DIVISION OF CHILDREN IN DIVORCE. Who will get the child, agreement and children's rights.

○ What does the Family Code say about the division of children?

Family law, and in particular Art. 61 of the RF IC, it is established that parents bear equal responsibilities for the maintenance and upbringing of minors. But this, you see, is only possible if they live together. What to do if the marriage breaks up? Who should the child stay with? He cannot live with both of them at the same time. Does the child have the right to visit a child ?

The legislator has established several options for solving this problem:

The place of residence of the child and the procedure for communicating with him are determined by the spouses independently with mutual consent .
The decision on this issue is decided by the court.

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Stages of the trial

The divorce process, within the framework of which the place of residence of a minor is determined, is regulated by Art. 78 IC of Russia. Judges are also guided by domestic legislation aimed at protecting the rights of children.

Before making a decision, judges have to study the circumstances of a particular case and consider absolutely all the factual material:

Child's point of view.
The desire of the spouses.
Combined personal qualities of father and mother.
Material capabilities of parents.
Social environment of a minor's residence.
Territory of residence.
Other factors.

○ Who will the child stay with?

This issue can only be resolved by the court! Article 24 of the Family Code of the Russian Federation defines the issues that the court decides upon divorce by spouses. Among them there is an important point: with which parent will minor children live after a divorce.

an “agreement on children” signed on both sides and certified by a notary office , which determines the place of residence of the children (child) and the procedure for communicating with them.

If there is no agreement or it violates the interests of children, the court independently resolves these issues. The following is taken into account:

The child experiences great affection for his father or mother.
What are the moral qualities of parents?
Conditions that each parent can create for the upbringing and development of children.
Parents' working hours.
Their financial, marital status and some other factors.

Art. 54 of the RF IC says that children have the right to be raised by both parents. However, judicial practice shows that after a divorce, a child remains with his father less often than with his mother .

This is due to the fact that a woman has more experience than a man in raising children and is often more attached to her child.

In addition, fathers’ work often involves business trips, so the father will not be able to be with the child all the time.

If the father wants the child to live with him after the divorce, he needs to prove in court why the mother should not raise him. Most often, fathers go to court when the mother does not care for her children at all and leads an immoral lifestyle.

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Arbitrage practice. When children stay with their father

Almost every lawyer will tell you that regardless of the circumstances of the family relationship and after the end of the marriage, the children will most likely live with the mother. This opinion is quite justified, because from the birth of a child, it is the mother who has the closest connection with him.

Meanwhile, the legislation clearly states that parents initially have absolutely equal rights and responsibilities in relation to their common children - to raise, communicate, and live with them. Derogation from such rights can only be due to care for the child and the need to provide him with decent living conditions.

Based on the analysis of current judicial practice, in order to exercise the right to live with the child, the father needs to provide more significant evidence compared to the other side of the process.

Most often, the reasons why the court leaves the child with the father are:

Immoral behavior of the mother: dissolute lifestyle, tendency towards alcoholism or drug addiction, mental disorder;
The mother’s evasion from fulfilling her duties in raising the child, her cruelty towards the child;
A significant gap in material support, as well as in the conditions of detention of a minor;
The conclusion of a psychological examination on the attachment of a minor to each of the parents, as well as the opinion of the child himself.

The more of the listed factors positively characterize the father, the higher the chance of leaving the child with him.

If the child’s age requires constant maternal care (usually up to 3-5 years of age), then the court will only leave the child with the father in exceptional circumstances.

In any case, the final decision about who will get the small child after a divorce remains with the court, and the parties need to support their arguments as effectively as possible. Only an experienced lawyer can correctly assess the situation in a case. You can always contact our expert lawyers on the website for a free online consultation.

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The practice of resolving family disputes related to determining the place of residence of children is quite clear - the courts mainly take the side of the mother without taking into account her financial situation, giving preference to the other interests of the children and the general characteristics of the parents as a whole.

Thus, the “Review of the practice of courts resolving disputes related to the upbringing of children” (approved by the Presidium of the Supreme Court of the Russian Federation on July 20, 2011) clearly states that the greater financial security of one of the parents could not be decisive in resolving the issue of whether to live with the mother or the father. the child will live.

Below we provide an excerpt from the said review in this part.

As you can see, the father's high level of income alone is not enough. To claim the child, leaving a conscientious mother without him.

There were isolated cases of lower-level courts making decisions based on the level of financial support of parents, which remained isolated, being subsequently canceled or changed by the courts of cassation and appeal. Higher courts have sensibly judged that a parent's superior income level alone cannot be a basis for removing a child.

○ What does a child division agreement provide?

In accordance with Art. 66 of the RF IC, parents of a minor, naturally with mutual consent, have the right to draw up a written agreement, certified by a notary, defining:

With whom and where will the child live?
The procedure for communication and meetings of a parent living separately from the child.
How will the child's education be organized?
How will the child’s leisure time be organized?
Who bears the financial costs of providing the child with additional education, treatment, etc.
Alimony and other material and property obligations of each parent.
Other issues related to the maintenance, upbringing and education of a minor.

An example of such an agreement can be found here.

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○ The procedure for judicial consideration of a dispute about children.

If the former spouses do not reach a consensus on the issue of the minor’s residence, then this dilemma can be resolved in court. In accordance with Art. 23 of the Code of Civil Procedure of the Russian Federation, cases involving disputes regarding children are considered by courts of general jurisdiction. In cities of federal significance, such as St. Petersburg, Moscow and Sevastopol, these are district courts, in others - city courts.

Attention - in addition to the disputing parties, the prosecutor's office, which observes the rule of law, and the guardianship and trusteeship authorities, which protect the rights of minors, must necessarily participate in the process. It is the guardianship authorities that will give an opinion in court proceedings about the possibility or impossibility of the child living with each of their parents.

When drawing up a conclusion, the guardianship authority will collect and present to the court the following information:

Are the parents registered with a drug treatment, psychiatric, or tuberculosis clinic?
Are there any problems with the law, including administrative ones?
Do they have chronic illnesses, disabilities or other health problems that may interfere with the full raising of their children?
Acts of inspection of the living space of both parents, including conversations with everyone living with them.
Income level of both parents.
Characteristics of the place of residence and work of both parents.
Other information at the request of the judicial authority.

It is worth remembering that, despite the fact that according to the law both parents are equal in their rights, in practice in most cases the child remains with the mother. This does not mean that the father’s rights to the child are infringed, it’s just that women, as a rule, spend less time at work and, accordingly, can devote more time to raising children. What comes first.

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How to separate children?

Family law allows you to quite succinctly answer the question of how to divide children in a divorce. If you and your spouse have no conflict or disputes regarding the child, the solution here is this: enter into a voluntary agreement on the minor’s place of residence, child support obligations and the time the other parent spends with him.

If the mother or father categorically refuses such a measure, creates scandals, and does not allow him to see the child, you have the right to file a claim in court to determine the place of residence of your child.

Let's take a closer look at both options.

Settlement agreement

A voluntary agreement is the most harmless way to resolve all issues about a child during a divorce. Mother and father must draw it up in triplicate. Two - for yourself, the third - for the guardianship and trusteeship authorities. Such an agreement must include the following terms:

Which parent will the child live with? It is important to indicate a specific address.
Where and when he will meet the other parent. Indication of the duration of visits with a minor.
Alimony obligations: amount of maintenance, payment period and method of transfer.
Financial assistance to the child from both parents.

This agreement must be submitted to the magistrate. He will approve it within ten days. However, if the judge considers that any of the terms of the agreement contradicts the rights and interests of the child, he will refuse to approve it.

Trial

Do scandals and conflicts persist? Is divorce already on the horizon? Can't decide who your child will live with? Then go to court and file a statement of claim. At the same time, apply for alimony. Please provide the following information in your application:

Court details: name and address. The district court will consider the case of determining the child’s place of residence.
Individual data of the mother, father and child: Full name, home address, telephone number, email (if available), place of work.
Date of marriage.
Date of filing the application for divorce.
The requirement itself. For example: “I ask the respected court to determine the child’s place of residence and establish the payment of child support to a specific parent.”
Justification of your ability to provide the most comfortable living conditions for your child.
Date of application.
Applicant's signature.

○ Issues of living and communicating with a child after a divorce.

There are several most frequently asked questions related to the division of children. Let's look at the most important ones:

1. Is it possible to prove through the court the right of the father to have the child live with him - yes, undoubtedly, although this will be very difficult if the mother does not lead an asocial lifestyle.

2. Is the child’s opinion taken into account when determining with whom and where he will live? It is established by law (Article 59 of the RF IC) that the child’s opinion can be taken into account only after he reaches the age of ten.

3. If the court leaves the child with the father, is the mother obliged to pay alimony - yes, Chapter 13 of the RF IC establishes the procedure for determining and collecting alimony and other expenses for the maintenance of children.

4. Is it necessary to have the consent of both parents to transfer a child from one medical or educational institution to another? It is legally established that both parents have the same rights; as a rule, such decisions are made by the parent with whom the child lives alone.

This decision can of course be challenged. But think about whether it is worth putting the child in a stressful situation.

Of course, the problems discussed in our article are just the tip of a rather complex process, but I hope that the recommendations we have given will help many avoid basic mistakes and protect children from unnecessary stress.

If you have a question regarding children after divorce, you can ask it in the form of a free legal consultation on the page https://topurist.ru/ response in 15 minutes.

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○ What rights does a child have during a divorce?

Right to housing. Art. 31 of the Housing Code of the Russian Federation preserves the right of children to housing in the event of divorce by their parents. These rights do not depend on the fact whether the children live in this premises after the divorce or not.
Right to communicate. Clause 1 Art. 55 of the RF IC stipulates that children have the right to communicate with one and the other parent, as well as grandparents, sisters, brothers and other relatives even after their parents’ divorce.
Property law. If spouses divide jointly acquired property during a divorce, the court takes into account the interests of the minor child. The property of children remains their inviolable property even after a divorce. If a child lives with his mother or father, he can use their property with the consent of the parents.
Right to alimony. Art. 60 of the RF IC gives each child the right to receive maintenance - alimony from one of the parents, which is paid by agreement or established by the court.
The right to opinion. A child who is 10 years old at the time of divorce has the right to express his own opinion in court if the issue of his residence with one of the parents is being decided, and in other cases when his interests are affected. This right is provided for in Art. 57 RF IC.

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If the court decision is not satisfactory

In some cases, one parent remains dissatisfied with the court's decision after the divorce. Of course, he has the right to appeal the accepted division. In order to convince the judge and achieve residence with the child, the parent needs to prove with irrefutable facts that the second parent is unable to provide a decent life for the child. This can be facilitated by the above conclusion, which is drawn up by the guardianship and trusteeship authority. Evidence on specific facts from the life of the family is also necessary.

In conclusion, it is worth noting: if they want to share the baby after the end of the marriage, parents should also remember the interests of the child. Because for children to fully develop, they need truly comfortable conditions when living with a parent.

ATTENTION!

Due to recent changes in legislation, the information in this article may be out of date!
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