According to the legislation of the Russian Federation, after a divorce, if there are minor children, the issue of their continued residence with one of the parents must be resolved. Regardless of the circumstances of a particular situation and how the case is handled, the interests of the child are a priority. In most cases, children stay with their mother as this helps provide them with the best possible upbringing. There are also cases where a child lives with his father after a divorce. Before initiating a divorce, it is necessary to study the law to see if there are provisions explaining whether the father can take the child from the mother.
Briefly about divorce and children
Divorce is a procedure for terminating an officially registered marriage relationship. Persons who are not legally married cannot initiate divorce proceedings, since their relationship, from the point of view of the law, is recognized as fictitious.
The legal provisions of the Russian Federation allow divorce through the civil registry office and the court. Spouses can take advantage of the first opportunity if they have reached an individual agreement on the division of property, they do not have common minor children, and there are no other disputes.
A petition for divorce must be sent to the court if the spouses have disagreements regarding the division of property and they cannot reach a consensus on their own. The presence of minor children is also a reason why the issue should be resolved through the courts. In such a situation, any agreement between the spouses regarding the residence of the children does not play a role.
From the age of ten, a child has the right to express his own opinion regarding his desire to live with one of his parents. If the child is between 10 and 14 years old, his opinion is taken into account (his legal capacity must be confirmed). After 14 years, from a legal point of view, the child reaches the age of consent. In this case, if he does not agree to live with one of the parents, his opinion must be taken into account without fail. Since the level of development of all children is different, the court pays attention to the child’s signs of legal capacity - the disposition to make his own adequate decisions.
Issues related to the termination of a marriage relationship, in the presence of children, can be considered in the magistrate or district (city) court. The choice of authority depends on the circumstances of a particular situation. In court proceedings, the final decision is given to the court or to the spouses. If they cannot independently agree and approve the terms of the agreement, the judge will make a verdict.
Is it possible for a child to live with his father?
When parents divorce, the child usually goes to the mother. There are very few cases when practice “shows” the opposite. There is also a situation in which spouses living in a civil marriage separate, and the man seeks to keep the offspring for himself and take care of him fully alone. Such guardianship is acceptable.
A man and a woman have equal rights in relation to a child. The father can fully demand that the child live on his territory permanently. To do this, it is necessary to determine the minor’s place of residence, agree with his mother and record it in the relevant documents. But parents often fail to agree on who will get the child.
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And in this case, they go to court to resolve the dispute. There is paragraph 24 of the Family Code, which provides for such a measure.
Parents' rights after divorce
Divorce is the termination of the relationship between the persons involved in it. This procedure does not in any way affect the relationship between parents and children. All rights and obligations assigned to them retain their legal and moral force.
After a divorce, the parent with whom the child no longer lives has the right to regularly see him and take part in his maintenance and upbringing. Moreover, the implementation of these actions is the direct responsibility of the parent, unless otherwise provided by a court decision. In some cases, a ban or partial restriction on communication between a parent and a child may be imposed. This is possible when the court considers that the presence of such a relationship infringes on the interests of the children. Regardless of this, the obligation to provide material maintenance remains.
In the absence of any restrictions, a parent living separately from a child after a divorce retains the right to receive inheritance and old-age alimony from the children. This prerogative can only be abolished by deprivation of parental rights.
What is the definition of the place of residence of a minor in the event of a separation between parents?
Divorce in the presence of minor children in the family is carried out exclusively in court. It is not possible to simplify the procedure, since the court is obliged to make an official decision on determining the place of residence of the children in the future. This is done in order to protect the children and determine which parent will live with them permanently in the same area.
The court decision decides whether the children will be permanently with their father or mother. This definition does not eliminate the need for the participation of the second parent in the lives of children.
Parental roles are distributed as follows:
- One of the spouses lives with the children and takes care of their daily needs.
- The second spouse pays a monthly allowance to their children for maintenance, communicates with them at convenient hours and days, and participates in their lives, unless the court has imposed any restrictions on this issue.
Children, even after divorce, must have two parents. The former spouse who does not live with the minors has the right to visit them and spend time with them.
Is it possible to sue a child from its mother?
It is legally possible to take a child from its mother. To do this, certain conditions must be met. When considering such issues, the court does not make a distinction between maternal and paternal rights, since they are equal for parents. However, based on practice and taking into account the interests of the child, the judicial authority more often gives the child to the mother.
If, on the basis of the initial decision, the children were left with the mother, the father, firstly, can file an appeal, and secondly, initiate a counterclaim, the subject of which will be the issue of the well-being of the children living with the mother. For example, when a mother is unable to provide an adequate standard of living for her children or suffers from bad habits that also negatively affect the well-being of the children, the court may reconsider the original verdict and transfer them to the father.
In this case, any appeal by the father to the court must be supported by evidence based on official documents. This could be medical reports about the mother’s illnesses or addictions, bank statements about the state of financial accounts, written testimony from third parties (neighbors, teachers, caregivers, etc.).
Main factors when resolving the issue
What exactly are we talking about? If you are wondering how a father can take a child from his mother, he will have to try hard. After all, the judicial authorities will primarily protect the interests of the minor. It follows that if living with dad will cause more harm to the baby than with mom, you can forget about bringing the idea to life.
Among the factors that are taken into account by the court are:
- age of the minor;
- interests of children;
- Juvenile attachment;
- personal qualities of both parents;
- parents' education and upbringing;
- material and living conditions of the parties.
In addition, judicial authorities are required to ask the child’s opinion regarding who he wants to live with. To do this, the minor must be 10 years old.
In what cases does a child stay with his father?
The father can take the child away immediately after the divorce if there are all grounds for this. The court considers the situation from the point of view of the law, as well as the circumstances of the particular situation, and tries to take into account the interests of the child as much as possible.
Parenting agreement
A similar agreement concluded between former spouses may form the basis for a decision to leave the children with the father. If the provisions of the agreement spell out the rules governing the further residence of the child, the court will take this into account first of all. Attention is paid to maintaining the well-being of children.
When the parents decide that the child will remain with the father, but the court, having considered all the facts, comes to the conclusion that this infringes on the interests of the minor, it can cancel the parenting agreement and make a different verdict.
Deprivation of parental rights
The child can remain with the father, regardless of the stage of the divorce process, if the mother was previously deprived of parental rights. In this case, she loses the opportunity to participate in the child’s life, therefore, he cannot live with her.
At the same time, the responsibility for the material maintenance of children remains with both the mother and the father equally. In other words, the mother will be required to pay child support.
Inability of the mother to fulfill her obligations properly
If the mother is not deprived of parental rights, the child can still be transferred to the father. This is possible in cases where there are facts confirming that she is not able to provide the children with material support and proper upbringing.
Special circumstances
There is a list of special circumstances in which the father is strongly recommended to take the child after a divorce. Otherwise, if the ex-husband does not intervene, the children are then taken care of by the guardianship authorities.
Mother's mental illness
To prove the mother’s inadequacy, you will need to collect a package of papers. The list includes any confirmation: from a copy of a medical record to receipts for the purchase of medications. The main evidence is the testimony of the attending physician, which is confirmed by official documents.
Mother's incapacity
The term “incapacity” hides a restriction of a person’s rights. Determining legal incapacity or imposing restrictions will require a separate court decision involving a medical examiner and a psychiatrist.
Incapacity implies the inability to care for a child, especially one under 10 years of age.
Aggressive behavior of mother
Unlike incompetence, which is determined by medical examiners, maternal aggression is not as easy to prove. If we are talking about physical violence, then traces of beatings are removed, if possible, in the nearest emergency department. This becomes grounds for filing a lawsuit.
Aggressive behavior of mother
But if we are talking about psychological violence and moral abuse, including insults, manipulation or threats, then it is difficult to collect a database.
Typically, human rights defenders use the following evidence:
- testimony of independent witnesses;
- interviewing the child with the involvement of psychologists and teachers;
- collecting characteristics of the spouse from colleagues, acquaintances, neighbors.
The process will have an impact on the child's psyche. Therefore, at the initial stage of the proceedings, the father must make every effort to reach an agreement with the mother. To prevent children from being called to court.
Registration procedure
At the initial stage, it is necessary to decide on the authority to which you will contact with the question of leaving the children with their father. Factors that may give rise to this must be fully confirmed. For example, the father has the right to make a request to the guardianship and trusteeship authority, the subject of which will be a request to conduct an assessment of the living conditions of the children and mother. If representatives of the regulatory agency consider it necessary to satisfy the father’s claim, they will issue an appropriate conclusion, with which he will go to court.
There is a mandatory list of papers, without which the issue will not be considered. Documents identifying the applicant, confirming the fact of the conclusion or dissolution of a marriage relationship, indicating the presence of a family relationship between the plaintiff and children, as well as other papers corresponding to the characteristics of a particular case are sent to the court office.
Since additional supervisory authorities (guardianship or prosecutor's office) may be involved in the proceedings, care must be taken to prepare copies of all materials.
What does the court pay attention to?
In order to sue the child from the mother, it is necessary to take into account the factors that the court pays attention to first. These include questions regarding:
- Financial situation of the parties.
- The presence or absence of a new family for the applicant for the child.
- There is a threat to the life, physical and emotional health of the child.
- Testimony of third parties.
- Evaluation reports of regulatory authorities.
All facts must be confirmed by official documents, since oral statements are not taken into account by the court.
What does the court pay attention to?
There are several factors that courts consider when deciding whether to release a child to the father or not.
For example, the material and property status of a man is examined, whether he has a permanent or temporary income. The composition of the new family is taken into account. After all, other people can live in the parent’s living space.
When the father decides to take the child, he must take care of evidence that the mother cannot devote proper attention to his upbringing. Facts confirming the threat to the life and health of the child while being with the mother will also be important.
Such evidence includes:
- information from the guardianship authority;
- testimony from the woman's neighbors;
- other materials obtained through legitimate means.
Judges also take into account the period of existence of the marriage. After all, a fleeting union from a subjective point of view may not work in a man’s favor. At the same time, the attention given to the child is taken into account. However, everything must be supported by evidence.
Advice on how to behave for a father who wants to fight
Based on the practice of resolving issues of children living with their father, several basic tips can be identified, following which he is likely to achieve a positive verdict in his favor.
Tip 1: Gather all the necessary documents
The documentation submitted to the court must confirm all the benefits that will apply to the child if he lives with the father. The papers may indicate a high material income, the presence of comfortable housing, the father’s absence of diseases or addictions, etc. The more complete the list of documents, the greater the chances of success.
Tip 2: establish contact with guardianship authorities
Guardianship authority is an institution directly involved in considering issues of the well-being of minor citizens. Contact with an authorized representative of this department, as well as sending all supporting evidence to him, will have a positive impact on the outcome of the case.
It is advisable to call a guardianship commission to the place of residence of the mother and children to assess the living conditions and financial situation.
Tip 3: file a claim to determine the child’s place of residence
Such a claim can be filed in court after a decision has been made to leave the children with their mother. The subject of the request is a request to review the verdict. In this case, any request must be documented. The court is obliged to consider such a request, regardless of the outcome of the previous proceedings.
Tip 4: Gather evidence of your own involvement in raising your child
If the father continues to participate in the child's life despite the fact that he lives with the mother, it is necessary to collect and present evidence of this fact. Confirmation can be checks and receipts indicating the purchase of clothes, toys and household items for the child.
It is better to make financial support through electronic payment systems. They contain a transaction history that may provide evidence that the father provided financially for the children.
Audio and video materials, as well as testimony of third parties, for example, teachers, educators, neighbors, are accepted as evidence.
Tip 5: Aim for a signed agreement
Significantly simplifying the entire procedure will help draw up an individual agreement. Such an agreement can be drawn up by the spouses independently. On its basis, the father may be able to live with the child periodically or permanently.
If the mother subsequently wants to limit the children's contact with the father, the agreement can be used in court as an argument to refute her wishes.
Tip 6: Get qualified legal support
An additional guarantee of success in proceedings regarding children can be the support of a qualified lawyer. He will help collect all the necessary papers, point out the missing links in the case, and will be able to speak in court on behalf of the father.
When using the services of a legal representative, his authority should be confirmed with an appropriate power of attorney. This is mandatory for the court
Tip 7: Maintain regular contact with your child
The child’s relationship with his father is also important. If he has reached the age of consent, then his opinion can be taken into account by the court. In order for a child to be loyal to the issue of living with his father, it is necessary to fully participate in his life. To do this you need to establish good contact with him.
You should avoid putting pressure on the child. If this fact is revealed during the proceedings or after it, the decision may be annulled and the father will be held accountable.
A private detective shares tips on how to get your child back
Don't panic
When one of the spouses takes the child, the conflict of interest becomes extremely acute. The parent left out of work runs to the police in panic to report him missing. There is only one thought in my head - to return the child back at all costs. But the police just shrug their shoulders: there is no crime, the notorious 61st article of the Family Code gives the conflicting parties equal rights.
Take, not kidnap
In the described state of affairs, one of the parents is a priori a clear loser. I want to take revenge. But how can this be done if the law cannot help? Proceed in the same way: the child must be taken back. Yes, to take away, not to kidnap. The Family Code affirms equal rights for parents, which means you are not prohibited from taking your child back. We will tell you how below.
Don't hurt your child
First, I would like to say: in such conflicts between parents, the child himself turns into something like a passing trophy. Either my mother will steal you from school, or my father will take you home from English courses. At the same time, the opinion of the child himself is very often not taken into account at all. All this is accompanied by nerves, aggression, often fights and, of course, buckets of verbal dirt that mom and dad pour on each other. But for a child, both parents are the most beloved and significant in life. One can only guess how such stress will affect a still-forming personality.
Now let's return to the question posed: how to pick up a child if he was taken away and hidden? What should you do if you have firmly decided that you will take your child back?
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Six steps to your child
1. It is important to remember: only the parent and no one else has the legal right to take a child from somewhere! Anything else will be considered kidnapping, and this is already a very serious criminal article. Of course, friends, colleagues and other persons can provide assistance, but only technical assistance: act as a driver, provide their apartment, distract the attention of witnesses and teachers.
2. It is recommended that the parent pick up the child from neutral territory: after school, from a circle, from a walk. Preferably not from your opponent’s apartment, because such a maneuver could result in charges of breaking into a home. Moreover, you may even be accused of something you didn’t do - for example, of stealing your grandfather’s gold watch from that very apartment. And if there was a fight and you were beaten, you can’t avoid serious problems. And the point here is not even in the article: it’s just that any fact discrediting you can serve you badly in court. A criminal record, being brought to the police - all this is another argument against the court ruling in your favor.
3. Find an ally behind enemy lines. It could be anyone: a former mother-in-law, a nanny in a kindergarten, a teacher. Such a person could talk carefully with the child, carefully ask his opinion regarding you, and do some preparatory work. In addition, this is also an informant who knows about the child’s movements in space.
4. In any case, you need to observe the child from the side, choose a place and time to pick him up. Assess all possible risks. However, at the time of observation, neither the child himself nor relatives and teachers should see you. Otherwise, the entire operation will be in jeopardy. Observe carefully, or better yet, involve your friends in the case. The optimal solution would be to conduct surveillance in a car, which is best changed periodically so as not to attract attention.
5. Before moving on to “fighting”, try to sit down at the negotiating table. Not in the kitchen, but, for example, in the office of the Commissioner for Children’s Rights. There is such a position in every region. The role of the children's ombudsman should not be underestimated. He is the one who can become a mediator in your dispute. Let's face it: with whom will the child be better off? Where will he be happier? In the end, why did you start all this - in the name of your own ambitions, to annoy your former passion, or do the interests of the child still come first? If the conditions of mediation are violated by the opponent, the ombudsman can be asked to speak in court; they do this quite skillfully, and they may have a certain opinion about the personality of the ex-spouse, which, as a rule, the judge listens carefully to.
6. Nowadays, the one who has money and good connections often wins. If this sounds like you, use them wisely in the war for your child. There is no need to explain here that with a kind word and, in this case, money and connections, you can achieve more than just a kind word. Alternatively, in exchange for financial support, you can get the opportunity to see your child. The main thing is that all this does not develop into financial blackmail.
Finally
No matter how the circumstances turn out, we urge you to remember: a bad peace is still better than a good quarrel. The more civilized the parents share their child, the easier it will be for your child, for whom the current conflict situation can result in fatal mental deformation and lifelong neuroses.
Find yourself embroiled in a war over a child? Contact Legion for help - our doors are always open.
Evidence required to deprive a mother of parental rights
A mother can be deprived of parental rights only if there are sufficient grounds for this. Such facts can be identified by the guardianship authorities themselves or received from the father.
In the second case, the interested person must submit a complete package of papers indicating the impossibility of further maintaining the status of a parent for the mother. The list may include:
- Medical reports.
- Financial statements.
- Papers from law enforcement or guardianship agencies.
- Written testimony of witnesses.
- Audio and video material.
- Recordings of a child's personal statements.
The mother wants to give away the child
Sometimes in judicial practice such situations arise when, during a divorce, the court gives a minor child to the mother, but after some time the mother expresses a desire to transfer him to be raised by the father. As a rule, this is due to changes in the life of the ex-wife, for example:
- Excessive busyness at a new workplace or long business trips, due to which she cannot devote enough time to caring for and communicating with the child.
- A decrease in income after losing a job or closing a business.
Deterioration of health or the occurrence of an accident resulting in disability. This circumstance does not allow the mother to take the child to kindergarten, buy him food, protect him from attacks and look after him.
At the same time, the father must have acceptable living conditions, an income sufficient to provide for the child, and a job that allows him to devote time to raising him.
The process of handing over children to their father must go through the courts. This is due to the fact that the consequence of transferring children to be raised by the ex-husband is not only the children moving to a new place of residence, but also the removal of alimony obligations from the father, which are transferred to the mother.
When hearing a case, the court must evaluate:
- The validity of the will of the mother, who made the decision independently, without the influence of others, violence, deception or threats.
- The presence of circumstances that prevent the mother from properly raising or caring for the child.
- The desire of a child who has reached the age of ten to move in with his father.
- The character and habits of the ex-husband.
- The man’s income and his work schedule.
- The condition of the ex-husband’s apartment or house as determined by the guardianship authority.
- The amount of alimony that can be recovered from the mother.
In most cases, the key role in making a decision is played by the opinion of the minor, which, according to the judge, should not contradict his interests, and the inability of the mother to fully care for him, confirmed by evidence.
If a woman has two children and she received maternity capital from the state for their birth, then it will not be taken away if she gives the children to her ex-husband to raise. It can only be taken away if the mother is deprived of her parental rights.
Who will help if the foreigner husband took the child abroad?
In most cases, taking a child abroad by a foreign parent is problematic. This is due to the fact that in order to transport children across the border by one of the parents, you must have the written consent of the second or another permit.
If such consent was not given, and the child was taken abroad, it is necessary to contact law enforcement agencies with a corresponding statement, since such an act will no longer be considered from the point of view of separation of children, but as the illegal removal of a minor from the state.
When submitting a petition, it is necessary to accompany it with all supporting documents and other materials that will help representatives of the regulatory agency take action to resolve the issue within the framework of international cooperation.
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