Powers of guardianship and trusteeship authorities to protect children's rights

Guardianship and trusteeship of minor children are established only after they receive the status of OBPR (left without parental care). According to the law (Article 121 of the Family Code of the Russian Federation), this status is given to minors in cases where the parents:

• died or went missing;
• incapacitated (including seriously ill);
• are in prison;
• deprived of parental rights;
• abandoned the child (for example, they did not take him from the maternity hospital or hospital, they wrote a statement of refusal);
• unknown.

Guardianship and trusteeship of children are established when the actions of parents harm their development or threaten their health and life. The decision about what these actions are is made by representatives of the guardianship authorities during an investigation of his living conditions. Usually, a child is taken away when the parents use alcohol and drugs, do not work and therefore cannot provide their children with even the most necessary things, and ignore the fact that the child is absent from school for a long time without a good reason.

For parents experiencing financial difficulties, the law provides for the opportunity to leave their child in a shelter for up to six months. In 95% of cases, single mothers take advantage of this opportunity. If a mother has not visited her child for six months or if she then does not want to take him away, her parental rights are limited.

The mere fact that a child is in a difficult situation does not give him OBPR status. An act is required, which is drawn up after examining the conditions of his life. Therefore, the first thing you need to do to take custody of a child is to contact the child protection authorities. A child from an institution (orphanage, shelter, etc.) already has OBPR status - you can immediately proceed to collecting documents for guardianship.

List of documents for registration of child custody

Before receiving certificates, you need to attend a foster parent school. There are five of them in St. Petersburg, training takes 1-2 months (depending on the program). Choose a school that has an educational license that allows it to issue certificates.

According to the law, the package of documents for child custody consists of:

• certificates of no criminal record;
• medical certificate;
• a document confirming the availability of housing for the future guardian;
• income certificates in form 3-NDFL;
• pension certificate (if available);
• certificate of completion of training at the SPR;
• autobiographies;
• marriage certificates (if any);
• statements.

A health certificate is issued according to form No. 164 (a sample can be printed out). You will need to be examined by doctors:

• phthisiatrician;
• infectious disease specialist;
• narcologist;
• psychiatrist;
• therapist.

You will also need to be tested for hepatitis B, C, HIV and the Wasserman reaction. You should go to the therapist last, because it is he who makes the final conclusion about the candidate’s state of health by filling out form No. 164-u.

Documents have different validity periods. A certificate of no criminal record is valid for a year, a medical certificate is valid for only 3 months, so it must be issued last.

Documents for child custody: basic misconceptions

1. All family members must provide a medical certificate to obtain custody of the child. In fact, it is only completed by the guardian.
2. The guardian must have his own home and permanent registration. In fact, a document confirming the availability of housing can be a copy of the certificate of ownership (if the property is yours), an extract from the house register (if municipal), or a rental agreement (if you are renting a house). It is not necessary to own real estate and have permanent registration, but at least temporary registration is desirable.
3. The guardian must have an income not lower than the subsistence level. To establish guardianship, it is not necessary to confirm an income of at least the subsistence level for each family member - this is the main difference between guardianship and adoption. If the future guardian does not work, he can provide a certificate of income of the spouse.
4. Guardianship may require additional documents. In fact, the list of documents for registration of child custody is closed, in accordance with Decree of the Government of the Russian Federation No. 423 as amended on February 10, 2014. The guardianship authorities cannot require any documents other than those indicated in this list.
5. There is confusion with the terms: guardianship is established over children under the age of 14 years. From 14 to 18 years of age, guardianship is established. The rights and responsibilities of a guardian and trustee are the same. The child for whom guardianship is established must be present at the trial, and guardianship is not established without his consent (under Article 132 of the Family Code of the Russian Federation). To be fair, it is worth noting that the opinion of the child for whom guardianship is established is taken into account in court from the age of 10. This is all the difference between guardianship and guardianship of a child.

Guardianship and guardianship. Basic Concepts

Lawyer Anatoly Antonov

Visit the website of the Family Law Center, where you can get answers to your family law questions.

Guardianship and trusteeship are legal forms of protection of personal and property rights and interests of citizens who are unable (in whole or in part) to independently perform these functions, provided for by the legislation on marriage and family. Guardianship is established over children under 15 years of age in the event of the death of their parents, as well as during the life of the parents, if: they are deprived of parental rights by court, recognized by the court as incompetent or with limited legal capacity; the court made a decision to remove the child from the parents without depriving parental rights; parents who do not live together with the child shirk their responsibilities for raising him; the whereabouts of the parents are unknown; both parents have been unable to raise their children for more than 6 months for valid reasons (illness, business trip, etc.). Guardianship can also be established over adults who are recognized by the court as incompetent due to mental illness or dementia.

Guardianship is established over children aged 15 to 18 years who are left without parental care. Guardianship is also established over adults who, for health reasons, cannot independently exercise their rights and fulfill their duties, as well as over persons whose legal capacity has been limited by the court due to the abuse of alcoholic beverages or narcotic substances. Guardians and trustees are not legally equal to parents, but they solve basically the same problems as them.

In addition to guardianship over persons, it is allowed to appoint guardianship over the property of citizens recognized as missing in the prescribed manner. The main purpose of such guardianship is to ensure the safety of property. Guardianship can be established over the property of the ward if this property is located in another area.

The guardianship and trusteeship bodies are the executive committees of district, city, city district, township and village Councils of People's Deputies. The named bodies establish and cancel guardianship and trusteeship, appoint guardians and trustees, release or remove them from fulfilling guardianship duties, and perform other actions provided for by law. Decisions made by guardianship and trusteeship bodies on issues within their competence are binding on all enterprises, institutions and organizations, officials and citizens.

The implementation of the functions of guardianship and trusteeship is assigned to the relevant departments of the executive committees of district (city) Councils of People's Deputies. Thus, departments of public education are entrusted with the functions of guardianship and trusteeship in relation to minors; to health departments - in relation to persons recognized by the court as incompetent or partially capable; to social security departments - in relation to capable persons who need care for health reasons. In rural areas, the functions of guardianship and trusteeship are carried out by the executive committees of township and rural Soviets of People's Deputies.

The law obliges citizens and organizations to immediately notify the guardianship and trusteeship authorities about minor children who have lost parental care. An inspection of the living conditions of such children is carried out by an inspector from the department of public education or an employee of the executive committee of the village (rural) Council of People's Deputies. If the examination confirms the lack of parental care, the guardianship and trusteeship authorities are obliged to place the child temporarily in one of the children's or medical institutions (orphanage, boarding school, etc.) or transfer it to the persons taking the child into care until the issue of child care is resolved. establishing guardianship or trusteeship over him.

According to current legislation, a guardian or trustee must be appointed no later than one month from the moment when the guardianship and trusteeship authorities became aware of the need to establish guardianship and trusteeship. When choosing a guardian (trustee), his personal qualities and ability to perform such duties are taken into account; As a rule, a person from among the close relatives of the ward with whom he often communicated (grandfather, grandmother, adult brother, sister, etc.) is appointed as a guardian and trustee, but there may also be persons who are not related to the ward. A guardian and trustee can be appointed only with the consent of the ward.

A guardian (trustee) is not appointed if the child’s upbringing is carried out entirely by a child care institution (for example, a boarding school) or if an adult capable citizen in need of outside assistance is placed, for example, in a home for the disabled.

The main responsibility of a guardian (trustee) over children is to ensure proper upbringing. This personal responsibility cannot be transferred to another person. The guardian's family must create normal living conditions for the ward. The guardian must ensure that his ward spends his earnings or stipend wisely and spends his leisure time culturally. The guardian (trustee) is obliged to protect the personal and property rights and interests of the ward. He is responsible for the actions of his ward to the same extent as the parents.

Guardians and trustees are required to live together with their minor wards. Therefore, the guardian must either move the ward into his own living space or move into his living space. Only as an exception, the guardianship and trusteeship authority can give permission for their separation (if the ward has reached the age of 16 and provided that the separation does not negatively affect the upbringing and protection of the rights and interests of the ward). Guardians and trustees of adults are obliged to take care of creating the necessary living conditions for these persons, providing them with care and treatment, and must protect their rights and interests. The guardian of a mentally ill person, in the event of recovery of this person, is obliged, in accordance with the procedure established by law, to file a petition to recognize him as capable and terminate guardianship.

Along with their duties, guardians and trustees have certain rights: they can send their minor wards for upbringing and education to children's institutions (kindergartens, schools, etc.), they have the right to demand the return of their wards from any person who holds them without legal grounds to demand termination of the contract concluded by the ward if it is proven that this contract infringes on his rights and interests. Guardians are the legal representatives of their wards and carry out all necessary transactions on their behalf and in their interests. Trustees act not instead of the ward, but along with him.

Guardians and trustees are not obliged to financially support persons under their guardianship or trusteeship. Expenses incurred by them for the maintenance of the ward are reimbursed in the manner prescribed by law from the ward’s funds (pensions, alimony, and other income). In the absence of sufficient funds for the maintenance of the ward, the guardianship and trusteeship authorities assign an allowance for his maintenance. The funds due to the ward are at the disposal of the guardian (trustee) and must be spent by him on the maintenance of the ward (for the purchase of food, clothing, etc.). Every year, the guardian (trustee) is obliged to submit a written report on the management of the ward’s property to the guardianship and trusteeship authorities. Supporting documents (copies of sales receipts, tax receipts, etc.) must be attached to the report.

Guardianship over a minor who has reached 15 years of age is terminated without a special decision on this issue being made by the guardianship and trusteeship authority. The person who provided guardianship automatically becomes the guardian of a minor who has reached 15 years of age. Guardianship ends when the minor reaches 18 years of age. In exceptional cases, guardianship and trusteeship are terminated when guardians and trustees are released from their duties at their personal request due to valid reasons (illness, lack of necessary contact with the ward, etc.). Upon termination of guardianship or trusteeship, the guardian (trustee) submits to the guardianship and trusteeship authorities a report on his activities in raising the ward and managing his property. In case of improper performance by the guardian (trustee) of the duties assigned to him, the guardianship and trusteeship body removes him from performing these duties. In case of use of guardianship or trusteeship for personal gain, as well as leaving the ward without supervision and necessary assistance, the guardianship and trusteeship body, removing the guardian (trustee), is obliged to transfer to the prosecutor the necessary materials to resolve the issue of bringing the guilty person to criminal liability, and he must compensate material damage caused to the ward, in the manner prescribed by law.

The actions of guardians and trustees can be appealed by any person, including the ward, to the guardianship and trusteeship authority at the place of residence of the ward.

Hello! My name is Anatoly Antonov, I am a lawyer and the head of the Legal Center of Lawyer Anatoly Antonov.

If you need to receive advice on family law issues, you can try to independently find the answer to your question by carefully studying the information on my website. I hope the site materials will help you find answers to your questions.

If you still need advice from a lawyer, just call in Samara and get an answer to your question on family law!

“Legal Center for Family Affairs of Lawyer Anatoly Antonov” offers you the following services in the field of family relations:

Types of guardianship of minor children

The Family Code distinguishes between two types of guardianship - paid and gratuitous. But even in the second option, the guardian receives child support in the amount of the subsistence minimum (in St. Petersburg this is 10,605 rubles in 2021). In the case of paid guardianship, an agreement is concluded on the creation of a foster family, under which the foster parents receive an allowance for the maintenance of children, payment for their work and a number of benefits. The rights and responsibilities of guardians and wards in both types of arrangement are almost identical. We have collected everything in which they differ in a table.

Powers of OOP

In order to achieve your goals and be able to fulfill your direct responsibilities, you must have certain powers. If you do not have such powers, then it is quite difficult to fulfill your duties.

Powers of guardianship and trusteeship authorities:

• Identification of cases when the need to provide assistance to a minor will be established;
• Filing an application to the court to declare a citizen, for example, a mother or father, incompetent;
• The right to establish child custody. Establishment of guardianship with the appointment of a guardian for the child;
• Making decisions that children should be removed from the family and placed in a boarding school or other organizations;
• Making a decision that a particular guardian or trustee is unable to perform his/her direct duties. Removal of a child from a guardianship family;
• Granting permission for a transaction regarding the sale of property in which the child owns a share;
• Signing an agreement that the PLO will be the manager of the property owned by the minor. The contract is concluded on the basis of the norms of the Civil Code of the Russian Federation, in particular Art. 38;
• Representation of any interests of a minor citizen;
• Checking all living conditions of children in families with natural parents, guardians and trustees;
• Carrying out consulting and explanatory work. With potential trustees and guardians regarding their responsibilities and rights. Selection of children who need care;
• Providing a variety of assistance to all subjects who take part in the baby’s life;
• Other powers that do not contradict the Federal Law.

Guardianship of a child from an orphanage - details of registration

When you have a conclusion that you are a candidate for guardianship, you can contact the orphanage with a request to transfer the child. It is important to understand that social institutions where children are kept are closed to outsiders; you can only get there with a referral from the guardianship authorities. Before taking a child from an orphanage in another region, contact the guardianship authorities at your place of registration with a request to send a request to the guardianship at the child’s place of residence. As soon as the answer comes that the child is in the institution and they are waiting for you, you can go.

If you want to take a specific child, ask for a referral for him. If you have not decided on a candidate, write an application to the guardianship authorities to select a child. You can choose yourself using regional and federal data banks on orphans. But the guardianship authorities may have more up-to-date information - it’s better to look everywhere.

Before taking custody of a child from an orphanage, you can get to know him, study the materials of his personal file and medical record. The candidate for guardianship has the right to examine the child in a medical institution of his choice in order to get an idea of ​​his health.

Materials from the personal file will help you understand the prospects of staying with the person under guardianship: can the parents insist on the removal of the child (if they are in prison and the term expires soon, they can, and if they are missing, then in six months you can file a lawsuit for deprivation parents' rights and adoption).

In some orphanages, management prevents children from being placed under guardianship, insisting on adoption. They act in the interests of the child, but not within the framework of the law. If you are prevented from obtaining custody of a child from an orphanage without objective reasons, you can safely go to court.

Arranging for guardianship of a child from an orphanage, children's hospital and maternity hospital is no different from usual. In the interests of the child, you can insist on preliminary guardianship with a simplified registration procedure, and collect the full package of documents later.

Procedure and nuances of design

In order to become an official guardian of a young representative of the Russian Federation, an established procedure is provided, and in addition, the procedure is associated with a number of nuances. In practice, the algorithm looks like this:

1. First of all, you have to choose a child for subsequent adoption and upbringing.
2. Next, you will have to take appropriate courses, where your knowledge of the rules of education will subsequently be tested.
3. Subsequently, the necessary documents are prepared, after which an application is submitted to the bodies of the board of trustees.
4. Once the application is approved, the procedure for reviewing and registering guardianship of the wards begins.
5. The next step is to submit a statement of claim to the court upon granting permission from the appropriate authority.
6. Subsequently, you will have to wait for the court ruling to come into force, after which you will have to issue the appropriate adoption document at the registry office.
7. Next, the minor is registered at the place of residence, and in addition a report is submitted to the guardianship authority.

In accordance with current legislation, regular reporting to the relevant authorities is also provided for, which will assess the correctness of upbringing and compliance with the legal rights of the child by his adoptive parents.

Features of the legal status of a ward child

Usually in a foster family the child under care is loved as if it were their own. But from a legal point of view, he still has rights and obligations in relation to his blood family. The child claims the inheritance of his blood parents and is obliged to support them after reaching the age of majority if they turn out to be incapacitated.

• The rights and obligations of the guardian and the ward cease as soon as the latter turns 18 years old.
• If the trustee dies, then his status does not pass to the relatives - they will have to repeat the paperwork process in order to leave the child in the family.
• The guardian must manage the property of the ward in his interests. For example, if a child has monetary assets, it is necessary to ensure their safety from inflation.
• The guardian must report on the management of the assets of the ward, as well as the expenditure of benefits on him.
• A person under guardianship has the right to receive housing from the state only if no real estate is assigned to him.
• The ward has the right to enter a university without competition.
• The ward does not inherit the property of the guardian if the guardian has not made a will in respect of him.

If you have decided to obtain custody of a child, but do not know where to start the registration procedure, contact our agency. Our lawyers will advise you on the conditions and procedure for transferring children to a family. If the guardianship authorities refuse to register you as a candidate for guardianship, we will help you prepare a written appeal justifying the illegality of their actions. Our lawyers will also help prepare a statement of claim in case of violation of the law by guardianship authorities, the management of a social security institution, or blood relatives of the child under guardianship.

Frequently Asked Questions about Child Custody

Sample application for child custody

In order to contact the appropriate authority, it is necessary to draw up and submit a corresponding application, which contains the following information:

1. personal information about the person from whom the form is submitted;
2. data on marital status and presence of offspring;
3. necessary information about the organization and person in whose name the document is written;
4. information about the offspring who is planned to be adopted;
5. data on completion of educational courses;
6. necessary information about the institution where the minor is present;
7. petition for permission to guardianship;
8. date of execution of the document, as well as signature and transcript.

Sample application for child custody

This document is filled out directly at the organization where the application is made for subsequent approval of guardianship and trusteeship.

Court decisions

Compensation for damages in favor of the buyer

On your own rake: what nuances should not be forgotten when it comes to the housing issue

Double payment for goods

What are the consequences of paying a small fine for an administrative offense?

Dispute with a housing construction cooperative

Unwanted neighbor: how to defend your rights to an apartment?

Customer Reviews

Gratitude from Volkotrub Yuri Vasilyevich Thank you very much for the quality advice on the issue that interests me. With best wishes to Denis Yuryevich Stepanov, who advised me.

Volkotrub Yuri Vasilievich

Gratitude from Busygin A.I. I express my gratitude to Vasily Anatolyevich Kavalyauskas for the qualified management of my case, competent advice and justification for the decision, which led to compensation of the stated claims.

Sincerely, Busygin Alexander Ivanovich

26.12.2017

Gratitude from Remedova A.G. I express my gratitude to the Legal Agency of St. Petersburg, namely Denis Yuryevich Stepanov, for the assistance provided in resolving my issue, and I also express my gratitude to the entire team of the consumer rights protection society for their responsiveness and pleasant communication.

Remedova A.G. 08/17/2018

Gratitude from Bolotin V.S. I thank Alexander Viktorovich Pavlyuchenko for the work done as part of the investigation into the administrative case. I am especially grateful that almost all activities within the framework of the case were carried out by Alexander personally, without my involvement, which significantly saved my time. I would also like to note the efficiency with which the work was completed. I would like to wish Alexander further success in his professional activities and the successful completion of all current and subsequent cases, restoring justice to his clients.

Bolotin V.S., 02/12/2017

Gratitude from Plisetsky V.V. I would like to express my gratitude to Sergei Vyacheslavovich Mavrichev for his sensitive attitude and understanding towards clients. The issue was resolved within one day. I am very grateful to Sergei Vyacheslavovich.

Plisetsky V.V. October 19, 2018

Review by Sokolov M.Yu. I express my gratitude to your company, as well as Denis Yurievich Stepanov and Daria Valentinovna Kutuzova for their conscientious attitude to their duties.

With sincere respect, Sokolov M.Yu.

Gratitude from Guryanova T.A. I express my sincere gratitude to Vasily Anatolyevich for his professionalism and highly qualified assistance in resolving the issue of protecting my rights as a consumer. As a result, I received decent compensation from.

Thanks a lot. 07/09/2019

Gratitude from gr. Voronova T.A. I express my gratitude to Yuri Vladimirovich for competent, highly professional advice on the issue of “Protection of Consumer Rights”, a clear explanation of my further actions in my situation, as well as gratitude to Olga Anatolyevna for her attentive and sensitive attitude towards visitors. I was glad to meet your agency!

Voronova Tatyana Anatolyevna

tel.

Gratitude from Vraveevsky S.A. Sergey Vyacheslavovich! Thank you very much for the consultation! All the details were disclosed to me in detail, all questions were answered comprehensively. I am very glad to receive help from a qualified specialist!

Vraveevsky S.A. 12/18/2018

Review by G.N. Antropova To the lawyer of the Legal Agency of St. Petersburg A.V. Ermakov

I express my gratitude to you for your professionalism in protecting my interests in a criminal case, Andrey Valerievich, allow me to express my gratitude to you for your help and support. I note your high professionalism and skillful actions in defending my positions.

Best regards, G.N. Antropov

Key differences between guardianship and adoption

The main difference is the fact that during adoption the child is legally equal to his own child, but during guardianship the rights are limited. When adopted, a child can receive the surname of his adoptive parents, but during guardianship - not. Adoptive parents can be deprived of their parental rights. The guardian is paid social benefits, while in the case of adoption no benefits are accrued.