Agreement on children, child residence during divorce in 2021

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After the official dissolution of a marriage, former spouses rarely remain living in the same territory and do not see each other often. If the couple does not have children together or the offspring have already reached adulthood, the separation process can be carried out in an expedited manner. If there is a minor child, divorce is carried out only through the court (Article 21 of the RF IC).

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For your information

Most parents, when filing a claim, try to immediately resolve the main issues related to the further residence and financial support of their children. To resolve disagreements regarding the place of residence and child support, court proceedings are not always necessary. If the parties do not have differences in the divorce, the spouses can draw up a written agreement about the children.

Who draws up a child agreement in a divorce?

The terms of the agreement regarding children in a divorce are negotiated primarily by the parents. If the procedure is carried out out of court, it is advisable to entrust the drafting of the text to a practicing lawyer who specializes in family disputes.

In the settlement agreement that the parties enter into during the trial, the list of issues for settlement is suggested by the judge, but the terms themselves are determined only by the parents. At the same time, it is important that the provisions of the agreement on children in the event of a divorce do not contradict current legislation.

For your information

If the couple’s offspring have reached 10 years of age, it will be necessary to seek permission from minors for a number of nuances (Article 57 of the RF IC). Children do not deal with issues of financial support during a divorce, but they can influence the order of meetings and cohabitation when drawing up an agreement. For example, if a 12-year-old boy categorically does not want to meet with one of his parents after the divorce, it will be impossible to force the offspring. Therefore, it is simply pointless to introduce conditions that do not respect children’s rights into the text of the agreement.

Parent's rights after divorce

In addition, the rights of parents to children after a divorce remain the same as they were during marriage. But a number of difficulties may arise with their implementation.

A parent who leaves the family retains the right to:

• obtaining information about the child’s health, academic performance and life;
• making decisions about education or treatment;
• communicating with the child, spending time together with him;
• other actions necessary to fulfill their parental responsibilities and exercise their rights.

Expert opinion

Stanislav Evseev

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

The main problem in establishing interaction between parents is their hostile relationship caused by the breakdown of the relationship. The child suffers from such conflicts.

In defense of his interests, it is much easier to refuse to settle scores and agree on the fulfillment of one’s duties peacefully.

Benefits and disadvantages

Concluding an agreement on children during a divorce has its undoubted pros and cons. Part of the content of the text depends on the form and procedure for drawing up the contract.

Advantages of an agreement on children during divorce:

1. Parents can establish in the contract any conditions that are convenient for both parties to the divorce process. If the issues of the maintenance and place of residence of children are regulated in court, when making a decision, officials will be guided only by the rights and obligations enshrined in the RF IC and other normative acts: resolutions of the Plenum and the Constitution. For example, if according to the law one child is entitled to alimony in the amount of 25% of the parent’s income, during the divorce process this exact amount will be assigned. If necessary, the parties can independently agree to change the amount of child support.
2. Stakeholders will be able to save their time. Contacting a lawyer and notary also requires expenses, but during litigation, the review process can drag on for a very long time and entail additional costs in finances, hours and nerves.
3. Maintaining psychological comfort. Lengthy legal proceedings in which children become the object of dispute can lead to psychological trauma for the child. Thanks to an agreement on children, disagreements during a divorce can be resolved quickly and without the involvement of strangers.

Of course, concluding an agreement is not at all necessary.

It is permissible to simply verbally voice the conditions of future residence and maintenance, but in this case, if a conflict arises, it will not be possible to refer to the existing agreement.

For example, if after a divorce one of the parents stops paying child support, the money can be forcibly recovered, but only if the amount and procedure for payment were determined in an agreement or according to a court decision. When there is no explanatory document, the fact of non-payment will still need to be proven.

An agreement on children during a divorce also has one negative point: the terms of the deal cannot be revised and/or canceled unilaterally. At the same time, the provisions must be implemented as strictly as a court decision. To make changes, it will be necessary to achieve unity between the parties and draw up a new document. If the first agreement was written and notarized, the new version with changes must also be registered (Article 101 of the RF IC).

Attention

When it is not possible to reach an agreement on divorce, there is only one way out - going to court.

Legal advice

Sometimes, by the time of divorce, the husband and wife are completely unable to conduct a dialogue and make joint decisions. Disputes, serious abuses (for example, forcible retention of a child, non-payment of child support), disagreements are not uncommon. Without the support of an experienced lawyer, obtaining justice can be difficult.

Some married couples still maintain mutual understanding, but difficulties arise with the legal side of the issue:

• How to file for divorce if you have children?
• How to respect the rights of the child, mother and father?
• How to prepare a parental agreement?
• How to include all the most important provisions in the document?
• How to avoid mistakes, violations, and ambiguous formulations?
• Is a simple written form sufficient or does the document need to be notarized?

If a husband and wife are not sure that they can draw up a document on their own, it is worth contacting professional lawyers who will not only provide a ready-made standard template, but will help them draw up an individual one based on the characteristics of family relationships.
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Author of the article

Irina Garmash

Family law consultant.

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Ways to draw up an agreement

An agreement regarding children during divorce can be concluded in written or oral form. It is advisable that the agreement be written down on paper and certified by an authorized person. The classic option for resolving the issue is a simple written agreement drawn up by the spouses independently or with the help of a lawyer and certified by a notary.

A children's agreement can be signed at any time during the divorce process and after the dissolution of the marriage.

If the spouses have already filed a claim and questions about the further place of residence, maintenance and communication of the minor are considered in court, there are two options for further formalizing the agreement:

1. Agreement in court. It is drawn up if during the hearing the parties came to a compromise. In this case, it will be a standard document with the only difference that the text will not require notarization. The correctness of the drafting and legality of the agreement in court regarding children will be certified by the representative of the authorities who is considering the divorce case. Further, the contract is binding. The terms of the transaction can be revised only by mutual written notarial agreement or in court (Article 153.10 of the Code of Civil Procedure of the Russian Federation).
2. Oral agreement of the parties. This method of registration does not involve presentation on paper. The terms of the agreement are recorded in the court record and the writ of execution after the court decision is made.

A verbal agreement regarding children during a divorce must also be respected.

What issues can be settled by agreement upon divorce:

1. Amount and procedure for providing child support.
2. Place of further residence of the child and the order of meetings of the second parent with him.

The parties can immediately consider all issues about children within the framework of one agreement during a divorce or draw up a separate agreement for each provision: place of residence, maintenance, communication schedule. It is also possible to resolve only one problem (for example, the procedure for processing alimony), and to reach a compromise in words on all others. The content of the agreement regarding children is determined by the parents.

For your information

Without fail, issues of place of residence, alimony and communication schedule with the child are resolved only if one of the parties files a corresponding statement of claim with the court.

Grounds for refusal to see a child

The legislation establishes the grounds under which a parent living separately is deprived of the right to see the child, communicate with him, and receive information about him.

Such grounds include situations where the moving parent:

• forces a child to commit illegal acts;
• commits violence towards the child, physically punishes him harshly;
• turns the child against the other parent;
• leads an immoral lifestyle - wanders, steals;
• otherwise abuses his rights as a parent.

If the court finds that the parent living with the child did not create obstacles in communicating with the minor, but the plaintiff filed a lawsuit with selfish and other intentions, then the claim will be rejected.

Documents for an agreement on a child in case of divorce

To formalize an agreement regarding children in a divorce, certain documents will be required. The list of papers for registration may vary depending on the list of issues being considered during divorce. The parties must prepare and submit:

1. Text of the agreement. It is advisable that the document be drawn up by a professional lawyer. This will help to avoid future disputes regarding the legality of the agreement on children in the event of a divorce.
2. General passports of both parents.
3. Child's birth certificate. If the child has reached the age of 14, a teenager’s passport will be additionally required upon conclusion. If the child has been adopted, an adoption certificate will be required.
4. Income certificates from both participants. If the parents are employees, the parties will need to draw up a document at work in Form 2 of the personal income tax. Entrepreneurs must provide a certificate in Form 3 of personal income tax. If one of the parents is a pensioner, such a document will be issued by the Pension Fund. Students can obtain a certificate of income at their place of study.
5. Certificate of marriage or divorce (if the parties to the agreement on children have already divorced).
6. Certificate of family composition. A document on the number of persons living at one address can be issued at the passport office at the place of residence of the parties to the agreement.

Income certificates are needed only if the issue of child support is being resolved.

Documentation

When submitting a parental agreement to the court, it is not necessary to attach any documents to it, since the agreement is already an annex to the statement of claim for divorce, along with passports, marriage certificates, birth certificates of children, and other documents.

If additional documents are required during the trial, the court will request them.

Agreement on the residence of children during divorce

The need to draw up an agreement on the place of further residence of the child during a divorce may be dictated by various reasons. First of all, the parties to the contract want to be sure that the baby will have a home and the care of a specific parent.

Also, the drafting of a deal between spouses may be dictated by fears that one of the parties will subsequently demand unilateral custody of the child.

The agreement on children simplifies the mechanism of interaction with the guardianship and trusteeship authorities during a divorce. You will need to obtain permission for the contract from government officials.

If a child has property, his property until adulthood is managed by the person with whom the child remains to live (Article 28 of the Civil Code of the Russian Federation).

For your information

As a rule, after a divorce, children remain with their mother; the father can influence their movement only when traveling abroad. In the terms of the agreement, it can be stated that one of the parents does not have the right to change the child’s place of residence without notice and other important nuances for the participants (Article 65 of the RF IC).

The procedure for concluding an agreement on children during a divorce:

1. The parties agree on the terms of the document. If the child is already 10 years old, his opinion is asked about his place of residence. This is confirmed by the rights of children in divorce.
2. The text of the agreement on children in case of divorce is drawn up.
3. The document is certified by a notary.

If the contract does not stipulate special conditions, it comes into force from the moment of notarization.

The following information should be included in an agreement regarding children in a divorce:

1. Title of the document.
2. Basic information of both parents (full name, date of birth, place of residence, passport details).
3. Information about the child (full name, date of birth).
4. Living conditions of a minor after divorce (at what address and with which parent will he live).
5. Procedure for notification when changing a child’s place of residence.
6. When and how much time the other party can spend with the children. Possibility to take your child on vacation. Some clauses of the agreement regarding children are optional and are included individually at the discretion of the parties to the divorce.
7. Date of approval.
8. Signatures of the parties with transcripts.

Additionally, the text can provide for the conditions for the entry into force of the contract and potential penalties for violating the provisions.

The possibility of drawing up an agreement on the place of residence of children during a divorce is enshrined in Art. 65 RF IC. If the divorce process begins after the creation of the contract, the document must be presented to the judge as evidence of the existence of a transaction (Article 24 of the RF IC).

A sample agreement on determining the child’s place of residence and exercising parental rights in relation to him is available.

What amount of alimony is indicated in the agreement?

If one of the parents does not agree with the proposed amount of alimony, the agreement specifies the amount in accordance with Article 103 of the Family Code.

• ¼ of the parent's profit per child;
• ⅓ income for two children;
• ½ for three or more.

In cases where a parent does not have a stable income, the amount of alimony is assigned to provide the child with a standard of living no lower than before the divorce. The court does not establish the amount of alimony if the spouses agree among themselves. If a couple has two children who are divided between the parents, separate acts are drawn up for each parent. In this case, the documents are submitted as appendices to the agreement on the residence of children after divorce.

Agreement on child support upon divorce

It is advisable to record the procedure and amount of child support upon divorce in writing: using a notarial agreement or a court decision. If confirmation is not made, in the future, if one of the parents refuses to provide financial assistance, it will be difficult to recover money for the missed period. The issue of determining the amount of alimony upon divorce is covered by Art. 81 IC RF.

If the parties do not have any disagreements regarding the issue of financial support for children, it would be wiser to enter into an agreement during the divorce. Under the terms of the agreement, the participants can establish any amount and procedure for providing alimony (Article 103 of the RF IC).

IMPORTANT

The provisions of the agreement must not conflict with current legislation. The amount of payments determined by agreement cannot be lower than what would be provided by a court decision.

Art. 81 of the RF IC establishes the following amounts of alimony in case of divorce:

1. One child is entitled to 25% of their income.
2. For two children - 1/3 of income (approximately 33%).
3. For three or more children – ½ income.

It must be taken into account that if children are from different marriages, then the parts due to them by law are divided in equal proportions. Cash payments are collected from all types of income except targeted funds. The alimony provider must provide monthly payments according to the schedule specified in the children's divorce agreement.

For your information

Deviation from the above norm is possible if the payer’s income is unstable or it is not feasible to regularly determine the amount of income. For example, an individual entrepreneur submits financial statements no more than once a quarter. In this case, it is allowed to assign alimony in a fixed amount and not pay it monthly (Article 83 of the RF IC).

The procedure for concluding an agreement on child support upon divorce:

1. The parties agree on the payment of alimony and collect the necessary package of documents.
2. The text of the document is compiled.
3. The agreement is certified by a notary. If there are no special conditions in the text, it comes into force immediately after certification.

An agreement on children in a divorce does not have a strictly defined form and is drawn up arbitrarily. There are mandatory elements that must be in the text:

1. Document's name.
2. Basic data of the alimony provider (full name, date of birth, place of residence, passport details).
3. Information about the child (full name, date of birth, registration and actual place of residence).
4. Degree of relationship between the defendant and the payer.
5. Basic data of the representative of the alimony recipient, i.e. the parent with whom the child remains to live in the event of a divorce (full name, date of birth, place of residence, passport details), the type of relationship with the person who has the right to payments.
6. Amount and frequency of remuneration (in numbers and in words), for example, monthly.
7. The procedure for transferring funds (in person, to a bank account, to a card).
8. The collection procedure and the amount of the penalty in case of violation of the conditions. In the absence of this clause, a penalty will be charged under Art. 115 RF IC.
9. The procedure for indexing alimony payments. If there are no instructions in the text of the agreement on this matter, the recalculation of the salary will be done in accordance with Art. 117 RF IC.
10. Duration of the agreement on children in case of divorce. Child support is required until the child reaches the age of majority, but the text can establish payment obligations while the child is studying at a university, etc.
11. Additional terms and conditions (if any).
12. Conclusion date.
13. Signatures of the parties with transcripts. Both the payer and the recipient's representative provide their assurance.

If the child has reached the age of 14, the document is concluded on his behalf, but with the consent of the official guardian (Article 99 of the RF IC). A minor citizen independently signs the text.

A sample agreement on financial support for children during divorce is available.

Below is a sample text of an agreement on the procedure for exercising parental rights by a parent living separately from the child.

This text is exemplary and changes to the text of the agreement may be made depending on the specific circumstances and wishes of the parties.

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Questions regarding the development of an agreement on the procedure for the exercise of parental rights by a parent living separately from the child can be asked to our lawyers and attorneys.

AGREEMENT

on the procedure for exercising parental rights by a parent living separately from the child

"___" November 20__ St. Petersburg

Citizen of the Russian Federation __________________, passport: series _____ N _____, issued “__”________ ____ year _________________, unit code _____, residing at the address: ________________, hereinafter referred to as “Father”, on the one hand, and citizen of the Russian Federation _____________________, passport: series _____ N _____, issued “___”_______ ____ year ________________, department code _____, residing at the address: _________________, hereinafter referred to as “Mother”, on the other hand, together referred to as “Parents”, in accordance with Article 66 of the RF IC, have entered into this agreement on as follows:

1. SUBJECT OF THE AGREEMENT

1.1. This agreement is concluded in relation to a common minor Child - _____________________, _____ year of birth, hereinafter referred to as the “Child”.

1.2. Under this agreement, the Parents agreed to determine the procedure for the exercise of parental rights by the Father of the minor Child, since he will live separately from the Child.

2. PROCEDURE FOR EXERCISING PARENTAL RIGHTS

2.1. The parents under this agreement have established that all issues relating to the upbringing and education of the Child are resolved by their mutual consent based on the interests and taking into account the opinion of their Child.

2.2. Parents have established that they are equally responsible for the upbringing and development of their Child, and are obliged to take care of his health, as well as physical, mental, spiritual and moral development.

2.3. The parents under this agreement have agreed that since the Father will live separately from the Child, the Mother undertakes:

2.3.1. Provide the Father, as well as his parents, at their request and with the consent of the Child, the opportunity to meet and communicate freely in the following order:

- 3 times during the calendar month on Sundays, or on other days agreed upon by the Parents, additionally from 9.00 am to 9.00 pm, and in the case of visiting cultural and entertainment events for children, no later than 10.00 pm;

2.3.2. Provide the opportunity for the Father, together with his parents, as well as other blood relatives of the Child, at their request and with the consent of the Child, to rest together with the Child in a suitable place (a comfortable cottage, a holiday home, a hotel) in the summer once for a period of ______ calendar days and at his request, prepare all the necessary documents for this.

2.3.3. Provide the Child with the opportunity, with his consent, to live at the Father’s place of residence during the holidays, as well as to go with him or his parents during this period on vacation to specially designated comfortable places.

3. RIGHTS AND OBLIGATIONS OF THE PARTIES

3.1. The mother undertakes:

3.1.1. On the days and times established by paragraphs. 2.3.1 of this agreement to dress and prepare the Child for the meeting with the Father;

3.1.2. In the cases established by paragraphs. 2.3.2 and 2.3.3 prepare the Child’s luggage at the time of departure;

3.1.3. Notify the Child in advance of the day and time of the meeting with the Father and his parents, as well as inform about the reasons for the impossibility of such meetings.

3.1.4. Notify the Father in advance, namely 3 (three) calendar days in advance, about the impossibility of meeting with the Child, as well as inform about the reasons for the impossibility of such meetings.

3.2. The father undertakes:

3.2.1. Without delay on the days and times established by paragraphs. 2.3.1 of this agreement to come to the Child’s place of residence, or another place specifically agreed upon by the parents, pick up the Child for joint leisure time and return him at the appointed time to the place established by the Parents.

3.2.2. In the cases established by paragraphs. 2.3.2 and 2.3.3 of this agreement:

— prepare safe transport for transporting the Child and provide the Child with comfortable living conditions, namely, equip the car with a seat for transporting the Child (in accordance with the law), provide a separate sleeping place outside the area of ​​residence of persons who are not blood relatives of the Child;

- notify the Mother about the safe arrival at the place of rest, no later than the day following the date of arrival, as well as about the time of return to St. Petersburg, indicating the date of arrival, the vehicle, its number, place and time of arrival;

— return the Child to his place of residence no later than 3 hours from the moment of arrival in St. Petersburg;

3.2.3. Notify the Mother in advance, namely 3 (three) calendar days in advance, about the impossibility of meeting with the Child, as well as inform about the reasons for the impossibility of such meetings.

3.3. Parents mutually undertake to maintain friendly relations in the presence of the Child, not to discuss personal relationship problems they have in the presence of the Child, not to speak disapprovingly of each other’s actions or the other party’s relatives, and not to incite the Child in this way.

3.4. Parents mutually undertake to monitor the proper implementation of this agreement by their parents and other relatives.

3.5. Parents undertake to jointly organize and hold, in the presence of both Parents, the celebration of the Child’s birthday, whenever possible, in a children’s club, cafe, or restaurant.

3.6. The parties to this agreement undertake to properly fulfill their obligations, comply with the requirements of family law governing the issues on which this agreement was concluded, not abuse their rights, and also promptly notify each other of changes in their place of residence and any other circumstances having essential for the timely fulfillment of its obligations under this agreement.

4. TERM OF THE AGREEMENT AND OTHER ADDITIONAL TERMS

4.1. This agreement is considered concluded from the moment it is signed and terminates after 6 (six) months from the date of signing this agreement.

4.2. This agreement is extended for the same period if, from the expiration of 6 (six) months from the date of signing this agreement, but no later than 14 calendar days calculated from the expiration of 6 (six) months from the date of signing this agreement, no a justified claim for failure to fulfill obligations under this agreement.

4.3. The cases established by paragraphs. 2.3.2 and 2.3.3 of this agreement are valid after 6 (six) months from the date of signing this agreement.

4.4. Parents have the right, by mutual consent, to change this agreement at any time or terminate it in the form prescribed by law.

4.5. Unilateral refusal to fulfill this agreement is not permitted.

4.6. All controversial issues under this agreement that may arise during its execution will be resolved through negotiations. If agreement is not reached, each of the Parents has the right to go to court.

4.7. The costs of drawing up and certifying this agreement are paid by the Father of the minor Child.

???4.8. This agreement is concluded in three original copies having equal legal force, one for each of the Parents, and the third copy will be kept in the files of the notary ______________________.

5. SIGNATURES OF THE PARTIES

Father mother

______________/__________/ _________________/__________/

Extract and Family Code of the Russian Federation

Article 63. Rights and obligations of parents regarding the upbringing and education of children

1. Parents have the right and obligation to raise their children.

Parents are responsible for the upbringing and development of their children. They are obliged to take care of the health, physical, mental, spiritual and moral development of their children.

Parents have a priority right to raise their children over all other persons.

2. Parents are obliged to ensure that their children receive basic general education and create conditions for them to receive secondary (complete) general education.

Parents, taking into account the opinions of their children, have the right to choose an educational institution and the form of education for their children.

(Clause 2 as amended by Federal Law dated July 21, 2007 N 194-FZ)

Article 64. Rights and obligations of parents to protect the rights and interests of children

1. Protection of the rights and interests of children rests with their parents.

Parents are the legal representatives of their children and act in defense of their rights and interests in relations with any individuals and legal entities, including in the courts, without special powers.

2. Parents do not have the right to represent the interests of their children if the guardianship and trusteeship authority establishes that there are contradictions between the interests of parents and children. In case of disagreements between parents and children, the guardianship and trusteeship authority is obliged to appoint a representative to protect the rights and interests of the children.

Article 65. Exercise of parental rights

1. Parental rights cannot be exercised in conflict with the interests of children. Ensuring the interests of children should be the main concern of their parents.

When exercising parental rights, parents do not have the right to cause harm to the physical and mental health of children or their moral development. Methods of raising children must exclude neglectful, cruel, rude, degrading treatment, insult or exploitation of children.

Parents who exercise parental rights to the detriment of the rights and interests of children are liable in accordance with the procedure established by law.

2. All issues related to the upbringing and education of children are resolved by parents by mutual consent based on the interests of the children and taking into account the opinions of the children. Parents (one of them), if there are disagreements between them, have the right to apply for resolution of these disagreements to the guardianship and trusteeship authority or to the court.

3. The place of residence of children in the event of separation of parents is established by agreement of the parents.

In the absence of an agreement, the dispute between the parents is resolved by the court based on the interests of the children and taking into account the opinions of the children. In this case, the court takes into account the child’s attachment to each of the parents, brothers and sisters, the child’s age, moral and other personal qualities of the parents, the relationship existing between each parent and the child, the possibility of creating conditions for the child’s upbringing and development (occupation, work schedule of the parents , financial and marital status of parents, etc.).

Article 66. Exercise of parental rights by a parent living separately from the child

1. A parent living separately from the child has the right to communicate with the child, participate in his upbringing and resolve issues regarding the child’s education.

The parent with whom the child lives should not interfere with the child’s communication with the other parent, if such communication does not harm the child’s physical and mental health or his moral development.

2. Parents have the right to enter into a written agreement on the procedure for exercising parental rights by a parent living separately from the child.

If the parents cannot come to an agreement, the dispute is resolved by the court with the participation of the guardianship and trusteeship authority at the request of the parents (one of them).

3. In case of failure to comply with a court decision, measures provided for by civil procedural legislation are applied to the guilty parent. In case of malicious failure to comply with a court decision, the court, at the request of a parent living separately from the child, may make a decision to transfer the child to him based on the interests of the child and taking into account the opinion of the child.

4. A parent living separately from the child has the right to receive information about his child from educational institutions, medical institutions, social welfare institutions and similar organizations. The provision of information may be refused only if there is a threat to the life and health of the child on the part of the parent. Refusal to provide information may be challenged in court.

Article 67. The right to communicate with the child’s grandfather, grandmother, brothers, sisters and other relatives

1. Grandfather, grandmother, brothers, sisters and other relatives have the right to communicate with the child.

2. If the parents (one of them) refuse to provide the child’s close relatives with the opportunity to communicate with him, the guardianship and trusteeship authority may oblige the parents (one of them) not to interfere with this communication.

3. If the parents (one of them) do not obey the decision of the guardianship and trusteeship authority, the child’s close relatives or the guardianship and trusteeship authority have the right to file a claim in court to remove obstacles to communication with the child. The court resolves the dispute based on the interests of the child and taking into account the child’s opinion.

In case of failure to comply with the court decision, measures provided for by civil procedural legislation are applied to the guilty parent.

Article 68. Protection of parental rights

1. Parents have the right to demand the return of the child from any person who is not keeping him on the basis of the law or on the basis of a court decision. In the event of a dispute, parents have the right to go to court to protect their rights.

When considering these requirements, the court has the right, taking into account the opinion of the child, to refuse to satisfy the parents' claim if it comes to the conclusion that the transfer of the child to the parents is not in the interests of the child.

2. If the court determines that neither the parents nor the person who has the child is able to ensure his proper upbringing and development, the court transfers the child to the care of the guardianship and trusteeship authority.

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Agreement on the procedure for communication between the second parent and the child

According to Art. 66 of the RF IC, both parents have equal rights to participate in the life of the child and to communicate with him. To ensure that the agreements will not be violated during a divorce and the parties will not interfere with meetings, the participants can draw up a written agreement on communication with children.

For your information

Also, the need to conclude an agreement may be caused by the nuances of personal relationships. Each of the former spouses, after the divorce, can create a new family and not want spontaneous meetings with their former marriage partner.

Stages of concluding an agreement on the procedure for communication with the child of the second parent during a divorce:

1. The parties determine a schedule of meetings and participation in the child’s life and collect a package of documents.
2. The next step is the drafting of the text by the parties to the agreement.
3. Notarization of an agreement on communication with children during a divorce.

There is no single form of document provided. The contract is drawn up randomly and contains the following information:

1. Title of the document.
2. Basic data of the parties (full name, date of birth, place of residence, passport details).
3. Meeting schedule: frequency, duration.
4. Basic data of the child (full name, date of birth, place of residence).
5. The need or absence of mandatory third party supervision during meetings.
6. A place of communication.
7. Possibility of communication outside the established schedule (by telephone, via the Internet).
8. Regulations for participation in the child's life. For example, a mandatory joint decision on a place of study or recreation.
9. The procedure for providing all necessary information regarding a minor (location, telephone number).
10. Responsibilities of the parent to comply with the daily routine and instructions of the child’s attending physician.
11. Additional conditions, individual for each case (if any).
12. Date and signatures of the parties with transcript.

A sample agreement on the procedure for communication between the second parent and the child during a divorce is available.

Regulatory framework

Do I need to have a children's agreement notarized?

The law does not oblige parents to sign a written agreement about children during a divorce and notarize the document. Adults can care for offspring based on a verbal agreement. If the parents decide to sign an agreement and want the document to have legal force, the agreement must be notarized (Article 100 of the RF IC). Otherwise, if controversial issues arise, it will not be possible to refer to the terms of the agreement on children in court during a divorce. They simply won’t take the document into account.

IMPORTANT

There is one contract option when notarization is not required. The settlement agreement is signed during the court hearing. The legality of such a document is certified by a judge.

How to certify an agreement regarding children during a divorce?

The procedure for notarizing an agreement on children during a divorce is very simple:

1. You need to decide on the choice of a notary and come during the office hours.
2. Show the specialist the approximate text of the agreement and a package of documents for verification (one of the parties can do this). The pre-registration procedure does not last long. Typically, the process takes a couple of hours.
3. At the appointed time, the parties appear before the notary. If the child is over 10 years old, then the presence of a minor is desirable (Article 57 of the RF IC).
4. The notary reads the text of the agreement on children during a divorce, the parties read the agreement again and sign three copies of the document. One copy remains with the lawyer.
5. Then the spouses pay the state fee and pick up their documents.

Please note
: Usually the entire procedure can be completed within one day.

The procedure for approving an agreement about a child in court

During divorce proceedings where the issue of children will be considered, the parties may reach an amicable agreement. In this case, the participants have two ways to formalize their agreements:

1. Compose a written text.
2. Make a joint decision within the limits of a verbal agreement.

Procedure if the parties plan to draw up a written agreement about children in court:

1. The plaintiff and defendant inform the government representative about the reached consensus.
2. The hearing is rescheduled for another day.
3. The parties independently or with the help of a lawyer draw up the text of the agreement.
4. At the next hearing, the document is handed over to a government representative.
5. If the agreement regarding the children does not raise any objections, the judge will approve it.
6. The case is closed due to the reconciliation of the parties.

The procedure for concluding and certifying a settlement agreement regarding children in a divorce is determined by Art. 153.10 Code of Civil Procedure of the Russian Federation.

The plaintiff and defendant may not sign a written agreement. If during the meeting the parties came to a compromise, for example, agreed on the amount of alimony, this fact is entered into the protocol. Then the judge makes a decision and creates a writ of execution for the case, which is sent to the bailiff.

Restriction of parental rights

If a parent violates the established procedure for communicating with a child, then administrative measures are applied to him.

Such violations may include:

• parental behavior that may be dangerous to the life and health of the child;
• abuse of alcoholic beverages and drugs;
• turning the child against the other parent;
• negative impact expressed in provoking the child’s misbehavior;
• communication disrupts the child’s educational process.

In case of systematic violation of parental rights, the second parent has the right to file a claim with the district court to restrict communication with the child. In the claim, the parent must describe the circumstances that violate the child’s rights and provide the court with relevant evidence.

At the end of the consideration of the case, the court makes a decision to limit the child’s communication with the parent or refuses to satisfy the plaintiff’s demands.

Cost of registration and terms of entry into force

For notarization of an agreement on children during a divorce, the parties will need to pay 250 rubles. (Article 333.24 of the Tax Code of the Russian Federation). Drawing up the document by a specialist is paid separately. There are no clear tariffs for such a service. As a rule, the cost of drawing up and approving an agreement on children during a divorce ranges from 1 thousand to 5 thousand rubles.

IMPORTANT

The terms for the entry into force of the agreement can be stipulated by the parties in the text itself. If this time is not specified, the agreement comes into force immediately after notarization.

When can a court reject a child care agreement?

A judge does not recognize the legality of an agreement on children during a divorce in the following cases:

1. The document conflicts with current Russian legislation (Article 422 of the Civil Code of the Russian Federation).
2. The terms of the contract violated the rights and interests of the child (Article 102 of the RF IC).
3. Forged documents were used when signing the agreement.
4. The text contains gross errors and/or inaccurate information.

To avoid such problems, it is advisable to have a divorce agreement drawn up by a professional lawyer.

Responsibility for non-fulfillment

Failure to comply with the terms of the agreement regarding children in a divorce entails penalties. The degree of responsibility for the violation will depend on the severity of the offense:

1. Unfulfilled conditions included in the text of the contract
2. The seriousness of the offense.

The issue of failure to comply with the terms of an agreement regarding children during a divorce can only be resolved in court, even if possible penalties are provided for by the provisions of the agreement itself.

This does not apply to the alimony agreement, because it has the force of a writ of execution and with such a document you can immediately contact the FSSP to the bailiffs (Article 100 of the RF IC).

The procedure for applying to the judicial authorities in case of non-compliance with the agreement on children in a divorce:

1. Filing a claim. A citizen can apply both at his place of residence and at the place of residence or location of the defendant’s property, which is regulated by Art. 29 Code of Civil Procedure of the Russian Federation.
2. The application will be considered within two months after submission. If the case is related to alimony, then it will take about a month to study (Article 154 of the Code of Civil Procedure of the Russian Federation).
3. After the decision is made, the writ of execution is sent to the FSSP department, where the bailiff opens proceedings for non-compliance with the contract.

If the agreement to pay child support after divorce is not fulfilled, the defendant will be charged the amount of the debt and a penalty in the amount of 1/10 percent of the amount of the debt for each day of delay. In this case, the payer can provide evidence of the absence of his guilt (Article 115 of the RF IC).

For your information

If the divorce agreement on the place of residence and the participation of the parties in the lives of the children is violated, in some cases the children may be transferred to be raised by another parent. If the procedure for communicating with a child is not followed, the bailiff is obliged to create conditions for unhindered visits with a minor (Article 109.3 of the Federal Law of the Russian Federation No. 229 of October 2, 2007).

A sample statement of claim to compel compliance with the terms of the alimony payment agreement can be downloaded here.

List of documents for filing a claim

In addition to the claim document, the interested party must prepare for submission to the court:

1. Copies of the claim for all participants in the case and for the court.
2. Marriage certificate.
3. Children's testimonies.
4. The original of the disputed agreement.
5. Evidence substantiating his position: Information about the defendant’s unlawful treatment of the child (certificate of beatings, a psychologist’s report on the presence of psychological violence on the part of the defendant).
6. Information that negatively characterizes the defendant (criminal record certificates, medical certificates of alcoholism or the presence of infectious diseases).
7. Positive characteristics of the plaintiff from colleagues, teachers and educators of the child.
8. Information about earnings.
9. Psychologist's conclusion about the presence of emotional contact with a minor.
10. Information about expenses for the child, for example, receipts for the purchase of children's clothes and toys.

Arbitrage practice

The practice of agreements regarding children during divorce in Russia is not great. More than 90% of such cases are initially considered in court. Once an agreement is drawn up, attempts to challenge the contract are rare. More often, the legislative bodies receive claims for non-compliance with the terms of the concluded document. Almost all appeals to the court in such cases are related to the payment of alimony.

Issues of meetings and place of residence of the child, as a rule, are resolved through verbal agreement or with the help of government representatives initially.

Alimony and maintenance

Theoretically, parents can agree on child support on a voluntary basis without giving the document executive force.

But such an agreement is valid as long as both parents fulfill it in good faith.

If the father pays child support, and the mother argues otherwise, or the father evades payment, he will still have to go to court. The notarized agreement can be submitted to the FSSP for forced collection of funds for the child.

Read more about how to properly formalize voluntary payment of alimony.