Courts quite often award children to mothers in the event of parental separation. But not all husbands agree with this, and having failed to achieve the truth in a trial, they resort to arbitrariness and forcibly take away the heir. In this article, we will look at such a difficult situation as a husband taking a child - what to do, where to go and whether the help of a lawyer in Moscow is needed in such circumstances.
- Can the husband take the child?
- The father took the child over 10 years old with his consent
- The father took the child under 10 years old with his consent
- The father took the child away without his consent
- The marriage is not dissolved, the father took the children away
Can the husband take the child?
In most cases, only the place of residence of children is determined at court hearings. The order of communication between a parent and a child who lives separately remains “on the conscience” of divorced or divorcing spouses. And from here a rather unpleasant moment arises for all parties to the conflict: the father, using his right to communicate with the child, guaranteed by Article 66 of the Family Code of Russia, actually removes the child. At the same time, the man may not apply for a review of the baby’s place of residence (for the time being).
However, in a situation where the child’s place of residence is determined and it does not coincide with the father’s place of residence, such arbitrariness is unacceptable. This is contrary to the law, a court decision (spousal agreement), limits the rights of the second parent and violates the legitimate interests of the child himself.
But this is in general order. In fact, in such circumstances there are too many nuances, and therefore, if the husband took the children, only an experienced lawyer can tell you what to do. Here we present the most general situations and ways to resolve them.
So what to do
Women who are faced with threats from their ex-husband do not always know what to do about it. Some think that these are just words, while others do not know where to run to seek protection. The law provides ways to protect ex-husbands from arbitrariness if they threaten violence.
Threats to kill or cause grievous bodily harm are a criminal offense under Art. 119 of the Criminal Code of the Russian Federation. The police are involved in solving crimes. Therefore, you should submit your application there. It is advisable to have some evidence that threats were actually made. For example, audio or video recordings, recordings of telephone conversations, screenshots of SMS messages or copies of letters. It is important not just to convey information in words, but also to have confirmation of it.
The father took the child over 10 years old with his consent
Quite often, children do not want to live with their mothers, but, on the contrary, prefer the home and company of their father. No one really asks a child under 10 years of age, but here is the opinion of older children based on Art. 57 of the RF IC must be taken into account. But exactly what should be, in fact, judges sometimes make a decision in favor of the mother, even if her salary is lower, her living conditions are worse, and the child does not want to be with her.
But if the father voluntarily moves the child to his place, he will have to return him back to the mother. However, everything will change if the child independently moves to live with his father, and declares to the guardianship authorities that he does not want to live with his mother. The fact is that it is impossible to impose any sanctions on a child, and it is impossible to punish a father for something he did not do.
The best way out for a mother in such a situation would be to take into account the opinion of a child over 10 years old. Indeed, in this case, it may be possible to maintain a good relationship with him. Otherwise, the situation will reach the point of absurdity and the child will simply run away to his father. Consequently, parents will have to reconsider in court the issue related to the child’s place of residence.
The father took the child under 10 years old with his consent
Although a child under 10 years of age has the right to express his opinion, neither judges nor anyone else is obliged to listen to him. And therefore, there are almost no options for losing a descendant, even if the husband wants to take the child. What if he is going to do this? Remind that in Russia there is liability for child abduction. And if this does happen, then you should:
- notify the guardianship authorities;
- file a complaint with the police, or if the Ministry of Internal Affairs refuses, contact the prosecutor’s office.
The child must be returned to the place of residence determined in court or by agreement of the parties.
But the situation will develop a little differently if the father decided to take the child legally and through the court. The extent to which he will be able to do this depends on the evidence base, the difference in material well-being between the father and mother, and the competence of the lawyers on both sides. You should not try to participate in the process without an experienced lawyer, since the case can be lost even if the judges are too sympathetic to mothers.
Ways to curb a domestic abuser
Having realized her role as a victim of domestic violence, a woman needs to decide what measures will take control of the situation. An important fact is that domestic abusers are afraid of publicity and outside interference. It would be reasonable for a woman to follow simple rules:
- If you need outside help - relatives, neighbors, law enforcement agencies - you need to ask for and accept it without hesitation. Testimony from outsiders will help prove the beating - embarrassment is also inappropriate here.
- You should think through and prepare a place for temporary residence after leaving the rapist; these could be apartments of relatives and friends, city shelters.
- You will need to pack a bag with essentials, medicines, important documents or their notarized copies and give them to a trusted person for safekeeping.
- You will have to instill in yourself the habit of carrying the keys to your home or vehicle in your pockets, which will allow you to avoid becoming a hostage to the aggressor and return to your apartment if necessary. A good option is to make duplicates and give them to loved ones.
- When the victim is finally ready to leave the rapist, all information about the possible location will need to be destroyed.
- The telephone number of the crisis center for victims of violence should be remembered by heart, the same applies to the police station, hospital, capable of organizing the necessary assistance to women and children.
Having realized the seriousness of a woman’s intentions, a man is also capable of change, for which he will need to learn to redirect aggression to physical activity and overcome the desire to implement negative behavioral models. But it is necessary to understand that independent changes for the better are possible only when there are no addictions and mental pathologies.
The father took the child away without his consent
In fact, this will already constitute the abduction of a child, but cannot be qualified under Art. 126 of the Criminal Code of the Russian Federation. The reason is the lack of selfish intent in the actions of the father who takes away his child. After all, the parent believes that he is acting in the interests of the child. Moreover, the age of a young person is of secondary importance, since for persons under 10 years old. Art. 57 of the RF IC is not applicable, and for persons older than this age, the article contains a reference to “taken into account” and is countered “if this does not contradict his interests.” Such an interesting Article 57 of the Family Code essentially gives equal opportunities to both mother and father (as well as the court and guardianship authorities) to arbitrarily interpret the situation and the child’s opinion about it.
But if the ex-husband took the children, what to do in such a situation, logic dictates:
- contact the police to establish the whereabouts of the children and return them home;
- contact the guardianship authorities to investigate the case;
- if there is a court decision determining the place of residence of the children - to the FSSP to initiate an enforcement search.
The main thing in this situation is not to remain idle, since if there is a significant loss of time, it will be quite easy for the ex-husband to legitimize his actions by simply proving that the children lived with him the entire time he was paying alimony. The mother made no attempt to return them, from which it is easy to conclude: the mother does not need children.
Arbitrage practice
An analysis of precedents shows that the courts take a comprehensive approach to solving the problem. Often, in the event of a dispute regarding children, counterclaims from the parents are considered simultaneously. During the hearings, psychological examinations are ordered about the child’s attachment and methods of raising him.
The testimony of witnesses named by the plaintiff and the defendant is heard. The proof is the conclusion of the responsible guardianship officer, who, for his part, verifies the possibility of the minor living with the mother or father. In addition, characteristics from the place of work and residence are assessed.
Below are a few precedents. From them we can conclude that when the father took the child against the will of the mother, the courts do not always side with the latter.
Main reasons for refusal:
- regular violence;
- addiction to alcohol;
- incorrectly chosen parenting tactics.
The courts justify each of the listed circumstances in their decisions. In some cases, the reasons for the position take up several pages.
Application of international law
The Borodino District Court of the Krasnoyarsk Territory considered the mutual claims of the father and mother in a dispute over establishing the place of residence of a minor girl. The woman insisted that the father took the child by force.
In turn, the man insisted that only he could provide for his daughter financially and provide her with decent conditions for raising her. He referred to the fact that his daughter was drawn to his parents - grandparents.
During the consideration of the case, witnesses from each side were questioned, materials from the guardianship, psychologists and teachers were studied. In the text of the final decision, reference was made to the Declaration of the Rights of the Child, approved by the UN General Assembly on November 20, 1959.
From its meaning it follows that a small child should remain with his mother, except in cases of exceptional circumstances. Father did not bring such people. As a result, by decision dated August 05, 2016 in case No. 2-364/2016, the girl’s place of residence was determined with her mother.
If the fault is on the mother's side
When assigning the place of residence of a minor to one of the parents, the courts take into account various circumstances. One of them is methods of education, as applied to children of the appropriate age.
An example of this is the conflict resolved by the Kalininsky District Court of Novosibirsk in the matter of establishing the daughter’s future address of residence. During the investigation, a forensic psychological examination was ordered. She found that the girl was equally attached to both parents. At the same time, father's methods of education are more effective.
As a result, by the decision of June 27, 2016 in case No. 2-1686/2016, the man’s demands were satisfied. In turn, the court established the conditions for the mother to meet with her daughter.
When a woman abuses alcohol
In the case considered by the Cannes City Court of the Krasnoyarsk Territory, the mother set herself the goal of taking her son away from his father, whom he had forcibly taken. In turn, the defendant objected to the demands.
According to his explanations, he had to take the boy away because his ex-wife abused alcohol.
Witnesses confirmed that several times the woman came to pick up her child at kindergarten late and smelled of alcoholic beverages. In addition, the plaintiff underwent rehabilitation for alcohol addiction in a specialized clinic.
Taking into account the above circumstances, the court, by decision of December 25, 2017, in case No. 2-28177/2017, rejected the applicant. Thus, leaving the son with his father.
The marriage is not dissolved, the father took the children away
The most difficult situation, since in this case both parents have equal rights. And therefore, children do not have any special place of residence; they can live with either their mother or their father. If the father hurries up and hires a good lawyer, he will be able to prove that it is better for the children to live with him, and this situation arose even before the divorce.
Therefore, there is only one way out: to go to court with a claim for divorce and determination of the place of residence of the children. And the sooner this is done, the better. The police, guardianship authorities and other structures of the mother will not be able to help, since the father acts legally and lawfully. Well, the further development of events depends entirely on what decision the court will make.
Due to frequent updates to legislation and the legal uniqueness of each situation, we recommend obtaining a free telephone consultation with a lawyer. You can ask your question by calling the hotline number 8 (800) 555-40-36 or write it in the form below.
Court receptions
Life shows that when a father with bad intentions wants to take his son to him at any cost, any methods are used. They sometimes go beyond the law. Therefore, women need to be aware of countermeasures.
Other people often come to help with this and can confirm the circumstances of the case. These include friends and neighbors, followers on social networks.
Typical actions of a man:
- use of financial opportunities;
- working with witnesses, including encouraging them to give necessary testimony;
- impact on the child himself.
Let's describe several common tricks and ways to counter them. The main thing for a mother is not to sit idly by.
Inaccurate characterization
A man can present to the court information in a positive way about himself that is not true. Both the defendant and her witnesses can refute them. The more people involved, the more weighty the voiced testimony will be for the court.
There are cases when people invited to give explanations openly lie. And a warning about criminal liability does not stop them.
An experienced lawyer can recognize the catch. He will also draw the court’s attention to the existing inconsistencies between the voiced evidence and other evidence.
Fictitious expert opinion
As part of the consideration of the case, the court most often orders a forensic psychological study about the actual relationship between parents and children, the degree of respect for each. And there are situations when an expert colludes with the plaintiff, despite the consequences.
In this scenario, it is necessary to insist on a re-examination. Another specialist will take care of it.
We recommend! Statement of claim for deprivation of parental rights
The range of issues to be clarified is identified in advance. They will definitely be reflected in the court ruling.
Bribing a child
Most often it occurs in a situation where a minor has already crossed the threshold of 10 years. Then his opinion of which parent to stay with often becomes decisive.
Some representatives of the stronger sex take advantage of this, promising the child toys, fashionable gadgets, modern things in exchange for his expressing his desire to stay with his father. It is permissible to expose deception.
The same specialists in the field of psychology will come to the rescue. They have techniques in their arsenal that help identify the fact of manipulation.
