Determining the order of communication with the child

Divorce of spouses should not prevent a child from communicating with one of the parents who lives separately after the divorce.

The legislator determines that such a parent has the right to communicate with the child and participate in his upbringing. At the same time, the parent with whom the child lives is obliged not to interfere with such communication.

Thus, the child retains the right to receive love and care from both parents, despite the fact that they are divorced and living separately.

Read the article about establishing the order of interaction between a child and a parent after a divorce.

Communication with a child after divorce: legal regulation, rights and responsibilities of parents

Family law establishes that mother and father have equal parental rights and bear equal responsibilities. In this case, parental rights terminate when the child reaches the age of majority or when he acquires full legal capacity before reaching the age of majority.

Accordingly, the legislator does not provide for divorce as a basis for terminating the parental rights of one of the parents. This fact means that the parent retains his rights and responsibilities for the upbringing and financial support of the child.

A parent living separately from a child has the right to:

receive information about the child’s health, upbringing, education, and pastime;
participate in raising a child after divorce;
resolve issues that are important to the child together with the other parent;
communicate with your child and spend time together.

In addition, a parent who does not live with the child has the right to receive information about the child from educational, medical and other organizations. However, the organization may refuse to provide such information only if there is a real threat to the life of the child from the parent.

At the same time, the parent living separately has the following responsibilities:

protects the rights and interests of his child, including acting as a legal representative in relations with individuals and legal entities, in the courts;
takes care of physical and psychological health, as well as

spiritual and moral development of children;

is involved in raising a child;
ensures that children receive general education;
provides financially for his child by paying alimony or in any other way;

After a divorce, communication between parent and child consists of face-to-face meetings, phone calls, text messages or video calls. In addition to parents, the child also has the right to communicate with other relatives (grandparents, sister, brother, uncle, aunt and others).

It is important to know : moving a parent to another country does not terminate his rights to communicate and participate in the upbringing of his child.

Parent's rights after divorce

According to the family code, even if the marriage of the father and mother is declared invalid, they can still communicate with the children on equal terms. Also, if the father and mother live separately in different countries, communication is not limited.

The child can communicate with a parent who lives in another country not only by telephone, but also in person. To do this, he and his parents can leave any country and then return to it, in accordance with Article 10 of the Convention on the Rights of the Child.

Article 61 of the Family Code of the Russian Federation establishes the equal rights of both parents to support and raise children.

Even if the parents are divorced, then according to Article 66 of the Family Code of the Russian Federation, a parent who lives separately can fully maintain communication with a minor:

talk on the phone;
correspond on social networks;
know about your health status;
bring and pick up from preschool;
drop off and pick up from school;
participate in making decisions about visiting additional sections;
visit entertainment complexes;
visit sports complexes;
take on tourist trips;
pick up on vacation, etc.

Everything has its exceptions.
If a relative poses any danger or threat to the child, then communication may be limited by the court.

The exercise of the right to communication may be terminated in the following cases:

the child has reached adulthood;
the person was married before the age of eighteen;
the person got a job or opened an individual entrepreneur after reaching sixteen years of age.

From this we can conclude that when the child is recognized as legally competent, he will be able to independently decide which of his relatives he will maintain contact with and which not.

Procedure for communicating with a child after divorce

In the event of divorce, the spouses need to decide on the future life of their common children.

Parents can resolve this issue in three ways:

agree orally;
enter into a written agreement on the procedure for communication between the child and one of the parents;
go to court.

A written agreement on the procedure for communicating with the child. During a divorce, spouses have the right to draw up a written agreement about when, where and how much time the second parent will spend with the minor child. Such an agreement does not provide for mandatory notarization.

Exception : the agreement must be certified by a notary if it contains provisions on the procedure for paying alimony.

The form and content of an agreement on the procedure for communication between a child and one of the parents are not established by law. It is not allowed to include provisions in the agreement that violate the rights and interests of a minor child.

The agreement may contain the following clauses:

information about the parties to the agreement. If at the time of concluding such an agreement the minor is 14 years old, he is also required to be present;
Terms of agreement;
the order of communication between the child and the parent;
the possibility of deviation from the schedule established by the agreement;
liability of the parties to the agreement for violation of the terms;
signatures of the parties.

The order of communication should be understood as a certain schedule of communication with the child, the frequency of personal meetings, calls, the possibility of a joint holiday abroad, the place, time and duration of communication.

In the agreement, the spouses have the right to specify certain provisions regarding communication between the parent and the child.

Meeting place with the child . The agreement may stipulate that a meeting between a parent and a child can only take place in a specific place (park, yard, parent’s apartment, grandmother’s house).

Types of pastimes . The agreement may limit the range of activities that the parent and child can engage in at the meeting. For example, this may be due to the child's health status.

When drawing up a schedule for communication with a parent, it is necessary to take into account the age of the children, as well as their workload at school or in sections.

Documents required for a voluntary agreement

Also, if there is a voluntary agreement, you can go to court. In order to achieve restriction of communication and meetings in court, you need to provide the necessary documentation:

statement of claim;
medical certificate confirming the presence of a mental disorder (if any);
certificate of criminal or administrative liability (if available);
medical report from a drug treatment hospital if the parent is an alcoholic or drug addict;
petitions for the involvement of witnesses who will confirm the immoral behavior of the defendant;
documents that will confirm the poor living conditions of the defendant and the impossibility of the baby being there;
documents that confirm the plaintiff’s living conditions.

The claim must be filed with the judicial authority at the place of residence of the party who will be the defendant. The guardianship and trusteeship authorities are also involved in this trial.

They present documents that relate to the living conditions of the plaintiff with the child. If this document is not provided, the trial may be postponed to another day.

A person with limited rights cannot take part in raising a child. However, he can communicate with him on a schedule that the other parent has set. A person with limited rights cannot receive benefits or benefits that are given to persons with children.

Despite this, the person whose rights have been limited still bears material obligations regarding the child. The child continues to bear property and inheritance rights from this parent.

Determining the procedure for communication between a child and a parent in court

In a situation where the spouses cannot independently determine the order of communication between the child and the parent, they turn to the judicial authority to resolve the dispute.

A statement of claim regarding the procedure for communication between a minor child and a parent living separately is filed with the district court at the place of residence of the parent who lives with the child.

It is important to know : in accordance with clause 15, part 1, art. 333.36 of the Tax Code of the Russian Federation, the plaintiff is exempt from paying state fees when considering cases on the protection of the rights and legitimate interests of a child.

The court will not accept the claim if it finds that the child’s communication with the parent will harm the child’s mental or physical health. The court also has the right not to consider the claim if it reveals the parent’s dishonest intentions towards the child.

A statement of claim regarding the procedure for communication between a child and a parent must contain the following:

information about the plaintiff, defendant and minor child;
information about marriage between parents;
the circumstances that served as the basis for going to court (the second parent’s ban on communicating with the child, the parent’s refusal to draw up a schedule of meetings with the child, concealment of information about the child’s whereabouts);
proposed procedure for communicating with the child (schedule of meetings, their frequency, joint trips);
the plaintiff’s demands to establish a procedure for communicating with the child;
evidence confirming the plaintiff’s claims (certificate of income, reference from the place of work, information about the absence of alimony debts, the presence of one’s own home, the absence of a criminal record, existing fines for offenses, serious illnesses).

The statement of claim must be accompanied by documents confirming the plaintiff’s right to communicate with the child.

If the plaintiff complies with all procedural aspects (filing a claim in the district court, correctly drafting a statement of claim), then the court begins to consider the case.

Please note : when considering this category of cases, the guardianship and trusteeship authority takes part in court hearings, which presents a conclusion that reflects the points of view on the dispute between the parents, as well as an assessment of the living conditions of both parents.

If at the time of the trial the child is 10 years old, he also has the right to be present at the hearing and express his opinion, which the court must listen to. The interview of the minor must take place in the presence of a teacher or psychologist.

During the hearing, the court establishes the following circumstances in the case:

the child’s health status, age and degree of attachment to each parent;
the parent’s lifestyle, his place and work schedule, living conditions;
absence of negative influence of the parent on the development and health of the child.

The court, in order to make an objective decision, examines the evidence presented by the parties: documents and information, the conclusion of the guardianship and trusteeship authorities, and also hears the testimony of witnesses.

If the court does not find any reasons for refusing to satisfy the claim, then it makes a decision to establish a procedure for communication with the child, where it indicates information about the schedule of meetings, including the place, time and frequency of such meetings.

Grandma's rights to children: analysis

Content

Can a grandmother represent the interests of a child?

How to prevent violation of parental rights by relatives

How to transfer part of the rights to the child to the grandmother

Grandmother's rights in relation to the child

Child support from grandmother

In the Russian tradition of education, grandmothers play a special role. In terms of importance in a child’s life, the grandmother often becomes almost on the same level as the mother, leaving even the father, and even more so the grandfather, far below. Of course, it is grandmothers who teach young mothers how to care for their children, it is grandmothers who rock babies on sleepless nights while dads sleep off before the work day, it is grandmothers who sit with their grandchildren, giving parents a break and the opportunity to retire. Therefore, sometimes grandmothers believe that they have every right to make decisions regarding a minor, instead of parents.

Can a grandmother represent the interests of a child?

To answer this question briefly, it is enough to refer to the Civil Code of the Russian Federation, which in several articles defines the concept of “legal representatives of the child.” Legal representatives include parents, adoptive parents or guardians. This list is exhaustive, which means that all basic rights and responsibilities belong exclusively to parents or persons replacing them.

What place does the legislator assign to the grandmother in family legal relations? Based on the Family Code of the Russian Federation, the main legal document regulating family legal relations, it follows that grandparents are close relatives (Article 14), but not members of the child’s family (Article 2). I would especially like to note that the law does not make any distinction in the legal status of grandparents.

Thus, if a child has parents, they are not deprived or limited in parental rights and have not voluntarily transferred the right of guardianship to the grandmother, then the parents and only the parents can represent the interests of the child and resolve issues relating to his upbringing.

In simple terms, a grandmother, just because she is a grandmother, cannot take her grandson or granddaughter to a doctor’s appointment, get tests, give consent to an operation, submit documents to school, pick up from kindergarten, find out about the child’s condition in the hospital, or take him abroad. , placement in an institution for minors (orphanage, social rehabilitation center) - yes, yes, over the years of my work everything happened.

In practice, of course, the law is constantly violated. And most of the mothers I know, having read the drafts of my article, said: “You’re confusing something, our grandmother constantly takes a card from the registry and picks up the child from kindergarten, and no one asks her anything.” Many will exclaim: “Well, the law is again not for people. It’s so convenient: I work, and grandma can go to the hospital.” But don't rush to conclusions. The law does not prevent parents from living, but, on the contrary, protects conscientious mothers and fathers from those who abuse the rights of other relatives.

I'll tell you a story from legal practice. A couple of days ago, the upset voice of my old friend was heard on the phone. To avoid holivar in the comments and requests to hand over the doctor to be shot, I will immediately make a reservation that my friend lives in another city. I know that her mother-in-law is very specific and I have been supporting my friend with moral and legal advice for a long time. But this time it was not only the mother-in-law who distinguished herself. The friend was not very fond of the grandmother, but did not forbid her mother-in-law from pushing the stroller with her sleeping six-month-old daughter a couple of times a week. She believed that nothing bad would certainly happen in a couple of hours in the park. But she didn’t suspect that the grandmother could take the child and, with the most honest look, go straight... for vaccination! A friend almost had a heart attack after her mother-in-law joyfully announced that she and her son could fool around as they wanted, and she would vaccinate the child herself, which is what she was doing today. When a friend asked the doctor why the child was not just accepted with his grandmother, but a medical procedure was performed, the doctor, realizing her mistake, went on the offensive. She reproached her mother for the fact that the lack of an agreement with her mother-in-law is their problem, and she is not obliged to know what everyone’s position in the family is, they brought the child for vaccination - the child is vaccinated. Of course, the doctor was lying; in this case, she broke the law.

I'll tell you an even more harmless case. The child's father is a drug addict and has been deprived of parental rights. The grandmother, the father’s mother, communicated with her grandson and constantly pressed her former daughter-in-law so that she would allow the father to see the boy, “the father, after all.” Of course, my mother was categorically against such communication, in fact, that’s why she deprived her ex-husband of parental rights. But the grandmother decided to use cunning. While mom was at work, she took her five-year-old grandson from kindergarten and handed him over to his father, who had been deprived of parental rights, for communication, leaving him and the child in the yard to “talk.” But, apparently, something went wrong, because the man returned without the child and could no longer clearly explain where his son had gone... For those who are especially impressionable, I will say that everything ended well, the child was quickly found, but the situation, you see, is dangerous.

How to prevent violation of parental rights by relatives

In my opinion, the principle “prevention is better than cure” works here.

Unfortunately, most social sector specialists - teachers, doctors, educators, workers in children's development centers and health camps - have a very poor understanding of the legal basis of their activities. It's practically not their fault. In most cases, they were not taught this in colleges and institutes. Therefore, if a mother is afraid of a violation of her rights, she can talk in advance, for example, with a teacher, and warn that only she or dad will pick up the child, and if someone else comes, then she needs to contact the parents.

Of course, the local pediatrician has too many children for the doctor to know all the parents by sight. But here it makes sense to conduct an experiment and see how carefully the receptionists check the documents of those who take the child’s card. If the card is issued to “everyone who wants it,” it makes sense to notify the manager in writing about this, and, if there is no result, the prosecutor’s office.

How to transfer part of the rights to the child to the grandmother

Sometimes you really can’t do without the help of your grandmother. Is there really no such law to give the grandmother at least some of the rights of the mother? Of course have. For example, in accordance with Article 256 of the Labor Code, a grandmother (grandfather or other relatives) can go on parental leave to care for a child under 3 years of age instead of the mother. Moreover, her employer has no right to deny her grandmother such leave.

Sick leave for grandmothers is also provided for by law. Order of the Ministry of Health and Social Development of Russia dated June 29, 2011 No. 624n “On approval of the Procedure for issuing certificates of incapacity for work” allows for the issuance of sick leave to one of the family members (guardian, trustee, other relative) who is actually caring for the child. Moreover, first one family member can look after the child, and then another. According to this order, sick leave may be issued to the specified persons alternately.

If a child is left without parents - they are deprived of parental rights or have died, grandparents, as well as adult brothers and sisters of a minor have the priority right to be his guardians. But who exactly to give the child from the listed relatives is decided by guardianship in each specific situation.

If the grandmother’s participation in the child’s life is rarely needed, then it makes sense to issue a power of attorney and give the grandmother the right to represent the interests of the minor. Many lawyers are skeptical about notaries issuing such powers of attorney. But in practice, powers of attorney continue to exist and, in my opinion, are legal.

When parents, for good reasons, cannot fulfill their parental responsibilities for a fairly long period of time, for example, they work in another city, and the child lives most of the time with his grandmother, then the best solution would be to arrange guardianship for the grandmother at the request of mom and dad. Let parents not be frightened by the word guardianship. This type of transfer of authority to the grandmother does not imply any sanctions against the parents and is temporary. This possibility is regulated by Article 13 of the Federal Law of April 24, 2008 No. 48-FZ “On Guardianship and Trusteeship” and is often practiced.

Grandmother's rights in relation to the child

The situations listed above rather reflect cases when a grandmother receives the rights of mom and dad if the parents cannot exercise them themselves. But the grandmother has rights that do not depend on the situation in the family.

First of all, this is the right to communicate with grandchildren. This right works both ways: just as the grandmother’s right to communicate with her grandchildren cannot be limited, so the child’s rights to communicate with his grandmother and other relatives cannot be limited. These provisions are enshrined in Articles 55 and 67 of the Family Code. The law has a clause: the grandmother can communicate if such communication does not contradict the interests of the children. It is not the mother, but the court, who has the right to draw conclusions that communication with the grandmother harms the child, taking into account the position of the parents and the guardianship authority.

If parents interfere with communication between the grandmother and the minor, the grandmother (and other relatives) can apply for guardianship, and if the situation has not changed after that, establish a procedure for communication with the child in court. For violating a court decision, a mother or father who prevents grandmothers and grandchildren from meeting may be held administratively liable. In accordance with Article 5.35 of the Code of the Russian Federation on Administrative Offences, the fine will be from two to three thousand rubles, and in case of repeated violation of the law from four to five thousand rubles, or the parents will be subject to administrative arrest for up to 5 days.

Child support from grandmother

Not many people know this, but grandparents have not only rights, but also responsibilities enshrined in the Family Code. Thus, Article 94 of the Family Code of the Russian Federation states: “minor grandchildren in need of help, if it is impossible to receive maintenance from their parents, have the right to receive alimony in court from their grandparents who have the necessary means for this.”

Unfortunately, there is little judicial practice on such claims for several reasons. Firstly, mothers do not know about their right to collect alimony from their father-in-law and mother-in-law. Secondly, grandparents often volunteer to help raise their grandchildren. In addition, the law provides for the collection of funds for a child from grandparents as a last resort when it is impossible to obtain alimony from a parent, for example, the father is convicted and serving a sentence, and, accordingly, does not have the means to pay alimony, or he has died or gone missing . However, the law, as well as the position of the Supreme Court, does not provide a list of exhaustive grounds when the collection of alimony is possible from grandparents, which means that such a decision is made by the court taking into account the circumstances of a particular case. However, before filing a claim, do not forget that three conditions must be met:

grandchildren must need financial assistance;
it is impossible to recover it from the parents;
grandparents have the opportunity to help financially.

The opposite obligation is also provided. Article 95 of the Family Code establishes the obligation of grandchildren to support their grandparents if they need help and cannot get it from their children.

As we see, the legal status of the grandmother is not as simple as it seems at first glance. The grandmother, being a close relative of the child, has the right to unhindered communication with her grandchildren, regardless of the will of the parents. Of course, if such communication does not harm the minor. If mom and dad are unable to fulfill their duties, that is, they are deprived of parental rights or die, the grandmother will be among those relatives who have the primary right to take custody of the grandson.

But the grandmother can exercise other rights only with the consent of the child’s legal representatives. By agreement with mom and dad, grandmother can legally replace them on parental leave for a child up to three years old or when a grandchild is ill. And the grandmother will have the opportunity to represent the interests of the baby in government institutions (hospital, kindergarten, school and others) only after drawing up special papers: a power of attorney or a guardianship agreement.

Unfortunately, in Russia, the permitted legal behavior of grandmothers is determined not only by laws, but also largely by public legal consciousness, which does not always coincide with legal reality. In practice, grandmothers are given more rights than they actually have.

Know your rights and use them wisely.

Settlement agreement to determine the order of communication between a child and a parent

At any time during the trial, the parties can enter into a settlement agreement to determine the order of communication between the child and the parent. In the settlement agreement, the parents specify the necessary points regarding the order of communication between the parent and the child.

After signing, the court issues a ruling on approval of the settlement agreement, where it explains to the parties the consequences of signing the agreement, according to which repeated appeal to the court between the same parties, on the same subject and on the same grounds is not allowed. After which the court terminates the proceedings.

Communication with other relatives

In addition to father and mother, the baby can communicate with grandparents, sisters, brothers and other relatives. Parents cannot interfere with this relationship.

Relatives can contact the guardianship and trusteeship authority so that these authorities oblige the parents to comply with the law. If parents ignore the requirements of the guardianship and guardianship authorities, then they or relatives can file a claim in court.

If a parent does not comply with the court's requirements, he may be held accountable.

It is worth noting that relatives who live separately can only communicate with the minor. They cannot take part in his education and upbringing. This right can only be exercised by the father and mother.

In addition to grandparents, brothers and sisters, a minor can communicate with other relatives who love him and treat him well. Such relatives include, for example, aunts and uncles.

Only a court can restrict communication if there are compelling reasons that violate the child’s rights. The child can communicate with relatives not only by telephone, but also in personal meetings.

The baby can also stay with relatives overnight. The father and mother together with their relatives, in a peaceful manner, must determine how and when the baby will spend time with relatives. In this case, no one will need to waste time on litigation.

Restriction of parental rights

If a parent violates the established procedure for communicating with a child, then administrative measures are applied to him.

Such violations may include:

parental behavior that may be dangerous to the life and health of the child;
abuse of alcoholic beverages and drugs;
turning the child against the other parent;
negative impact expressed in provoking the child’s misbehavior;
communication disrupts the child’s educational process.

In case of systematic violation of parental rights, the second parent has the right to file a claim with the district court to restrict communication with the child. In the claim, the parent must describe the circumstances that violate the child’s rights and provide the court with relevant evidence.

At the end of the consideration of the case, the court makes a decision to limit the child’s communication with the parent or refuses to satisfy the plaintiff’s demands.

Factors influencing a judge's decisions

The judge will take into account the opinion of the authorities when making a decision.

The court will also pay attention to the following points:

how old is the minor;
whether the child is strongly attached to the parent who lives separately;
child's daily routine;
does the baby have any diseases that require special monitoring;
living conditions of the baby;
working hours of both parents;
how far does the plaintiff live from the child;
other circumstances.

The decision that the court ultimately makes is subject to mandatory execution.

The obstructing party will no longer be able to restrict the right to communicate with the child, otherwise the minor may be placed in the care of another parent.