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.
Important aspects in the case
In addition to the child’s opinion, these disputes take into account the financial situation of the spouses, their occupation, living conditions, the parents’ ability to create good conditions for the child’s personality development, and the availability of free time to communicate with the child and meet his needs. The court also takes into account the behavior of the parent and determines whether he intends to provide the other parent with the opportunity to communicate with the child and participate in his upbringing. In other words, based on the interests of the child, the court establishes a set of circumstances by which it will be determined whether living with which parent will best promote the interests of the child.
Despite the apparent simplicity of the criteria by which the court makes a decision. In fact, disputes about determining the place of residence of minor children are among the most difficult. Because the decision depends to the greatest extent on the subjective opinion of the judge. Moreover, in these disputes, the better financial situation of one of the spouses is not the main factor.
What is a children's agreement in divorce?
Expert opinion
Stanislav Evseev
Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.
A settlement agreement for children concluded upon divorce is a written document concluded between spouses - parents of common children on the issue of further residence, upbringing and financial upbringing of minors.
The right to conclude this agreement is specified in Art. 24 of the RF IC, which states that spouses have the right, when filing a divorce in court, to present to the court an agreement concluded between themselves on the future fate of the children.
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.
