Sample statement of claim to determine a child’s place of residence, jurisdiction of cases

When a married couple divorces, along with the dissolution of the marriage, several other issues are resolved. This includes establishing the child’s place of residence. The dispute over which parent their children will continue to live with becomes stronger over time. After all, this question is often not raised before the court at first.

There is a situation when the mother, with whom the child remains, prevents the father from seeing him, and vice versa. Then the problem of determining the place of residence of a son or daughter becomes urgent.

A claim is filed, and when considering it, the court takes into account many factors. This includes the financial situation of the author of the appeal, as well as his personal qualities, including his attitude towards children. If the child has grown up to 10 years old, his opinion regarding the place of residence is also taken into account.

The procedure for determining the child’s place of residence

Among the problems that separated spouses must resolve is establishing the child’s place of residence. They will determine meetings and spending time together with the child of the second parent.

When parents cannot come to an agreement, the court is called upon to put an end to the conflict. To do this, you need to file a claim in which you ask to establish the place of residence of the children.

The application is written by the parent with whom the child will now live. The claim is filed in the district court in the place where the defendant is registered.

In addition, there are cases in which a former spouse can also file an application. Here, first of all, we mean the possible discharge from the apartment of a child who does not live there.

The court has the right to establish the place of residence based not only on material factors (whether the spouse has housing or sufficient wages).

The personal disposition of the son or daughter towards the mother (father) can play a decisive role. This circumstance is intended to protect the child from psychological trauma.

If there are no disagreements between the spouses on this matter, then they have the right to stipulate the further residence of the children in the agreement.

Expert commentary

Roslyakov Oleg Vladimirovich

Lawyer, specialization civil law. More than 19 years of experience.

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Parents have the right to include clauses in the agreement regarding who the child will live with and the procedure for meeting with him. The court must take this agreement into account in the event of a dispute.

To which court is the claim sent?

If upon dissolution of the marriage there is no dispute between the father and mother as to which of them the child will live with, then the application for divorce is submitted to the magistrate's court. In this statement, it is advisable to indicate that there is no such dispute and with which parent the child remains. This is not a mandatory requirement, but stating it in the court order limits the possibility of abuse by either parent. Such an application is subject to a state fee of 600 rubles.

If there is such a dispute, then the claim for divorce and determination of the child’s place of residence is filed with the district court and is subject to a state fee of 900 rubles, that is, 600 rubles. for termination and cancellation 300 rubles. for arguing about a child.

The state fee is paid according to the details of the court to which the application is submitted.

Jurisdiction of a claim for determination depends not only on the location of the defendant. You can also submit documents at the plaintiff’s place of residence if a minor lives with him.

Both the mother and the father can file a claim to determine the child’s place of residence. In this case, the parent who is the defendant in the original claim has the right to file a counterclaim with the same claim against the plaintiff, and the court will consider these statements simultaneously.

Jurisdiction of a claim to determine a child’s place of residence

The application must be submitted to the court at the registered address of the defendant - the mother, and no state fee must be paid.

In the statement of claim, it is worth writing about the facts of the conclusion and termination of the marriage, as well as why the child should continue to live with the plaintiff.

If the child has already reached 10 years of age, the court will take into account his personal wishes.

In addition, the prosecutor and a representative of guardianship and trusteeship must take part in the consideration of this category of cases.

Who is involved in the case

Only the mother or father can file a claim to determine the child's place . Neither grandparents, nor brothers-sisters or any other relatives are given this right.

In addition to the parents, the territorial guardianship and trusteeship authority must be involved in the case as a third party.

The guardianship representative must give the court his opinion, which will be taken into account as serious evidence. This conclusion must reasonably indicate with which parent, in the opinion of the guardianship, the child should live.

In addition, guardianship provides to the court, in order to determine the child’s place of residence, acts of living conditions in which the mother and father live. Such acts indicate the conditions in which the child lives, whether he has his own room, a place for games, preparation of lessons, activities, and a sleeping place. Exactly the same act must be submitted by the guardianship in the event that a counterclaim is filed.

There are no strict requirements for the conclusion. Therefore, the guardianship authority can reflect in the conclusion any reasons and arguments that it considers important.

Regulatory regulation of the issue of establishing a child’s place of residence

The issue of establishing the place of residence of minor children after the parents’ divorce is regulated by the Family Code of the Russian Federation dated December 29, 1995 No. 223-FZ. Art. is mainly devoted to this issue. 65 RF IC.

The Supreme Court of the Russian Federation adopted Resolution of the Plenum of May 27, 1998 No. 10 “On the application of legislation by courts in resolving disputes related to the upbringing of children” (hereinafter referred to as PPVS No. 10)

There is also a “Review of the practice of courts resolving disputes related to raising children,” approved by the Presidium of the Supreme Court of the Russian Federation on July 20, 2011 (hereinafter clarified by the Supreme Court).

Parental Agreement

The place of permanent residence of the child is determined by the parents by mutual consent - this is the general rule of family law.

According to paragraph 2 of Art. 65 of the RF IC, all issues related to the upbringing and education of children are resolved by parents by mutual consent, taking into account their opinions and interests.

This means that if both parents agree, the child can live with either mother or father.

To determine the place of residence of a child by agreement of the parents, notarization is not required. However, it is not prohibited by law to formalize the result of the parents’ agreement with a notary.

Notarization of such an agreement is not required; it can resolve the issue of the order of communication with the child of the other parent.

When consulting, our lawyers always try to ensure that the parents agree among themselves and establish the child’s place of residence by mutual consent.

A peaceful solution promotes the interests of the child and the establishment of partnerships between them. The conflict between spouses should not affect the children.

Expert commentary

Roslyakov Oleg Vladimirovich

Lawyer, specialization civil law. More than 19 years of experience.

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If the parents cannot or do not want to agree, then you can try to resolve this issue with the help of the guardianship and trusteeship authorities or immediately seek a solution to the conflict in court.

When the place of residence of a minor family member is determined

Divorce is a difficult procedure that requires not only physical, but also moral resources. The situation becomes much more complicated if the former spouses have a child together, since it will be necessary to determine his place of residence.

In this case, only the interests of the minor are taken into account.

Methods for determining with whom a child will live:

• Peace agreement - the spouses themselves decide how they will “divide” the minor family member, recording the agreement in writing;
• Litigation - an option used when there is no compromise.

If the father or mother died, were deprived of parental rights, are serving a sentence in prison, or were declared missing, the place of residence of the minor does not need to be determined. In these cases, the divorce is carried out through the registry office without the consent of the responding party, and the child continues to live with the applicant.

Determination of the child’s place of residence in court

According to paragraph 3 of Art. 65 of the RF IC, in the absence of an agreement, the dispute between parents is resolved by the court based on the interests of the children and taking into account their opinions. The trial to establish the child’s place of residence can take over six months.

We recommend! Sample claim to establish paternity and collect alimony

The court of first instance considers the case for 2 months or more. After the decision is made, it can be appealed within 30 days. The processing time for an appeal ranges from 2 to 4 months.

As a result, we find that we need to count on the duration of the consideration of the case, and accordingly take into account whether there is free time to go to court or not.

How to file a counterclaim

A counterclaim is filed according to the same rules as the original claim for determination.
The meeting is sent to the same court, paid with state duty in the same amount, contains a similar demand, but in opposition to the original claim. In addition, in a counterclaim, it is possible to refute the plaintiff’s arguments in the original claim and indicate other information essential to the determination case. Both claims are heard simultaneously in the same court case, by the same judge.

A counterclaim is needed in order to resolve the issue of with whom the child will remain as quickly as possible. If you act as a defendant and simply defend against a lawsuit, then the maximum you can achieve is that the child will not be left with your opponent, but you won’t be able to ask the court to transfer him to you. In this case, you will have to submit your statement of claim so that the child’s place of residence is determined with you. When a counterclaim is filed, these issues will be resolved in one trial.

A counterclaim is practically the same as a regular statement of claim, only you change roles in it with your opponent - he will now be the defendant, and you will be the plaintiff. Accordingly, you will be able to state your demands.

There is no point in delaying filing a counterclaim, lest the judge perceives this as an attempt to delay the process. If you file such a claim at the very end of the proceedings, for this reason the court may simply not accept it, indicating that filing a counterclaim will delay the consideration of the dispute.

A counterclaim can be filed either through the office of the court, indicating which judge of the district court is hearing the original claim, or directly in the trial of the original claim, handing a copy of it to the new defendant.

Subject of proof

Despite the “science-intensive” nature of the term “subject of proof,” everything is quite simple.

The subject of proof is understood as a list of circumstances that the court must establish when considering a claim regarding the place of residence of minor children.

Significant circumstances to be proven by the plaintiff include::

1. The child is attached to his father and has the opportunity to ensure relationships with other family members and his mother, while the defendant limits the plaintiff’s right to participate in his upbringing.
2. A father can and is capable of raising children.
3. Moral and other personal qualities of the plaintiff.
4. The relationship existing between the plaintiff and the child is good.

The plaintiff has the opportunity to create the necessary conditions for the child’s upbringing and development:

• housing available;
• sufficient income;
• furniture and things for the child;
• its operating mode does not exceed 8 hours and does not allow the plaintiff to go anywhere on business trips;
• the plaintiff has the opportunity to ensure that the child attends educational institutions;
• devote the necessary time to the moral and physical development of the child;
• the presence or absence of another family with the plaintiff, relatives or other persons living with him.

Circumstances characterizing the situation at the plaintiff’s place of residence :

• crime level in the relevant locality;
• opportunity to receive education, medical care;
• provision of housing with utilities in which a child can live,
• the level of morbidity in the population and the environmental situation cannot have an adverse effect on the upbringing and health of the child.

A father can and is capable of raising children

His moral and other personal qualities:

• characterizing data;
• the level of education;
• availability of work;
• in case of absence, the reasons for unemployment.

These qualities confirm the father’s right to raise young children and are higher than those of the defendant.

The relationship between him and the child is good:

• he takes measures to support the child;
• takes into account his interests;
• There is mutual understanding between him and the child.

The plaintiff has the opportunity to create a child:

• good conditions for education and development;
• there are necessary living conditions;
• sufficient earnings or other income;
• pieces of furniture and things for the child.

The defendant also needs to prove other circumstances on which he substantiates his position.

Of course, the court evaluates the arguments and evidence presented by the parties, as well as all other factors together, and makes a decision, ultimately based on the interests of the child.

In recent years, practice has moved away from stereotypical solutions for the child to live with the mother.

Various works have been devoted to this issue, and an opinion has been expressed about the need to avoid standardizing the decision when a father goes to court (Dragunskaya L. “Who should the child be handed over to raise?”).

The main difficulties associated with establishing the place of permanent residence of children arise when the parent living separately wants to take an active part in their daily life.

The consequence in the event of a dispute between them is often a requirement for the estranged mother to determine how to exercise parental rights.

In practice, there are often cases when she declares a desire to pick up children at her place of residence in order to participate in their lives and be aware of their interests.

In reality, the exercise of parental rights by a father living separately from the child may be difficult due to objective circumstances.

Conditions are not in favor of the father:

• everyday difficulties;
• busyness at work;
• the child’s workload at school and extracurricular activities;
• features of life in big cities.

However, the exercise of parental rights should in no case affect the interests of the child or disrupt his normal life

What questions will be asked?

Questions for the father when determining the child’s place of residence boil down to the following:

• in what conditions does he live;
• what is his income, is it regular or changing;
• to what extent his work schedule will allow him to provide proper care for the child (what is the work schedule, what time does the working day begin and end, does the work involve business trips, does the father have the opportunity to take the child to kindergarten or school and pick him up from there, is it possible to the opportunity to organize the child’s leisure time during the holidays, etc.);
• Will the child, if living with his father, be able to communicate with his mother, brothers and sisters, and other relatives?

The most important arguments for determining the child’s place of residence with his father should boil down to explanations of why living with the father is preferable for the child than living with the mother. It is the interests of the child that the court will be guided by when making such a decision.

The questions that the mother will be asked boil down to approximately the same thing, however, in accordance with established judicial practice, the child is most often left with the mother. Therefore, the courts usually do not clarify the circumstances directly related to her work and living conditions with such thoroughness.

We can say that determining the place of residence of a child with his mother is the rule, but with his father - rather an exception to the rule, although such decisions are not uncommon in judicial practice. However , in order to hand over the child to the father, very compelling reasons are needed:

1. mother's reluctance to care for the child,
2. the antisocial lifestyle she leads,
3. her alcoholism, documented,
4. the danger it poses to the life and health of the child, etc.

For detailed instructions for fathers on how to convince the court to hand over their child to you, watch the video:

For courts, the financial security of the parent with whom the child remains, and his living conditions (large apartment, presence of a country house, high earnings, financial solvency) cannot be the only basis for making a court decision.

Circumstances that the court examines when considering a claim

By virtue of clause 3 of Art. 65 of the RF IC, the court takes into account :

• the child's attachment to each of his parents and siblings;
• child's age;
• moral and other personal qualities of parents;
• the relationship that exists between each parent and the child;
• the opportunity to create conditions for a child’s upbringing and development;
• type of activity, working hours of parents;
• financial and marital status of parents.

When resolving a dispute, the court must take into account other circumstances characterizing the situation that has developed in the place of residence of each of the parents

The most complete list of circumstances is given in the clarifications of the Supreme Court:

• one of the parents showing more care and attention to the child;
• social behavior of parents;
• the moral and psychological situation that has developed in the place of residence of each of the parents;
• bringing the child's parents to administrative or criminal liability;
• having a criminal record;
• status registered in psychoneurological, narcological dispensaries;
• climatic conditions in the place where the child lives, when parents live in different regions;
• the opportunity to receive medical care in a timely manner;
• the presence or absence of parents of another family;
• the child’s usual social circle (friends, caregivers, teachers);
• the child’s attachment not only to parents, brothers and sisters, but also to grandparents living with them in the same family;
• proximity to the place of residence of relatives (grandparents, brothers, sisters), who can really help;
• the convenience of the location of the school, sports clubs and additional education institutions that the child will attend, and the possibility of each parent creating conditions for attending such classes;
• purpose of filing a claim.

Again, this list is not exhaustive. The court may take into account other circumstances when deciding the issue of determining the child’s place of residence.

None of the above circumstances is decisive in resolving the issue. The court approaches the assessment of any circumstances “creatively”. Any circumstances are assessed in their entirety.

In itself, the advantage in the financial and living situation of one of the parents is not an absolute basis for satisfying his claims in court.

The financial situation must be sufficient. Sufficiency is a relative concept. We must also not forget that the ex-husband will have to pay alimony for the maintenance of his pregnant wife and child.

Expert commentary

Roslyakov Oleg Vladimirovich

Lawyer, specialization civil law. We recommend! Adopting a child

More than 19 years of experience. Ask a question

Even if we take a separate factor, for example, a criminal record, then criminal prosecution in itself is not an unconditional basis on which the child will be transferred to another parent. A criminal record can be expunged. The severity and category of the crime committed, the circumstances of serving the sentence (for example, parole), and subsequent behavior must be taken into account.

What circumstances are taken into account when considering a case?

The procedure for determining the child’s place of residence by the court comes down to examining the following circumstances in civil proceedings:

• child's age . This is the first thing the court pays attention to. As a rule, the younger the child is, the greater his dependence on the mother and the more the child needs her. Since living without a mother can have a strong impact on the baby’s psyche, in order for the court to determine the child’s place of residence with the father, some exceptional circumstances must exist. After the child turns 10 years old, his opinion is heard in court proceedings and is binding on the court. In accordance with judicial practice, the fact that the court did not take into account the opinion of a child of the appropriate age when considering the claim is a violation, and the court decision can be canceled;
• the child's relationship with his parents, as well as with his brothers and sisters . This circumstance is also very important;
• the ability of parents to create for the child all the necessary conditions for his development, both physical and spiritual. Evidence of the possibility of creating such conditions, among other things, is precisely the acts of investigation of the living conditions in which the child lives, prepared and submitted to the court by the guardianship authority;
• how close to the home are the school or other educational development institutions in which the child attends (clubs, sections, studios), with whom the child will get there;
• personal qualities of parents , their social behavior, the presence or absence of a criminal record of any of them, the commission of administrative offenses.

If the court ordered a psychological and psychiatric examination, then the expert’s conclusion is one of the pieces of evidence that is taken into account by the court and does not predetermine the decision to determine the place of residence. However, the psychologist’s forecasts are certainly important both for the court and for the guardianship authority.

You also have the right to independently provide the court with any documents that may help you win your case:

• a certificate from the kindergarten stating that you bring and pick up the child, never stay late and take an active part in his life, dress the child carefully, attend events, etc.;
• characteristics from neighbors that they often see you and your child on walks together, the child is polite, well-mannered, neatly dressed;
• documents on ownership of the apartment in which you live;
• receipts for payment for things necessary for the child (computer, tablet, books, clothes, toys, bicycle) or activities (sections, clubs), etc.

You can invite to court any witnesses who can speak about your relationship with the child, his attachment to you and your care for him (for example, the class teacher, neighbors, teacher).

If you are the one taking care of the child, such witnesses need to ask questions about how often they see the second parent next to the child, whether he picks the child up from kindergarten, whether he brings him to clubs or sections, whether he goes to parent-teacher meetings, etc. The answers to these questions will help you prove in court the inconsistency of the defendant’s arguments that it is better for the child to live with him. You can bring witnesses yourself, declaring in court that you are asking to interrogate these people, or you can file a petition in court to summon them with subpoenas.

What is needed for the court to determine the place of residence with the father?

The minimum “set” of facts that must be proven in order for the court to leave the child with the father next.

Availability of living space

Housing may be:

• owned;
• in use under a social and commercial lease agreement;
• hiring office accommodation;
• free use agreement.

The child’s parent can be moved into the residential premises as a family member of the owner or tenant.

It does not matter on what basis the parent uses the living space.

Housing must be comfortable in relation to the conditions of the area in which the child lives. In a large city, it is logical to demand all the amenities.

If we are talking about rural areas, where the majority live in wooden houses with amenities on the street, it is enough to have such housing.

Living conditions for a child

Such conditions include:

• separate sleeping place;
• baby clothes;
• toys;
• a desk or study area for schoolchildren;
• Food.

All this is checked by the guardianship and trusteeship authorities when examining living conditions.

The parent who asks to determine the place of residence of the children with him must have sufficient income to support them

Income can be from work or business, from renting out property, or from savings. Income sufficiency is a relative concept.

You can focus on the cost of living.

At the time of writing, the cost of living in the Russian Federation as a whole was:

• per capita - 10,329 rubles;
• for the working population - 11,163 rubles;
• pensioners - 8506 rubles;
• children - 10160 rub..

When assessing income levels, keep in mind that the other parent will be required to pay child support.

How to write a statement of claim correctly

General requirements are defined in Art. 131-132 of the Code of Civil Procedure of the Russian Federation for all claims. There are no separate provisions of law that would regulate how to correctly write a statement of claim to determine a child’s place of residence.

The application is drawn up in writing, although the applicant can either type it on a computer or prepare it by hand. But be careful: unreadable handwriting may result in the document being left without movement, and the court will order the application to be corrected so that it can be read.

Content

As noted above, there are no special requirements for this type of application. But taking into account the provisions of Article 131 of the Code of Civil Procedure of the Russian Federation, the following mandatory elements of the document can be determined:

1. The name of the city or district court where the claim is filed and its address.
2. Full names of the parties to the case, their permanent addresses and actual place of residence. Additionally, you can specify telephone numbers and other means of communication.
3. The descriptive part of the application, which will reflect the circumstances preceding the dispute: the date and circumstances of the marriage, the birth of a child, divorce.
4. Reasons why it is necessary to determine the child’s place of residence through the court. For example, causing obstacles on the part of the husband in raising a child.
5. Evidence of the applicant's position as to why the child should be left with him.
6. Requirements for the court to leave the child with the parent and, if necessary, to simultaneously determine the order of communication with the child.
7. Date of application, personal signature of the plaintiff, list of documents.

The contents of the application may vary significantly depending on additional requirements or the specific situation.

Thus, along with a claim to determine the child’s place of residence, the following demands can be filed:

• on divorce in the presence of children;
• on determining the order of communication with the child or setting restrictions for the second parent;
• on the collection of child support.

In any of these cases, the final content of the claim to determine the child’s place of residence will differ more than significantly, since it will be necessary to substantiate each claim and provide evidence to the court for each of them.

Sample application to determine a child’s place of residence

To file a claim, it is advisable to seek qualified legal assistance. At a minimum, it is advisable to consult with an experienced specialist and ask any questions that concern you.

There is no universal application for determining a child’s place of residence.

The following circumstances will have to be separately stated in each claim.

Each of these arguments may be required when drawing up a document, but only a qualified lawyer will give a definite answer about the need to indicate it.

Below is a sample claim template that you can use to draw up your document.

Documentation

To confirm all the circumstances stated in the application, the plaintiff will need to generate the following mandatory package of documentation:

• a copy of the claim for the defendant;
• a copy of your passport for the court;
• copies of certificates: marriage; about its termination (divorce); about the birth of children;
• a certificate of the child’s actual place of residence at the time of filing the claim.

Additionally, taking into account the individual characteristics of the dispute, the identity of the parents and the reasons for determining the child’s place of residence through the court, the following may be required:

• information about the income of both parents, including information about benefits and targeted payments;
• information on the fulfillment of alimony obligations;
• documents about the baby’s health status;
• information about the availability of property necessary for a child’s comfortable life: living quarters, car;
• certificates of inspection of living conditions prepared by the guardianship authorities in relation to one or both parents.
• other documents relevant to this case.

Almost all documents can be provided in copies, excluding certificates or documents specially executed for the court. The originals will necessarily need to be presented to the court for review, since during the process the judge may ask to show him the original documents.

State duty

Claims to determine the place of residence of children are subject to payment of a fee of 300 rubles per non-property claim .

In this case, the applicant, on the basis of the benefits specified in Art. 333.36 of the Tax Code of the Russian Federation, is exempt from making a payment before filing, as a person applying to court to protect the interests of a minor child.

In the future, the fee will be collected from the defendant, but only if the requirements are satisfied. If additional demands are filed with the claim, then each of them will be paid separately, excluding “preferential” payments.

Additional duty may be:

• for divorce: 600 rubles, paid by the applicant, and subsequently by the defendant;
• collection of alimony - 150 rubles, the applicant does not pay it when going to court.

Psychological and psychiatric examination in cases of determining a child’s place of residence

In some cases, the use of special knowledge in the field of psychology and psychiatry is required to establish circumstances relevant to the case.

In such cases, examinations are appointed:

• diagnostics of intrafamily relationships and the relationship of the child with each parent;
• identifying the psychological characteristics of each parent and child;
• for psychological analysis of the situation as a whole (family conflict);
• determining the presence or absence of psychological influence on the child on the part of one of the parents;
• other questions.

On what grounds does the court make a decision?

The court takes a comprehensive approach to considering a case regarding a child, and therefore takes into account several factors. The basis is made up of material and psychological circumstances. If the child is over 10 years old, then his opinion is taken into account.

On what basis does the court make a decision:

1. Psychological comfort of the child. If a minor family member is not yet ten years old, a psychological and pedagogical examination is organized. Adult children are asked directly which parent they want to stay with.
2. Opinion of guardianship and trusteeship authorities. This service is necessarily present when considering cases involving children. Representatives of the organization conduct conversations with both parents and the child, after which they form a conclusion.
3. Moral qualities of former spouses. Public charitable activities, testimony of colleagues, superiors, friends, and relatives are taken into account. Criminal records and other problems with the law are also taken into account.
4. Financial security and domestic comfort. The spouse’s work schedule is considered, because this determines how much time the parent can devote to the child. Also taken into account is the level of income, the availability of your own home, the quality of repairs in the house and the type of household appliances, the age of the child, the distance to kindergarten and school, etc. Every little thing can have a colossal impact on a court decision.
5. The point of view of independent experts. The testimony of teachers, psychologists and other highly specialized specialists is taken into account.

Evgeniy Baidalin

Family lawyer. More than 10 years of experience

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After considering all the circumstances, the court makes a decision with whom the child will live. If the circumstances of the case change, then it is allowed to review the court decision.

Does the child's wishes affect the outcome of the case?

If the child is an adult (over 10 years old), then the judge must take into account his desires to remain with one of the parents. A minor can express an opinion in court or during a conversation with a person who has a pedagogical and psychological education. The main thing is that the ex-spouses are absent when talking to the child. In front of their parents, children are afraid or embarrassed to honestly express their opinion.

Arbitrage practice

According to statistics, the court equally satisfies the demands of fathers and mothers, but men are less likely to claim that the child should live with them . To increase the chances of winning the case, it is recommended to contact a competent family law lawyer who will answer all questions, advise on the preparation and filing of a statement of claim and formulate the evidence base.

Problems often arise when executing a court order. If the ex-husband or wife does not allow you to see and communicate with the child, then you need to file a complaint with the bailiffs, as this is a direct violation of the law.

Taking into account the child’s opinion when determining the place of residence

According to paragraph 3 of Art. 65 of the RF IC, disputes about the place of residence of children are resolved by the court not only based on the interests of the child, but also taking into account their opinion.

Article 57 of the RF IC establishes that a child has the right to express his opinion when deciding in the family any issue affecting his interests, as well as to be heard during judicial or administrative proceedings.

Taking into account the opinion of a child who has reached the age of ten is mandatory, except in cases where this is contrary to his interests.

The specifics of the application of this norm are explained in paragraph 20 of the PPVS No. 10.

This paragraph states that before interviewing a minor in court, the opinion of the guardianship and trusteeship authority should be ascertained as to whether his presence in court will have an adverse effect on the child.

However, paragraph 4 of the PPVS dated April 20, 2006 No. 8 “On the application of legislation by courts when considering cases of adoption of children” states that when deciding the issue of the need to summon a minor aged ten to fourteen years to a court hearing, the judge one should proceed from the provisions of Article 57 of the RF IC.

According to its provisions, the child has the right to be heard when considering a case affecting his interests.

If there are grounds to believe that the presence of a child in court may have an adverse effect on him, the court ascertains the opinion of the guardianship and trusteeship authority on this matter.

The clarification of the Supreme Court states that the above resolution should be followed.

The child must be interviewed taking into account his age and development in the presence of a teacher. The survey should be carried out in an environment that excludes the influence of interested parties, that is, without parents.

The court must find out what influence his parents or other interested parties had on him and whether his opinion is the result of such indoctrination. Is the child aware of his own interests and how does he justify them?

Expert commentary

Roslyakov Oleg Vladimirovich

Lawyer, specialization civil law. More than 19 years of experience.

Ask a question

Of course, his opinion is taken into account, but is not decisive. The court evaluates, first of all, the interests of the child. For example, a teenager may want to stay with one of the parents because he does not control him and allows him to do whatever he wants - not go to school, not do homework.

Naturally, such permissiveness does not correspond to his interests, so such an opinion should not be taken into account.

Lawyer's answers to frequently asked questions

After a divorce, the child stayed with his mother, how long can I take him with me?

Determining the place of residence with the mother does not deprive the father of the right to regular meetings with the child. Refusal to communicate on the part of the ex-wife requires the father to initiate legal proceedings regarding the procedure for communicating with the child. As a result, a meeting schedule will be drawn up that does not limit the plaintiff in exercising parental rights and fulfilling obligations.

Restriction or deprivation of paternal rights is possible only in court.

If the mother does not work, can the father take the child?

Lack of work is not the main factor in determining where to live with the father. When studying the case, the court takes into account not only stable income (salary, benefits), but also other sources that are not documented (financial assistance from relatives). The time and reasons why a woman does not work also matter. In addition, alimony can improve a difficult financial situation.

Why is a child more often left with his mother?

This circumstance is explained by the special relationship between mother and child. As a rule, women pay more attention and care, unlike men. The norms of international law take the side of the mother if the child is under 3 years of age. Physiological processes are also taken into account here, for example, the father cannot provide breastfeeding. In any case, other circumstances are taken into account.

When does a child stay with his father?

A decision in favor of the father is made in the following cases:

• spouse:
• suffers from alcohol and drug addiction;
• has a mental illness (limited or incapacitated);
• uses methods of violence against children;
• has no means of subsistence or living space;
• conclusion of the guardianship and trusteeship authority in favor of the father;
• the opinion of a psychologist and children about attachment to their father.

Who is the child most often left to live with?

Practice shows that in most cases the child remains with the mother.

This is primarily due to the fact that children are usually attached to their mother, because they show great care and concern.

The second reason is that the financial situation of mothers is no worse than that of fathers, if only because everything acquired during marriage is common joint property.

Even if the father is wealthier, a greater level of material security is not decisive. The level of provision must be reasonably sufficient. These are objective reasons.

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Subjective reasons lie in the generally accepted position that mothers take great care of their children, and also in the fact that, as a rule, this category of cases is considered by female judges.

However, there are cases when children stay with their father.

This usually happens when the mother is unable to provide for the maintenance and upbringing of the children.:

1. Does not have living conditions for children (housing, source of income) and does not take any action to support them.
2. Suffering from alcoholism or drug addiction.
3. The child has a great attachment to his father, which is why a psychological and psychiatric examination is needed, but there is no attachment to his mother or it is weak.

And also if the child is over 10 years old, and he asks to leave him with his father, and the mother does not have any advantages. Everything here is very individual.

Who does the court leave the children with after a divorce?

Family disputes about residence and communication with a child are considered only by the court.
A number of issues resolved during the divorce procedure are regulated by Art. 24 of the RF IC, which in particular defines the equality of parents in the process of raising children. Statistics from judicial practice indicate living with the mother after divorce in 90% of cases. The remaining 10% is the decision to leave the minor with his father or alternate residence with his parents.

The fundamental factor is the degree of attachment to the minor and educational experience.

Due to work commitments, it is impossible for fathers to be at home all the time. A weighty argument in persuading the court to leave the child to live with the man is the behavior of the mother, which characterizes an inappropriate (immoral) lifestyle.

A child under 3 years of age remains with the mother. This rule is established by the International Declaration of the Rights of the Child, but there are exceptions:

• cruel treatment;
• immoral lifestyle (alcohol abuse, drug addiction);
• mental disorder;
• serious illness that prevents proper care of the minor.

In the case of children over 3 years old, the court also considers other circumstances relevant to the essence of the issue.

Determining the order of communication

The current legislation of the Russian Federation provides for 2 ways of communicating with children living with another parent:

1. Pre-trial – appeal to the guardianship and trusteeship department:
   • personal visit to state the authority at the place of residence of the minor;

   writing and submitting an application in the prescribed form.

This option has a number of advantages:

• peaceful resolution of the conflict;
• participation of the guardianship authority does not require payment for services;
• conducting awareness-raising work with the applicant about the legal rights to the child after divorce.

Determination of place of residence

If the former spouses have not reached a compromise in resolving the issue of living together for a joint child through negotiations and signing a mutual agreement, the family dispute is subject to judicial review. A prerequisite for the process is the involvement of the guardianship and trusteeship department (Article 78 of the RF IC).

Determining the place of residence is protracted due to the seriousness of the issue. In order to make the optimal decision, the court takes into account the data provided by the state. institution:

• certificate of inspection of living conditions. An authorized commission checks the living areas of the father and mother for compliance with sanitary and other standards;
• a conclusion that determines the preference in choosing the place of residence of the minor. When drawing up a document, the following are important:
• protection of children's interests;
• the relationship between the child and each parent;
• financial situation;
• living conditions;
• parents' employment;
• health status.

What to do if your ex-wife does not allow you to communicate with your children after a divorce?

What rights do parents have to their children after divorce?

If the child’s place of residence is determined

The issuance of an appropriate decision by a judicial body in no way has the right to infringe on the rights and responsibilities in relation to the child of a mother or father living separately. Another thing is that it sets a certain framework for future relationships.

A court decision to establish the child’s place of residence will be the basis for his registration at a particular address. After all, the child’s residence is legally fixed at the address of one of the parents.

In addition, the procedure for visiting a child may be revised in the future. This can happen due to the new environment in which children find themselves every day.

For example, a child has already grown out of kindergarten and went to school. Then the order of meetings with the other parent will change.

When to file a claim for determination

It is more expedient to state a requirement to determine the child’s place of residence during a divorce directly in the statement of claim for divorce (if there is a minor child, the marriage is always dissolved in court). However, nothing prevents you from filing a claim later, with a separate application. Sometimes it happens that initially there is no dispute about the child’s place of residence, but later, for some reason, the issue of the child’s residence again becomes relevant.

In this case, the statute of limitations does not apply to this category of disputes. A claim to determine the place of residence of a child can be filed at any time after the divorce.

As a rule, the parent himself transfers the child to the person with whom his place of residence is determined. If the court decision is not executed voluntarily, it is necessary to obtain a writ of execution and contact the bailiffs to initiate enforcement proceedings against the parent who is evading execution of the court decision.