Your aunt or someone else’s. The problem of relative and non-relative guardianship

The direct responsibility and duty of parents is to take care of their children under the age of majority. True, not everyone can cope. The family can be quite prosperous, and officials have no complaints against either parent. But the circumstances may be different: some people’s health has deteriorated sharply, others are always on business trips, or something else.

And then the minor finds himself under the guardianship of other people.

What is temporary guardianship? This is the only opportunity for a child who is orphaned or left without parental care for a variety of reasons not to go to an orphanage, when there are people (close relatives, friends of parents, neighbors) who are ready to take care of him. The Federal Law “On Guardianship and Trusteeship” dated April 24, 2008 No. 48 regulates the relations that arise when guardianship and guardianship over minors is established, implemented and terminated.

It should be noted that this phenomenon occurs quite often. Moreover, parents who find themselves unable to fulfill parental responsibilities for good reasons (illness, or long business trips, etc.) have the opportunity to personally submit a petition to the guardianship and trusteeship authority (abbreviated as OOP) in order to temporarily entrust the care of their child to a close relative or a person well known to the family. By the way, the law states that a child over 14 years old can make a similar application on the issue of guardianship and trusteeship.

Any family may need a guardian for a certain period of time. The state has provided a similar measure - the appointment of a guardian for a child in a simplified manner.

Temporary guardianship can be issued when it is urgently necessary to appoint a guardian for a minor. Practice shows that this situation occurs most often when children are taken away from their parents for any reason.

At the same time, it is important to understand that temporary guardianship of a minor in itself does not entail deprivation of parental rights. The task of the guardian is to replace the parents for some time in terms of their fulfillment of their fatherly duty: to take care of the child, protect him, and provide him with a normal existence. Typically, temporary guardians are close relatives. And this is the most successful option.

Types of temporary guardianship

Such forms of guardianship as gratuitous and paid are most often used in Russia.

1. Gratuitous is the voluntary acceptance of obligations for temporary custody of a child without deprivation of parental rights when there is a prolonged absence of parents. Moreover, expenses for the child are reimbursed (if this happens) by his parents. There are no benefits or assistance from the state.
2. Compensatory – carried out in relation to orphanage children who are temporarily taken under supervision. Financial state support is provided.

The state will cover expenses for temporary guardianship and care of a child, only in the case when he is an orphan or left without parental care due to deprivation of their parental rights.

Are there any cash payments and benefits?

Basically, temporary guardianship is provided on a paid basis. In this case, the guardian helps the ward in solving legal problems, and also fulfills the assigned powers to protect the interests of the ward.

In this case, a guardianship agreement is drawn up (a sample is provided by the authorized body). The amount of benefits that each guardian is entitled to for the maintenance of a child is determined by regional and federal legislation.

If in any region compensation or additional payments are not provided, you must contact the social protection authority or special guardianship authorities. Here experts will tell you what amount of benefits is due in a particular case.

Government payments include:

• one-time benefits after the transfer of the ward to his family;
• monthly payments until the child reaches 1.5 years of age;
• compensation after concluding a contractual relationship regarding the upbringing of a child.

Expert opinion

Maria Lokshina

Family law expert since 2010

Funds are issued from the local budget if the guardian and ward are registered in the same region (payments will be made from here). Funds from local budgets are also provided if the guardian applied for financial assistance no later than 3 years from the date of granting authority.

Who can become a temporary guardian of a minor?

The guardian should:

• Be an adult (18 years of age or older);
• Be competent;
• Have a civil passport;
• Confirm the availability of decent living conditions for the child and sufficient income.

Important! In order for temporary guardianship to be approved by the OPP, the consent of the child's parents will be required. If parents do not have suitable candidates for the title of guardian, employees of the guardianship body can help them.

Legal side

At the legislative level, the issue of establishing parental obligations in relation to a minor child is regulated by Art.
2 of Federal Law no. There is also a list of legislative acts based on which the implementation of this intention is possible:

1. Federal Law No. and 120;
2. Constitution of the Russian Federation;
3. Federal Law No. 124 “On the basic guarantees of minor citizens in the Russian Federation”;
4. Art. 146 RF IC dated December 29, 1995;
5. Civil Procedure Code of Russia.

Federal Law of April 24, 2008 No. 48-FZ “On Guardianship and Trusteeship”

Federal Law of June 24, 1999 No. 120-FZ “On the fundamentals of the system for the prevention of neglect and juvenile delinquency”

Federal Law of July 24, 1998 No. 124-FZ “On the Basic Guarantees of the Rights of the Child in the Russian Federation”

Article 146 of the Family Code of the Russian Federation “Guardians (trustees) of children”

Temporary guardianship

For the entire period of absence of mom and dad’s relatives, the temporary guardian will have to perform the main duties of a guardian:

1. provide housing for the ward;
2. pay for food and medical services;
3. buy clothes;

And that's not it. Additionally, the guardian will have to look after the child: how he attends school, what his academic performance is. And you will also have to make sure that nothing threatens his life and health.

You can choose a temporary guardian from your family circle:

• adult sister and brother.
• grandmother or grandfather;
• uncle or aunt;
• a close friend of the parents, provided that they agree to become one.

Grandmother over grandson

A grandmother can exercise full and temporary guardianship over her grandson and take care of a minor child. The first is for the case when there is a death of parents or deprivation of their parental rights. The second is voluntary and confidential.

Important! It is the grandparents who are given priority by OOP.

Over a child with living parents

When one parent (we will talk about the mother) evades parental responsibilities and is deprived of the rights to raise his offspring, then the duties of a guardian and trustee are performed by the second - the father. Moreover, unlike temporary guardianship, this guardianship is permanent.

The grandmother will be able to fulfill this role if the father refuses, he is incapacitated or is unable to confirm his paternity.

From the orphanage

In order to provide guardianship to a child in an orphanage, the issue will have to be resolved with the public educational institution, select the necessary documentation, be sure to visit the orphanage and get to know the child, and finally receive the appropriate resolution. Such guardianship can be formalized without involving the courts.

Relatives can obtain temporary guardianship under a simplified scheme.

Responsibility for failure to fulfill obligations

For failure to fulfill or dishonest fulfillment of guardianship obligations, a person is held accountable:

• administrative, on the basis of clause 5 of Art. 35 Code of Administrative Offenses of the Russian Federation;

• criminal, on the basis of Art. 156 of the Criminal Code.

Required documents

If parents decide to take such a step, the first thing to do is to contact the guardianship authorities with an appropriate petition. And you will need to select a certain set of documents for it. After all, for temporary guardianship it is not enough to obtain a power of attorney and consent from the parents. A minor child, if he or she is 10 years old, can express a personal opinion on this issue. And the PLO will take his opinion into account.

So, to obtain temporary guardianship you will need:

• From the child's parents From the child's parents
• From the child's parents
• Child birth (adoption) certificate

The PLO staff may want to ask additional questions to the applicant for guardianship. In addition, it is useful for a temporary guardian to establish friendly relations with the ward. The decision of the guardianship authority may depend on his opinion.

How to correctly write an application for guardianship

The application of a citizen who wishes to become a guardian of a minor must contain:

1. Application header (passport details, telephone number of the applicant and name of the public organization).
2. The content part, which indicates the request for the appointment of a VO, its type and reasons for registration. The details of the ward and additional information about the applicant are provided. The application form contains a separate column for this data.
3. Final part: date, signature, list of attachments, consent to the processing of personal data.

The application and package of documents can be sent in person or by registered mail with notification.

Formal nuances of the process of applying for temporary guardianship

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

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

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

Housing requirements

Guardianship under temporary registration is not permitted, therefore the guardian must have permanent registration in any region of the Russian Federation.

Representatives of the guardianship authorities must inspect the property. During this process, particular attention is paid to the following points:

• sanitary condition of the facility;
• the presence of a sleeping place intended for a child;
• study space;
• it is taken into account whether this apartment complies with square footage standards depending on the number of people living in it.

Based on the research, it is determined whether the child can live in the existing property without any problems. The examination is carried out even if short-term guardianship by close relatives is granted.

To register short-term guardianship, not only the premises where the minor will live are checked, but also the characteristics of the direct guardian are assessed. The following requirements are imposed on citizens:

• presence of Russian citizenship;
• full legal capacity;
• Only an adult citizen can act as a guardian.

If at least one requirement is not satisfied, the application will not be considered by representatives of the guardianship authorities.

State payments when registering child custody

Important! A guardian appointed temporarily does not have the right to dispose of the property of his ward. He can only count on benefits - this is the only material state support for him. But his direct duty is to defend the interests of those entrusted to his care in all controversial situations.

Child benefit payments are due if the child does not have natural parents and is under the protection of the state. The basis is the agreement that the guardian concludes with the guardianship and trusteeship service. The amount of payments from the state for temporary guardianship in 2018 directly depends on the age of the ward, his state of health, legal capacity, reasons for guardianship, etc.

In addition, if a child gets sick, his caregiver will receive sick leave.

Is adoption allowed?

Temporary guardianship can be appointed from two months to two years. If an application is drawn up by parents, then they independently determine the period, which is indicated in Federal Law No. 48.

It is allowed to use temporary guardianship for subsequent adoption. This allows you to immediately take the baby into the family, after which you can calmly prepare documents for adoption. A temporary guardian has the same rights and responsibilities as a permanent guardian. All privileges and responsibilities are listed in Art. 35 Civil Code.

If a child owns any real estate, then ownership remains with him, so the temporary guardian cannot dispose of this object.

Termination of temporary guardianship

The Civil Code establishes the circumstances under which temporary guardianship will be terminated:

• the deadline has expired;
• the guardian or his ward has died;
• for improper performance of duties by a guardian;
• by agreement of the parties;
• for failure to comply with property rights by the guardian or ward.

Anyone who decides to take custody of a child must remember that an adult has considerable responsibility. Although the process of obtaining temporary guardianship is quite simple. It is necessary to carefully study all issues related to temporary custody and objectively assess the consequences of your own decision.

In what cases is guardianship not possible?

The following citizens cannot become guardians:

• those convicted of serious crimes;
• those in same-sex marriage;
• deprived of rights to children or limited in them;
• previously had violations in the performance of duties as adoptive parents;
• having serious illnesses (tuberculosis, oncology, HIV, AIDS, severe disability);
• over 60 years old.

The family with its wards is under continuous control of the state. Representatives of regulatory authorities have the right at any time to check the living conditions of the child and, in the event of dishonest performance by the trustees of their duties, to take the minor away.

Ward's property

Art. 12 Federal Law No. 48 of 2008 imposes a direct ban on the disposal of the ward’s property by a preliminary guardian. The permanent guardian may also dispose of the children's property only with the permission of the guardianship department.

Government Decree No. 423 of 2009 does not include preliminary representatives in the list of citizens who must submit a guardian's report.

However, funds are required to maintain and provide for a minor. Since the law does not provide for verification of the financial viability of the guardian, he has the right to request the assignment of benefits.

Algorithm of actions

The registration procedure is the same for both a minor ward and an incapacitated person.

Procedure:

1. Contact the guardianship department.
2. Submitting an application.
3. Conducting a residential inspection.
4. Receiving an order.

A preliminary placement is prescribed for a period of no more than 6 months . In exceptional cases, the period may be extended for another 2 months .

The document must contain an expiration date. In case of extension, another act of the local government body is issued.

Applying for guardianship

To appoint preliminary guardianship, it is not necessary to obtain a conclusion from the guardianship department at the place of residence of the potential candidate. Therefore, he must contact directly the department at the place of residence of the ward.

A citizen must declare his right on the basis of Art. 12 Federal Law of 2008 No. 48. One of the options for pre-arranging a minor is to take him away from his mother and father under Art. 77 RF IC (if there is a threat to life).

Important! The procedure for selecting a potential candidate is also entrusted to the specialists of the guardianship department. If the person in need of guardianship does not have close relatives who are willing to take care of him, then the guardian can be chosen from among strangers.

Required documents

A feature of the preliminary device is the provision of a minimum package of documents. The citizen must present only an examination report from the guardianship department at the place of residence and a civil passport.

Specialists of the department at the place of residence of the ward can independently request an examination report as part of interdepartmental cooperation. The certificate is provided within 3 days.

During the specified time, specialists must visit the living quarters of the potential guardian. The document must include the following information :

• corner of the guardianship department form;
• the applicant's residential address;
• description of housing (house or apartment, number of floors, total and living area, number of rooms);
• sanitary condition of housing;
• a list of citizens who live together with a potential candidate;
• information about the specialists who conducted the examination;
• date and signature.

The document is drawn up in writing in 2 copies. If an unfavorable act is issued, a citizen has the right to challenge it in court.

Important! When appointing a preliminary placement, guardianship department specialists should not collect additional characterizing information on a potential candidate.

Terms of consideration

The order to appoint a guardian is preliminary issued within 3 days. Specialists issue the citizen with a certificate.

A device assigned in advance can only be issued within 30 days from the date of:

• the child obtains the status of being left without parental care;
• entry into force of a court decision on deprivation/limitation of legal capacity.

The period for reviewing documents cannot exceed 3 days. From the moment the order is received, citizens are given all the responsibilities of a permanent guardian. But the rights regarding the child are still limited.

Terms of Granting Rights

Guardianship of a minor child can be granted when the parents:

• legally deprived of their powers;
• do not take care of their offspring fully or partially;
• died or gave voluntary refusal;
• when studying a teenager in another country;
• long absence (work abroad);
• are under the age of 16 and there is no registered marriage between them;
• declared incompetent.

Such an event is a temporary event. If there is a positive and trusting relationship between the parties, further adoption is possible.