Russian courts are increasingly leaving children with their father after a divorce

The dissolution of the marital relationship of the spouses implies that they will continue to live separately. If they have minor children, then the law requires clarity on the question of which parent will live with them in the same house or apartment and be responsible for them.

There are two ways to legally decide who a child stays with after a divorce:

1. Conclusion of an agreement on children concluded between parents on a voluntary basis. This document is submitted by the spouses to the court for approval.
2. Trial.

In addition to resolving the issue of the place of residence of minors using the above methods, it is possible to determine the rules for the upbringing and communication with the children of a father or mother living separately from them. These rules come into effect after the parents’ marriage is declared dissolved.

Determining the child’s place of residence after divorce

Russian legislation clearly establishes the following norm as an axiom: if the spouses decide to divorce and they have minor children, then the wife and husband cannot avoid divorce proceedings in court. To make it easier for the plaintiff to choose a court, the table indicates the jurisdiction of the various courts.

As statistics show, regardless of whether the father is a foreigner or a Russian citizen, when resolving disputes about children, the courts of the Russian Federation give preference to mothers and in most cases transfer minor children to them. Of course, such decisions contradict the principle of equal parental rights in relation to children. However, in the sphere of Russian justice, established traditions play an important role.

In order to justify their decisions, judges usually give the following reasons:

• Children have a stronger emotional connection with their mother.
• Fathers generally neglect their responsibilities, for example, they do not pay child support, refuse to take on part of the debt burden on loans for the education of a minor, do not participate in their upbringing, and do not maintain their residential property in satisfactory condition.
• According to statistics, men are more often to blame for the breakdown of a marriage, for example, due to alcoholism, infidelity or unwillingness to work.

In this regard, parental agreements, according to which children remain with their father, are very carefully checked by the court for violation of the interests of minors or their mother. As a rule, the mother’s consent alone to transfer the minor to the father is not enough, so the judge determines whether the following circumstances exist in the case:

1. Antisocial behavior of the mother, for example, alcoholism or promiscuity.
2. Cruelty to children.
3. Unsatisfactory condition of housing.
4. Deprivation of parental rights.
5. Financial difficulties of a pregnant or mother of many children.
6. Opinion of a child over 10 years old.

One of the reasons mentioned above and supported by strong evidence is quite enough for the child to be given to the father.

The law establishes that when deciding on the place of residence of a minor, the judge must be guided by the following criteria:

• Interests of minors.
• The attachment of young children to each parent and siblings.
• Child's opinion.
• The character and moral qualities of mom and dad.
• Age of the minor.
• Availability of real estate and living conditions of former spouses.
• Each parent's profession.
• Degree of financial well-being.
• Availability of other dependents.
• Schedule of work or other activities.
• The nature of the relationship between each parent and the minor.

In addition, Russian legislation obliges the guardianship institution to participate in court hearings in which the issue of the place of residence of minors is decided. The functions of this government body are as follows:

1. Providing the court with an inspection report of residential premises belonging separately to the mother and separately to the father. The check is carried out to ensure that the parents have comfortable housing.
2. A reasoned conclusion on the subject of the claim, where the guardianship institution substantiates its conclusion about who is better for the children to live with - mom or dad.

Division of children in divorce, if there are several of them

The law allows the separation of several minor children between parents in the following cases:

• The need to ensure an acceptable standard of living for all children. The court is obliged to take into account that the transfer of all minor children to one parent will inevitably lead to a deterioration in his financial well-being.
• Comprehensive consideration of the interests of minors, when the judge sees that one parent will not be able to fully communicate with the children and raise them.
• The father's clearly expressed intention to take on the responsibilities of a teacher. For the father's wish to become a reality, he must support it with evidence. These include characteristics from the employer, positive reviews about him from relatives, teachers or neighbors, as well as children’s attachment to him, confirmed by a psychologist.

Of course, the judge will not mindlessly divide the minors equally. If, for example, there are four children in a family, then not always two of them remain with their mother, and two with their father. If the father earns more than the mother, has acceptable living conditions and the children are attached to him, the court may leave, for example, three children with him and one with the mother.

There is one exception to these rules: when the court decides that the division of minors between former spouses will negatively affect their education, upbringing and development, it will give the children to only one of the parents.

Is it possible to deprive the other parent of parental rights?

It is very difficult to deprive the second parent of parental rights just because he rarely sees the children. For deprivation of rights, compelling reasons are needed, for example:

• alcohol and drug abuse;
• committing violent acts against a child;
• long-term non-payment of alimony;
• committing a deliberate crime against a child;
• inducing a child to steal, drink alcohol, etc.;
• leaving the child in the hospital.

Thus:

1. The court can make a decision on the child’s place of residence in accordance with the Declaration of the Rights of Children, that is, leave a child under 14 years old only with his mother, or in accordance with the norms of the Family Code of the Russian Federation, that is, take into account the equal rights of the mother and father to raise children. Both solutions are legal.
2. For the court, the interests of the child are a priority, that is, the existence of a closer relationship with one of the parents is always taken into account. A decision can be made in favor of the mother only because, in the opinion of the court, the father will not have obstacles to communicating with and providing for the child.
3. The court can rule in favor of the father, as well as separate the brothers and sisters. The court decision is determined by many circumstances.
4. If parents want to quickly determine the child’s place of residence, it is not necessary to go to court. They can draw up an agreement and have it certified by a notary.

In order for the child to be happy, it is important for parents to maintain a good relationship, even if they do not live together and are divorced.
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The procedure for communicating, raising and maintaining children after divorce

If during the divorce proceedings the parties did not enter into an agreement between themselves that describes how to exercise the rights of a parent, then they can do so in writing at any time after the end of the marriage. This rule is not mandatory, since the father and mother can agree between themselves orally.

As for communication with minors, agreements between former spouses must be concluded in accordance with the following rules:

1. A parent living with children cannot prohibit their ex-spouse from communicating with them, since such a prohibition without a valid reason is void.
2. The former spouse living with the children cannot prevent them from meeting with the other parent, except in cases where such communication causes damage to the morality, psyche or physical health of the minors. Simply put, if a dad who communicates with his son on Sundays offers him gambling, drugs, alcohol as a pastime, or speaks rudely to him, or brutally beats him during meetings, then the mother has every right to prohibit further communication, including , through the court.
3. A parent living separately from the child, depending on their lifestyle and work schedule, can agree on a specific schedule of meetings with the minor child, for example, on weekends. Another option, which is often used to solve this problem, is to establish periods of permanent residence of the child with one parent or with the other. For example, children live with their mother for 2 months and with their father for 1 month, or with their mother for 3 months and with their father for 3 months.

What to do if your ex-spouse does not allow you to meet with your child? There are 3 ways to solve the problem indicated in the table.

The rights of a father or mother who does not live in the same territory with the child in the field of upbringing include:

• The right to have comprehensive information about the life of a minor from the second parent and any organizations, for example, educational or medical.
• The right to control educational activities carried out in relation to the child by another parent or educational organizations.
• The right to consult with the other parent regarding educational measures.
• The right to instill in a child a view of the world that does not contradict the law and does not diminish the authority of the other parent.
• The right to physical health care, such as encouragement to exercise.
• The right to care for spiritual and moral health, for example, through cultivating in a child the skills of interaction in society, through familiarization with the cultural heritage and traditions of the country of residence, etc.

If any disputes arise between parents regarding issues of education, they are resolved:

1. Through an agreement.
2. Through guardianship institutions.
3. Through the court.

The maintenance of minor children after the end of marriage is ensured at the expense of the parent living in the same territory and alimony paid by the other parent. The amount of alimony can be set in 2 ways:

1. According to the alimony agreement. The alimony agreement can be part of a comprehensive agreement on children, or as a separate document subject to notarization.
2. In court within the framework of claim proceedings.

The rules for calculating the amount of alimony support are indicated in the table below.

What is a parent living alone entitled to?

If the second parent lives separately from the child, he retains the right to communicate with him, educate him, and be interested in his life.

If the parents could not agree among themselves, the order of communication between the second parent and the child will be determined by the court.

If the former spouses maintained a good relationship after the divorce, the decision to live with one of the parents will not interfere with the other parent’s communication with the child. For example, if the daughter’s place of residence is determined with her mother, the child can also stay overnight with her father or go on vacation with him.

Challenging an agreement regarding children in a divorce

The need to challenge an agreement on children arises in the event of disagreement with any provisions of the document stated by one of the parties. For example, a party to the agreement can tell in court that he did not intend to sign it, but the other party forced him to do so through threats and deception or violence. Another reason for challenging is the infringement of the interests of a minor. It occurs when the parent to whom the child is transferred by agreement cannot provide him with acceptable living conditions and does not have time for full communication and supervision of him.

The resolution of this dispute takes place in the same court that deals with the divorce process. However, it should be borne in mind that if the divorce is carried out through a magistrate’s court, then this court cannot make decisions on disputes concerning children. Therefore, disagreements between parents regarding minor children in this case must be resolved after the divorce through the guardianship authorities or in the framework of separate legal proceedings.

As a rule, applications submitted to guardianship institutions are ineffective in solving the problem that has arisen, but they must be submitted. The fact is that the court will be more favorable towards a plaintiff who has exhausted all possible ways to protect his interests and was unable to reach an agreement with the defendant in other ways.

Before filing a claim, the applicant needs to know the following features of the child dispute process:

1. The case is heard only by the district court.
2. Jurisdiction can be either at the location of the plaintiff or at the location of the defendant. The choice depends on the wishes of the plaintiff.
3. In the claim document, the applicant may demand that the children be temporarily transferred to him until the decision to determine the place of residence of the minors has entered into legal force.
4. The plaintiff must substantiate the claim that he will be able to better take into account the interests of minors than the defendant.
5. The guardianship institution is a mandatory participant in the judicial process.

Structurally, the statement of claim consists of 3 semantic blocks:

• The name of the court and its address are written in the header; Full name and contact information for participants in the process.
• The motivational part describes the plot of the case, i.e. the circumstances of the dispute that arose between the defendant and the plaintiff; evidence confirming the correctness of the plaintiff’s point of view; references to laws with which he confirms his own point of view.
• In the operative part, a list of demands is written, a list of attachments to the application, the date and signature of the plaintiff are put.

Depending on the category of the case, the applicant should prepare a special statement of claim. Claims that resolve issues of interaction between parents and minors are divided into:

1. Claims to determine the place of residence of a minor. A sample can be found at this link.
2. Claims to determine the order of communication with a minor.
3. Claims for participation in the upbringing of a minor. The template for reference is here.

Who decides the baby's fate?

Divorce in the presence of a minor child occurs exclusively in court, excluding cases of unilateral divorce through the registry office, when one of the spouses is missing, declared incompetent or in prison.

Parents have the right to determine the place of residence of a child after a divorce on the basis of a voluntary agreement, or by confirming their consent in court to the position specified in the claim.

An agreement on children in a divorce is drawn up by both parents and must be notarized.

It states:

• Place of residence of the child;
• Alimony obligations;
• The procedure for the exercise of parental rights and responsibilities by the parent who left the family;
• The procedure for communicating with a child.

If the spouses do not have a common opinion, then the judge will independently decide who should transfer the child after the divorce.

Divorce of spouses in the presence of children is carried out:

• In the magistrate's court - if the spouses do not have a dispute about children;
• In the district court - if the spouses have not reached agreement on the child’s place of residence.

List of documents for filing a claim

One statement of claim will not be enough for the court to make a positive decision on the plaintiff’s request. The applicant needs to support his arguments with relevant evidence and documents, the list of which is indicated at the end of the statement of claim.

Mandatory documents sent along with the claim to the court office include:

• Copies of the claim document according to the number of participants. 1 copy must be handed over to the court.
• Certificate of marriage of spouses or their divorce.
• Birth certificates for minors.
• Document confirming the transfer of state duty to the treasury account.

The evidence required by the plaintiff is grouped in the table below, depending on the category of the case.

State duty amount

The amount of money paid depends on when the agreement is contested:

• If the dispute is considered together with the process of divorce of spouses, then the state duty will be equal to 600 rubles.
• If the dispute is considered within a separate proceeding, then the state duty will be equal to 300 rubles.
• If one of the requirements is to award alimony in favor of minors, then in addition to the amounts indicated above, you must pay 150 rubles. It is necessary to take into account that the legislator has provided a benefit for the plaintiff, allowing him not to pay the state fee when submitting the claim for consideration. Usually the defendant pays 150 rubles after losing the case.

Arbitrage practice

The case was considered by the Podolsk City Court of the Moscow Region in June 2017.

The father of a minor son appealed to the court with a demand to change the existing procedure for communicating with a young child. In his opinion, the conditions of communication should be as follows:

• One weekday a week, the plaintiff can pick up his son from the defendant at 3 o'clock in the afternoon and bring him back at 1 o'clock the next day.
• On weekends, he can communicate with his son from 1 o'clock on Saturday to 5 o'clock on Sunday on his territory.
• The defendant is obliged not to interfere with the plaintiff’s vacation with the minor.
• The defendant and plaintiff must jointly resolve issues that arise in the area of ​​upbringing, treatment and education of their son.
• The defendant cannot, without the permission of the plaintiff, take the minor out of Podolsk, or change housing within Podolsk.

The plaintiff's claims were as follows:

1. He is in an official marital relationship with the defendant, but currently lives separately from his wife and son.
2. The basis for filing an application is a dispute between spouses regarding communication with a minor.
3. The plaintiff's proposed schedule is in the son's best interests.

The plaintiff's wife, who appeared at the hearing, asked that the plaintiff's demands be rejected. The representative from the guardianship institution partially supported the claims.

The court, having considered the evidence and arguments of the parties, came to the conclusion that the claim should be satisfied in part for the following reasons:

1. From the inspection report of the apartment in which the plaintiff lives, it follows that the dwelling is in satisfactory condition, the cleanliness of the premises is maintained. A minor child may stay in the apartment.
2. Based on the son’s attachment to his mother, his age and daily routine, as well as taking into account the father’s right to communicate with him, the judge decided to establish the following schedule for meetings between the plaintiff and the minor child: Every Wednesday from 10 a.m. to 7 p.m.
3. Every Saturday from 10 am to 7 pm.
4. The father must pick up the child from the mother’s apartment and return no later than the specified time to the entrance of the mother’s house.

How to draw up a court settlement agreement

Parents can enter into a settlement agreement at a court hearing. It can indicate the place of residence of the children, the conditions of communication and financial support by the parents. This information is entered into the minutes of the court session, the judge makes a ruling, and the proceedings are terminated.

Such a court determination has the same force as a court decision. This means that if one party does not comply with the terms set out in it, that parent can be forced to do so.

Such a settlement agreement can also be drawn up by a notary.