Adopting your child (from a common-law wife): voluntarily or through the court

Is it possible to adopt your child from your common-law wife?

Let's define the concepts:

legally, a civil marriage is a union concluded in the registry office;
marriage without registration is cohabitation;
In common parlance, a civil marriage is a union without registration.

Further in the article, civil marriage is understood as cohabitation.

In accordance with Art. 124 of the RF IC, adoption is a form of placement for orphans and children without parental care. The status of an orphan or a child without parental care is granted by the guardianship department.

It can be assigned if the child’s parents:

died;
declared dead through court;
deprived of parental rights;
abandoned the child.

Another adoption option is intra-family adoption. Its features:

the spouse adopts the spouse’s natural child;
There is no blood connection between the adoptive parent and the adopted child.

That is, for intra-family adoption it is important that the child and the adoptive parent are strangers.

If the adoptive parent wants to adopt his child from his common-law spouse, then there is a blood connection between them. For such situations, a special procedure is provided: establishing paternity.

Possibility of adoption of children by de facto spouses

First of all, we note that in Russian legislation there is no such thing as a civil marriage, and accordingly, only a union registered in accordance with all the rules with government bodies is recognized. And therefore, actual spouses cannot adopt a child, since the civil code does not recognize them as wife and husband.

But what should spouses do in a civil marriage if adopting a child is exactly what they dream of? There is an exit!

An exception may be the case when one of the cohabitants adopts a child. At the same time, the second spouse will still not be officially considered the child’s parent.

Establishing paternity

If a child is born during the period of living together without registering the marriage, then a dash is placed in the father column. At the request of the mother, information about the father can be entered from her words. But this does not give the biological father legal rights and responsibilities towards the child. That is, the blood father and son are legally strangers.

To change the situation and obtain parental rights and responsibilities, paternity must be established.

There are the following types of paternity establishment:

with the consent of the common-law wife;
if the common-law wife is deprived of parental rights, died, was declared incompetent or went missing;
if the spouse or the guardianship department is against establishing paternity (through the court).

Note! When paternity is established through the registry office, the child and the man acquire mutual rights and obligations immediately on the day of application. And when carrying out the procedure through the court, a family connection arises when the court decision enters into legal force.

Let's consider each of the options in more detail.

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If the parents sign after the birth of the baby

Sometimes the mother and father get married after the birth of the child. This is not a basis for changing the legal status of the spouse in relation to the child. Therefore, you will have to recognize a minor in one of the available ways.

If paternity is not recognized, the following problems may arise in the future:

when receiving an inheritance, it will be necessary to prove to the child that the testator was indeed the biological father;
when establishing benefits for obtaining a place in educational institutions, it will be necessary to provide an expanded package of documents if, due to the father’s work, the minor can be enrolled without waiting in line;
when applying to various government agencies where the presence of both parents is required.

Thus, it is recommended to recognize the child as early as possible if the marriage took place after the birth of the baby. Today, DNA testing is carried out even after the death of one of the parents.

To do this, it is necessary to conduct an analysis that will establish the relationship between the parties. It is required to provide biological material of the alleged father or his parents (relatives)

With the consent of the common-law wife through the registry office

In accordance with Art. 48 of the RF IC, the mother and father can apply together to the registry office to establish paternity.

Features of the procedure:

mother and father must agree to establish paternity;
the application is submitted to the civil registry office at the place where the child’s birth was registered;
the application can be submitted before the birth of the child (in special circumstances), when registering the birth of the child, or after registration;
the procedure is paid (state fee - 1,000 rubles);
when establishing paternity, you can change the child’s surname and patronymic;
if the child has reached 10 years of age, then to change his surname and patronymic, his consent must be obtained;
If the child is 18 years old at the time the parents apply to the registry office, then his consent is required to establish paternity.

Procedure

An application can be submitted:

Directly to the Civil Registry Office.
Through MFC.
Through State Services.

If the application is submitted to the registry office, then the following procedure must be followed:

Collect documents.
Pay the state fee.
Fill out a joint application in Form 15 (Approved by Order of the Ministry of Justice of the Russian Federation dated October 1, 2018 No. 201).
If the father cannot personally appear at the registry office, then he fills out an application on Form 16 and has it certified by a notary, and the mother fills out an application on Form 17.
Pick up a certificate of paternity and a new birth certificate.

When applying through the MFC, you can only submit an application. You need to select a civil registry office from the MFC operator, where you will need to pick up a certificate of paternity and birth.

When submitting an application through State Services, scans of documents are attached to the electronic application. You can pay the fee directly on the website. You also need to select the date and time when the parents will come to the registry office to receive the certificate. You must have original documents with you.

Note! The parents' application sent through the State Services portal is signed with a simple electronic signature.

List of documents

Documents that need to be prepared to establish paternity through the registry office:

joint application of father and mother or individual statements of each parent;
father's civil passport;
mother's civil passport;
receipt of payment of state duty;
child's birth certificate;

If the child is over 10 years old, his written consent is required.

Sample application

How to adopt an orphan child in the Moscow region

The process of adopting a child can seem lengthy and time-consuming to many. Yes, collecting documents and waiting for a decision from the guardianship and trusteeship authorities takes some time. However, all this seems insignificant when the parent is finally reunited with their baby. How to foster a child in the Moscow region and what documents you will need, read the material from the mosreg.ru portal.

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A woman gave birth to her third twins in the Khimki maternity hospital

Source: Ministry of Health of the Moscow Region

In the Moscow region, the number of orphans raised in orphanages decreases every year. From 2012 to 2021, it decreased by 70% - from 4,400 to 1,313 children. And since the beginning of 2021, the number of children left without parental care in the Moscow region has decreased by 13% compared to the same period in 2021.

The main merit of the improvement in indicators is the work of the guardianship and trusteeship authorities. Currently, there are 73 support services for foster families in the Moscow region, which provide free consulting support. The teachers of the School of Foster Parents (SHP) also take on a lot of responsibility. In 2021, more than 2.5 thousand residents of the region were trained in them, and since the beginning of this year - more than 900 people.

Who can adopt a child?

About 5 thousand children took part in the carnival in Solnechnogorsk

Source: , press service of the administration of the Solnechnogorsk urban district

Both married couples and unmarried citizens can take in a child or obtain guardianship over him in the Moscow region. They must be of legal age and meet the following criteria:

• legal capacity;

• no criminal record for serious and especially serious crimes;

• have an income that provides a living wage for each family member, including the child being adopted;

• have a permanent place of residence (housing must meet sanitary requirements);

• without serious illnesses that make it difficult to fulfill parental responsibilities;

• not have been deprived of parental rights by court or have restrictions on parental rights.

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Forms of family structure

In the Moscow region, there are four forms of family placement for children: adoption, guardianship (or trusteeship), foster family and patronage. Let's look at each form in particular and look at how you can become a parent for an orphan with each of them.

ADOPTION is a priority form of family placement for orphans and children left without parental care. In this case, the child acquires all the rights and obligations of the relative (non-property and property, including housing rights).

Adoption stages:

First of all, residents of the Moscow region who want to adopt a child must undergo training at the ShPR. However, this condition does not apply to close relatives (grandparents, aunts, uncles).

The courses are conducted for 1.5 months. During the training, foster parent candidates gain the knowledge and skills necessary to raise an orphan. In parallel with your studies at SPR, you can begin collecting documents.

Documentation:

Residents of the Moscow region who wish to adopt a child submit a corresponding application to the guardianship and trusteeship authority at their place of residence, attaching the following documents:

• passport or other identification document;

• short autobiography;

• a certificate from the place of employment indicating the position and salary or a copy of the income statement;

• a copy of the financial personal account and an extract from the house (apartment) register from the place of residence or a document confirming ownership of the residential premises;

• a certificate from internal affairs bodies confirming the absence of a criminal record for an intentional crime against the life or health of citizens;

• a medical report from a state or municipal health care institution on the health status of a person wishing to adopt a child, drawn up in the manner established by the Ministry of Health of the Russian Federation;

• a copy of the marriage certificate (if married).

After submitting a package of documents to the guardianship authority, you will need to wait for a conclusion on the possibility of taking the child (issued after 15 days). You can search for a child either independently through the Federal Data Bank on Orphans or through the guardianship authorities at your place of residence.

Having received information about the child, you need to draw up a document to visit him (valid for 10 days from the date of issue) and meet the child at the child care facility. If necessary, an independent medical examination of the child can be performed at this stage.

Once the decision to take the child into the family has been made, you should submit an application to the court for adoption, attaching a package of documents. The court decision is made no later than 2 months from the date of filing the application. It comes into force within 10 days from the date of its issuance.

Adoptive parents are required to personally pick up the child from the child care facility, presenting the consent of the court, and register the adoption with the registry office.

For three years after adoption, the guardianship and trusteeship authorities will visit the child. After this period has expired, the need to check the adoptive family is determined individually in accordance with the specific situation.

IMPORTANT! The adoption process is a secret. Persons who disclosed it against the will of the adoptive parents are subject to criminal liability in accordance with Art. 155 of the Criminal Code of the Russian Federation.

GUARDIANESS (CUSTODY) is the most common form of child placement in Russia. Guardianship is established over children left without parental care under 14 years of age, guardianship over children aged 14 to 18 years. A candidate for guardian (trustee) must undergo training at the SPR (except for close relatives).

To establish guardianship or trusteeship, the consent of the child is required if he has reached the age of ten. The child is accepted into such a family temporarily as a foster child. He can communicate with his parents or relatives, and guardians (trustees) have no right to prevent this.

Documentation:

A candidate for guardian (trustee) submits an application requesting his appointment as a guardian, attaching the following documents:

• passport or other identification document;

• a certificate from the employer indicating the position and salary for the last 12 months;

• an extract from the house register and a copy of the financial personal account from the place of residence;

• medical report on health status;

• certificate of no criminal record for an intentional crime against life and health,

• a copy of the marriage certificate (if);

• written consent of adult family members (if any) living together with the citizen to accept the child under guardianship (trusteeship),

• short autobiography,

• document confirming that the citizen has undergone training at the SPR (if any).

After submitting all the documents, the guardianship and trusteeship authorities take over the case. They find out the child’s opinion and conduct an examination of the living conditions of the candidate for guardian (trustee). If the outcome is positive, the candidate is given a conclusion on the possibility of becoming a guardian/trustee. In case of refusal, the applicant is returned his documents and explained the procedure for appealing the decision in court.

Termination of guardianship occurs as soon as the child reaches 14 years of age. After this, guardianship is automatically transformed into trusteeship, which terminates when the child reaches the age of majority.

FOSTER FAMILY as an institution of family law arose and developed from the idea of creating family-type orphanages. A foster family is formed on the basis of an agreement concluded between the guardianship and trusteeship authority and the foster parents (spouses or individual citizens). If the child has reached 10 years of age, when drawing up the contract, his opinion is taken into account whether he wants to become part of such a family or not.

Documentation:

An application requesting an opinion on the possibility of becoming adoptive parents is submitted to the guardianship and trusteeship authority at the place of residence. The following documents are attached to it:

• passport or other identification document;

• a certificate from the place of employment indicating the position and amount of salary or a copy of the income statement, certified in the prescribed manner;

• characteristics from the place of work;

• short autobiography;

• a document confirming the availability of housing for the candidate(s) (a copy of the financial and personal account from the place of residence and an extract from the house register (apartment) book for tenants of residential premises in the state and municipal housing stock or a document confirming the ownership of residential premises) ;

• a copy of the marriage certificate (if married);

• medical certificate from a medical institution about the health status of the candidate(s).

When preparing a conclusion, the guardianship and trusteeship authorities evaluate the personal qualities of people who want to foster a child, their ability to fulfill the responsibilities of raising children, the relationship between the child and the adoptive parents, and the attitude of other members of the adoptive parents’ family towards the child.

A conclusion on the possibility of becoming adoptive parents is prepared within 20 days from the date of submission of the application and documents. The period for placing a child in a family is specified in the contract and may vary.

In foster care, an orphan child is transferred to a family for maintenance and upbringing for a period of no more than 6 months. A citizen will be able to take no more than three children.

PARTNERSHIP is a relatively new form of family placement for a child. It has not yet been included in federal legislation and is regulated by regional laws. In the Moscow region, patronage has existed since 2003 (Law of the Moscow Region “On Patronage” No. 77/2003-OZ dated 07/05/2003).

To become a foster carer, you must submit the following documents:

• statement of desire to become a foster carer;

• passport and its copy, certified in the prescribed manner;

• a certificate from the place of employment indicating the amount of wages or a copy of the income statement, certified in the prescribed manner;

• a document confirming the availability of housing (a copy of a financial personal account from the place of residence and an extract from the house (apartment) register for tenants of residential premises in the state or municipal housing stock or a document confirming the ownership of residential premises);

• certificate from the police department confirming no criminal record;

• medical certificate from a health care institution regarding your health status.

The foster care agreement is concluded between the foster care provider and the territorial guardianship and trusteeship authority of the Moscow region.

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If the child’s mother died, was deprived of parental rights, or went missing

The father can establish paternity through the registry office without the consent of the mother (Article 48 of the RF IC) if the woman:

deprived of parental rights;
declared missing;
declared legally incompetent;
died.

Instead of the mother's consent, the registry office must provide permission from the district guardianship department to establish paternity. In this case, the father cannot delegate the responsibility for filing the application. He can only do this in person.

Procedure

The procedure for establishing paternity without the consent of the mother through the registry office takes place on the basis of Art. 51 Federal Law dated November 15, 1997 No. 143.

Algorithm of actions:

Collection of documents.
Obtaining consent from the guardianship department.
Payment of duty (RUB 1,000).
Contact the Civil Registry Office.
Obtaining a certificate of paternity and birth.

Details for paying the fee can be obtained from the Civil Registry Office or the MFC. When submitting an application through State Services, the fee is paid electronically.

You can submit an application:

directly to the civil registry office at the place where the child’s birth was registered;
through the MFC;
through the State Services portal.

Note! To submit an electronic application, you do not need to obtain a qualified enhanced electronic signature. A verified account on the State Services portal is sufficient.

Coordination with the guardianship department

In order for the registry office to accept an application only from the father, it is necessary to obtain the consent of the district guardianship department. To do this you need:

Collect documents.
Contact the guardianship department at the place of registration of the child.
Submit an application for consent.

You must have with you:

passport;
child's birth certificate;
a document confirming the impossibility of obtaining the mother’s consent. Such documents include: death certificate;
a certificate from the Ministry of Internal Affairs stating that it is impossible to find the mother;
court decision to deprive the mother of parental rights;
court decision recognizing the mother as missing.

Preparation of the document will take from 15 to 30 days. The procedure may vary depending on the region of application. Each region develops its own administrative regulations for the provision of consent. Therefore, more accurate information can be obtained from the guardianship department.

List of documents

When contacting the registry office, the father must have with him:

passport;
application in form 19;
receipt of payment of state duty;
consent of the guardianship department to establish paternity;
child's birth certificate;
consent of a child aged 10 years and older;
a document confirming the impossibility of obtaining the mother’s consent.

Sample application

The procedure for adopting your own child

Expert opinion

Stanislav Evseev

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

The adoption of a natural child means the establishment of paternity. The adoption procedure cannot be carried out in this situation.

Only the husband of the child's mother has the right to adopt. An alternative option is to accept into the family a minor who has the status of being left without parental care.

The law does not require mandatory maternal consent to establish paternity. Therefore, even if the woman is against it, has died or has been deprived of her rights, the biological father can obtain parental rights in relation to his son or daughter.

Let's assume that a man who is the biological father wants to adopt a child. It does not make sense. The adoption procedure is much more complicated than establishing paternity.

Severe demands are placed on the adoptive parent. He must pass a medical examination, meet the income level, have no criminal record, and also have his own living space. A candidate for adoptive parent undergoes special training and receives a conclusion on the possibility of becoming a substitute parent.

To establish paternity, all of the above requirements are not established. If there is insufficient evidence of a family relationship, the man can simply undergo a genetic examination.

Thus, if there is a blood connection with the child, it is not advisable to carry out adoption. It is easier for a man to choose to establish paternity.

It is possible to establish a relationship with a minor child without his consent. The only restriction is changing the child's last name. Making adjustments to the personal data of a minor aged 10 years or older is permitted only with his consent. In relation to an adult, the procedure is carried out exclusively with his consent.

Important! Regardless of the option chosen, the procedure can only be performed after the baby is born.

Through the court

If the child’s mother or the guardianship department is against establishing paternity, then the man will have to go to court.

Features of the procedure:

the father must file a claim with the district court at the place of residence of the child’s mother;
the process can be initiated by the father, mother, guardian of the child or a child over 18 years of age;
the defendant in the process will be the child’s mother or guardian;
the father will have to prepare evidence that he really is the biological parent;
in accordance with Resolution of the Plenum of the Supreme Court of 2021 No. 15, evidence can be photographs, testimony of witnesses, medical documents about pregnancy and childbirth, correspondence on social networks, instant messengers;
one of the options for evidence is DNA testing;
the examination is carried out at the initiative of the plaintiff, defendant or court;
the appointment of an examination is not necessary if other evidence makes it possible to establish whether the plaintiff is the father;
payment for the research is borne by the party that filed the petition;
if the examination is ordered by the court, it is paid for from the budget;
if the mother or guardian refuses to conduct an examination, the court will regard this as recognition of the plaintiff’s paternity.

Procedure

Procedure:

Collection of documents.
Preparing a claim.
Payment of state duty.
Going to court.
Trial.
Obtaining a court decision.

The court decision comes into force 30 days from the date of announcement. After the court decision enters into legal force, you must register paternity through the registry office. The procedure is carried out on the basis of Art. 54 Federal Law dated November 15, 1997 No. 143.

List of documents

Before going to court, you must prepare:

plaintiff's civil passport;
child's birth certificate;
receipt of payment of state duty;
evidence of relationship with the child;
application for genetic testing (if necessary).

If the plaintiff does not have a child’s birth certificate, then the claim can include a requirement that the court order a birth registration certificate or demand the original certificate from the child’s mother.

Statement of claim

The claim to the court must include the following information:

name of the court;
information about the father (full name, residential address, telephone number);
similar data for the defendant;
data of third parties (guardianship department, civil registry office);
title of the application;
information about the relationship with the child’s mother;
reasons to believe that the applicant is the father of the child;
reference to law;
requirement to establish paternity;
list of documents;
date and signature.

Sample claim

State duty

When going to court, the costs of establishing paternity increase. The applicant will have to pay:

drawing up an application - from 3,000 rubles;
legal services – from 5,000 rubles. for each court hearing;
state duty to court - 300 rubles;
registration of paternity through the registry office - 1,000 rubles.

If the father wins the case, he will be able to recover all costs from the defendant.

The cost of genetic testing varies depending on the region of treatment. For example, in Moscow in 2021 you will have to pay from 17,000 rubles.

Deadlines

Paternity proceedings may continue:

within 2 months – if the mother admits the demands in court;
from 2 months or more - if an examination is required or the mother will delay the process in other ways.

What documents are needed?

The list of documents for applying to court to establish a relationship with a child includes:

passport;
statement of claim;
receipt of payment of state duty;
child's birth document;
extract from the house register;
evidence of relationship;
results of genetic testing (if it was carried out by the applicant in advance).

The court takes into account the results of the DNA test if it was carried out in a specialized organization that has certification.

Lawyer's answers to private questions

Established paternity of my son. Now his mother has filed for child support. Can I not pay child support or abandon my child?

No. From the moment paternity is established, a legal connection arises between father and son. From now on you are obliged to support it. The child's mother may well file for child support. It is now impossible to abandon the child; you can initiate deprivation of parental rights. But the obligation to pay alimony will remain.

My common-law wife threatens to establish my paternity through the court and demand alimony for the child from the moment of his birth. Is it possible? The child is 7 years old.

The child's mother can initiate the process of establishing paternity. But alimony will be assigned from the date of filing the application with the court. In such a situation, alimony is not collected for the past period.

We started living with the girl before her official divorce. 6 months after the divorce she gave birth. The child was registered as her ex-husband. How can I adopt my son now?

You need to go to court to challenge and establish paternity. Prepare evidence that you lived with her during the period of conception. Testimony from witnesses and the child’s mother will also be needed.

Process nuances

According to Russian law, only a minor child can be adopted. When it comes to establishing paternity, this rule does not apply.

However, if we are talking about establishing paternity in relation to a child who has reached the age of 14, then for legality it is necessary to seek the latter’s consent for implementation. If the child does not give consent for any reason, the procedure is impossible.

If the fact of paternity has been established in relation to a man, he automatically acquires all the rights and obligations that parents and children have. It is impossible to refuse their implementation. Even if a parent of either gender is separated from his child, he loses the rights to raise him, but all maintenance responsibilities remain unchanged. But this does not apply to children who were adopted. If the adoptive parent abandons the child, he then loses his maintenance responsibilities.

Natural father

When born in marriage, the baby is registered according to documents in the name of the father and mother. And who is recorded as the father if children are born out of wedlock? Some citizens believe that dad needs to go through the adoption procedure. But it is not so. The citizen from whom the baby was born is his blood father.

Reference. According to the law, a blood father does not have the right to adopt his own children.

The difficulties that arise if a child is born out of wedlock can be easily resolved. You just need to establish paternity - adoption does not apply in this case. To do this, parents can simply contact the registry office at the place of residence of any of them or the court if difficulties arise.