent upbringing and devote a sufficient amount of time .

For the above reason, it is important for a father who wants to keep a minor to stock up on sufficient grounds and evidence against the mother, otherwise it will be problematic to get a positive decision from the court.

Ways to leave a child to the father during a divorce

From a legislative point of view, there are two ways that allow parents to determine the place of residence of a common child with one of them in the event of a divorce:

1. Drawing up an appropriate agreement. It indicates with whom exactly the minor will live, and outlines the rights and obligations of the parties. The parent with whom the child remains has no right to prevent him from communicating with his ex-spouse.
2. Through the court. This option is relevant if the mother is against it, but the father wants to defend his rights and take his son or daughter for his own maintenance or upbringing.

It is important to take into account that when leaving a minor with one of the parties, the other party undertakes to pay alimony. If the court decides to leave the child with the father, the mother will be obliged to transfer funds:

For one child For two children For three children or more 25% 33% 50%

Most often, it is possible to solve the problem of determining the place of residence of children in favor of the father only in court and provided that there are appropriate reasons for this. It is these that the court will take into account when considering the case.

Causes

There are several reasons why the court may take the father’s side and leave the minor with him:

• Poor health or mental health of the mother. For example, establishing incapacity or disability of group 1, when a person loses the ability to self-care, and providing proper care to a child is problematic for him.
• Unstable mental state, aggressive and cruel attitude towards the child. If children are constantly subjected to psychological or physical violence by their mother (beating, illegal imprisonment, starvation, etc.), this is grounds for deprivation of her parental rights, and the child will be handed over to the father.
• Immoral lifestyle of the mother. As evidence, you can use witness testimony, audio and video recordings, which can suggest that the woman is under the influence of drugs or alcohol, or simply behaves inappropriately with children and in society.
• Poor financial situation of the mother. If she earns little, and even alimony is not enough to adequately support the children, the father can petition to determine his place of residence through the court.
• Lack of housing of sufficient space. According to general standards, the size of living space per person is 18 sq.m. If a woman does not own real estate, but a man does, this can be an additional plus in his favor.

The court will not take into account the mother’s unfounded accusations, so the father must obtain evidence: medical certificates, video recordings, witness statements, characteristics and other documents indicating the impossibility of leaving the child with his ex-wife.

How to leave a child with his father through the court: step-by-step instructions

If a man is unable to reach an agreement with his ex-wife about the transfer of children to him for upbringing and maintenance, he should go to court according to the instructions:

1. Collection of evidence. This is a preparatory stage, because they must be provided along with the statement of claim.
2. Submitting a claim and other documents to the court.
3. Participation in court hearings. If the child is over 10 years old, the judge will ask his opinion regarding determining the place of residence with one of the parents. If less than 10 years old, guardianship officials conduct a conversation with the child.
4. Obtaining a court decision. If it is positive, the child must be handed over to the man from the date indicated on it. The woman has 10 days to challenge the document.

If the child is one year old and the mother leads a normal life, but does not have enough money for living, the court will not give the baby to the father. In addition, a woman can request alimony not only for him, but also for herself, provided that she needs financial support. If a woman leads an immoral lifestyle, at the initial stage, before going to court, it is recommended to report this to the guardianship authorities. After the inspection, the staff draws up a final report, which the father may need during legal proceedings.

Deprivation of parental rights

The deprivation procedure is regulated by Art. 69-71 RF IC. If the court deprives the mother of her rights, this will mean a ban on communication and any contact with the child.

There are several grounds for deprivation:

• Avoidance of fulfilling one’s duties: lack of education for a minor in accordance with age, failure to provide food and clothing, etc.
• Unreasonable refusal to pick up your child from an educational institution, hospital, or social organization.
• Child abuse, including mental and physical violence, assault on sexual integrity.
• Chronic alcoholism or drug addiction. The diagnosis must be confirmed by a certificate from the medical institution where the woman is registered.
• Committing a deliberate crime against the life and health of children or a spouse: beating, murder, rape, robbery, etc.

Depriving a mother of parental rights is a drastic measure, and the courts consider such cases for several months.

To initiate the procedure for depriving a mother of parental rights, the father must perform several actions:

1. Collect all documents indicating the existence of grounds. If the mother beat the children, medical certificates with evidence of the beatings will be required, and it is also recommended to contact the guardianship authorities.
2. File a claim in court, attaching evidence. Witnesses will be required if necessary.
3. Wait for a court decision.

It is worth considering that the court may not deprive, but limit the mother of her rights if it deems it necessary, and then she will be able to communicate with the children at the prescribed time. The children stay with their father. Restoration of rights is possible if the deprived or disabled parent changes their lifestyle and submits an appropriate application to the court.

During a divorce, the father can keep the children if he enters into a peace agreement with the mother or achieves this through the court. In the latter case, the judge will act only in the interests of the child and, if he determines that he will be better off with his father, the decision will be made in favor of the latter.

Source: https://lawinfo24.ru/family/divorce/kak-pri-razvode-ostavit-rebenka-s-otcom

How to leave a child with the father during a divorce

There is a stereotype that when a marriage is dissolved, the children of the spouses, by definition, should remain with their mother.

And indeed, most often this happens, but almost always this is caused by objective reasons: the interests of the child, the agreement of the parents, or the reluctance of the father to raise a common offspring.

But in recent years, there has been a change in the trend - fathers are increasingly expressing a desire to take their children together, and the courts are increasingly meeting them halfway. Today we will answer how to leave a child with the father during a divorce.

If there are common children under 18 years of age, in accordance with the legislation of the Russian Federation, a divorce between spouses is always formalized through the court. With this procedure for separation, the place of residence of common children can be determined:

• by agreement between the parents: the spouses have the right to sign a mutual agreement, by which they independently determine with which of them the child or children will live. The said agreement is submitted to the court, which checks the document to see if it meets the interests of the minor and approves it;
• by court decision: if there is no mutual agreement between the parents on this matter, the court is obliged to resolve the issue of the child’s residence independently.

This division of children should not be confused with the division of parental rights: regardless of who the minor lives with, each of the former spouses retains the same amount of rights and responsibilities.

Issues related to determining the place of residence of minors, including how to leave the child with the father after a divorce, lie within the exclusive competence of the Family Code. In particular, Art. 21 of the IC requires divorce in the presence of children exclusively through the court. At the same time, Art. 24 of the IC provides for two procedures for determining their place of residence: contractual and judicial.

The criteria from which the court should proceed when resolving this issue are defined by Art. 65 SK, and the need to involve guardianship authorities in this process is defined in Art. 78 SK.

In this case, it is necessary to mention the Resolution of the Plenum of the RF Armed Forces No. 10 of May 27.

1998, which provides guidance to courts to also allow a child to be transferred to the father in a divorce if it is in the best interests of the minor.

It is impossible not to mention the Civil Procedure Code. They, in particular, subsection II of section II of the Civil Procedure Code, define the rules for divorce in court, in particular, the rules for filing a claim, the procedure for considering the case, the timing of consideration and entry into force of the court decision and a number of other procedural issues.

What influences the court's decision?

There are no official statistics on this matter, however, according to human rights activists, courts leave children with their mothers in no less than 92% of cases. Under the current judicial practice, fathers have little chance of success in the fight for the place of residence of their common offspring. Few, but still they exist.

In accordance with paragraph 3 of Art. 65 of the Family Code, before leaving a child with his mother, the court is obliged to take into account a number of mandatory aspects, namely:

• interests of the minor and his opinion;
• the degree of attachment of the minor to his mother, father, as well as sisters and brothers;
• age of the minor;
• personal qualities of father and mother;
• the relationship that each parent has with their common child;
• the ability of the mother and father to create the most favorable conditions for raising their offspring.

Moreover, par. 2 clause 5 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 10 clarifies these criteria. In accordance with it, before taking a minor, the parent must demonstrate the most suitable conditions for raising the child, including:

• suitable type of activity and mode of employment;
• relevant financial and family status;
• other circumstances that characterize the situation in the place of residence of such a parent in a favorable manner.

At the same time, the plenum clarifies that all of the above factors must be considered by the court collectively and the material advantage of the mother or father alone cannot act as an unconditional basis for transferring the minor to him.

When will the court side with the father?

Even with the objective advantage of the child’s father, the combined presence of a number of the factors described above, and frankly sluggish protection on the part of the mother, courts still often leave children with women, justifying such decisions by ensuring the interests of minors. However, there are still reasons in which the court will definitely side with the father.

Let's figure out in what cases after a divorce a child remains with his father:

• Firstly, this is the mother's incapacity due to a mental disorder. If such a disorder threatens a minor, her parental rights may be limited (Article 73 of the Family Code). But even without such a restriction, an incapacitated parent is not able to raise a child, so the court will side with the father.
• Secondly, this is the deprivation of the mother's parental rights. According to Art. 69 SK, such deprivation is possible due to failure to fulfill parental responsibilities, abuse of children, violence against them, chronic alcoholism or drug addiction, and so on.
• Thirdly, there are grounds for deprivation of parental rights, but the actual absence of a court decision on this. It is obvious that the court will take into account the mother’s behavior and leave the child with the father even without a court decision to deprive her of parental rights.
• Fourthly, this is the mother’s conviction and deprivation of her freedom. If imprisoned for a term of three years (as well as if the mother is incapacitated), divorce her, in accordance with Art. 19 IC, possible without trial: through the registry office unilaterally.

Taking into account the opinion of a minor

The issue of taking into account the child’s opinion requires special attention. So, in accordance with paragraph 3 of Art. 65 of the IC, the issue of determining his place of residence is indeed decided taking into account his opinion. Moreover, according to Art.

57 of the Family Code, taking into account the position of a minor is mandatory if such a position corresponds to his interests.

That is, the court must first determine what the interests of the minor require, and only after that can decide whether to take into account his position or not.

It is necessary to distinguish between “taking into account” a position and accepting it. If a son or daughter expresses the opinion that they want to stay with dad, this does not mean at all that the court will decide so.

In practice, such an opinion acts only as another and, perhaps, decisive “for” leaving the minor with his father. However, only the position of the child, with other discrepancies in his interests, will naturally remain without the attention of the judge.

Trial

Now let’s take a closer look at how to sue a child from your wife during a divorce.

It is immediately worth noting that there is no need to file an additional claim: the issue of the son/daughter’s place of residence must be determined as part of the divorce process, therefore such a requirement can be included in the original claim, expressed in a response to the claim, or stated during the proceedings.

And in it, as has already become clear from the above, the man’s chances will be extremely low. Especially if there is no evidence of the mother’s immoral behavior or her state of health that does not correspond to the interests of the common offspring.

• In this case, the only thing that can help the father win the judge over to his side is the correct strategy of behavior: demonstrating interest in raising the minor independently and actively justifying that he will “be better off” with his father.
• In fact, judicial practice does not provide an answer to the question of how to leave a child with the father during a divorce: as a rule, these are only exceptional cases, except for those associated with the illness or behavior of the mother.
• Therefore, all that remains is to provide exceptional evidence:

• Father's interest in independent upbringing. It can be proven, for example, by a reference from the school indicating which parent is involved in the child’s school life, who brings him and picks him up from the educational institution. It’s great if the same document is from the sports section, the Palace of Culture, the dance club, and so on.
• Compliance of living conditions with the interests of the minor. This can be confirmed by documents on the ownership of housing, an EZhD or other document at the place of registration, as well as an inspection report of housing conditions drawn up by the guardianship authorities. Cooperation with the latter must be approached with special attention, since their conclusion is often decisive.
• Material well-being. It will be confirmed by a certificate of income, a copy of the individual entrepreneur’s registration certificate, an income statement, property documents, and so on.
• Compliance of the father's lifestyle with the interests of the minor. Proof of this can be a combination of factors: references from work, certificates from the hospital, references at the place of residence, testimonies of relatives and colleagues, certificates of no criminal record.

In this case, the father will have to appear at all divorce court hearings and behave as delicately as possible, characterizing himself as an adequate, restrained and tolerant citizen. It is also in his interests that his ex-wife behave differently.

At the court hearing itself, the father must express his readiness to bear all the burdens and difficulties associated with raising a minor. And only if all these factors are observed, will the husband have a foreseeable chance of resolving the case in his favor.

Rights of fathers living separately

Even if the court rejected the father’s requests, he should not despair: Art. 61 of the Family Code proclaims equality of parental rights, even if both parents live separately. At the same time, Art.

66 of the Family Code specifies that even if a parent lives separately, he has the right to communicate with his son or daughter, participate in their upbringing and solving educational issues.

At the same time, the second parent has no right to interfere with such communication.

If it is possible to reach agreement on the order of communication, the parents can enter into an agreement on this - without such an agreement, the issue can only be resolved in court.

Moreover, if the mother ultimately refuses to comply with the court’s decision on the order of communication, this may serve as the basis for transferring the minor to the father’s care.

Conclusion

Taking into account all of the above, fathers can indeed claim to transfer their children to their upbringing after a divorce.

However, such a solution can only be achieved with consistent and correct behavior.

A man must not only demonstrate his desire and material capabilities, but also a clear interest in raising children alone, exceeding the interest of the mother.

The desire of the child to stay with the father and the immoral behavior of the mother, which does not correspond to the interests of the minor, can also play in the man’s favor. As a result, this may even become the basis for depriving the ex-wife of parental rights.

How can a father protect his rights after a divorce? News. First channel

Presenter: So what should a father do if he does not want to be separated from his child after a divorce? Lawyer Tatyana Salomatova will tell us about this. Tell me, what rights does a father have during a divorce?

Guest: According to the family code, our parents have equal rights. But, of course, in our country, as a rule, if he lives separately from his children, he has the right to communicate and raise his children.

Presenter: What can convince the court during the divorce process to leave the child to the father?

Guest: Everything is assessed: living conditions, material conditions, and still the affection of children. Because there is a situation when the mother may be more involved in work, and the father sits and does housework. This is a rarer situation in our country, indeed, but at the same time, it happens.

Presenter: Can children themselves decide who they want to stay with?

Guest: Children's opinions are taken into account from the age of 10. The court summons this child to the hearing. In the presence of the teacher, without the presence, of course, of the parents, the child expresses his opinion on who he wants to live with - with mom or dad.

Presenter: What should a father do if his rights are infringed and the mother forbids him to see the child? So they left her a child, and she doesn’t let dad see him.

Guest: Yes, indeed such situations are not uncommon now. In this case, the father can submit an application to the guardianship and trusteeship authorities at the child’s place of residence.

The guardianship authorities will call the mother for a conversation, explain the situation, and maybe come to some kind of compromise solution. If there are no results, then, naturally, only a court decision.

The father has the right to file a claim in court, and the decision will be to establish the order of meetings between the child and the father.

Presenter: If a dad seeks the right to see his child through the court, how much time can he expect, what time period can he seek?

Guest: Depends on the age of the child. And, indeed, from the circumstances that developed in the family. Maybe the father has not seen his child for 5 years and then he filed a lawsuit: I want to see my child.

Naturally, in such a situation, the child no longer remembers his father well, and he will be given minimal time to communicate.

If the child and the father have an established relationship, then, as a rule, they necessarily give weekends with overnight stays and weekdays, some time for communication, taking into account the child’s employment in the same circles and classes.

• Presenter: Can dad demand that he be allowed to spend a whole month or two with the child, for example, to take him somewhere, to spend a vacation with him?
• Guest: Of course, if the child is not a minor, not an infant, and there are no contraindications for leaving the child with the father, then the father has the right to spend his vacation and the child’s holidays with the child.
• Presenter: But as for education, for example, a father does not want his child to study in this or that school or, for example, go to this or that club, does he have the right to prohibit it?

Guest: Only the court can ban it. Therefore, the father can express his opinion, but in practice, naturally, if the child lives with his mother, the mother chooses his school, the mother chooses the clubs for him. Although there are other solutions, if dad pays for school and dad pays for clubs, then, naturally, dad chooses all of this. That is, depending on the situation.

Presenter: If, by a court decision, a child was left to be raised by his father, can this decision be reviewed? Can the mother claim that the child will still live with her?

Guest: Yes, of course, the same as if a child is left with his mother. Since circumstances change, the child grows, maybe the child was young and wanted to live with his mother, he expressed this opinion.

Having reached the age of 10, the child himself wanted to live with his dad. The father then initiates a lawsuit, and the court considers all the circumstances of the case and leaves the child with the father.

And also, on the contrary, until the age of 18, the child’s place of residence can be revised.

Expert advice

When deciding whether to leave the child to the father, the court considers the financial situation of each parent, their living conditions and the relationship that the mother and father have with the baby. The opinion of the child himself is also taken into account - however, only if he is already 10 years old.

The court cannot make a compromise decision, that is, allowing the child to live the same amount of time with both mom and dad. According to the law, the baby must stay with one of the parents, and the other gets the right to communicate.

If the mother does not allow you to see the child, experts advise first contacting the guardianship and trusteeship authorities. Well, if the employees of this organization cannot help you reach an agreement with your ex-wife, file a lawsuit.

According to the law, a mother does not need the permission of her ex-spouse to travel abroad with her child. But there is a nuance - in many countries, without the father’s consent to travel, they simply will not issue a visa.

Even if the court left the child to the mother, the father can and should take part in his upbringing. He, just like his ex-wife, has the right to choose where the child should study, what clubs to attend, and where to go on vacation.