Determining the place of residence of a child after divorce

A feature of family disputes between former spouses regarding the determination of the child’s place of residence is the desire to win at any cost. Former spouses, as a rule, have many claims and accumulated grievances against each other. As a result, when they have to determine the place of residence of a minor child, they are guided not by his interests, but by their desire to win the dispute and the child is the reward. This situation is very common. The disputing parties each act in their own interests, while family law establishes that disputes about the child’s place of residence are resolved primarily in the interests of the child. The child's interests are served by the law's requirement that, starting from the age of ten, he has the right to speak out in court about which parent he would like to live with, and the child's opinion is taken into account by the court.

Rules for determining the place of residence of a child after divorce

Married couples come to the decision to end their marriage in different ways. Some are dissatisfied with their financial situation, others cannot resolve everyday issues, and still others disagree on raising a child. If there are minors in the family, the divorce procedure takes place in court. In addition to establishing the amount of alimony and division of property, as part of the proceedings, the place of residence of the child after the divorce is determined if the parents were unable to reach mutual understanding on this issue.

Procedure for going to court

In accordance with Article 65 of the RF IC, in a situation where the child’s parents live at different addresses, they are obliged to agree with whom the child will live. Otherwise, the decision will be made by the court. Of course, he will take into account the arguments of the parents and the guardianship authority. But the decision will ultimately be made solely in the interests of the child.

Jurisdiction of cases on determining the place of residence of a child

In accordance with Article 28 of the Code of Civil Procedure of the Russian Federation, jurisdiction over a claim to determine a child’s place of residence lies with district courts. This is if we are talking about the first instance. The application should be submitted to the court at the defendant’s place of residence. However, if, along with a claim to determine the place of residence of children, a demand for the collection of alimony is filed, then the documents can also be submitted at the plaintiff’s place of residence.

Preparation and submission of a claim

The statement of claim does not have a strict form, but it is better to write it according to the model that can be found in the district court. There is a high probability that after the first submission, the documents will be returned and notes that need to be corrected. To save time and correctly state your requirements, it makes sense to contact a lawyer.

The statement of claim to determine the child’s place of residence must contain the following information:

name of the court;
personal data of the plaintiff and defendant - full name, registration address and contact information;
correct description of the circumstances of the case;
a request to the court;
list of documents attached to the application.

At the end, you must put a date and signature. After reviewing the documents, the court will set a court date, of which both parties will be notified. If errors are found in the text of the application or any documents are missing, the entire set will be returned with the appropriate notes.

In the pleading part of the statement of claim, it is worth appealing to clause 3 of Article 65 of the Family Code of the Russian Federation.

Required documents

The plaintiff’s task is to prove that the child will be fine with him, but bad with the other parent. Therefore, de facto, it is necessary to prepare in advance to discredit the ex-spouse. And de jure, collect a set of documents that will prove that you can create the best living conditions for your child. You will definitely need:

A certificate from a kindergarten or school, in which educators or teachers will express their opinion about the level of development and emotional state of the child, about the family in which he lives. It may also contain additional information. For example, which parent is more interested in the child’s education, participates in events, comes to parent-teacher meetings, and so on.
Certificate of availability of residential premises - both owned and under a lease agreement, free use, and so on. Please note that the apartment in which you live with your child will be visited by the guardianship authorities. They will check sanitary and hygienic conditions, find out whether the child has a separate place to sleep and study, whether he has toys and textbooks, and whether the family has food. Based on the results of the inspection, they will draw up a report on living conditions and a corresponding conclusion.
Certificate of income, official employment, self-employment or entrepreneurial activity. It is important for the court to prove the stability of income. You should not assume that disputes about determining the place of residence of children necessarily end in victory for the richest parent. But, nevertheless, it is important to confirm that there will be enough money for food and a normal life under any circumstances.

You must also attach a receipt for payment of the state duty and 2 copies of the statement of claim. But in addition to this, you have the right to send other documents to the court that will confirm that the second parent is not able to cope with raising the child. If he is a member of a drug treatment or psychoneurological dispensary, has served a sentence in prison, and even more so has been held accountable for improperly raising a child, attach the relevant documents or petition the court to request them.

It would be a good idea to prepare for the trial in advance and provide witness testimony. They are necessary to establish the level of relationship between parents and their family members with the child. You have the right to ensure the appearance of witnesses and request their summons during the preliminary court hearing.

Counterclaim to determine the child’s place of residence

After the second parent becomes aware of the filing of a statement of claim, he has the right to file a counterclaim to determine the child’s place of residence with him. In terms of content and set of documents, it is almost identical to the first party’s statement of claim.

The claim, accompanied by a full set of mandatory and additional documents, must be sent to the same district court to which the first claim was filed. They will be considered simultaneously, within the same court hearings. In fact, a counterclaim is necessary for the second parent in order to immediately state his claim to the child living with him, and not to initiate a second proceeding.

State duty

The state fee must be paid only in a situation where, simultaneously with determining the place of residence of the child, the plaintiff also makes other demands. If they are of a non-property nature, the state duty will be 300 rubles.

If we are talking only about establishing or changing the place of residence of a child determined by the court, then on the basis of clause 15, part 1, article 333.36 of the Tax Code of the Russian Federation, cases on the protection of the rights and legitimate interests of children do not require payment of state duty.

There are cases when the court insists on paying the state fee, although the statement of claim deals only with determining the child’s place of residence. This can be appealed, but due to the small size of the state duty, such complaints are practically not filed.

Ways to resolve the issue of who the child will live with after the parents’ divorce

The current RF IC gives parents the same rights in relation to their joint offspring. This applies to both natural and adopted children. Even if the husband adopted his wife’s children from his first marriage, he has the right to raise them after separation from his wife.

Determining the place of residence of a child during a divorce can be carried out pre-trial by drawing up a written agreement that sets out the procedure for communicating with the son/daughter of the second parent. In order for an agreement to gain legal force and be taken into account by the court, it must be certified by a notary.

Citizens can decide on the child’s place of residence after a divorce orally, voicing their decision to the court as part of the divorce hearing. If a compromise is not found, the future fate of the children will be determined by a court decision. The issue of the place of residence of a minor citizen may be included in the statement of claim for divorce, or may be considered in separate court proceedings.

To initiate the process you will need the following documents:

An application to the court indicating the details of the plaintiff, defendant and minor offspring, as well as a brief statement of the circumstances of the case.
Certificate of divorce.
Son/daughter metric.
Certificates and characteristics from the place of work of mom and dad.
Extract from the place of residence of the applicant and the defendant.
Documents on the monthly income of the parties.
Certificate of health of parents and child (if necessary).
A document confirming the availability of housing.
An extract from a mental health and drug treatment center stating that the parents are not registered.

The list of documents is approximate and is formed depending on the circumstances of the case, during which the place of residence of the minor is determined.

According to Russian law, both mother and father have the same rights and responsibilities in relation to minors, unless citizens are deprived of parental rights. So initially both the plaintiff and the applicant are equal before the court. The main goal of determining the child’s place of residence after the parents’ divorce is to choose the party that will provide the most favorable conditions for living and raising the offspring.

Before determining the place of residence of a child during a divorce, the court examines the living conditions of the husband and wife, their level of income, moral character, presence of bad habits, etc. Given the special attachment of young children to their mother, the son/daughter is often left with the woman.

The case of Olga and Denis

An example of such a dispute is one of the cases that I had the opportunity to handle. I represented the interests of a middle-aged woman, let's call her Olga. She lived with Denis in a registered marriage for about six years. In their marriage, they had a child - a girl, Tanya, who was eleven years old at the time of the dispute. After the divorce, Tanya lived with her mother, the father paid alimony and regularly saw the child. This went on for several years. The child was not simple; psychologists diagnosed him with hyperactivity, due to which Tanya did not behave in the best way and caused a lot of trouble to both parents. Tanya's complex character was not liked by the teachers and management of the school where she studied. The school authorities periodically tried to transfer the girl to home schooling, so as not to make life difficult for themselves.

Here it is worth noting one feature inherent in school education, which uses standard methods for teaching and any unusual child is knocked out of the school curriculum. In such cases, the school does not look for an individual approach to the student, but labels him as a “difficult child,” after which the child begins to be expelled from the educational institution in various ways. Most often, an unhealthy environment is created in the classroom, students are pitted against the “difficult child,” and teachers begin to record any pranks of the teenager with memos. Further, in conflict situations, teachers begin to blame the student, even if he is not to blame, and record this fact in memos to the director. As a result, the child is not cared for, he goes to school, sits through lessons, does not receive the necessary knowledge, because for teachers he is a problem and distracts them from the school curriculum, which they need to give to other children, and therefore they avoid teaching the “difficult child”. As a result, the child begins to lag behind in knowledge, and then he is invited for poor performance to numerous pedagogical councils, where teachers and parents of other students begin to reproach him and his parents for not meeting school requirements. Thus, the inability of teachers to teach children who are any different from others is transformed into blaming the child’s parents for poorly raising a “difficult teenager.” Most educational institutions use approximately this scheme in order to get rid of students they do not need. As a result, a negative attitude of the school towards the student is formed and conditions are created to get rid of him. At any opportunity, the educational institution will do everything possible to achieve his transfer to another school or expulsion altogether. It is important for us to describe in detail the principle of school education, since in our business it has taken a very unexpected turn.

Let's return to our situation. For the time being, the former spouses Olga and Denis lived quietly. Relatively peacefully, without trial, we agreed on the procedure for communicating with the child and paying child support. Olga married her husband again and her financial situation became seriously stronger. Denis also actually started a family and lived in a civil marriage, although financially he felt worse than Olga.

As Tatyana grew up, her conflicts at school intensified, and it was difficult for her to establish relationships with peers. Having called the parents to school a couple of times, the management of the educational institution decided that Tatyana was a “difficult child”, after which they began to remove her from school under the plausible pretext of allegedly being in the interests of the child. This position of the school only aggravated conflicts, as often happens. In addition, as she grew up, the girl began to understand that her parents were divorced, and she could not decide for herself where she would be better off. She did not know where her home was and was torn between her father and mother. The girl’s tossing led to her throwing public tantrums at school and to each of her parents individually.

Conflict at school and its impact on business

One fine day, Tatyana refused to leave school and go home to her mother and created a scandal. They called an ambulance for the girl and invited her father and mother. That day the girl wanted to go to her father and he took her overnight. For the next few days, the girl lived with her mother, but after a while she asked to be taken to her father, because she wanted to stay with him. The mother complied with her daughter’s request because she wanted her to communicate with her father any time she wanted, and even before, the daughter often visited her father.

The further development of the event came as a complete surprise to my mother. The father, taking the opportunity, took the child to another city two hundred kilometers away to his grandmother and left the child there supposedly to stay in a one-room apartment, in which his grandfather, who suffered from a mental disorder, also lived, as well as two fighting dogs. Denis then visited the school and transferred his daughter to home schooling. The management, of course, was delighted with this opportunity to get rid of the girl and gave the father a negative description of the relationship between mother and child, in which the incident was exaggerated when the girl did not want to go home to her mother. The essence of the characterization was that the mother did not participate in the child’s life, which was the reason for the girl’s bad behavior and education. With this characteristic, the father went to the guardianship and trusteeship authorities on the same day, which were involved in the investigation of the case of the child’s refusal to go home. The father received a conclusion from the guardianship authorities, from which it followed that the mother was not caring for her daughter and was raising her poorly. Thus, within a couple of days, the father collected documents against the mother, actually removed the child from the family, and then filed a lawsuit against the mother to determine the child’s place of residence with him. No matter how much the mother fought, she could not take the child to her because they did not believe her, but believed the father’s documents that she was a bad mother.

In this situation, Olga began to look for a lawyer in family matters and, after visiting several specialists, came to me. At a consultation with a lawyer, she spoke in detail and very emotionally about her situation. At the initial stage of work on this case, it was important to determine the true motives of the father’s actions and his interests. Since his insidious behavior was significantly different from how he behaved before. Let me remind the reader that he had previously peacefully agreed with his mother on the payment of child support and they established a procedure for communicating with the child. Thus, it was not clear what caused Denis to radically change his position.

According to Olga, the psychologist I hired compiled a psychological portrait of her ex-husband. According to the psychologist, Denis was a friendly, open and gentle person. He treated his ex-wife and their common child well. Thus, it became obvious that in order to achieve a positive result in the case, it is necessary to negotiate with Denis and find out the reasons why he began to behave aggressively.

Before the negotiations, I assumed that Denis wanted to stop paying alimony to Olga for the maintenance of her daughter. To this end, he shifts the burden of maintaining and raising the child onto his parents in order to calmly build his personal life with a new woman. The negotiations confirmed my guess. It was possible to find out that Denis was under pressure from his common-law wife, who did not want him to spend money on the child and, moreover, she persuaded him that after the court decided that the child would live with him, he would file a lawsuit against the child’s mother and collected from her alimony for her daughter, on which they could live. Moreover, these events occurred during a period of time when Denis lost his job. It was at this moment that his common-law wife said that she would leave Denis if he did not ensure that they lived together. Wanting to help Denis, his mother and father agreed to raise and support his daughter so that he could build his personal life. The combination of all these factors led to Denis showing cowardice and doing what he did. The whole situation was worsened by the fact that the grandparents began to turn the child against the mother and allowed her to do whatever Tatyana wanted. They skillfully manipulated her childhood desires and the girl, without thinking twice, said that she wanted to live with her father. For my client the situation was stalemate. Olga was sophisticatedly deceived.

Olga did not want to give up the child. Olga’s husband supported her, and I managed to instill confidence in her that we could change the situation. The main thing for this is to persistently and consistently defend your position. Experience in providing legal services and working as a lawyer in family matters led me to understand that an individual approach to each case, building thoughtful tactics for conducting a case and strictly following it is the key to success. The tactics of working on Olga’s case were built on several basic principles:

any point of view imposed on a child can be changed to the true point of view.
a decision on a dispute over determining a child’s place of residence is made based on an analysis of a long period of communication between the child and the parent, and not as a result of an episodic situation.
a minor child must permanently reside only with the parent, and not with his relatives.

In preparation for our defense in court, we collected documents that confirmed that Olga carefully raised her child and did everything possible for her daughter. These were medical documents for several years, according to which the mother actively monitored the child’s health and followed all recommendations. We received the conclusion of psychologists to whom the mother took her daughter to cope with her hyperactivity. We collected characteristics, diplomas and certificates from sports sections and clubs that, at the insistence of the mother, the child successfully attended and won prizes. All the documents taken together refuted the father’s position that the mother was not involved in the child’s life.

We also did not forget about the documents proving the good financial situation of the mother in comparison with the father of the child. Olga and her husband owned a large three-room apartment, one of the rooms of which was equipped for the needs of the child and had everything necessary for the full development of her daughter. My father, on the contrary, had a one-room apartment, which did not belong to him by right of ownership. In fact, Denis, his common-law wife and daughter Tatyana were all supposed to live in the same room.

Also, at the request of a lawyer, the guardianship authorities and the police came to the child’s location and recorded that the child actually lived in conditions unsuitable for this, two hundred kilometers from his father and mother, with his grandfather and grandmother, who were kept company by two fighting dogs. When the mother showed the child to the doctor, it was found that during three months of living separately from her parents, she had gained 40% more weight than she should have for her age. The girl was diagnosed with obesity. It turned out that while living with his grandparents, the child stopped any activities in sections and clubs. For days on end, the girl watched TV and ate unlimited quantities of sweets. The child liked this lifestyle, but it absolutely did not correspond to the child’s interests. This was the father’s tactics to butter up the child during the trial.

At the court hearing, they heard a girl who stated that she wanted to live with her father. The father himself and the guardianship authorities, who had previously given him a negative opinion regarding living with his mother, insisted on this. Representatives of the school, who had previously given a negative characterization of the mother, especially zealously insisted that the child live with the father, since they did not want to see the girl at their school again. In this situation, Olga had a hard time, but she did not lose her composure, steadfastly withstood all the attacks against her and followed all my instructions. During the long trial, we managed to open the court's eyes to the situation. We proved that in this particular case, the father of the child fabricated a situation in which a one-time conflict between the mother and the child was used to achieve his own selfish goals. The court was ready to rule in our favor, but such a decision for the daughter would mean that the mother was forcibly taking her through the court from her kind father and grandparents.

Settlement agreement

In this situation, I proposed to conclude a settlement agreement, according to which the child would live with his father at the place of his actual residence. The hope was that the child would actually accept the position of the mother and return to live with her of his own free will. I saw a reasonable risk in this development of events and assumed that the child’s father would not be able to change his place of residence due to his poor financial situation. Besides, his job was close to home, which meant that there was no point in him moving to the city where his mother and father lived to live with them and the child. And there simply wasn’t enough space for them all in one apartment. It was also clear to me that Denis’s common-law wife would not accept his child and that after a while she would want to leave Denis. In such a situation, Denis had no choice but to follow his gentle character and try to return the child to his ex-wife Olga. With such a development of events, the child would inevitably become convinced of his father's true attitude towards her and would return to his mother. I understood that I was taking a serious risk and that as a result of failure, Olga would blame me for all my sins. However, based on my experience as a lawyer, I wanted to keep the client from a Pyrrhic victory and achieve a result that truly meets her interests. After all, Olga did not want to forcefully divide the child through the court; she wanted to build a normal relationship with him by mutual desire. It took me considerable effort to convince Olga of my point of view and explain to her that refusing a legal victory would actually allow her to return her daughter and establish a good relationship with her. After thinking for a while, she accepted my position with difficulty, and we entered into a settlement agreement with the child’s father.

Eight months later, after the court approved the settlement agreement, the child asked to see his mother, since the father was constantly trying to “float” the child to his grandparents, allegedly under the pretext of staying. Denis’s common-law wife did not want to live with his daughter, and for him, the new family turned out to be more important than the interests of the child. Unfortunately or fortunately, the girl was disappointed in her father. When considering our subsequent claim to determine the child’s place of residence with his mother, the girl’s father did not come to court and the decision was made in our favor.

The case ended successfully for my client, and after some time I learned that Denis’s new family had broken up. His common-law wife found a more profitable match for herself. Denis himself once again lost his job, started drinking, he was kicked out of the apartment where he lived, and he had no choice but to return to his parents in a one-room apartment in a small distant town, where he is currently hiding from bailiffs in connection with non-payment of alimony. Olga did not demand alimony from him and continued to live. Her relationship with her daughter improved. The girl decided where her family was, got involved in her studies at the new school and ceased to be a “difficult child.”

This case once again shows that family disputes built on lies, manipulation and attempts to make money at someone else’s expense, playing with the fate of the child, sooner or later end in failure for the one who has taken the path of deception.

Attention! This example does not reflect the entire practice of considering cases in this category. Each situation is unique and requires personal interaction between the lawyer and the client.

Circumstances taken into account by the court when establishing the place of residence of a minor child

In addition to the applicant and the defendant, representatives of the guardianship authorities are required to participate in the court, guarding the interests of minor citizens. Their tasks include examining the living conditions of both parents and making a conclusion about the ability of one and the other party to provide adequate maintenance for their son/daughter.

Determining the place of residence of a child after a divorce is a difficult matter and takes time to study. In addition to the availability of housing and its compliance with sanitary standards, the court takes into account the level of material income of the mother and father, characteristics from the place of work, conclusions of psychologists, guardianship applications, employees of the kindergarten or school that the children attend, the relationship of parents with their offspring, etc.

Execution of a court decision

Unfortunately, bailiffs do not always succeed in executing a court decision to determine a child’s place of residence. In accordance with letter No. 00011/16/37579-СВС of the Federal Bailiff Service of Russia dated April 28, 2016, enforcement actions cannot be carried out in violation of the interests of the child. Therefore, in a situation where children do not want to go to the parent with whom their place of residence is determined, a psychotraumatic situation is created and the transfer of the child becomes impossible.

The position of the ECHR in this situation is almost the same - the explanations state that sometimes a court decision to determine the place of residence of a child cannot be executed immediately and requires preparation. Parents are advised to establish contact with their child. But there is no guarantee that the second parent will not “wind up” him and demonize his ex-spouse. Therefore, the procedure for executing a court decision is problematic in many cases.

For failure to comply with a court decision, Art. 17.17 of the Code of Administrative Offenses of the Russian Federation provides for a fine, but its maximum amount is only 2,500 rubles. Sanctions are also provided in the form of restrictions on the right to travel outside the territory of the Russian Federation.

Formalization of agreement between mother and father

If spouses divorce in a civilized manner, without mutual accusations and scandals, they can sign a voluntary agreement determining the place of residence of their common children and the procedure for their further upbringing.

In addition to the material side, the contract specifies how the parent can visit the child’s place of residence after a divorce, with whom the child spends holidays and vacations, etc. Lawyers recommend taking into account all possible details so that conflicts do not arise between the parties in the future. Before certifying a document, the notary checks it for compliance with the norms of current legislation, after which he signs and seals it.

There is no exact template according to which the agreement is drawn up. The generally accepted document structure is as follows:

Date, month, year and place of conclusion of the contract.
Information about the date and place of birth of the child.
Passport details of parents with mandatory indication of registration.
Information about with whom the minor citizen will live.
Communication schedule with mother/father.
The procedure for a child to attend educational institutions.
How and with whom the son/daughter will spend his free time.
Amount of alimony payments.
Method of obtaining material content, etc.
Rights of mom and dad.
Duties of the parties.
Period of validity of the contract.
Settlement of disputes.
Parents' signatures.

When drafting a document, it is better to seek professional help. The easiest way to do this is on the website. As part of a free consultation, a specialist will explain the key points of concluding an agreement.

The collapse of family life is always very unpleasant. But for children who love their mother and father equally, such an event becomes a real tragedy. The task of adults is to help a child or teenager cope with their experiences and accept a new reality, and not start a war in court to take revenge on each other. You should not speak badly about your ex-spouse in front of your son or daughter, this will only aggravate the child’s suffering, because we are talking about his loved one.

Agreement on children and their place of residence

The legislator in Articles 23 and 24 of the RF IC gives parents the right to resolve the issue of the place of residence of minor children peacefully, without going to court, by concluding an agreement on children.

The document can be signed in 2 forms (to choose from):

Simple written form - the text can be prepared independently or with the participation of a specialist, but the document is signed only by the parents. It is given legal force by a court decision at the time of registration of the divorce.
Agreement on children, certified by a notary. The law does not establish a special form for an agreement on children, but such a clause can be included in an agreement on alimony. Such a document takes on legal force comparable to a court decision and the spouses have the right to demand forced execution of the terms of the specified agreement.

In the text of the agreement, you can indicate the place of residence of the minor and the accompanying conditions, for example, the time the second parent communicates with him, financial support, etc.

The law does not limit the parties to the marriage relationship from including additional clauses in the document. But it should be remembered that its main purpose is to take into account the interests of the child. If there is a gross violation of the rights of a minor or conditions that are obviously unfavorable for him, the agreement can be challenged in court.

If your spouse doesn't agree

If one of the spouses does not want to enter into an agreement on children or does not agree with which option is set out in the text, he has the right not to sign the document.

The second spouse also has no right to oblige him. In this case, the parties can negotiate and consider other options for interaction.

If consensus cannot be reached, the only option to resolve the problem will be to go to court to resolve the dispute about the children.

Divorce of spouses with children

A married couple raising minor children will be able to dissolve their marriage only in court. If property and child issues are settled, the divorce process takes place before a magistrate. If the divorce is complicated by disputes about the place of residence of the children, the claim is considered in the district court. The judge will determine which parent the minor will live with and who will have to pay child support.

There is an exception to this rule. The divorce of a married couple with minor children is registered at the registry office if one of the spouses:

deprived of parental rights;
declared dead or missing;
sentenced for the crime to imprisonment for a term of 3 years or more.

In these cases, the divorce procedure is simplified, and the minor remains with the parent who initiated the divorce process.

Read more about the divorce of spouses with children through the registry office in this article.

The role of children's age in divorce

A factor that requires the attention of the court during the divorce process is the age of the joint children. If the spouses have not entered into an agreement, the court considers the family dispute according to the following rules:

Divorce with a pregnant woman or with a child under 1 year of age is provided only with the consent of the spouse. The husband's claim, when the wife is against it, will not be accepted for proceedings;
the collection of alimony in favor of the child and ex-wife is established by the court if the mother is on leave to care for a child under 3 years of age;
the presence of an adult child makes it possible to dissolve the marriage in the registry office, provided that there is no property dispute.

In accordance with Art. 57 of the RF IC, children have the right to express their own attitude to the solution of any family issue that affects their interests. The opinion of a child over 10 years old must be taken into account. But the outcome of the case may not coincide with his desire due to an objective rather than subjective approach.

The process of calling a minor and questioning in the courtroom is carried out with the permission and under the control of a representative of the guardianship authority and the teacher.

Prohibition on divorce if there are minor children

The law prohibits divorce at the request of the husband during the wife's pregnancy or within one year after the birth of the child. This was done in order to protect the financial situation of a non-working wife and young child.

Please note : the prohibition on divorce in the above case also remains in a situation where the child was stillborn or died in the first year of life. In addition, the law does not allow a husband to divorce in a situation where he is not the father of the child or if the wife becomes pregnant during the divorce proceedings.

To confirm her position, the wife must submit to the court a certificate from a medical institution or other documents confirming the fact of pregnancy.

Divorce during the wife's pregnancy is possible only in two cases:

mutual consent of the spouses to divorce. In this option, the spouses can file for divorce at the registry office (in the absence of minor children) or write a statement of claim to the court and dissolve the marriage in court;
pregnant wife wants to divorce. If the spouse does not agree to divorce, then the divorce process will take place in court.

After the divorce, the husband’s obligation to help his former pregnant wife financially does not stop. For three years after divorce, a man must support his ex-pregnant wife or one who gave birth less than a year ago, and also pay child support. If the child’s parents were not married, the ex-spouse will only pay alimony.

The procedure and amount of payments are established by agreement between the spouses. If there is no such agreement, the amount of alimony collected from the ex-wife is determined by the court. When setting the amount of payment, the court takes into account the financial condition of the former spouses, their state of health, place of residence and other conditions.

At the court hearing, at the request of the former spouse, the issue of reducing alimony payments may be considered. For such a reduction, the ex-husband must provide the necessary evidence: loss of work, presence of minor children, serious illness.

Please note : if a child was born to a woman and a man who were not registered in marriage, then the law does not provide for a mandatory mark in the documents that the child was born from this particular man.

Equal rights of parents to children - truth or myth?

Article 54 of the Family Code of the Russian Federation states that every child has the right to live and be raised in a family.
But in the event of a divorce, he must remain living with one of the parents. If a settlement agreement is not concluded between the spouses regarding the “division” of children, then their dispute is resolved by the court, based on the interests of the minors and taking into account their opinions.

When making a decision, the following are taken into account:

child's age;
his affection for each of his parents and siblings, and his relationship with each of them;
moral and other personal qualities of parents;
the possibility of creating conditions for the child’s upbringing and development (occupation, work schedule of parents, their financial situation, etc.).

However, judicial practice in the Russian Federation has developed in such a way that in most cases the court sides with the mother, “by default” leaving the children with her.
The rights of fathers are practically ignored. Thus, statistics show that about 94-95% of divorces end in the children being awarded to the parent. This is due to the common belief that the mother has a stronger emotional connection with them, is more responsible and is psychologically better prepared to raise babies. However, not all fathers agree with this position, and can defend their position in court. And achieve a positive result if they are able to collect evidence - examination results, witness testimony, etc.

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:

He is in an official marital relationship with the defendant, but currently lives separately from his wife and son.
The basis for filing an application is a dispute between spouses regarding communication with a minor.
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:

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.
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.
Every Saturday from 10 am to 7 pm.
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.

The plaintiff’s other claims should be denied, since they violate the interests of his son and contradict the laws of Russia.

Right to communicate

Even if a child, by court order, remains with his father, this does not mean that the mother loses the right to communicate with him and participate in his upbringing. The father is obliged (except in cases of threat to the life and health of the baby) to provide his ex-wife with the opportunity for such meetings. To avoid scandals, parents have the right to enter into a written agreement on the procedure for exercising parental rights by a mother living separately from the child. If no agreement is reached on this issue, the procedure for communication will be determined by the court.