Five reasons why a child may be left with his father after a divorce

The divorce of a married couple with minor children always raises a rather painful issue - with whom their offspring will live. Moreover, it is resolved only through the court, and if a settlement agreement is not concluded between the parents, it is the judge’s verdict that becomes the basis for determining the subsequent place of residence of the children.

Family law lawyer Elena Boytsova advises on what reasons may force the court to hand over the children to the father and how this can be avoided.

Equal rights of parents to children - truth or myth?

Article 54 of the Family Code of the Russian Federation states that every child has the right to live and be raised in a family.
But in the event of a divorce, he must remain living with one of the parents. If a settlement agreement is not concluded between the spouses regarding the “division” of children, then their dispute is resolved by the court, based on the interests of the minors and taking into account their opinions.

When making a decision, the following are taken into account:

• child's age;
• his affection for each of his parents and siblings, and his relationship with each of them;
• moral and other personal qualities of parents;
• the possibility of creating conditions for the child’s upbringing and development (occupation, work schedule of parents, their financial situation, etc.).

However, judicial practice in the Russian Federation has developed in such a way that in most cases the court sides with the mother, “by default” leaving the children with her.
The rights of fathers are practically ignored. Thus, statistics show that about 94-95% of divorces end in the children being awarded to the parent. This is due to the common belief that the mother has a stronger emotional connection with them, is more responsible and is psychologically better prepared to raise babies. However, not all fathers agree with this position, and can defend their position in court. And achieve a positive result if they are able to collect evidence - examination results, witness testimony, etc.

Conditions under which a child can stay with his father

The issue of children's residence can be resolved both during the divorce process and after you have divorced your spouse. In judicial practice, most often a child under 14 years of age remains with his mother. However, there are a number of exceptions in which the court's decision may be different. Factors influencing the child's future place of residence:

• the age and interests of the children (from the age of 10 he can express his desire with whom he wants to live);
• financial status of parents;
• moral qualities of both;
• reviews of other family members, colleagues and friends about each spouse;
• the conditions in which the parents live;
• health status of mother and father.

One of the key factors is the fulfillment of parental responsibilities. That is, it is important to prove that the ex-wife performs them poorly or does not perform them at all. The father, in turn, must devote enough time to the child and raise him. In this case, there is a possibility that the child will live with the father after the divorce.

For what reasons can the court hand over the children to the father?

The decision to leave children after a divorce from their father is, frankly speaking, atypical for Russian reality: only 5-6% of cases out of the total number of court decisions.
What may influence a verdict in favor of the father:

1. When the mother, due to mental, health or lifestyle reasons, is unable to take care of the children;
2. Regular manifestation of aggression towards the child, physical and mental violence on the part of the parent;
3. The mother's leading an immoral, asocial lifestyle;
4. She lacks a place to live with her children;
5. Lack of funds for their maintenance.

All arguments must be supported by evidence: certificates from government agencies and medical institutions, characteristics, expert opinions, testimony of witnesses and others.

Is it possible to prohibit a father from seeing his child?

During normal interaction between a father and his son or daughter, no one has the opportunity to interfere with their communication. Restrictions may be imposed by the court in the following circumstances:

• threat to life, development and health posed by the father;
• abuse, violence or threats;
• failure to fulfill duties;
• alcohol/drug addiction;
• abuse of rights.

When considering the case, the court may set limits on the time of interaction or limit the father’s rights. But this is only possible if there is evidence of unacceptable actions.

What should a mother do to defend her rights?

Sometimes a spouse, angry with circumstances, does everything possible to sue the children.
I can also use illegal methods - falsifying documents and examination results in order to prove the wife’s insanity, collecting negative reviews about her from neighbors, etc. Situations are common when the husband hires a nosy lawyer to prove that the mother is breaking the law. In such cases, it is necessary to order an examination from independent experts and submit its results to the court. It makes sense to get a positive review from her place of work, obtain testimony from witnesses (neighbors, teachers at school, etc.) that she is fulfilling her parental responsibilities, make a certificate of income, and collect documents on ownership of the apartment. It would be useful to attract people who are ready to confirm that the spouse is not involved in raising their common children.

If the child is 10 years old, the court questions him along with adults, clarifying with whom he wants to stay during the divorce - and necessarily takes into account his answer. Children under 10 years of age are interviewed by representatives of the guardianship and trusteeship authorities.

Legislative regulation

All features of interaction between parents and children are regulated by the following legislative documents:

1. UN Convention on the Rights of Children.
2. Constitution of the Russian Federation.
3. Federal Law “On Acts of Civil Status”.
4. Family Code of the Russian Federation.

After a divorce, the parent leaving the family does not lose his rights to the children. He can communicate with them, participate in their life, influence its quality, etc. But it should be remembered that the interaction must be without violations, otherwise the court will impose restrictions. The same is possible if duties are not fulfilled.

Right to communicate

Even if a child, by court order, remains with his father, this does not mean that the mother loses the right to communicate with him and participate in his upbringing. The father is obliged (except in cases of threat to the life and health of the baby) to provide his ex-wife with the opportunity for such meetings. To avoid scandals, parents have the right to enter into a written agreement on the procedure for exercising parental rights by a mother living separately from the child. If no agreement is reached on this issue, the procedure for communication will be determined by the court.

Family disputes: maintaining relationships with children after divorce

In almost every third family in Russia, a child is raised by one parent. About 5 million of the total 17 million families are single mothers. Children most often remain with them after a divorce, and there are only 600,000 single fathers. Such data was announced by the Presidential Commissioner for Children's Rights Anna Kuznetsova.

After a divorce, the parent who lives separately has the right to communicate with the child and participate in his upbringing. The ex-husband or wife should not interfere with this. This is what paragraph 1 of Art. 66 SK (“Exercise of parental rights by a parent living separately from the child”). Alexandra Stirmanova, lawyer S&K Vertical S&K Vertical Federal rating. group Family and inheritance law group Private wealth management group Arbitration proceedings (major disputes - high market) group Bankruptcy (including disputes) group Corporate law/Mergers and acquisitions 18th place By revenue 25-27th place By number of lawyers 6th place By revenue per lawyer (more than 30 lawyers ), says that former spouses have the right to determine the order of communication themselves, orally or in writing, by concluding an agreement. If desired, it can be certified by a notary.

It is best for parents to reach an agreement in the interests of the child, rather than succumb to emotions. But in practice, unfortunately, they are not always able to establish a dialogue and manipulate children to the detriment of their interests and mental health.

Alexandra Stirmanova, lawyer S&K Vertical S&K Vertical Federal rating. group Family and inheritance law group Private wealth management group Arbitration proceedings (major disputes - high market) group Bankruptcy (including disputes) group Corporate law/Mergers and acquisitions 18th place By revenue 25-27th place By number of lawyers 6th place By revenue per lawyer (more than 30 lawyers )

Kira Koruma, partner Asnis and partners Asnis and partners Federal rating. The Family and Inheritance Law group considers it a good idea to create a “school for divorced parents”, where psychologists, teachers, guardianship authorities, and mediators will work with ex-spouses: “This will make such disputes less traumatic for children.”

Save relationships through court

If it was not possible to come to an agreement with your ex-husband or wife, you can use the court to determine the procedure for communicating with the parent with whom the child does not live. The legislation has not clearly established exactly what types of communication can be determined by such an agreement. This means discretion, but in the interests of children, warns Stirmanova.

✔️ The order of communication may contain:

• time, days of the week, place and duration of communication;
• frequency of meetings;
• the procedure for handing over the child and returning him home;
• joint holidays, holidays or holidays;
• frequency of calls, communication via the Internet.

❌ Avoid wording:

• “communication in the presence of the other parent”;
• “do not allow other family members or the new wife/husband to communicate”;
• “pick up a child without overnight stays.”

According to Coruma, the other parent may insist on such clarifications in order to limit the ex’s contact with the child. As a result, the decision may turn out to be unenforceable.

❌ You can’t:

• divide parents' time for communication equally;
• alternate the child’s residence with his parents for several days or weeks.

Thus, the first instance and the appeal approved the following communication schedule: the child lives with his mother, but the father can pick him up any four days a week, and after he turns two years old, leave him overnight twice. The Supreme Court indicated that the decision was not in the best interests of the child. After all, he will lose the feeling of a “real home”, will live in two apartments and adapt to different lifestyles and different requirements (case No. 18KG-18-223).

The peculiarity of such cases is that the claims are considered with the involvement of the guardianship and trusteeship authorities. They find out the living conditions of each spouse, how attached the child is to his mother and father. Coruma provided several quotes from their conclusions. For example, “for children, the father is an emotionally significant figure, there is a need for communication” or “children have more trusting feelings towards their mother and have a negative attitude towards both the father himself and his new family.”

The courts also listen to the position of the guardianship authorities. Thus, in case No. 2-838/2020, the couple divorced when their daughter was three months old. When she was one year old, her father wanted to get a meeting with her through the court. He wanted to take the baby to his home twice on weekdays and once on weekends. The court took into account the conclusion that, due to her age, the daughter does not remember her father. To establish emotional contact, visits for three months must be in the presence of the ex-wife, then - without her supervision, but at the girl’s place of residence.

What else does the court take into account:

• the child's attachment to those with whom he lives;
• the situation that has developed in the place of residence of each of the parents (gender of the children, whether the parent has another family and other persons living together, living conditions);
• social behavior of parents;
• purpose of filing a claim.

Kira Koruma, partner of AK Asnis and partners Asnis and partners Federal rating. group Family and inheritance law

Visiting grandma through court

Through the court, it is possible to establish not only the order of communication with parents, but also with grandparents. But parents have priority here (Article 67 of the Family Code “The right to communicate with the child’s grandparents, brothers, sisters and other relatives”). Thus, the Stavropol Regional Court in case No. 33-6908/2019 indicated that the procedure for communication between a grandmother or grandfather and a grandson should not reduce the scope of the mother’s rights.

In such situations, the court takes into account the interests of the child first. The Pyatigorsk City Court in case No. 2-2364/2018 decided that the grandson can meet with his father’s parents regularly so that he gradually gets used to his grandparents. Such communication is necessary for the development of the child and the formation of basic ideas about family values, the court concluded. The decision was “strengthened” by an appeal.

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Case No. 47-KG19-4 reached the Supreme Court. The grandfather asked to “remove obstacles” in communication with his grandson and determine the conditions for their meetings. The first instance refused, but the appeal allowed meeting with the child for half an hour in the presence of the parents. This decision was overturned by the Supreme Court and indicated that, according to the parents, the child himself did not want to communicate with his grandfather because of his behavior. The board decided that if the interests of a child are affected in the dispute, then his opinion must be taken into account. The troika, chaired by Alexander Klikushin, sent the case for review, indicating that it was necessary to conduct a comprehensive examination of the grandfather to determine his “individual mental characteristics.” Upon re-examination, the regional court rejected the claim.

Execution problems

The court made a decision and determined the schedule of meetings between the child and the second parent. But the problems don't end there. The difficulty is that there are no real mechanisms for enforcing a decision on the procedure for communication, says Denis Golubev, advisor in the judicial and arbitration practice of AB Egorov, Puginsky, Afanasyev and Partners Egorov, Puginsky, Afanasyev and Partners Federal Rating. group Antitrust law (including disputes) group Arbitration proceedings (major disputes - high market) group Compliance group Corporate law/Mergers and acquisitions group International litigation group International arbitration group Maritime law group Dispute resolution in courts of general jurisdiction group Capital markets group Family and inheritance law group Insurance law group Labor and migration law (including disputes) group Criminal law group Private capital management group Pharmaceuticals and healthcare group Financial/Banking law group Environmental law group Bankruptcy (including disputes) group Foreign trade activities/Customs law and currency regulation group PPP/Infrastructure projects group Land law/Commercial real estate/Construction group Intellectual property (including disputes) group Tax consulting and disputes (Tax consulting) group Tax consulting and disputes (Tax disputes) group Natural resources/Energy group TMT (telecommunications, media and technology) group Transport law group Digital Economy 1st place By revenue 1st place By revenue per lawyer (more than 30 lawyers) 1st place By number of lawyers Company profile. In other words, it is difficult to monitor that it is being performed as it should.

In 2014, Madina and Aziz Babayev* broke up. The family lived in Moscow, but after the breakup, the husband took the children to Ingushetia to live with his parents. A few months later, the couple officially divorced, and immediately after that the ex-wife filed a lawsuit to determine the place of residence of two children. The district court decided that they should stay with their mother. The decision came into force in October 2014, but for almost four years the ex-husband did not comply with it, the children continued to live with their grandparents. Then the woman complained to the ECHR (No. 62526/15). It decided that the Russian authorities had failed to take all the measures that could have been expected of them to comply with the judgment. For example, bailiffs from Moscow redirected the case to their colleagues from Ingushetia, who were biased towards the woman. Instead, the bailiffs of the capital department should have exercised their right under Art. 33 of the law on enforcement proceedings (“Place of execution of enforcement actions and application of enforcement measures”), and seize children in Ingushetia. The ECHR ruled to pay Babayeva €12,500 in compensation for moral damage and €3,000 in legal costs.

In 2021, she took her five-year-old daughter, and the second child remained to live with her grandparents; they did not let him go.

Divides the border

It is even more difficult when ex-spouses live in different countries. One parent cannot be required to ensure that the child communicates with his ex-husband or wife. There are no such mechanisms, Coruma confirms. Parents who “kidnap” children take advantage of this.

Everything for the sake of the children: when property is not divided equally during a divorce

According to the expert, such a thing happened in her practice. After the divorce, the mother and the child moved from another country to Russia, where she began to interfere with the father’s communication with his son. Taking this into account, the court determined that the child would communicate with his father daily by phone or using instant messengers, and once a month on weekends he would fly to his father (case No. 2-1348/2013). Coruma calls this court decision “a breakthrough in its own way,” but difficulties arose at the stage of its implementation. The child suddenly ran out of money on his phone, the Internet was turned off, and the trips did not take place at all, since the decision did not describe the method of transferring the child to the father.

Koruma says that in this situation, the father was helped by interaction with the bailiff service, with the guardianship authorities, and with the Ombudsman for Children's Rights. They recorded all cases and subsequently brought the mother to administrative responsibility. As a result, the guardianship authorities at the commission raised the question of whether there were grounds for transferring the child to the father. Only after this the relationship between father and child was restored.

In another case, the parents did not reach an agreement. As the media wrote, six months ago Stanislav Sazhin, the creator of a social network for doctors, took his daughter from kindergarten. The ex-wife never found out where he took her. She went to court. On November 18, 2021, the court decided to take the girl away from her father and return her to her mother, but so far the ex-husband has not returned the daughter. The bailiffs put Sazhin and the girl on the wanted list. Some publications report that he is hiding abroad. But he did not disappear from social networks, and even became even more active. He teaches other fathers by his example: he created a master class “Abducting your child for dummies.”

In my opinion, depriving such “kidnapper” parents of parental rights and bringing them to criminal liability would be a deterrent, and agreements or judicial acts on the procedure for communication between a child and a parent would actually be enforced.

Kira Koruma, partner of AK Asnis and partners Asnis and partners Federal rating. group Family and inheritance law

To turn the situation around, the Ministry of Justice has developed a bill that tightens liability for failure to comply with court decisions (the document has not yet been received by the State Duma). According to it, they propose to introduce criminal liability for failure to comply with the act of transferring the child to the parent with whom he should live. The authors propose to punish this with a fine of up to 50,000 rubles. or in the amount of wages or other income for a period of up to six months. Sanctions also include compulsory work for up to 240 hours or correctional work for a year. The most severe measure would be arrest for up to three months or imprisonment for up to one year.

The Supreme Court decided who to give the child after a divorce

For comparison: now a parent who prohibits close relatives from communicating with a child can be fined from 2,000 rubles. up to 3,000 rub. according to Art. 5.35 of the Code of Administrative Offenses (“Failure of parents or other legal representatives of minors to fulfill obligations for the maintenance and upbringing of minors”). But, as the lawyer of FTL Advisers FTL Advisers notes, Federal rating. Group Family and Inheritance Law Group Compliance Group Private Wealth Management Group Corporate Law/Mergers and Acquisitions Group Tax Consulting and Disputes (Tax Consulting) Svetlana Ivanova, it is quite difficult to prove abuse of rights or deliberate obstruction of communication with a child, the practice of bringing to justice under this article meager. According to her, even if protocols on the commission of an administrative violation are drawn up, they are canceled by the courts.

What about abroad?

Otherwise, everything is regulated in the USA. A parent who violates a communication agreement between a child and a former spouse may be punished by giving the child to be raised by another parent. And the abduction of a child is fraught with great consequences. Thus, Russian woman Bogdana Osipova (Mobley) took her children from the USA to Russia before her divorce. An American court decided that because of this mother's prank, the children should remain living with their ex-husband. And Osipova herself was accused of kidnapping and extortion, and in 2021 she was sentenced to 7 years in prison. The case will go on appeal in January 2021.

Transferring full custody to a father of two young children is an exceptional case in US jurisprudence. Sole guardianship can still be appointed if there have been facts of domestic violence or one of the parents abuses illegal substances. But more often than not, judges usually approve joint custody.

Co-parenting (co-parenting) is popular not only in the States, but also in other countries, including Finland. After a divorce, both parents remain guardians unless they decide otherwise. In Russia it’s different: a child lives with one parent, and the other only gets “the right to spend time,” says Alexey Kovsh from California. Due to personal circumstances, he became familiar with both Russian and American family law. His two children from his first marriage live in Russia; he and his ex-wife signed a settlement agreement on the procedure for communicating with children, which, according to him, is being implemented by 10-20%. In the USA, he witnessed when the father did not bring the children to the place determined by the court for their transfer to their mother on time, and did not answer the phone. “The 911 call resulted in three police cars arriving within five minutes,” Kovsh says.

* names and surnames have been changed by the editors

• Anastasia Sinchenkova

Deprivation of parental rights

However, the problem may go so far that the court will be asked to deprive the mother of parental rights in relation to her minor children.
If this happens, it is important to know that the process is reversible and rights can be restored. To do this, you need to submit an application to the district authority at your husband’s place of residence, indicate in it on what grounds you are applying for the restoration of parental rights, and attach documents that will confirm your words. If the verdict is positive, the court decision comes into force one month after consideration. Author: Elena Boytsova - lawyer, Chairman of the Moscow Bar Association "Center for Legal Expertise"

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List of documents for filing a claim

Along with the application in which the plaintiff formulates his demands, it is necessary to prepare a set of documents for submission to the court, namely:

1. Certificate of termination of marriage.
2. A certificate issued by the registry office in connection with the birth of a child.
3. Documents confirming the absence of alimony debts. They can be taken from the employer if child support benefits are withheld through the organization’s accounting department; from bailiffs, if alimony is collected through deposit accounts of bailiffs. Evidence of the absence of child support debt will help the father form a positive impression of himself in the eyes of the judge.
4. Documents for housing, for example, a certificate of ownership or a lease agreement. They are important if the father wants the court to allow meetings with the minor child in his home and allow him (her) to spend the night in the dad's home.
5. Documents about the amount of earnings, for example, a 2-NDFL certificate from the employer or a tax return. These papers are also useful in creating a positive image of the father.
6. If the mother does not allow the father to see his son or daughter, it is necessary to provide evidence of her illegal behavior, for example, recordings of telephone conversations, correspondence in instant messengers or social networks, testimony of relatives and acquaintances.

Often, judges do not accept screenshots of correspondence from instant messengers or social networks, as well as audio recordings as admissible evidence. To ensure their acceptance by the court, you need to do the following:

• For telephone conversations, record an audio recording on a flash drive and make a written transcript of the conversation. Next, you need to go to the post office and send the flash drive with the decryption by registered mail with a list of attachments and notification of receipt to the address of the district court. On the envelope next to the word “To” you need to indicate the name of the judge involved in the proceedings in your case.
• For screenshots of correspondence, you should print them out, go to the post office and send the screenshots by registered mail with a list of attachments and notification of receipt to the address of the district court. On the envelope next to the word “To” you need to indicate the name of the judge involved in the proceedings in your case.

When can communication be prohibited?

If a woman forbids her ex-husband to communicate with the child, coming up with various excuses, her actions are unlawful. As stated earlier, men have equal rights with them. To avoid litigation, former spouses should agree orally or in writing on what days the father can pick up the minor and for how long.

Taking a child without the mother's consent, even for a few hours, is not the best option. In some cases, the father may be prosecuted, so it is better to notify your former other half of your intentions.

If a woman is against the child’s communication with her ex-husband, she can initiate a procedure for depriving the latter’s parental rights, but only if there are grounds:

• Malicious evasion of alimony payments. According to the law, when living separately, fathers are required to pay 25% of earnings for one child, 33% for two, and 50% for three or more children. Sometimes alimony is set at a fixed amount. If a parent has a large debt, you can try to collect it and deprive him of parental rights.
• Abuse of parental rights: ban on education, teaching theft or begging, instilling bad habits. In some cases, administrative or criminal penalties may be applied to fathers.
• Child abuse: physical or mental abuse.
• Committing a deliberate crime against children or their mother.

Expert commentary

Gorchakov Vladimir

Lawyer

Chronic alcoholics or drug addicts can also be deprived of parental rights. In all cases, written evidence will be required, and witness testimony may be required at court hearings.

The deprivation procedure is as follows:

1. The woman files a claim in court, explaining for what reasons the man should be deprived of his rights. If he is a drug addict or alcoholic, medical certificates are provided along with the claim.
2. Court hearings. They consider the possibility of communication between father and child. If it is proven that, due to moral qualities or other circumstances, he cannot communicate with a minor or has a bad influence on him, the court’s decision will be made in favor of the plaintiff.
3. Obtaining a court decision.

Based on a court decision, a woman has the right to prohibit the father from communicating with the child. No other documents are required.

Also, the basis for a partial ban on communication is the restriction of parental rights in court, but in this case the father will be able to communicate with the child remotely. Personal meetings are allowed only with the consent of the mother and guardianship authorities.

Property rights of children during divorce

Children after divorce must be permanently registered at the address of one of the former spouses until they turn 18 years old. Such registration entails the emergence of common property of the son or daughter and the parent in housing (apartment).

Look in more detail: how to divide an apartment during a divorce, what if there are children.

After a divorce, children have the right to receive equal maintenance from both the father and mother. Funds paid in the form of alimony must be spent on their expenses.

The parent paying child support may require that 50% of each amount be accumulated in the son's or daughter's personal account. The father and mother have no rights to the child's property.

Arbitrage practice

The case was considered by the city court of Dagestanskie Ogni of the Republic of Dagestan in July 2021.

The father sent a statement of claim to the court, in which he demanded to change the order of communication with his youngest son. In support of his claims, the plaintiff stated the following:

1. He had previously been in a registered marital relationship with the defendant.
2. After the marriage ended, the children remained to live with their mother. During the time that elapsed before the lawsuit was initiated, the procedure for communicating with minors was changed by the court twice.
3. A new change in the rules of meetings and communication with the youngest son is necessary. This is due to the fact that the child has become attached to the plaintiff, comes to him with great desire and does not want to part with him. In addition, the plaintiff believes that male influence is very important for raising his son, so the time for communication should be increased, taking into account the time the child is in kindergarten and the plaintiff’s work schedule.

Additional demands of the father include the requirement to grant him the right to decide issues related to the education of minors and to allow telephone conversations with children during religious holidays.

The mother opposed the plaintiff’s claims, explaining that:

• Circumstances that would allow the plaintiff to claim an increase in the duration of meetings with his son did not arise, so his claims are unfounded.
• It does not prevent the son from meeting with his father at the times and days established by the court.
• The son, returning from his dad's, abruptly changes his behavior and begins to damage the furniture.

The representative from the guardianship institution spoke out against the father’s claims and pointed out that the circumstances considered in previous court hearings in a similar case had not changed.

Based on the opinions of the parties and the evidence presented, the court decided to reject the plaintiff and side with the defendant for the following reasons:

1. In a similar case, three months before the present trial, the Supreme Court of the Republic of Dagestan rejected the plaintiff’s appeal.
2. The plaintiff did not provide any evidence that would confirm a change in circumstances affecting his exercise of parental rights.
3. Also, the father did not provide evidence that the living or material conditions of his ex-wife had worsened over the past three months.

Permission for a child to travel abroad

• How to prove paternity outside of marriage: important nuances

Parental decision is an integral part in determining important events in a child's life. Such cases include a trip outside the Russian Federation, temporary or permanent. To leave, the parent accompanying the child presents a special document confirming the consent of the second adult to this action.

If the father's rights are not limited, he also has the right to decide whether to allow the trip. If the father does not agree, it will be impossible to take the child out.