How to obtain guardianship for a minor child

What does child custody mean?

The child's mother and father are not always able to fulfill their duties. Sometimes this is explained by objective reasons (death, illness), and in some cases the reasons are the reluctance of parents (evasion, alcoholism, drug addiction).

The state takes care of such children. In 2021, there are several forms of protection for children whose parents cannot raise them:

• adoption;
• guardianship;
• paid guardianship (foster family);
• specialized organization.

To protect the child’s right to live in a family, the law gives priority to family education. The guardianship department must take all measures to select a family from among the citizens of the Russian Federation for the minor.

First of all, specialists interview the child’s close relatives (grandparents, brothers and sisters, uncles and aunts). The purpose of the survey is to obtain consent for adoption into the family.

Important! The transfer of a child to a family of strangers is possible only if the relatives refuse to formalize guardianship.

Expert opinion

Stanislav Evseev

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

Of course, the guardianship department wants to put the minor up for adoption. But if it is possible to give the baby to relatives or if there are no candidates for adoptive parents, the selection of candidates for guardians begins.

A guardian has all the rights and responsibilities of a parent. However, there is no relationship between the ward and the guardian. Therefore, when the child reaches 18 years of age, the legal relationship between them ceases.

Important! Officially, guardianship lasts until the child reaches 14 years of age (Article 145 of the RF IC). After which it acquires additional restrictions in connection with the child receiving limited legal capacity. A new version of the legal relationship between a ward and a guardian is called guardianship. It lasts until the student’s eighteenth birthday.

According to the application

The law provides for the possibility for citizens to temporarily transfer parental responsibilities to a third party. To do this, it is necessary to obtain guardianship based on a parental application.

This is a temporary guardianship option for a minor whose mother and father can fulfill their duties, but due to a special situation they wish to transfer the duties to another citizen.

For example, a mother and father or a single parent work on a rotational basis or study full-time. During the absence of parents, their duties can be performed by the grandmother. But if an injury occurs to the child, the hospital will refuse the child surgical intervention without the consent of the parents. Therefore, registration of guardianship is necessary.

Differences between temporary guardianship and permanent guardianship:

• parents can withdraw the application and the child at any time;
• mother and father are not deprived of rights;
• the document appointing guardianship must contain the exact validity period;
• no payments are provided for the maintenance of the ward;
• the child does not receive orphan status.

Example. Karina and Alexey have a minor daughter, Marina. Alexey was offered a job in another region. Marina is in 5th grade. In order not to transfer the child in the middle of the school year, the parents decided to let her live with her grandmother until the end. They filed an application at the guardianship department, and the grandmother collected the documents. The parents left, the girl stayed to live with her grandmother. Returning home, Marina decided to go down the hill. She slipped and broke her arm. The ambulance took her to the hospital. The complex fracture required surgery. The grandmother gave consent to the manipulations. This significantly saved time in obtaining consent from parents. The girl received timely help.

Preliminary

If an orphan child needs guardianship immediately, it is possible to appoint preliminary guardianship. This is a trial version. He is appointed according to 2 documents. It is required in order not to place the child in an organization and not to change his usual way of life.

Differences between preliminary guardianship and permanent guardianship:

• appointed if the guardian has a passport of a citizen of the Russian Federation and permanent housing;
• is temporary (no more than 6 months, in exceptional cases 8 months);
• does not give the guardian the right to dispose of the pupil’s property.

If, at the end of the period, the citizen has not submitted a complete package of documents, then the child will be sent to an organization for orphans.

Legal features of guardianship

Upon reaching the age of 14, the child partially acquires certain new rights and responsibilities. Guardianship is intended to facilitate their full implementation. So, for example, from this age a child can carry out transactions with banking and credit institutions and acquire rights to the products of his intellectual activity. The implementation of more complex civil transactions can only be carried out by them with the participation of trustees. Guardians also act as legal representatives of children in administrative and criminal legal relations.

Who can become a guardian

The law establishes a list of requirements for a person who can become a guardian:

• minimum age – from 18 years (age limit is not established);
• capacity;
• absence of diseases that prevent children from being accepted into the family (including drug addiction, alcoholism);
• absence of a criminal record (outstanding, for serious and especially serious crimes);
• absence of a court decision on deprivation of parental rights;
• absence of a decision to remove a citizen from the duties of a guardian;
• the absence of a court decision to cancel the adoption due to the fault of the applicant;
• lack of information about the candidate’s marriage with a person of the same sex;
• availability of registration at the place of residence in the country;
• having a permanent income;
• completing training at a school for foster parents;
• availability of permanent housing.

The law establishes conditions for taking into account the moral qualities of the candidate. However, in [current_date format='Y'] there are no criteria for assessing the morality of a citizen.

Conditions for guardianship

Let's consider who is given guardianship. To appoint guardianship, a number of conditions must be met:

1. The citizen has a conclusion on the possibility of becoming a guardian . In the absence of a document, the guardianship department will not consider the applicant’s candidacy.
2. Consent of a citizen to register guardianship . After meeting the minor, the candidate must express consent in writing. Otherwise, the direction is considered completed and the refusal is counted.
3. Compliance of the child's candidacy with the wishes of the candidate in conclusion . The candidacy must exactly meet all the wishes in the conclusion. For example, a girl aged 0 to 3 years. Dating a boy is impossible.
4. Consent of a child over 10 years of age to custody . In accordance with Art. 57 of the RF IC requires the opinion of a minor, expressed in writing.
5. Establishing contact with the child . The fact of establishing contact must be confirmed by a specialist psychologist from the organization (if the child is a student of the organization).
6. Personal acquaintance with a minor . Registration of guardianship in absentia is prohibited.
7. Consent from the guardianship department and the child’s legal representative (head physician of the orphanage, director of the orphanage).

If there are several candidates for accepting a minor into the family, priority is given to blood relatives. The law protects the child’s right to communicate with his family.

Rights under guardianship and trusteeship

The law lists the rights that guardians and trustees have after completing all bureaucratic procedures:

1. Submit applications to municipal and other executive authorities, officials, organizations for the payment of pensions and benefits due to the ward, as well as any other necessary applications.
2. Demand through the court alimony from persons who are obliged to pay it for the maintenance of the child.
3. Protect the ward’s property rights to real estate, vehicles and other valuables.
4. File a claim in court for the protection of rights and legitimate interests, compensation for moral damage, compensation for damage caused to the health and property of the child.
5. Contact educational and medical institutions to register and receive appropriate services for your ward.
6. Defend the housing rights of the child. We can talk about the eviction of persons from the living space belonging to the ward, his moving into this living space, the provision of housing for the child, etc.

Order and procedure of registration

In accordance with Part 2 of Art. 19 of Federal Law N 131-FZ, powers of guardianship and trusteeship are transferred to municipalities. To register guardianship, it is not necessary to obtain a court decision; it is enough to issue an order from the district administration. Let's look at where guardianship is filed.

Guardianship is appointed by decision of the municipality:

• in the territory in which the child was identified (within 1 month from the date of identification);
• on the territory of which the orphanage is located (if the minor is a student of the organization).

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Algorithm of actions

Let's look at where to start the guardianship procedure.

Procedure for obtaining guardianship of a minor:

1. Obtaining advice from the guardianship department.
2. Collection of documents.
3. Education.
4. Submitting an application to the guardianship department.
5. Obtaining a conclusion.
6. Selection of a child.

Consultation with the guardianship department

Since powers have been transferred to district departments, technically they have the right to independently determine minor issues when registering guardianship. Therefore, in order to avoid mistakes, it is advisable to contact the department in advance for an introductory consultation.

To obtain a candidate’s conclusion, you must contact the department at the place of permanent or temporary registration. A mandatory requirement is to have a passport.

The specialist will issue a list of documents and explain the procedure for completing the training. Information about the work of the department can be obtained on the administration website or by phone. In addition, it is advisable to clarify the availability of reception days.

What documents are needed to register guardianship?

List of documentation for a potential candidate

Additionally, characterizing information may be requested from the place of work, study, neighbors and the district police officer. This information is necessary to assess the applicant’s morality.

The list does not include a criminal record certificate, an extract from the house register, or pension information. Specialists must request them themselves.

Candidate training

The need for training directly depends on who the guardian is. All potential candidates are required to undergo training, with the exception of:

• grandparents;
• brothers and sisters;
• aunts and uncles;
• current guardians and adoptive parents.

Other citizens must obtain a training certificate. Rules for passing the school vary by region. The procedure is regulated by the legislation of the constituent entities of the Russian Federation.

Important! Training is provided exclusively free of charge.

The referral is issued by the guardianship department. In some regions, a referral is not required. The learning process is open to a wide range of people. The candidate can undergo training either independently or together with his spouse.

Based on the results of the training, students take a test. If the result is satisfactory, the citizen receives a certificate. It is valid for 2 years.

Application Form

The application form to the guardianship department in Russia was approved by order of the Ministry of Education of the Russian Federation No. 4 dated January 10, 2019.

Currently, the document is drawn up according to a sample that is issued directly by the guardianship department.

Typically it contains:

• position of head of the municipality;
• Full name of the head of the district;
• applicant details;
• request for an opinion;
• information about the absence of contraindications for guardians;
• list of documentation;
• date and signature.

Sample application to the guardianship department

Obtaining a conclusion

Having received the application, the guardianship department takes the following actions:

• within 2 days – order the necessary information;
• within 3 days – an inspection of the applicant’s residential premises is carried out;
• within 3 days – an act is drawn up;
• within 3 days - sign it and send it to the applicant;
• within 10 days – a decision is made.

The result of the appeal may be a conclusion about the possibility/impossibility of being a candidate. If a refusal is received, the citizen can challenge it in court.

If there is a positive child, the guardianship department specialist enters information about the candidate in a special journal. Thus, the person gets into the queue of candidates.

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Selection of a ward

It is necessary for citizens who want to accept a stranger child into their family to select a candidate for a ward. The procedure is not required for close relatives.

Important! A husband and wife cannot be guardians of the same child at the same time. Since a second guardian is appointed only as a last resort. In practice, experts try to avoid such developments.

Getting directions

The basis for meeting the child is the direction of the guardianship department. Therefore, it is not allowed to contact an organization for orphans in person without first obtaining a document.

How to get directions:

• in the guardianship department at the location of the organization in which the child is located;
• from a regional or federal operator.

The document is valid for 10 days. During this time, it is necessary to establish contact with the child and study his documents (medical record and personal file).

If the acquaintance did not take place for objective reasons, then the citizen may request an extension of the referral. However, this is possible if the specialist considers the grounds compelling (illness, quarantine).

Acquaintance

Let's look at what you need to meet a minor. You need to have your passport and directions with you.

During the dating process you must:

• examine the minor’s personal documents;
• study the medical record;
• conduct a conversation with the director and social teacher of the organization;
• establish contact with the child;
• Conduct a conversation with the institution's psychologist.

Citizens cannot receive a referral for another child until they have given an answer to the previous one. It is prohibited to issue referrals for more children than the number of children indicated in the report.

If the candidates indicated in the conclusion that they wish to accept brothers and sisters, then a referral may be issued for 2 or more children.

Registration of guardianship

The last stage of the procedure for transferring a child into guardianship is the actual registration of guardianship. This is an appeal to the department at the child’s location to receive the appropriate order.

The applicant must appear within 10 days from the date of issuance of the referral and issue consent to guardianship. The municipal order is issued within 3 days.

Let's look at how to properly file an application for guardianship.

The document must include the following information:

• position of the head of the district;
• Full name of the head of the municipality;
• applicant details;
• request for an opinion;
• information about the absence of contraindications for guardians;
• list of documents;
• signature and date.

How to submit documents for guardianship through State Services

In 2021, an application from a citizen who has expressed a desire to become a guardian can be submitted in the following ways:

• online;
• personally;
• by mail.

To apply through State Services, you will need to log in to the electronic portal. The application is completed electronically. Documents are attached in scanned form.

Important! Through State Services you can only submit an expression of will. To obtain the order, you must appear in person at the guardianship department.

Original documents must be presented when conducting a residential inspection. The result of the examination is documented in the form of a report. If the applicant does not submit original documents, then his application will not be considered.

Why can they refuse?

In practice, a citizen may be refused even if he has a conclusion. Theoretically, you can try to challenge such a decision, but this is practically impossible.

Reasons for refusal to assign guardianship:

• no contact has been established between the minor and the candidate;
• there is a relative who takes custody of the child;
• the minor has a disease that cannot be cured in the candidate’s place of residence;
• legal representative against.

In such a situation, the citizen will have to continue the selection process. The law does not limit how many times you can take a referral to meet potential students.