Reasons and grounds for temporary guardianship without deprivation of parental rights

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Published: 07/27/2018

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Temporary guardianship is issued over a child if the parents, for some reason, are unable to take care of the child on their own. Unlike the situation with permanent guardianship, in the case of temporary guardianship, the natural parents are not deprived of their rights to the child. It’s just that other people will take care of the child for some time.

• What is temporary guardianship and when is it used?
• Requirements for a guardian
• Rights and responsibilities of a guardian and guardianship law
• Terms of temporary guardianship
• How to obtain temporary guardianship?
• Application from the guardian
• Is there a benefit?

Once Mom and Dad are able to return to parenting duties, the temporary custody can be terminated.

Preliminary custody

If the rights of a minor are regularly violated in a family (parents drink, use drugs, do not provide normal living conditions for the child, use physical violence), then based on a statement from one of the parents, neighbors or educational institution, the board of trustees decides to remove the child from the family.
This measure is called temporary guardianship and is applied until the parents correct the situation (getting rid of addiction, revising parenting methods, ensuring a normal level of material wealth). Since the state pursues an active policy of preserving the child’s family of origin, he may not be placed in an orphanage, but given temporary care to his grandmother or aunt/uncle. This requires their expression of will and verification by the guardianship service of this possibility. The age of the alleged guardian, his financial and housing support are taken into account. He, in turn, provides a copy of the passport, as well as a written agreement to place the minor in a family from everyone who lives with him in the same living space. This measure is necessary so as not to transfer the baby to an orphanage or shelter. As a result, the guardian (grandmother) is endowed with all the functions of a guardian, except for property. Preliminary guardianship is valid for 6 months, in special situations - 8. During this time, the mother and father must do everything to ensure that the child lives normally with them in the future. Otherwise, the guardian or guardianship authority will have to go to court. As a result, parents may lose their baby.

Important! Preliminary guardianship can only be assigned to a child left without parental care.

Example: “Alina Yu. admitted her daughter Yulia (3 years old) to the hospital for treatment. When the discharge deadline arrived, the mother did not come for her daughter. The head doctor drew up an act on leaving the child in a medical organization and transferred it to the social service. Alina was not at the specified address. Since Yulia has acquired the status of being left without parental care, she needs to be sent to a shelter. But a grandmother was found and took the girl into preliminary custody.”

Formal nuances of the process of applying for temporary guardianship

It is believed that PLO employees carefully check information about the candidate. This is not at all necessary if a close relative, especially a grandmother, is to play this role. But in the case when a stranger applies for the position of guardian, even if it is an old family friend, then verification cannot be avoided. The PLO will be interested in his living conditions, level of income sufficient to support a child, characteristics of neighbors and work colleagues.

So the choice in favor of relatives is considered the most successful. And usually PBOs give preference to those who are related to the child’s parents.

At the time of registration of temporary guardianship, the parent candidate for temporary guardian must be present. And the process itself must take place before a notary.

Guardianship at the request of parents

Sometimes parents must leave their beloved child for a certain period of time. This may be due, for example, to work characteristics or another reason. And here a grandmother or another close relative will come to the rescue. At the request of the parents, the guardianship authority will appoint a guardian for the required period of time.

Important! If there is only one parent (for example, a single mother), then he draws up the application. If there are capable mothers and fathers who are not deprived or limited in their rights, consent must be joint. If one of the parents refuses to entrust the child to another person, the appointment of this type of guardianship is impossible. A parent deprived of rights cannot interfere with the appointment of guardianship at the request of a legal representative.

If there is an application, the grandmother needs to collect certain documents. And the guardianship authority will decide whether she can be given responsibility for the child.

The decision of the guardianship authority will necessarily indicate the validity period. Usually it is no more than 12 months. In special cases - more.

Example: “Irina and Kirill decided to move to another city. To find a job, an apartment and a school, they temporarily decided to leave their son Dima (8 years old) with Kirill’s mother. The parents wrote a request to appoint the grandmother as their granddaughter’s guardian for a period of 3 months. After the specified time, the mother took the baby with her.”

Temporary guardian

According to the theses set out in Art. 12 Federal Law of the Russian Federation No. 48, guardian or trustee is a person who legally cares for a minor child deprived of parental care. A temporary mentor has the same rights and responsibilities as a permanent mentor. Such a citizen must meet a number of criteria, but the main criteria are adulthood and legal capacity.

Requirements for a guardian

The OOP has the following requirements for the candidate:

1. Absence of dangerous diseases, problems with the law, illegal substances, mental disorders;
2. Personal qualities and attitude towards children;
3. The person has not been deprived of parental rights in the past;
4. Optimal housing and material conditions.

If the family of the ward proposes the candidacy of a close relative, then officials, as a rule, agree to the meeting. The main thing is that the relative is healthy and can take care of him.

Rights and obligations

A temporary guardian or trustee is endowed with the same rights and responsibilities as a permanent one, except for the rights to the property of the ward on his behalf. Regarding responsibilities, the mentor must protect the rights and interests of the child, care for him, take care of his development, health, education, and provide favorable conditions for the ward.

Child guardianship by grandmother

Courts only terminate parental rights as a last resort. The prosecutor's office, the guardianship authority, and the commission for minors must provide a lot of evidence about the need for this measure to protect the child. Therefore, it is possible to establish temporary guardianship over a child without depriving parental rights if mom and dad:

1. Restricted rights.
2. Declared incompetent.
3. They are undergoing complex treatment.
4. Their whereabouts are unknown.
5. They don't want to take me from the hospital.
6. Avoid education.
7. Other cases provided for by order of the Ministry of Education and Science of the Russian Federation No. 101 of 2015.

With living parents

According to statistics, 80% of children become wards while their parents are alive. The main goal of social authorities is not to cause moral trauma to the child and to preserve blood ties. Therefore, when registering guardianship without deprivation of parental rights, the role of the candidate is usually assigned to the grandmother.

Guardianship of a child by minor parents is a special case. Confused guys do not fully realize the responsibility that has fallen on them. And the newborn baby is waiting for care here and now. A grandmother can take custody of a child without depriving the precocious mother and father of parental rights. In this situation, the order will remain in force until one of them reaches 18 years of age.

Can a child be taken away from a normal family?

It is believed that a child can be taken away from normal parents. This information is partially true. However, the basis of the actions of the guardianship department is a signal. And it doesn’t matter who it came from.

Example . Katya's parents divorced. The girl remained to live with her father. The man entered into a second marriage. The relationship between Katya and her stepmother did not work out. The girl asked her father for new expensive boots. The family budget could not afford such a purchase. Having received a refusal, Katya called the helpline and reported that her father and stepmother were beating her. The message was transferred to the guardianship department. Specialists visited the family. The girl confirmed that she was being beaten. The minor was placed in a shelter until the circumstances were clarified.

The situation in the example is quite common. Children often use the opportunity to send a signal to the guardianship department as blackmail. Due to their age, they cannot always assess the consequences for themselves.

Important! Specialists cannot visit a family without reason. But if there is a signal, they must react. Moreover, seizure is a last resort.

Design algorithm

1. The grandmother (another prospective guardian) must contact the guardianship department at her place of residence to obtain a list of documents.

Important! If the registered address and permanent address are different, you must select the department at your place of residence. It is they who will exercise control over the grandmother and child after the paperwork is completed.

1. Parents must contact the guardianship department at their place of residence to have the application for the appointment of a legal representative certified.

Important! If the child's parents and guardian live in different areas, they must contact the guardianship departments of their territories. As a general rule, the department at the grandmother’s residence address issues a conclusion on the possibility of being a candidate for guardianship. However, the appointment of guardianship will be handled by the department where the child lives.

1. Having collected the documents, you need to submit them to the guardianship department and write a statement. Within 3 days, a commission must come to the grandmother’s home to assess her living conditions.
2. After reviewing the documents provided, the guardianship authority must issue the grandmother a conclusion on the possibility/impossibility of being a candidate for guardianship.

The conclusion about the impossibility of being a candidate for guardianship can be appealed in court within 10 days.

Procedure for removing a child

It is believed that a specialist from the guardianship department can take a minor from his mother without any special reason.

In practice, the procedure should proceed as follows:

1. A report of abuse of a minor is received.
2. Specialists visit housing.
3. If there is evidence of ill-treatment, a removal order is issued.
4. The child is placed in a specialized organization.
5. 1 copy of the order is given to the parent, the second remains in the department.

3 factors for removing a child:

1. Personal presence of parents.
2. A real threat to the child.
3. Availability of an order.

Required documents

The list of documents that the grandmother must provide to the guardianship department is contained in Decree of the Government of the Russian Federation No. 423 of 2009. Copies must be accompanied by originals for comparison.

1. Passport;
2. Statement;
3. Certificate of income;
4. Extract from the house register;
5. Certificate from the Department of Internal Affairs confirming the absence/presence of a criminal record;
6. Statement of health;
7. Documents for residential premises;
8. Marriage certificate;
9. Pensioner's ID;
10. Autobiography;
11. The opinion of all relatives living with the grandmother, in writing.

A sample income certificate is not provided by law, so you can submit: 2NDFL, from the employment center, from a pension, from a place of work in any form, or any other option proving the presence of regular income for 12 months.

A certificate from the Department of Internal Affairs can be issued for up to 30 days. It is ordered through the State Services service, the MFC, and the police. Some guardianship departments may order it themselves.

The health report is filled out using a special form and signed by a medical commission. To do this, you need to see several doctors and take tests, including for HIV. The certificate is issued free of charge.

Documents for residential premises are: a certificate of ownership, a certificate from the Unified State Register, a lease agreement. The apartment can be registered in the name of both the grandmother and her husband.

Marriage certificate and pension certificate are attached if available.

When writing an autobiography, it is worth paying attention to such facts as obtaining an education, marriage and divorce, and the birth of children. There is no need to go into details; it is enough to indicate the time period and significant events. Volume approximately 1 A4 sheet.

All family members living with the grandmother must write consent to accept the child.

Guardianship (trusteeship) of minors, types of guardianship (trusteeship)

Legal regulation of guardianship and trusteeship relations is carried out through the norms of the Civil Code (Articles 31 - 40), the Family Code (Articles 145 - 153.2), Federal Law of April 24, 2008 N 48-FZ “On Guardianship and Trusteeship” (hereinafter - Law on guardianship and trusteeship) and normative legal acts adopted in accordance with it.

In Russia, guardianship (trusteeship) is a complex institution of legislation

, the norms of which are historically dispersed in different acts. In accordance with Art. 31 of the Civil Code of the Russian Federation, guardianship (trusteeship) is established both over children and, if necessary, over adults. The difference between guardianship of children and guardianship of adults is that the former imposes on the guardian the additional responsibility of raising the child. Provisions corresponding to this obligation are contained in family law.

At one time G.F. Shershenevich defined guardianship as an “artificial family”, V.I. Sinai - as “a surrogate for parental care of children, their persons and property.” In modern legal literature, guardianship is written as one of the forms of “implementing state protection of the individual.”

By virtue of Art. 2 of the Law on Guardianship and Trusteeship, guardianship is a form of arrangement for minor citizens (minor citizens under the age of 14) and citizens recognized by the court as incompetent, in which citizens (guardians) appointed by the guardianship and trusteeship body are the legal representatives of the wards and act on their behalf and in all legally significant actions are in their interests. In turn, guardianship is a form of placement of minor citizens aged 14 to 18 years and citizens limited by the court in legal capacity, in which citizens (trustees) appointed by the guardianship and trusteeship authority are obliged to provide assistance to minor wards in the exercise of their rights and fulfill their duties, to protect minors wards from abuse by third parties, as well as give consent to adult wards to commit actions in accordance with Art. 30 Civil Code of the Russian Federation. That is, guardianship (trusteeship) is a form of placement for a child left without parental care

, which involves only individual provision of assistance, care and care to him by a certain individual (certain persons).

Being an individual form of arrangement, guardianship (trusteeship) is intended primarily to compensate for the missing legal capacity of the child under guardianship, as well as for his upbringing. Guardianship (trusteeship) is carried out by the guardian (trustee) free of charge or on the basis of consideration and consists in the performance by him (guardian (trustee)) of legal and (or) actual actions in the interests of the child. This form of placement for children is temporary.

In accordance with Art. 32 of the Civil Code of the Russian Federation, guardianship is established over minors (persons under the age of 14 years), and on the basis of Art. 33 of the Civil Code of the Russian Federation, guardianship is required for minors aged 14 to 18 years who are left without parental care.

The internal legal relationship of guardianship (trusteeship) involves a guardian (trustee) and a ward. A child to whom a guardian (trustee) is appointed has a special legal status in accordance with current legislation. There are the following grounds for appointing a guardian (trustee) for a child:

- lack of care on the part of parents or persons replacing them (Article 145 of the Family Code);

- the parent of the child has not reached the age of 16 years (Article 62 of the Family Code).

In § 1 of this chapter the concept of “a child left without parental care” has already been discussed. Fulfilling its obligation to place such a child, the guardianship and trusteeship authority most often chooses this form of placement for the child - guardianship (trusteeship). This circumstance is due, firstly, to the fact that most children have relatives who agree to take on the responsibilities of raising and protecting the rights and interests of the minor. Secondly, guardianship (trusteeship) as a temporary form of arrangement does not give rise to the consequences that adoption entails, which makes it easier for many citizens to make the decision to take a child into their family. In particular, the ward does not inherit from the guardian (unless, of course, there is another basis for inheritance, such as some degree of kinship). Thirdly, guardianship (trusteeship) under current Russian legislation does not require judicial determination and can be formalized much faster than adoption.

According to the Family Code, minor parents (parents under the age of 18) have the right to establish maternity and paternity in relation to their children (Article 62). However, the child’s unmarried minor parents do not have sufficient legal capacity in these legal relations. In accordance with paragraph 2 of Art. 62 of the RF IC, they have the right to independently exercise parental rights only when they reach the age of 16 years. Until this time, their child may be assigned a guardian.

Thus, a special case of establishing guardianship is provided for in paragraph 2 of Art. 62 RF IC situation. A child to whom a guardian is appointed is not left without parental care. The appointment of a guardian is not mandatory and is done at the discretion of the guardianship and trusteeship authority. The need to appoint a guardian is caused by the fact that the minor parent himself, not having sufficient legal capacity, is not able to represent the interests of his child. The guardian of a child of minor parents, as his legal representative, has the right to receive and spend funds due to the child, enter into transactions on his behalf, and participate in other relations, representing the child.

A feature of guardianship in this case is the joint upbringing of the child by the guardian and minor parents. Disagreements arising between them are resolved by the guardianship and trusteeship authority.

The procedure for establishing guardianship (trusteeship) over minors.

A guardian or trustee is appointed with his consent or upon his written application by the guardianship and trusteeship authority at the child’s place of residence. If there are circumstances worthy of attention, a guardian or trustee may be appointed by the guardianship and trusteeship authority at the place of residence of the guardian or trustee.

In order to obtain information about the identity of the future guardian or trustee, the guardianship and trusteeship authority has the right to request information about him from internal affairs bodies, civil registry authorities, medical and other organizations. The candidate for guardianship can provide such information himself.

The priority right to be guardians or trustees of a child is granted to grandparents and adult brothers and sisters of the child (Part 5 of Article 10 of the Law on Guardianship and Trusteeship).

The procedure for establishing guardianship or trusteeship is completed by the act of the guardianship and trusteeship authority on the appointment of a guardian or trustee. This act may indicate the duration of the powers of the guardian or trustee; for example, it may be stipulated that the guardian (trustee) is appointed for several months or years, or is appointed until the child completes his studies in an educational organization.

The act of the guardianship and trusteeship authority on the appointment of a guardian or trustee may be challenged by interested parties in court. Such interested parties may include other citizens who wished to take the child under guardianship or guardianship, including his relatives. The decision of the guardianship and trusteeship authority to refuse to satisfy the application for the appointment of a guardian or trustee may be challenged in court by the applicant.

Status of guardian (trustee) and ward of the child.

The legal status of a guardian is characterized primarily by special legal capacity. Not every person can be appointed as a guardian (trustee) of a minor. The requirements for the identity of the guardian (trustee) are established by the provisions of Art. 35 of the Civil Code of the Russian Federation and Art. 146 RF IC. In this regard, it should be noted that a guardian (trustee) has a special legal status. So, A.A. Eroshenko even proposed using such a legal concept as “guardianship.”

A child placed under guardianship (trusteeship) retains his property and personal non-property rights (Article 148 of the Family Code) in full. The main content of the legal relationship of guardianship (trusteeship) over children consists of the rights and responsibilities of guardians and trustees, which are close to parental rights and responsibilities.

The main responsibilities of a guardian include the following:

1. Duty to raise a child

(to take care of his mental, spiritual and moral development) is at the same time the right of the guardian, who can choose any methods for education. However, Art. 148.1 of the RF IC defines the limits of discretion of the guardian (trustee) in the exercise of the right to education:

firstly, the guardian (trustee) does not have the right, while raising a child, to cause harm to his physical and mental health, moral development, since in accordance with Art. 65 of the RF IC, methods of raising children must exclude neglectful, cruel, rude, degrading treatment, insult or exploitation of children;

secondly, when choosing methods of education, it is necessary to take into account the opinion of a child who has reached the age of 10 years (Article 57 of the Family Code). The child always has the right to be heard, therefore, both the guardian (trustee) and the employees of the guardianship and trusteeship authority are at least obliged to listen to him;

thirdly, the methods of raising a child must be chosen by the guardian (trustee), taking into account the recommendations of the guardianship and trusteeship authority. Such recommendations (advice) can be expressed both in written and oral form. However, the guardian (trustee) is not obliged to strictly follow them. Failure to comply with the recommendations of the guardianship and trusteeship authority regarding the upbringing of a child cannot serve, for example, as a basis for removing the guardian (trustee) from performing duties, unless he committed more serious violations.

2. The implementation of educational functions by a guardian (trustee), as a rule, is impossible without living together with the child. That is why Art. 36 of the Civil Code of the Russian Federation establishes the obligation of guardians (trustees) of minor citizens to live with their wards

. However, in cases where the child has almost reached adulthood and is sufficiently independent, paragraph 2 of Art. 36 of the Civil Code of the Russian Federation allows for separate residence of a guardian and a ward who has reached the age of 16 years. This requires permission from the guardianship and trusteeship authority, which in turn can be given provided that separation does not adversely affect the education and protection of the rights and interests of the ward. The criteria for issuing permission to separate the child and the caregiver are not established by law. Most often, such permission is issued when a minor is enrolled in an educational organization located in another locality.

In cases where a guardian or custodian allows a child under his ward to live separately for a long time without good reason, such a fact is a violation on his part and may serve as a basis for removing the guardian (trustee) from performing his duties. Clause 3 of Art. 39 of the Civil Code of the Russian Federation regards this as leaving the ward without supervision and necessary assistance and allows the guardianship and trusteeship authority to “take the necessary measures to bring the guilty citizen to responsibility established by law.”

3. The guardian (trustee) is obliged to ensure that the child receives basic general education

(Clause 4 of Article 43 of the Constitution of the Russian Federation; Article 148.1 of the SK). In accordance with the norms of the Family Code, the guardian (trustee) has the right to choose the educational organization where the child will study, as well as the form of education: family education, self-education. As noted, the opinion of a child who has reached the age of 10 years must be taken into account.

4. Duty to take care of the child’s health and physical development

also refers to the duties of a guardian (trustee). The legislation does not provide for what exactly a guardian should do when fulfilling this duty, however, the latter will be held responsible for deterioration in health caused by the fault of the guardian (trustee).

Of course, the child’s guardian (trustee) is obliged to provide him with food and, if necessary, medical care. In fulfilling this duty, the guardian has the right in accordance with paragraph 1 of Art. 37 of the Civil Code of the Russian Federation to make the necessary expenses from the amounts due to the child as his income. Benefits paid for the maintenance of a child, his pension or other income may be spent by the guardian exclusively for the specified purposes.

5. The guardian is obliged to provide the child with the opportunity to communicate with relatives.

The procedure for such communication is regulated by the Family Code, in accordance with Art. 55 of which the child has the right to communicate with both parents, grandparents, brothers, sisters and other relatives. This right must be exercised, as a rule, in all cases, including if the child is in an extreme situation (clause 2 of Article 55 of the Family Code), and in the case where the child and parent live in different states.

Thus, the guardian (trustee) of the child is obliged to provide the child’s parent living separately with the opportunity to meet with the child and participate in his upbringing. Refusal to such meetings is legal only if parental rights are deprived or parental rights are limited.

The five listed responsibilities of a guardian (trustee) are implemented, as a rule, through actual actions. The following obligation requires the performance of legal actions: the guardian (trustee) is obliged to represent and protect the rights and interests of the child

.

One of the important elements of the representative relationship is the possibility of making transactions on behalf of the represented person. As is known, a guardian makes transactions on behalf of minor citizens (with the exception of those transactions that, in accordance with paragraph 2 of Article 28 of the Civil Code of the Russian Federation, minors aged six to 14 years have the right to make independently). The trustee only gives consent to the ward to carry out transactions, except for those transactions that are listed in clause 2 of Art. 26 Civil Code of the Russian Federation.

The powers of the guardian and trustee do not extend to transactions with the property of the ward, which, in accordance with Art. 38 of the Civil Code of the Russian Federation was transferred to trust management.

According to Art. 37 of the Civil Code of the Russian Federation, in order for guardians (trustees) to perform these actions, in some cases, prior permission from the guardianship and trusteeship authority is required. The law does not prevent the guardianship and trusteeship authorities from including a number of conditions in this preliminary permission, which is what they use in the vast majority of cases in practice.

When representing and protecting the rights and interests of wards, guardians (trustees) are obliged to perform other legal actions:

- guardians of minors have the right and are obliged to apply for the limitation of the legal capacity of minors (clause 4 of article 26 of the Civil Code);

- guardians of minors can give consent to declare minors fully capable (emancipation) (Article 27 of the Civil Code);

- guardians and trustees, caring for the interests of their wards, can challenge transactions made by children;

- in accordance with paragraph 2 of Art. 172 of the Civil Code of the Russian Federation, a guardian of a minor child has the right to demand recognition of a valid transaction made by a minor if it was made for the benefit of the minor;

- in accordance with Art. 49 of the RF IC, guardians (trustees) of a child have the right to file an application to establish paternity in court. After the court decision has entered into legal force, the guardian (trustee) has the right to submit an application to the registry office for state registration of paternity establishment (Article 54 of the Federal Law “On Civil Status Acts”).

Other federal laws provide for a whole series of legal actions that guardians (trustees) of children perform in fulfilling their responsibility to protect their rights and interests. Yes, Art. 48 of the Code of Criminal Procedure of the Russian Federation provides for the mandatory participation of a guardian of a minor, suspected or accused in a criminal case.

At the same time, the guardian (trustee) does not have the full rights and responsibilities in relation to the child that are granted to the parents. Thus, he does not have the right, at his discretion, to change the name or place of residence of a minor.

Moreover, by virtue of Art. 15 of the Law on Guardianship and Trusteeship, the guardianship and trusteeship authority in the act of appointing a guardian or trustee or in the agreement on the implementation of guardianship or trusteeship may indicate certain actions that the guardian or trustee does not have the right to perform, including prohibiting the guardian or trustee from changing the place of residence of the ward . These orders can be given only in cases where the interests of the child so require. In order to take into account the individual characteristics of the child, the guardianship and trusteeship authority may also establish mandatory requirements for the exercise of the rights and performance of the duties of a guardian or trustee, including such requirements that determine the specific conditions of upbringing (for example, the guardian may be ordered to ensure regular medical examination of the child or his visit to a sports school).

The rights and obligations of guardians (trustees) form the basis of their legal status. However, the specificity of the situation of these persons is also manifested in the peculiarities of their civil liability for causing harm to their wards. For harm caused to a minor under the age of 14, his guardian is responsible unless he proves that the harm was not his fault. The guardian's obligation to compensate for harm caused to minors does not end when the minor reaches the age of majority or receives property sufficient to compensate for the harm. It should be noted that, under certain circumstances, the law allows compensation for such harm at the expense of the organizations in which the child is located or is studying. In addition, the possibility of compensation for harm at the expense of the causer himself, who has become fully capable, cannot be excluded. These provisions are contained in Art. 1073 of the Civil Code of the Russian Federation.

If the harm is caused by a person aged 14 to 18 years, then, first of all, compensation for harm is made at the expense of the personal property of the causer. And only in the absence or insufficiency of such property can responsibility be placed on the child’s guardian (according to paragraph 2 of Article 1074 of the Civil Code “in the case where a minor aged fourteen to eighteen years does not have income or other property sufficient to compensate for harm, harm must be compensated in full or in the missing part by... the trustee”, unless he proves that the damage did not arise through his fault). The trustee’s obligation to compensate for damage caused by a minor terminates when the person causing the harm reaches the age of majority, or in cases where, before reaching the age of majority, he acquired income or other property sufficient to compensate for the damage, or when he acquired legal capacity before reaching the age of majority (Article 1074 of the Civil Code) .

The guilt of the guardian or trustee is assumed, and he is obliged to prove its absence. One of the circumstances excluding the guilt of the guardian (trustee) may be that the child’s behavior, which resulted in harm, was a consequence of improper performance of parental responsibilities by the parent deprived of parental rights. According to Art. 1075 of the Civil Code of the Russian Federation, the court may hold such a parent liable for harm caused by his minor child within three years after deprivation of parental rights.

Grounds for termination of guardianship and trusteeship

can be divided into three groups:

1) cases of “automatic” termination, which include: the minor ward reaching the appropriate age; marriage of a minor ward; emancipation; the minor parent of the ward child reaches the age of 18 years, as well as his emancipation or marriage before the age of 18; death of a guardian or trustee or ward; expiration of the act of appointment of a guardian or trustee;

2) release of the guardian (trustee) from performing duties (clauses 1 and 2 of Article 39 of the Civil Code);

3) removal of the guardian (trustee) from performing duties (clause 3 of Article 39 of the Civil Code).

Adoptive family

is a type of guardianship (trusteeship) over a child (children), which is carried out under a foster family agreement concluded between the guardianship and trusteeship authority and the foster parents (or foster parent), for the period specified in the agreement.

Currently, the legal basis for creating a foster family is the norms of Chapter. 21 of the RF IC, as well as Resolution of the Government of the Russian Federation of May 18, 2009 N 423 (as amended on February 10, 2014) “On certain issues of guardianship and trusteeship in relation to minor citizens”, which approved the Rules for creating a foster family and exercising control over the living conditions and upbringing of the child (children) in a foster family.

An agreement on creating a foster family is a type of agreement in favor of a third party. The agreement is concluded by the guardianship and trusteeship authority, on the one hand, and the individual (persons), on the other, and the rights under the agreement (the right to receive education, care, representation) are acquired by a third party - a child left without parental care. At the same time, due to the special purpose of this agreement (creation of “quasi-family” relations), the impossibility of fulfilling an obligation to a third party does not give the creditor the opportunity to exercise the rights granted under the agreement (clause 4 of Article 430 of the Civil Code).

In accordance with Art. 10 of the Law on Guardianship and Trusteeship, the guardianship and trusteeship authority, based on the interests of the person who needs to establish guardianship or trusteeship over him, may appoint several guardians or trustees (co-guardians) for him. One of the features of the subject composition of legal relations that develop when creating a foster family is that co-guardians can only be spouses - persons in a registered marriage.

The requirements for the identity of the adoptive parent (adoptive parents) do not differ from the requirements imposed by law for the identity of guardians (trustees).

Children left without parental care are sent to a foster family. A child of a minor parent (Article 62 of the Family Code) is not transferred to a foster family, unless there are grounds for removing the child from the care of such a minor parent.

A foster family arises on the basis of an agreement providing for the provision of remuneration to guardians (trustees) for the performance of their duties. According to the general rule enshrined in paragraph 1 of Art. 36 of the Civil Code of the Russian Federation, duties of guardianship and trusteeship are performed free of charge. A foster family is one of those cases provided for by law when these duties are performed for a fee.

The right of the adoptive parent to receive remuneration for services should be distinguished from the right to compensation for expenses incurred in connection with the performance of his duties. The law provides for the provision of funds to foster parents (as well as other guardians) for the maintenance of the child, however, by virtue of Art. 31 of the Law on Guardianship and Trusteeship, the amount of benefits and other payments intended for accommodation, food and other needs of a ward child belongs to the child himself.

In the legal literature, the issue of the sectoral nature of the foster family agreement has not been resolved unambiguously for a long time or has not been discussed at all. Until recently, there was no answer to this question in legislation, which gave rise to serious problems in practice. Thus, there have been cases of early termination of foster family relations, as a result of which foster parents were presented with demands for the return of material benefits received by them under the contract, and on their part, on the contrary, demands were made for the replacement of difficult foster children with others (the basis for these demands was the idea of labor nature of the foster family agreement).

This problem was resolved in science and in legislation by 2008. By virtue of the current version of Art. 152 of the RF IC, to the extent not regulated by this Code, the rules of civil law on the paid provision of services are applied to relations arising from an agreement on a foster family, insofar as this does not contradict the essence of such relations. The foster family agreement itself, like other agreements on paid guardianship (trusteeship), is a civil law agreement.

The subject of the foster family agreement is actual and legal actions for the upbringing and protection of the rights and interests of the child (children). The legal relationship arising from the creation of a foster family is of a personal trust, fiduciary nature, and therefore the foster parent is required to personally fulfill obligations under the contract. In addition, this agreement can be terminated due to circumstances such as illness, change in the family or property status of the adoptive parent, lack of mutual understanding with the child, conflictual relationships between children, return of the child to the parents or adoption of the child, etc. (Clause 2 of Article 153.2 of the SK). Of course, in the event of early termination of the contract, adoptive parents are not compensated for the associated losses. Moreover, as in other civil law contracts, the foster family contract allows for compensation for losses caused by the termination of this contract (if the basis for termination of the foster family contract was a significant violation of the contract by one of the parties through her fault - clause 3 of Art. 153.2 SK; clause 5 of article 453 of the Civil Code).

There are no differences in the content of legal relations between adoptive parents and children transferred to them, as well as legal relations regarding guardianship (trusteeship) of minors (except for the fact that adoptive parents are due remuneration).

Being a type of guardianship (guardianship), foster care is terminated on the same grounds as guardianship. The difference between them is very formal and comes down to the different names of these legal structures of the forms of placement of children left without parental care.

Since a foster family is a type of guardianship (trusteeship), the rules on guardianship and trusteeship are subject to application to the relationship between foster parents and the child in their care.

Foster family

- another type of guardianship (trusteeship) over children, which, like a foster family, is paid guardianship carried out under a contract.

By virtue of Art. 14 of the Law on Guardianship and Trusteeship, agreements on foster family (on patronage, on foster care) can be concluded only in cases provided for by the laws of the constituent entities of the Russian Federation. Such laws have been adopted in a number of regions, for example, in the Moscow and Ryazan regions, Krasnodar Territory, and the Republic of Adygea. From the point of view of internal relations of guardianship and trusteeship (the relationship between the child under guardianship and the individual accepting the child into the family), patronage agreements are no different from agreements on foster family. The differences between these types of guardianship (trusteeship) mainly come down to the volume and nature of state support for the family of the guardian (trustee).

Source: Textbook "FAMILY LAW" edited by P.V. KRASHENINNIKOVA. Authors: Gongalo B.M., Krasheninnikov P.V., Mikheeva L.Yu., Ruzakova O.A.

Other evidence

After submitting the above documents, a commission must visit the grandmother’s place of residence to inspect her living conditions. Particular attention will be paid to the cleanliness of the house, the availability of food, and a sleeping place for the child.

The area of ​​living space cannot play a primary role in the commission’s decision. The regulations are not provided for by law.

Important! If the social service requires documents other than those listed, for example, a certificate of completion of training at a school for foster parents, or motivates the refusal due to the small size of the living space, you can contact the head of the district, the prosecutor's office or a higher authority to protect your rights.

List of documents for the child:

1. Birth certificate;
2. Copy of passport (if available);
3. Statement of health;
4. Parent/Parent Statement;
5. Copies of parents'/parent's passports;
6. Characteristics and certificate from the place of study;
7. Information about the child's property;
8. Information about brothers/sisters;
9. A copy of the medical policy;
10. Copy of SNILS;
11. Consent of the child, over 10 years old;
12. A copy of the rehabilitation program (in case of disability).

A birth certificate is required, even if the child has a passport and guardianship is assigned. If the parents’ statement was not written by the social service, you can attach a notarized one. Characteristic information can be attached from kindergarten, school, and clubs. If the child is already receiving vocational education, a certificate from the place of study is sufficient. Documents about deposits and accounts in the child’s name, about the ownership of housing, a car and other property will also be useful. If a child receives a pension, a certificate from the pension fund is required. Despite the fact that the list looks quite voluminous, these are mainly copies of documents that are already kept at home, with the exception of a few certificates. Therefore, there should be no difficulties during preparation.

What rights and responsibilities does a guardian have?

Despite the fact that the guardian does not officially become a mother/father, during the registration of guardianship he is assigned all the same responsibilities as a natural parent. This applies to upbringing, ensuring safe and comfortable living conditions, financial support and all other components of caring for a child.

We recommend that you familiarize yourself with the rights and responsibilities of a guardian in more detail.

Correct preparation of the application

The exact application form can be obtained from the guardianship department or the district administration website. If the guardian and the child’s parents live in the same area, the application can immediately indicate the purpose of guardianship. If you have to register with the authorities of different territories, then first the grandmother must receive a conclusion about the possibility of being a candidate in her area. And then contact the social service at the child’s place of residence.

Let's consider both versions of the statement:

1. to obtain an opinion on the possibility of being a candidate for guardian;
2. for the appointment of guardianship.

Application for obtaining an opinion on the possibility of being a candidate for guardianship

1. Addressed to the head of the district.
2. From the applicant (full name, date of birth, residential address, passport details, contacts).
3. The word "Statement".
4. Text “I, full name, ask for an opinion on the possibility of being a candidate for guardian.”
5. Appendix (list all names of documents provided).
6. Date, signature.

Application for appointment

1. Addressed to the head of the district.
2. From the applicant (full name, date of birth, residential address, passport details, contacts).
3. The word "Statement".
4. Text “I, full name, ask to be appointed guardian of my minor grandson, full name, date of birth.”
5. Reason for appointment.
6. Appendix (list all names of documents provided).
7. Date, signature.

Reasons for annulment and renunciation of guardianship

Guardianship is a very labor-intensive task, requiring from the guardian not only compliance with the requirements established by law, but also moral restraint, patience, and physical strength to care for the child. All this is far from always feasible. In addition, sometimes events are influenced by third-party negative factors or force majeure circumstances. Often people who have taken on such a difficult mission realize that they are not able to complete all the tasks assigned to them.

As a result, guardianship has to be revoked. After this, the child’s relatives or social services again face the question of finding a guardian.

Read more about waiving guardianship.

Payment amount

As a general rule, the grandmother will have the right:

1. For child benefits paid in social protection of the population.
2. If the baby is under the age of 1.5 years, then it is possible to apply for child care benefits.
3. If the fact of absence of parental care is established, then the grandmother will be paid a one-time and monthly allowance for the child under her care, as well as other payments provided for by the regions.

Important! If guardianship is assigned at the request of the parents, a one-time and monthly allowance for the child under guardianship is not paid.

The grandmother is responsible for filing the guardian's annual report by February 1st. This happens regardless of whether child support is granted or not.

Payments and benefits to guardians in 2021

Temporary guardianship can be provided on a paid basis. Thus, one ward is entitled to receive from 6,160 to 7,700 rubles monthly. The lump sum payment is 13,741 rubles. Guardians may qualify for preferential benefits to pay for utilities and monetary compensation in case of illness of the ward.

The guardian and the ward can receive financial assistance if they are registered in the same region, since payments will be made from the regional budget. Cancellation of benefits occurs in the event of improper fulfillment of guardianship duties and on the basis of a court decision.

When is guardianship not possible?

Reasons for refusal:

1. Grandmother cannot be a guardian. This situation is possible if not all documents have been collected, if there is a disease that precludes parental responsibilities (tuberculosis, HIV, oncology, group I or II disability), or the grandmother has been convicted of a serious or especially serious crime.
2. Child's opinion. If a minor over 10 years of age refuses, guardianship cannot be appointed.
3. Mom and Dad's opinion. If done at the request of the parents, their consent is required.

Requirements

The basic requirements for guardians are the same as those required for the temporary transfer of guardianship. The most important of them:

• the person must be a citizen of the Russian Federation;
• he must have legal capacity;
• the person must be an adult.

If one of these requirements is missing, the application will not even be considered.

In addition, important restrictions for obtaining the opportunity to become a guardian are:

1. Persons who have ever been limited or completely deprived of parental rights, guardianship, trusteeship, or adoption rights over someone through their own fault.
2. Persons suffering from drug addiction or alcoholism, as well as those registered in a drug treatment or neurological clinic.
3. Persons who have ever had a criminal record, or who are currently convicted and have an outstanding criminal record. In this area, crimes that are dangerous and especially dangerous for citizens, as well as crimes against the honor, dignity, health and life of citizens, are considered.
4. Persons who do not meet the requirements for health reasons.

The main list of diseases and health conditions in which a citizen will not be able to become a guardian is as follows:

• tuberculosis diseases;
• HIV – infected;
• with oncological diseases;
• mental disorders;
• disability of the first group.

When assessing the possibility of appointing a particular citizen, his moral beliefs and relationships with the child under his care are taken into account.

If a minor citizen who has reached the age of 10 is against the appointment of this person as a guardian over him, the guardianship authorities do not have the right to appoint him.

Video: What is guardianship and who can become a guardian

How to prove that guardianship is necessary?

How to prove the expediency of guardianship at the request of the parents? Article No. 13 of Federal Law No. 48-FZ “On Guardianship and Trusteeship” of 2008 indicates the need for good reasons. Moreover, the legislator has not specified any options. It is necessary to prepare documentary evidence (a certificate from the hospital, a travel certificate, a call to work on a rotational basis).

Therefore, is it possible to obtain guardianship without depriving parental rights? To summarize:

1. There are many alternative options to protect negligent parents from their children, other than deprivation of their rights.
2. The father and mother of a prosperous family can themselves choose a guardian for their children for a certain period of time.
3. When choosing a guardian, the best option would be the grandmother.
4. Guardianship is appointed by the department where the child lives.
5. If the grandmother and children live in different areas, she draws up a conclusion on the possibility of being a guardian in her own territory.
6. The guardian's annual report is due by February 1, regardless of the purpose of the funds.
7. The refusal of the guardianship authorities is appealed in court.

Therefore, it is very important for state guardianship and trusteeship authorities to help families survive difficult periods in life, while preserving the right of parents to raise children. Registration of guardianship without deprivation of parental rights is possible, and in many cases this is an excellent alternative to placing a child in an institution such as an orphanage. There are also a number of laws that allow parents to write a statement and temporarily leave the child in the care of one of their relatives.

Grounds for assigning temporary guardianship

Valid reasons for initiating the process:

• a long business trip for parents (including abroad), on which it is impossible to take their children with them;
• a serious illness of an adult that prevents him or her from properly caring for the child;
• a single mother studying full-time in another city;
• the parents themselves are minors, then the VO is issued before one of them reaches 18 years of age;
• mother and father work in shifts.

IMPORTANT! These circumstances must be confirmed by official documents on the basis of which an application for temporary care is submitted.

If the father and mother do not care for the children, lead an antisocial lifestyle, or suffer from alcoholism or drug addiction, the issue of depriving them of their rights to the minor is decided. We will already be talking about adoption or permanent guardianship. To avoid this, social security authorities provide parents with time to correct the situation, and during this period the child lives with appointed guardians.

Inspections from guardianship authorities

The check consists of a number of procedures:

• examination of the place of residence, during a direct visit to the house;
• conversation with legal representatives, school teachers, neighbors, etc.;
• checking sources of income;
• medical examination of the health of the wards;
• assess the psychological state of the test subjects.

The opinions of teachers of educational institutions where students study and neighbors are also taken into account.

Persons who have accepted guardianship of minor children, as well as biological parents, are subject to verification. In fact, every family can become the object of a survey; a “signal” from the school or from neighbors is enough.

Unannounced inspections allow you to objectively assess the living conditions of children, especially when they do not yet attend kindergarten or school.

Legislative framework

These family relations are regulated by the Family Code. If you open and carefully study Article 145, you can come to the conclusion that this is where the main requirements and conditions are contained.

When is guardianship established?

The legislation provides for the following grounds for registration of guardianship: parents

• do not fully fulfill their responsibilities,
• died
• gone missing
• abandoned the child
• have proven that they are incompetent.

In addition, according to current legislation, a child can be taken into custody if his parents are under 16 years of age and are not in a marital relationship.

Very often, guardianship is considered as the first step before subsequent adoption. It's like a test exam. If, as a result of guardianship, a good relationship develops between the guardian and the ward, the guardian will adopt him.

Requirements for a guardian

To be a guardian, you must meet a number of requirements established at the state level, i.e.:

• not have a criminal record related to causing intentional damage to human health and life,
• to be a capable person
• be over 18 years old,
• have good personal qualities.

In addition, consent from the ward himself will be required.

Guardianship will be denied to the following categories of applicants: persons

• with serious diseases, including those of a nervous nature,
• having a criminal record,
• in respect of whom parental rights were deprived,
• with drug or alcohol addiction,
• without special training (with the exception of the child’s relatives).

Guardian's powers

The full list of powers can be studied in the Civil Code, the Investigative Committee and the Federal Codes of the Russian Federation. According to them, the guardian assumes the following obligations:

• take care of the child, provide him with housing, clothing and food,
• care for and treat him (if such a need arises),
• provide an opportunity to learn, take care of physical development,
• provide the opportunity to meet with parents if they have not been deprived of parental rights,
• If your registration changes, immediately notify the guardianship authorities,
• act in accordance with the interests of the child in government institutions,
• live in the same living space with the ward if he is under 16 years old,
• dispose of real estate only after permission of guardianship,
• spend incoming funds only to provide for the child.

The guardian has the following rights:

• choose teaching methods and educational institutions based on personal decisions,
• represent the interests of the ward when it is necessary to carry out a transaction on his behalf,
• ask the guardianship authorities to remove obligations due to established reasons,
• receive money transfers for the maintenance of the ward.

Thus, before formalizing guardianship, you need to think very carefully and weigh all the positive and negative aspects.

How to take care of a baby from a maternity hospital or baby home?

You need to understand that guardianship is significantly different from adoption.

There is no relationship between the parties that is equal in its legal consequences to the relationship between biological relatives.

In case of guardianship, the parent and child do not automatically become heirs of each other’s property, and no alimony obligations arise between them.

However, there are no obstacles to ending guardianship and registering adoption. Therefore, guarding a child from an orphanage can become a kind of starting period for testing one’s capabilities. And infancy becomes a big advantage. After all, the child will grow up and be brought up in a family, not knowing other loved ones except the guardians.

Registration of guardianship is a rather complex process that should be described in more detail:

• The first step is to contact a specialized body with an application. Such a statement expresses the person’s readiness to establish custody of the infant. In this case, the application may indicate the desired age of the child. The document is submitted to the guardianship and trusteeship authority. The process of its consideration consists of studying information about the candidates. If they meet the conditions established by law, the body approves the candidacy;
• The second stage is to select a child. And candidates are given certain powers to select a baby. First of all, it is necessary to point out their right to visit the child in the orphanage or parental home. At the same time, they must be presented with all documents related to the baby’s health condition. If there is information about his parents or other information, it must also be transferred to the candidate. This is necessary so that information about the child does not come as a surprise to the guardian. Otherwise, this could lead to a refusal of guardianship. The guardian must have complete information;
• The candidate notifies the above-mentioned specialized body about the decision made to select the child. Such notification takes place in writing. In the document, the future guardian indicates his consent to establish guardianship over a specific child;
• then an additional, deeper check of the candidate takes place. If all conditions are met, the guardianship authority draws up an act. This is a two-sided document that is signed by a representative of a specialized body and a guardian or guardians. The moment of signing this act is important, since it is the moment when mutual rights and obligations arise. Actually, from the moment it is signed, parents receive the status of guardians;
• if we are talking about paid guardianship, then an agreement is drawn up between the above parties. It is similar in form and content to an act. Only among the conditions of guardianship is it indicated that the person may receive remuneration for the performance of his duties.

The named algorithm of actions is established by law and cannot be changed. Every guardian must go through exactly this procedure.