Courts quite often award children to mothers in the event of parental separation. But not all husbands agree with this, and having failed to achieve the truth in a trial, they resort to arbitrariness and forcibly take away the heir. In this article, we will look at such a difficult situation as a husband taking a child - what to do, where to go and whether the help of a lawyer in Moscow is needed in such circumstances.
- Can the husband take the child?
- The father took the child over 10 years old with his consent
- The father took the child under 10 years old with his consent
- The father took the child away without his consent
- The marriage is not dissolved, the father took the children away
Can the husband take the child?
In most cases, only the place of residence of children is determined at court hearings. The order of communication between a parent and a child who lives separately remains “on the conscience” of divorced or divorcing spouses. And from here a rather unpleasant moment arises for all parties to the conflict: the father, using his right to communicate with the child, guaranteed by Article 66 of the Family Code of Russia, actually removes the child. At the same time, the man may not apply for a review of the baby’s place of residence (for the time being).
However, in a situation where the child’s place of residence is determined and it does not coincide with the father’s place of residence, such arbitrariness is unacceptable. This is contrary to the law, a court decision (spousal agreement), limits the rights of the second parent and violates the legitimate interests of the child himself.
But this is in general order. In fact, in such circumstances there are too many nuances, and therefore, if the husband took the children, only an experienced lawyer can tell you what to do. Here we present the most general situations and ways to resolve them.
The father took the child over 10 years old with his consent
Quite often, children do not want to live with their mothers, but, on the contrary, prefer the home and company of their father. No one really asks a child under 10 years of age, but here is the opinion of older children based on Art. 57 of the RF IC must be taken into account. But exactly what should be, in fact, judges sometimes make a decision in favor of the mother, even if her salary is lower, her living conditions are worse, and the child does not want to be with her.
But if the father voluntarily moves the child to his place, he will have to return him back to the mother. However, everything will change if the child independently moves to live with his father, and declares to the guardianship authorities that he does not want to live with his mother. The fact is that it is impossible to impose any sanctions on a child, and it is impossible to punish a father for something he did not do.
The best way out for a mother in such a situation would be to take into account the opinion of a child over 10 years old. Indeed, in this case, it may be possible to maintain a good relationship with him. Otherwise, the situation will reach the point of absurdity and the child will simply run away to his father. Consequently, parents will have to reconsider in court the issue related to the child’s place of residence.
Statement of claim and package of documents
The statement of claim must be drawn up correctly and clearly. The structure of the claim must contain:
- Name of the court.
- Information about parents - full name, registration address, contact details.
- Information about the child - full name, date of birth and registration address.
- Documentary evidence of the conclusion and dissolution of marriage relations.
- Formulation and arguments for the plaintiff's claims.
- Reference to regulatory legal acts that confirm the validity of the stated requirements.
- Documentary evidence provided.
- List of attached documentation and applications.
- Formulated demands of the plaintiff.
- The date on which the claim was filed and signed by the plaintiff.
The following package of documents must be attached along with the application:
- Passport.
- Information from the Housing Office about the place of registration.
- Documents confirming the entry and termination of marriage.
- Child's birth certificate.
- Document 2NDFL.
- Statements of personal accounts in banking institutions.
- Acts on inspection of social and living conditions.
- Documentation for the father's right to use real estate.
- Information about social benefits.
- Application from the place of employment, references from friends, relatives, teachers or teaching staff of the child’s school.
- Doctors' reports on the father's health status, issued at a medical institution (confirm that the plaintiff does not have addictions, serious illnesses or mental disorders).
- Other documentation.
It is worth noting that you can attach to the claim not only confirmation of your positive aspects, but also documentary arguments for your demands to sue the child from the mother. For example, you can provide:
- Medical statements about the presence of dangerous diseases, mental disorders and addictions in the mother.
- Testimony of witnesses about the mother's antisocial life.
- Documents related to being brought to the police, control of POiP, placement in psychoneurological and drug treatment institutions, detention in the penitentiary system.
- Documentary evidence confirming addictions (gambling addiction, shopping, clubbing, nymphomania, etc.).
The courtroom is not a platform for throwing mud at your ex-wife. When providing evidence, be as correct and respectful as possible to the mother of your child. Your arguments should not be based on abuse and insults, but on real evidence.
The father took the child under 10 years old with his consent
Although a child under 10 years of age has the right to express his opinion, neither judges nor anyone else is obliged to listen to him. And therefore, there are almost no options for losing a descendant, even if the husband wants to take the child. What if he is going to do this? Remind that in Russia there is liability for child abduction. And if this does happen, then you should:
- notify the guardianship authorities;
- file a complaint with the police, or if the Ministry of Internal Affairs refuses, contact the prosecutor’s office.
The child must be returned to the place of residence determined in court or by agreement of the parties.
But the situation will develop a little differently if the father decided to take the child legally and through the court. The extent to which he will be able to do this depends on the evidence base, the difference in material well-being between the father and mother, and the competence of the lawyers on both sides. You should not try to participate in the process without an experienced lawyer, since the case can be lost even if the judges are too sympathetic to mothers.
Court receptions
Life shows that when a father with bad intentions wants to take his son to him at any cost, any methods are used. They sometimes go beyond the law. Therefore, women need to be aware of countermeasures.
Other people often come to help with this and can confirm the circumstances of the case. These include friends and neighbors, followers on social networks.
Typical actions of a man:
- use of financial opportunities;
- working with witnesses, including encouraging them to give necessary testimony;
- impact on the child himself.
Let's describe several common tricks and ways to counter them. The main thing for a mother is not to sit idly by.
Inaccurate characterization
A man can present to the court information in a positive way about himself that is not true. Both the defendant and her witnesses can refute them. The more people involved, the more weighty the voiced testimony will be for the court.
There are cases when people invited to give explanations openly lie. And a warning about criminal liability does not stop them.
An experienced lawyer can recognize the catch. He will also draw the court’s attention to the existing inconsistencies between the voiced evidence and other evidence.
Fictitious expert opinion
As part of the consideration of the case, the court most often orders a forensic psychological study about the actual relationship between parents and children, the degree of respect for each. And there are situations when an expert colludes with the plaintiff, despite the consequences.
In this scenario, it is necessary to insist on a re-examination. Another specialist will take care of it.
The range of issues to be clarified is identified in advance. They will definitely be reflected in the court ruling.
Bribing a child
Most often it occurs in a situation where a minor has already crossed the threshold of 10 years. Then his opinion of which parent to stay with often becomes decisive.
Some representatives of the stronger sex take advantage of this, promising the child toys, fashionable gadgets, modern things in exchange for his expressing his desire to stay with his father. It is permissible to expose deception.
The same specialists in the field of psychology will come to the rescue. They have techniques in their arsenal that help identify the fact of manipulation.
The father took the child away without his consent
In fact, this will already constitute the abduction of a child, but cannot be qualified under Art. 126 of the Criminal Code of the Russian Federation. The reason is the lack of selfish intent in the actions of the father who takes away his child. After all, the parent believes that he is acting in the interests of the child. Moreover, the age of a young person is of secondary importance, since for persons under 10 years old. Art. 57 of the RF IC is not applicable, and for persons older than this age, the article contains a reference to “taken into account” and is countered “if this does not contradict his interests.” Such an interesting Article 57 of the Family Code essentially gives equal opportunities to both mother and father (as well as the court and guardianship authorities) to arbitrarily interpret the situation and the child’s opinion about it.
But if the ex-husband took the children, what to do in such a situation, logic dictates:
- contact the police to establish the whereabouts of the children and return them home;
- contact the guardianship authorities to investigate the case;
- if there is a court decision determining the place of residence of the children - to the FSSP to initiate an enforcement search.
The main thing in this situation is not to remain idle, since if there is a significant loss of time, it will be quite easy for the ex-husband to legitimize his actions by simply proving that the children lived with him the entire time he was paying alimony. The mother made no attempt to return them, from which it is easy to conclude: the mother does not need children.
Parents' rights to children after divorce
Father and mother have equal legal opportunities. This is enshrined in law and is confirmed by Articles 61 and 62 of the IC of the Russian Federation. Statistics show that only 10 percent of fathers leave their children with them when their marriage ends.
After a divorce, the father is entitled to:
- see each other and participate in education;
- have complete information about your beloved child;
- leave your son or daughter to live with you.
Living separately from his former family does not deprive him of these rights. If a wife left her children to her husband after a divorce by mutual consent, she has the right to continue to participate in the lives of the joint children.
If mutual conflicts arise as a result of the desire to pick up and take away younger family members, one of the spouses can apply to the executive judicial authorities to resolve them. You can limit your ex-other half’s communication with the child in the case of antisocial behavior of the “Sunday” parent or a bad influence on the development of the teenager.
The marriage is not dissolved, the father took the children away
The most difficult situation, since in this case both parents have equal rights. And therefore, children do not have any special place of residence; they can live with either their mother or their father. If the father hurries up and hires a good lawyer, he will be able to prove that it is better for the children to live with him, and this situation arose even before the divorce.
Therefore, there is only one way out: to go to court with a claim for divorce and determination of the place of residence of the children. And the sooner this is done, the better. The police, guardianship authorities and other structures of the mother will not be able to help, since the father acts legally and lawfully. Well, the further development of events depends entirely on what decision the court will make.
Due to frequent updates to legislation and the legal uniqueness of each situation, we recommend obtaining a free telephone consultation with a lawyer. You can ask your question by calling the hotline number 8 (800) 555-40-36 or write it in the form below.
Where to go for advice
To learn how to legally take a daughter or son from a mother after a divorce, you need to find out in person from a lawyer or call the hotline by phone. 8.
If you are tormented by the question of how to prevent the father from taking the child for himself after a divorce, you need to take all the documents that may be useful when considering the case and go to a good lawyer. If there is evidence that the husband is threatening to take away his daughter or son (witness testimony, tape recording of family squabbles) - this is very good, the court will take into account the man’s inappropriate behavior. It must be remembered that any judge will first of all take the side of the parent whose capabilities will meet the interests of the child.
