Separation of a parent from a child in a divorce. Divorce of parents: with whom will the child remain? Settlement agreement on the procedure for determining the place of residence of the child

What necessary actions should the court take if it is forced to decide with which of the parents the child will live after the divorce - with the mother or with the father.

This question, unfortunately, has not lost its relevance for a long time. And that goes for many broken families. And if you believe the statistics, then in our country almost every second marriage finds itself in such a situation.

It's no secret that not all dads and moms manage to maintain civilized relationships after a divorce. And the main subject of their judicial division is most often not property, but a child.

On the one hand, the law states that mom and dad have equal rights in relation to the child. But a little person will have to live with one of the parents. How to do this in the least painful way for children and most correctly according to the law - ours and the global one, - said the Supreme Court, revising the standard judicial "division" of a baby between parents.

So, in Vologda, the boy's father came to court with a lawsuit, arguing that after the divorce, the child should be left to live with him, and alimony should be collected from the mother. The woman, on the contrary, asked to determine the place of residence of the baby in her apartment in Moscow and to award alimony to the father of the child. According to her, the child is better with his mother. The representative of the guardianship authorities, represented by the administration of Vologda, fully supported the father's claim. The representative of the Service for the Rights of the Child of the government of the Vologda Oblast did the same. They participated in the process as third parties. Their general conclusion is that the father has better conditions for the life of the child than the mother.

The decision of the city court of Vologda - to leave the boy to his father. The regional court confirmed the correctness of such a verdict. The child's mother had to go to the Judicial Collegium for Civil Cases of the Supreme Court. There, the Vologda case was reviewed and they said that there was every reason to cancel the conclusions of local judges, since they had misinterpreted the law.

The local court, when resolving the dispute in favor of the father, referred to the Family Code (Articles 65, 66). And also, to the Resolution of the Plenum of the Supreme Court on such disputes (N10 of May 27, 1998) and the conclusion of the Department of Education of the Vologda Administration.

Here is what the Supreme Court objected to these arguments of the Vologda courts. First, he recalled that there is a Convention on the Rights of the Child. It states that in all actions concerning children, whether undertaken by public or private institutions, courts or other bodies, the best interests of the child must be a primary consideration.

According to our Russian Family Code, during a divorce, the parents themselves decide which of them the baby will live with. True, if the child is already ten years old, then without fail the court must ask the child about where he wants to live. But in our case we are talking about a little boy.

So, according to the law, if there is no agreement between the former spouses, then the court will decide where to live for the child. But in making such a decision, the court must take into account many things. The main thing is that he is obliged to make a decision based only on the interests of the child and taking into account his opinion.

The Supreme Court dwells in great detail on listing everything that the court will have to consider if it considers a "child" case. It is necessary to find out the attachment of the baby to each of the parents, brothers and sisters. The age of the child must also be taken into account. As well as the moral qualities of parents, the mode of their work, the ability to find time for the child, and so on.

According to the Family Code (Article 78), regardless of who filed a claim, it is imperative to involve the guardianship and guardianship body in the case, which is obliged to examine the child's living conditions and put an act on the court table. Moreover, if the parents live in different places, then it is necessary to involve the guardianship authorities, both from the side of the mother and from the side of the father. And this is an indispensable condition.

And here's another thing that the Supreme Court specifically emphasized - guardianship should participate in the case as a state body capable of giving a competent opinion on who the child is better with, and not as a third party. And in our case, guardianship was only a "third" party.

But there were other extremely important points that the local courts did not take into account. So, in violation of the law, the court did not begin to explain why the arguments of one side, in our case - the father, he accepted, and the mother - refused. But such an explanation of the court is mandatory. Yes, and the rights to protection under the Constitution of the parties should be the same. As a result, this is what happened.

In court, the conclusion of a neurologist was added to the case that the baby had astheno-neurotic syndrome, because his mother and older brother had a negative effect on him. The conclusion was brought by the father, and on the last day when the decision was made. In this case, the mother asked the court to appoint a professional examination of professional doctors. And the regional court refused to attach to the case the opinion of such a specialist in the field of psychology, which called into question the competence of a neurologist.

The Supreme Court said: the refusal to appoint an examination, which the mother asked for, infringed on her rights, put the parties in an unequal position and violated the law (Article 195 of the Code of Civil Procedure). The Supreme Court ordered a review of the case, taking into account his explanations. The conclusions made by the Supreme Court in this particular case are a kind of explanation for local judges how and on what grounds to resolve such disputes.

Unable to withstand the hardships of everyday family life, a third of all married couples break up. But it is one thing when there are no children in the family, and another thing when they are.

The law cannot allow the deterioration of the living conditions of babies.

Dear readers! Our articles talk about typical ways to resolve legal issues, but each case is unique.

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Who has children when the family breaks up according to the law?

The law does not clearly define Who should the child stay with after divorce?. Priority cannot be given to the mother, as parental rights are the same, but the court will definitely consider how the conditions for keeping the child will change as a result of the break in the relationship between father and mother.

The material component of well-being, housing conditions matter, as well as how much a small person will be injured if he is torn away from his mother, and maybe from his father, and other circumstances.

A child who has reached the age of 10 can declare his choice of who to stay with and why (Article 57 of the RF IC).

The judicial authorities are obliged to understand what prompts the child to make such a decision, and to assess the moral character of each of the representatives of the couple.

May be, the parent the teenager wants to stay with is just not strict enough and gives a greater degree of freedom, engaging in connivance and yielding to the pressure of a teenager, which attracts a teenager.

Most often, it happens that a more financially well-off parent is too busy with official affairs and limited in the ability to spend a lot of time with the child, as a result of which the baby is left to himself.

Only by weighing the totality of circumstances and characteristics, the court will make a final decision.

Child agreement between father and mother

An ideal case when mom and dad, getting divorced, will be able to reach a consensus and sensibly judge which of them will be better for a boy or a girl and make an agreement.

The agreement, written in free form and containing the signatures of mom and dad, must be all points regarding children are stipulated:

What kind of housing will they live in?
with which parent
maintenance payments, how and in what amount.

Also the order of communication of the parent who will live in another place must be indicated, with his offspring: what days, hours, how to spend time, etc.

Such a presented paper speaks volumes: the parents who managed to draw up an agreement peacefully declare themselves as well-mannered, reasonable, highly moral personalities. If there is an unresolvable conflict, the court itself will decide.

If there is a danger that one of the couple may behave dishonestly and violate the obligations stipulated in the agreement, then this document should be drawn up in 3 copies and notarized.

In this case 1 copy is left to the notary and is a guarantee that none of the signatories of the paper will dare to reverse, and if they violate it, they will be brought to justice.

And what about the baby after a divorce?

If there is a small child under one year old, if his mother is against a divorce, the father will not be given a divorce until the baby is 1 year old.

If the mother agrees to let her husband go, then the baby will remain with her if she performs her maternal duties, takes care of the baby, he is clean, well-groomed, fed and systematically examined by the local pediatrician.

An adequate woman can be calm - no one has the right to take away her child for no reason, for this you need to deprive her of maternal rights.

When does the child go to the father?

After a divorce, he can stay with his father if:

the mother herself will decide that the son or daughter will be better off with dad and draw up an agreement to this effect;
the father really wants and can better provide for and raise the child, about which a document from the guardianship authorities will be provided;
mother leads an immoral life, drinks, uses drugs, does not want to work;
the mother was declared legally incompetent by the court;
the woman is unbalanced, torturing the baby;
on business affairs mother is constantly on the move;
due to a gloomy, unkind disposition, the woman was unable to instill feelings of affection in the child, while the father could, and so on.

If the court is convinced that it would really be better for the child to live permanently with his father, then he can make such a decision. Statistics show that no more than 7% of children remain with their father.

Rights to communicate with the baby of the second parent

After mom and dad ceased to be a family, they did not cease to be native people for a little man who was given life and before whom have the responsibility to educate him, chat with him.

Despite the reasons why the parents broke up, they should not interfere with communication with relatives and friends: dad, mom, grandma, grandpa, sisters. The Family Code regulates the right to communicate with relatives.

A parent living separately has the right to communicate with minor children, participate in their upbringing and address issues of education (Article 66 of the Family Code of the Russian Federation).

In the agreement that is provided for the divorce proceedings, the time of communication and the schedule by day should be indicated, as dad and mom could agree.

In the absence of a common opinion, the court will oblige the one of the former couple who lives with the boy not to put obstacles in communication and will determine the schedule of dates. Refusal to communicate the baby with dad or mom is punishable.

Who pays child support and to whom?

With whomever the child remains to live after the family has broken up, the cub should not suffer from a lack of funds, therefore in a divorce, the court immediately determines who pays whom and to whom.

The person who lives separately pays the parent who permanently lives with the child and must have funds for food, clothes, shoes, toys, entertainment, etc.

Since the duties of both mothers are equal, then participation in material support should be parity.

Article 81 of the Family Code of the Russian Federation states about the amount of maintenance payments: for one offspring - one quarter, for two children - one third, for three or more children - half of the earnings and (or) other income of the parents.

Divorce is always painful the whole process and changes in life have a particularly negative effect on children. Having lost the normal in the generally accepted concept of the family, the child can complex.

In order to injure the child's psyche as little as possible, mom and dad are simply obliged to take all measures to stabilize their relationship. The separation of mom and dad should not lead to a deterioration in the living conditions of their children.

For every married couple, divorce is not the best moment in life, especially when there are minor children. Sometimes, during the divorce process, former spouses do not pay attention to the feelings and desires of the baby. For parents at these moments, only the collection of documents that will be needed during a divorce is important. With whom the child remains, they are not particularly worried, hoping that everything will work out and be resolved peacefully.

In most cases, if the spouses have a good, well-coordinated relationship, and they do not want to spoil it, the question of the baby living with a certain parent does not occur. Usually divorce is difficult, but many couples manage to maintain a good understanding and periodically "share" their child.

In fact, not everyone is so simple. The question of who the children stay with when their parents divorce sometimes requires a court decision. This happens if a married couple has two or more kids. In the case of one child, such an issue can be resolved peacefully and calmly.

How to talk about divorce

At the time, each of the spouses suffers in their own way: someone does not need it at all, and someone simply does not want to mess with papers and documents. Despite the feelings of the couple, the dissolution of the marriage affects the children more, because they do not want and do not want to see one of the parents a couple of times a week.

It usually happens that the spouses are not able to divide the child among themselves, so they force him to choose. According to statistics, during a divorce, children stay with their mother, this happens quite often, moreover, many fathers take this for granted and do not worry about raising their baby, shifting all caregiving responsibilities to their ex-wife.

Child stays with dad: probability

Sometimes the court decides to leave the baby with dad. Such cases are quite rare, only 5-7% in disputes. Lawyers identified 2 reasons why the court takes the mother side:

Usually, children stay with their father after a divorce only if the father is well-to-do and insists on sole upbringing. In such cases, a nanny and hired staff take care of the child, and the father earns money.

Sharing children by mutual consent

Of course, it is better for parents to forget all grievances, worries, fears and start joint, fair negotiations, which will resolve the issue of the future fate of the joint child. If everything goes smoothly, the spouses can protect the baby from scandals and tantrums, which at a young age will not lead to anything good. The drafted agreement will help to decide with whom the child remains during a divorce, as well as speed up the divorce process and concentrate on the problems that have arisen.

According to existing legislation, the contract should clearly state:

the address where the child will live after the divorce;
responsibilities for the care and upbringing of each of the parents;
distribution of money for the maintenance of the baby;
the number of meetings of the other spouse with the baby.

An agreement between parents is impossible - how to be

If the couple cannot agree on who to stay with, they will have to resort to a court decision. According to the rules, it is necessary to file a statement of claim in the district court, coming from one of the parents. The application can be filed simultaneously with the divorce case or separately from it.

What you need to include in the claim when writing:

the name of the judicial organization;
Full name, address of both the plaintiff and the defendant;
Name of children, date of their birth;
the essence and grounds on which the application is submitted;
list of documents attached to the claim, signature, date.

In order for the child to remain with the mother or father after the divorce, the application must indicate the reasons why the court should give preference to you. Such reasons may include the financial insolvency of one of the parents, inappropriate treatment of the child during cohabitation, alcohol or drug addiction.

When children are given the right to vote

Sometimes at a court hearing, the baby is given the opportunity to choose the one with whom he wants to stay, but only if he is already 10 years old. The question of who the child remains with after the divorce of the parents requires a responsible approach, so sometimes the court reserves the right to decide even if this is contrary to the wishes of the children.

Such decisions are not easy to make at a meeting, because a kid can say one thing, but in order to protect minors and provide good conditions for upbringing and living, you need to say something completely different.

What are the considerations in a divorce? Who the child stays with depends on how each parent is ready to give everything and a little more so that his child stays with him. If both are determined, have good enough conditions for education, love their baby and want to be with him, the decision will not be easy.

During the hearing, the court primarily protects citizens, that is, children. In other words, the judge must understand with whom the child remains after the divorce and where the baby himself will be better: with mom or dad.

Child's age

It is this factor that is the first in a divorce. Who a small child stays with depends on the divorce suit. If it comes from a woman who has a child who is breastfed or who is under 5 years old, it is quite understandable that the court will leave the baby with her mother. If the baby is older and the claim came from the father, the decision can be made in favor of the man. If the child is barely 10 years old, and he wants to stay with his mother, who does not work anywhere, abuses alcohol, then the court will not listen to such an opinion and will take the opposite side. If the child is already an adult - 15-17 years old, the court fully takes into account his opinion, since teenagers at that age can adequately assess the situation and determine a place where it will really be easier for them to live.

Children's affection

Quite often you can meet a situation where a child is strongly attached to one of the parents, regardless of his attitude, way of life, moral principles and principles. This state of affairs may be due to the fact that for a long time the baby lived with his mother or father, so he feels the need for this person. Sometimes in such cases, the help of experts and psychologists is not superfluous, who help children understand that they will be much better with a certain family member.

Morality

An important factor in divorce. With whom the child remains depends on how the person who filed a lawsuit and claims to be raised corresponds to social principles and principles. Children learn from the example of their parents, so the court must take into account what the plaintiff and the defendant can give him, how correct the lifestyle is, what the child will learn from mom or dad, whether they will have a negative impact on him. For example, if one of the spouses had a criminal record, abused alcohol or drugs in the past or has such habits now, leads or led an immoral lifestyle with constant drinking and partying, is not at work, then the child should obviously not be given to such a person, since nothing he won't learn well.

Comfort

Parents also depend on the comfort of the proposed housing, the creation of favorable living conditions, the salary of each of the spouses. The factors on which the decision is made include financial support, the availability of an apartment, marital status and health. If one of the parents has a good salary, but does not have enough time to play sports with the child, participate in his upbringing, then a decision in his favor cannot be made. Also, if one of the spouses has a new husband or wife, the decision can be made in their favor, since the material support is sufficient, plus there is always someone at home who will take lessons with the child and take him to classes.

Decision is made

Once the decision has been made, it is very important not to miss your chance, that is, when appointing you as a legal guardian, you need to be attentive to the child, as well as to meet regularly with the other parent. The last point requires mandatory execution, otherwise the spouse will receive another claim that he also has the right to a meeting, and the previous decision will be reviewed.

Couples who decide to dissolve the marriage share not only jointly acquired property, but also their own children. With whom does the child stay after the divorce?

According to the law (Article 61 of the RF IC), both mother and father have equal rights and obligations, that is, neither of them has an advantage over the other.

To determine the further place of residence of a minor, the court comprehensively examines the circumstances of the case and takes into account many individual factors.

Who should determine with whom the child will remain?

There are two ways to find out with whom the children remain when their parents divorce. Let's consider each of them.

The settlement agreement is considered the fastest and painless way to solve the problem for both children and parents.

Having drawn up a written document, the husband and wife can agree on almost all issues related to the future fate of the child:

In order for the settlement agreement to have legal force, it must be certified by a notary.

Together with him, you need to submit a whole package of documents - a birth certificate of a child, documents on ownership of property and a marriage / divorce certificate.

If everything is drawn up correctly, the parties sign the contract, and the authorized person certifies the validity of the transaction. Further, the peace agreement is submitted to the court.

If the parties fail to reach an agreement on their own, the court intervenes.

In this case, the spouses will have a lengthy trial, during which the rights and freedoms of the child will be represented by the guardianship authorities.

When making decisions, the court is guided by the interests of the child and takes into account several important criteria (concerning each of the parents):

wishes of both spouses. The unwillingness of one parent to engage in raising a child is an ideal reason for deciding in favor of the other parent;
living conditions;
financial situation;
health status;
moral character. The court determines the mental state of health of the mother and father, finds out whether they abuse alcohol or drugs, whether they are addicted to gambling, whether they have bad habits, etc.;
Lifestyle;
social environment. It takes into account how the child's communication with relatives and friends will be organized;
characteristics from the place of work / study;
region of residence. If the spouses intend to live in different cities or countries, the court considers the climatic, economic and cultural conditions of the region chosen for the residence of the minor;
the presence / absence of a criminal record, fines and debts;
the degree of mutual affection;
the relationship of the child with relatives on both sides;
relationships with brothers and / or sisters (if there is close contact, children should not be separated).

If the position of the parents is approximately at the same level, then in 95% of cases, children after a divorce remain to live with their mother.

In the process of court hearings, each of the spouses will try to prove that it is he who is able to organize the best conditions for the life and development of a minor.

The more convincing the arguments, the greater the chance of success.

Conclusions about the expediency of the child living in one place or another are made by the board of trustees, whose employees draw up an act on checking the living conditions of each of the parents.

The conclusion of the body of guardianship and guardianship is the main document on the basis of which the judge makes his final decision.

A small child under 3 years old almost always stays with his mother.

This conviction is based on the Declaration of the Rights of the Child, according to which children under 10 cannot be separated from their mother without extraordinary reasons.

The only exceptions are those cases when a woman neglects her maternal duties and does not take care of the baby (he is dirty, hungry, does not undergo regular examinations at the local pediatrician, etc.).

In such situations, the child after the divorce will remain to live with the father.

On a note! If there is an infant in the family, and the mother opposes the dissolution of the marriage, the situation will not change until the child is 1 year old.

When does a child stay with the father during a divorce? There may be several such cases:

On a note! As statistics show, the decision in favor of the father is made only in 9% of cases.

In modern legal practice, there is no such thing as "the division of children between two parents."

If there are two or more children, then questions about their place of residence are considered individually.

If the court comes to the conclusion that the division of children between father and mother does not contradict their interests, it has the right to carry it out.

At the same time, not only the moral qualities and material capabilities of both parents are necessarily taken into account, but also their desire to engage in the maintenance and upbringing of a particular child.

With whom does the child stay during a divorce if the mother does not work or is on maternity leave?

Complex material or property aspects do not always play a fundamental role in making these decisions.

So, if the wife earns less than her husband, but pays more attention to the child and performs maternal duties, the court will rule in her favor.

When considering such issues, it must be remembered that after the divorce, the father will continue to fulfill his parental responsibilities and pay monthly alimony for the maintenance of the child.

The amount of payments depends on the amount of wages or the living wage in force in 2019.

After a divorce, if the mother dies, with whom does the child remain? Here a huge role belongs to the employees of guardianship and guardianship..

If they decide that it would be better for the minor to stay with the father than with a potential guardian or adopter, then the judge may give the child to the former spouse.

This takes into account other important factors - for example, did the father avoid paying alimony, did he communicate with the child, what kind of relationship did they have, etc.

According to Article 57 of the RF IC, a child who has reached the age of 10 has the right to express his opinion on those issues that affect his immediate interests, as well as to speak in any administrative and judicial proceedings.

This means that a minor can declare his desire to stay after a divorce with one of his parents, but his opinion should not become fundamental for the court.

To increase their own chances of success, the parent must collect a whole package of documents and present them to the judge:

If one of the parties is able to provide a medical opinion that living with a representative of the other party poses a threat to the health of a minor, the court will definitely take this into account. For example, you can take your child to see a psychologist.

If one of the parents uses unacceptable parenting measures, the expert will indicate this in a special certificate, which will become the basis for making a final decision.

After the dissolution of the marriage, the parent living separately retains the opportunity to see and communicate with the child at the set time, take care of his health and development, control the process of education and upbringing and protect legitimate interests in various bodies.

As you can see, Russian law provides both spouses with exactly the same chances of success. The main thing is that the child stays with someone who really deserves it.

Video: Divorce with a child. Who will the children stay with?

The most painful question that arises in the process of dissolution of marriage is with whom the baby remains during the divorce. Parental love does not disappear under any circumstances, and therefore, family law establishes a legal obligation for parents (in equal shares) to help in the maintenance and upbringing of their minor children.

Someone adheres to these obligations, and for someone a divorce means a complete break in any relationship and a complete cessation of previously established contacts. Based on this, a court decision is required, which will determine the full list of measures required for implementation by parents in front of children.

Who decides the fate of the baby when the parents divorce

An unequivocal and final decision must be made by the court, taking into account the views of the parties and supervisory authorities. That is why, when writing an application for divorce, it is necessary to add a requirement with the question of who gets the child during the divorce. Also, the court may initiate a solution to this issue on its own if during the proceedings a dispute about children and the absence of additional agreements (in particular, alimony) are established.

Directly minors are not involved in legal proceedings only until they reach the age of 10 years. Older children are not summoned as a specific party, namely, as a minor, to give an explanation on the merits of the case and offer him to tell which parent he would like to live with, and who only to see. In this case, the minor is left alone with the judge, the secretary of the court session and the educator (teacher for school-age children). Sometimes the help of a psychologist is required, but this is in cases of special medical indications or a more difficult situation in the family.

The participation of the guardianship department and the prosecutor is not required by law. But in the event of a dispute between spouses, poor or unsatisfactory social status of family members, these bodies can be involved as third parties. For a trial without critical moments, only the conclusion of the guardianship and guardianship authority about the person applying for cohabitation with the child is sufficient.

Determining the place of residence

To understand with whom the child will remain when the parents divorce, you need to wait for the court to decide. As a rule, such civil-family cases are won by the mother who lives with the child and is engaged in his upbringing. The same point of view is shared by psychologists who talk about the inseparable connection between women and their children.

But it is not always possible to talk about prosperous families. In some cases, the children go to the father. Here it is worth mentioning those persons who use alcohol and other drugs. In this case, drunkenness is the reason to divorce and take the child to sole upbringing.

The baby after the divorce in all cases remains with the mother. It is generally accepted that this age in a child lasts up to two years. Two areas are connected here: psychology and physiology.

psychology - infants subtly feel their mother, even without knowing her face. Up to two years old, young children urgently need help related to nervous disorders during the formation of all systems and organs;
physiology - the courts make a decision based on the conclusion of the guardianship authorities, which have a practice according to which it is forbidden to determine the place of residence of the baby separately from the mother until the children are taught self-care skills: toilet, food, simple dressing.

Determining the order of communication

From the moment the court decides to leave the children to live with a certain parent at the place of residence or stay, to whom the judicial act will be recorded, the question of determining the procedure for communicating with a minor begins to be decided.

Such a requirement is initiated by a second parent, different from the one with whom the baby remains, who wants to communicate and spend some time with the children. This requires either an agreement between the parents, or a judicial act.

If parents who are divorcing can amicably resolve the issue of the order of meetings with a minor, they can conclude a certain agreement in the notary's office of their city. In this case, it will only be necessary to determine the time and write it down in the terms of the contract.

If the boy or girl is still too young, the meetings must take place in the presence of the mother with whom he is left by the court. You can also define a territory for joint communication. But usually mothers establish their places or their own place of residence.

Therefore, in the event of a dispute between the parties, the plaintiff must file an application for determining the procedure for joint parenting. At the court session, both parties will be able to express their suggestions or dissatisfaction with the schedule or place of meetings and communication.

Don't Forget Alimony

It does not matter who got the opportunity to live together with young children and how often the second parent sees him. The obligation of financial maintenance (alimony) is inherent in both parents, therefore, they both must contribute a certain amount for their minor dependents. Therefore, it is necessary to resolve the issue of alimony in a divorce dispute as well. A person who is registered as a father or mother and does not live with him will monthly contribute part of his income to the financial support of a person under 18 years of age.

In conclusion, it is worth saying that babies, by court order, remain with their mother, even if the mother is not well off and does not work. The court will oblige the defendant to provide not only minors, but also the former spouse until the youngest of the children reaches the age of three. Therefore, many men do not insist on resolving this issue, but completely delve into the coordination of the order of communication.