Who gets the children in a divorce? Rights and responsibilities of the parent with whom the child remains. How to make the right decision

If you have common minor children, you can only get a divorce through the court. At the same time, if you do not have a dispute about your future residence, then the trial will proceed quickly and without any particular difficulties. Spouses only need to draw up a written agreement that will indicate which parent the children will live with after the divorce. If you confirm the agreements reached in court, the judge will simply repeat them in the decision and, thus, they will enter into legal force. If there is a dispute between parents about the future residence of their children, then we need to prepare for a long and possibly complex process.

In the absence of an agreement on the residence of a minor child or children after a divorce, the court will begin to find out which parent the children will live with, as well as from which parent and in what amount alimony should be collected. In this case, the court will be guided by the provisions of the Constitution of the Russian Federation, the Family Code, as well as other regulations, for example, Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 27, 1998 No. 10 “On the application of legislation by courts in resolving disputes related to the upbringing of children.”

According to popular belief, children almost always remain with their mother, and there is practically no point in fighting for the child for the father. In reality this is, of course, not the case. If the father really wants to “sue the child from his wife,” then his chances of doing so are quite high. For example, according to the population census, in Russia in 2010 there were about ten million single mothers with children, and almost one and a half million fathers. That is, according to statistics, almost 15% are single fathers. If you look at the review judicial practice made Supreme Court in 2011, we will see that in a number of regions of Russia children are beginning to be left with their fathers much more often than before. For example, such a trend is observed in the Vologda and Yaroslavl regions, Komi, Perm region. In addition, according to Russian and international legislation, both mother and father have the right to raise children.

For example, in accordance with Articles 61 and 63 of the Family Code, parents have equal rights and responsibilities towards their children; they have the right and obligation to raise their children, take care of their health, physical, mental, spiritual and moral development their children. And the Convention on the Rights of the Child, which entered into force for Russia on September 15, 1990, states that in all actions regarding children, priority is given to the best interests of the child. From the moment of birth, a child has the right to know his parents and the right to their care. States shall ensure that a child is not separated from his or her parents against their wishes, except in cases where the parents are abusive or neglectful of the child or where the parents are separated and a decision must be made regarding the child's placement. Accordingly, the mother and father have an equal right after a divorce to have a child (or several children) remain with one of them after the divorce. However, there is a nuance here that cannot be ignored. The age of a child when determining his place of residence after a divorce is very important. The baby will almost certainly be left with the mother, understandably physiological reasons- only a mother can fully raise and feed him, especially if she practices breast-feeding. This principle, in particular, set out in the Declaration of the Rights of the Child of November 20, 1959. It says that a child is for complete and harmonious development individuals need love and understanding; A young child must not, except in exceptional circumstances, be separated from his mother. A minor child, according to Article 28 Civil Code, is a minor under 14 years of age.

At the same time, in accordance with Article 57 of the Family Code of the Russian Federation, a child has the right to express his opinion when deciding in the family any issue affecting his interests, as well as to be heard during any court proceedings. Taking into account the opinion of a child who has reached the age of ten is mandatory, except in cases where this is contrary to his interests. Consequently, from this we can conclude that a young child whose opinion is not taken into account is a child under ten years of age. He will most likely be left after his divorce from his mother, and what younger child, the higher the chances of this happening.

However, the age of the child is an important, but not the determining criterion in determining his place of residence after the parents’ divorce. The interests of the child are primary, which means that if he is safer, more convenient, more comfortable, more pleasant with his father than with his mother, then the court will leave him with his father. The difficulty here is that, unlike the age (indicated on the birth certificate), the concept of “the interests of the child” is quite vague, and these interests will be determined on an individual basis, through the study of many circumstances of the case in court.

What does the court pay attention to when dividing children after divorce?

In accordance with Resolution of the Plenum of the Armed Forces of the Russian Federation of May 27, 1998 No. 10, when deciding the issue of a child’s residence, the court must keep in mind that the place of residence is determined based on the interests, as well as with mandatory consideration of the opinion of the child who has reached the age of ten years.

In doing so, the court must take into account:

Age of the child or children.
The child's relationship to each of his parents, brothers, sisters and other relatives, as well as the degree of his attachment to them.
Moral and other personal qualities of parents.
Parent-child relationship.
Each parent has the opportunity to create conditions for the child’s upbringing and development (learning, playing, communicating with children, playing sports, etc.).
Other circumstances characterizing the situation that exists at the place of residence of each of the parents.

In this case, the court pays attention to the type of activity and work schedule of the parents, their financial and marital status.

However, the advantage in the material and living situation of one of the parents in itself is not an unconditional basis for transferring the child to him. That is, the rich father does not have a clear advantage over the poor mother on this basis alone. Moreover, he will be obliged to pay alimony, which means that the mother will receive funds to support the children.

At the same time, the financial situation cannot be discounted. If the father owns good flat, and he can pay for a quality education for his child, take him on vacation and provide him with good clothes and toys, and for an unemployed mother, alimony will only be enough to rent housing and food, in which case the father will receive an advantage.

What should a parent do if he wants to keep the child?

If you and your spouse have a dispute about who your child or children will stay with after divorce, you need to gather evidence that the child will objectively be better off with you than with the other parent.

Go to the guardianship and trusteeship authority and order a report on the living conditions in your apartment. The conclusion must officially confirm that your conditions are suitable for living a child or several children.

Get a 2-NDFL certificate at work about your wages. If you are an entrepreneur, bank statements, income statements and other similar financial documentation may be suitable for you.

Obtain a certificate of no criminal record, no traffic police fines, etc. This will confirm your trustworthiness.

If you took out large loans and repaid them on time, order a bank statement confirming your financial responsibility.

If you are involved in charity, it also makes sense to somehow confirm this - this fact can certify your high moral qualities. It will also help good recommendation from work, church (if you are a religious person), from some public organization.

Obtain a medical certificate about your health and the absence of diseases dangerous to your life and the lives of other people.

Enlist the support of relatives. They must confirm that they can help you raise your child or children.

Enlist the support of a child who is over 10 years old (the opinions of children under this age will not be taken into account, however, they may be interested in them). He must testify that he wants to live with you.

In addition, if possible, it is worthwhile to justify the unreliability of the other parent. Of course, in ideal world no one would do this, but in the case of a dispute about children, the stakes are too high. Therefore, if you have information about the unworthiness of the other parent, it must be provided to the court. Moreover, if the parent’s unreliable behavior can harm the child.

Such information may be:

Information about the parent’s illness (drug addiction, alcoholism, gambling addiction, mental problems, etc.).
Information about the parent’s lifestyle that interferes with the full upbringing of the child (long working hours, no days off, hobbies) extreme species spore, dangerous life of parent and child, etc.).
Information about the irresponsibility and lawlessness of the parent - the presence of outstanding debts, administrative fines, etc.
Information about the lack of social adaptation - permanent unemployment or frequent change work, frequent conflicts with people, lack of permanent social connections.
Information about the high suggestibility of the parent to their own detriment - frequent loss of money due to the actions of scammers and dishonest people, frequent and senseless spending of money, joining religious sects and dubious organizations.
Other information confirming infantilism, aggressiveness, irresponsibility, unreliability and other negative qualities that interfere with the full upbringing of children.

The more “pluses” you have and the “minuses” the other parent has, the more chances you have to win. It should be taken into account that when making decisions, judges are guided not only by the law and the circumstances of the case, but also personal experience, as well as your individual preferences. The judge's attitude is also important.

Article 38 of the Constitution of the Russian Federation and Article 63 of the Family Code of the Russian Federation establish the obligation of parents to take care of their children and raise them. Parents are responsible for the upbringing and development of their children. They are obliged to take care of the health, physical, mental, spiritual and moral development of their children. The legislation also presupposes the equality of rights of both parents in exercising their rights to raise children.

However, practice shows that this equality is not always observed. For example, in the event of a divorce, in 95% of cases, by court decision, the child remains with the mother. Lawyers explain this phenomenon by the fact that the majority of judges are women, and, putting themselves in the place of the disputing parties, they take the side of the mother. And what to hide, often fathers themselves do not seek to keep their children after the divorce.

If we analyze the current family legislation, we can see that in a situation where parents cannot peacefully agree on who the child will stay with and how he will communicate with the other parent, the Family Code is on the side of the child. What does it mean? This means that the court, when resolving the issue of the child’s place of residence, must proceed from the interests of the child.

How does this happen? Upon divorce, if the parties have not resolved the issue of with whom the children remain after the divorce, the court is obliged to resolve this issue. In practice, at the time of divorce, this question is not always raised by the parents. Spouses in judicial procedure get divorced (if there are minor children in the family, the divorce must take place in court), and then disputes begin between the parents about the order of communication and the place of residence of the children. By the way, these are two different trials.

Determining the order of communication

A claim to determine the order of communication with a child is filed by a parent who lives separately from the child. This state of affairs is possible when the parents independently determine that the child lives with one of them. Or there is a court decision that determines the child’s place of residence with one of the parents. In the event that the parents themselves cannot agree and determine the order of communication between the child and the parent living separately, the solution is the court.

In claims to determine the order of communication with the child, the appealing parent assumes that the child lives with the other party and asks to establish the order of his communication with the child. When applying to court, the plaintiff (applicant) indicates how he sees the procedure for communicating with the minor. His task is to convince the court that the order he proposes will not harm the child himself, and the implementation of such an order will be real and not contrary to the interests and life schedule of the minor. In the claim, you can ask to determine the days and hours of communication, the procedure for communicating with the child during his vacation and on holidays.

In the processes to determine the order of communication, representatives of the guardianship and trusteeship authorities are required to be present and give their opinion on the case. The guardianship authorities visit the places of residence of both parents, draw up reports of inspection of living conditions and invite both parents to conversations.

Often in such processes, the second party files a counterclaim in which it asks to reduce the amount of communication time and offers its own version of the schedule.

If at the court hearing it turns out that the plaintiff does not have emotional contact with the minor, the court involves a psychologist in the case to draw up a conclusion. In this case, the psychologist works with the child and finds out the importance of communication with both parents.

Having studied the case materials, the parents’ explanations and the conclusions of the guardianship authorities, the court makes a decision. Often, the proceedings in this category of cases take several months. Litigation may not always result in a court decision. During the hearing of the case, the court invites the parents to come to an agreement. The parties may conclude settlement agreement, if it does not contradict the law and the interests of the child, the court approves this agreement, and it has the force of a court decision. This means that if one of the parties refuses to voluntarily execute it, the second party has the right to apply with this document to the bailiff service for its forced execution.

Unfortunately, in practice, enforcement of decisions in this category of cases is very difficult and emotionally difficult for all participants in the events.

Many years of experience of lawyers in such cases suggests that court proceedings on the issue of determining the order of communication with children are unproductive. If parents use the issue of communication with their child solely as a mechanism to sort things out, this does not lead to anything good. This is the category of cases that does not lie in the legal plane. When seeking advice from a lawyer, the first thing you will hear is “don’t waste your time, nerves and money, go and negotiate amicably.”

But I have to admit that sometimes the court, involvement in family situation strangers are the only way“sober up” one of the parents and think about the interests of the child himself.

If the order of communication is determined by a court decision, the decision is executed by both parties, but the life circumstances of the child or his parents have changed, you need to understand that this allows either of the parents to file a new claim with the court in order to change the established order.

Determining the child’s place of residence

A claim to determine the place of residence of a child, as noted above, can be filed both upon divorce and later. This requirement is made when one of the parents asks to leave the child to live with him permanently.

The composition of persons involved in the case is similar - parents, guardianship authorities, and, if necessary, experts. This category of cases is more complex than the one described above, since here the fate of the child is actually decided. The court must make a decision after evaluating all the arguments of the parties.

In proceedings to determine the child’s place of residence important role The living conditions of the parents, their lifestyle, and the preservation of the child’s previous standard of living also play a role.

If the child is already 10 years old, the court is obliged to summon the child and take into account his wishes.

Variant of "influential father" and "child theft"

Recently, cases of children being left with their fathers have become more frequent. Everyone has heard the scandalous stories of Kristina Arbakaite, Olga Slutsker, Yana Rudkovskaya.

What to do if the child’s father is very influential and wealthy man? What to expect, and why are court decisions possible when an objectively worthy mother is deprived of her children? What to prepare for?

We will not consider corruption components. Let's assume that the court is objective. So, if the trials to determine the order of communication with children are not so “bloodthirsty,” then in the trials to determine the place of residence of children, the parties try to prove the inconsistency of the second party with all possible ways. This includes attracting witnesses who begin to talk in court about the indecent behavior of the other parent (in everyday life, in communication with children), and playing a trump card - the child reaches the age of 10 years, when he can be adjusted in the necessary way and get his explanation in court about that with whom he wants to live.

Usually, the second parent simply “steals” the child before his tenth birthday, and by the time the mother reaches the court, the child is already configured in a certain way, his life is arranged and his testimony in court is predetermined.

What to do if the other parent “stole” the child? Unfortunately, nothing can really be done, since according to Art. 61 of the RF IC, parents have equal rights and bear equal responsibilities to their minor children. The presence of a child with either parent cannot be legally regarded as abduction.

Another question is if one of the parents refuses to comply with the court decision and give up the child, or in any way interferes with communication with the other parent. According to Art. 79 of the RF IC if a parent (another person in whose care the child is) prevents the execution court decision, the measures provided for by civil procedural legislation are applied to him.

If it is impossible to execute a court decision to transfer a child without prejudice to his interests, the child may, by a court ruling, be temporarily placed in an organization for orphans and children without parental care.

Let’s say the child’s place of residence is determined upon divorce from one of the parents. And later - a standard situation - the other parent does his best to prevent meetings with the child. What to do? The legislation of the Russian Federation provides two ways to solve this problem:

You can contact the guardianship and trusteeship authorities (on the reception day) geographically at the actual place of residence of the child with the other parent, where you can write a corresponding statement, the form of which will be suggested by specialists, in order to pre-trial resolve the issue with the other parent and resolve the pending conflict.
This solution has its advantages:
- you are not involved in litigation;
- The guardianship and trusteeship authority provides absolutely free services;
- A preventive conversation will be held with the second parent by authorized specialists, during which your rights will be explained to him, including further recourse to court if the conflict is not resolved.
Filing a claim in district court at the actual place of residence of the child with the other parent.

Statement of claim to establish a procedure for communication with a child

According to Part 1 of Art. 66 of the Family Code of the Russian Federation, a parent living separately from the child has the right to communicate with the child, participate in his upbringing and resolve issues regarding the child’s education. Parent with whom they live minor child/children, has no right to interfere with communication with relatives or father(mother), who lives separately. A statement of claim on this issue is filed at the place of residence of the defendant (the parent who is preventing communication with the child).

Government duty when filing a claim to determine the order of communication with children, it is 300 rubles, it must be paid and a copy of the payment receipt must be provided along with the claim, otherwise the claim will not be accepted for consideration until the state fee is paid.

When considering this claim, the judge will analyze a number of points:

. The older the child, the more time he will be able to spend with a parent who lives separately. It is unlikely that the court will give the father the right to take infant on weekends, because there is a regimen, breastfeeding, etc. and so on.
Child's health.
Opportunities for education and development. That is, if a father wants to take his son or daughter for the weekend or overnight, he must have comfortable living quarters, a place to relax, food, toys, books and other items necessary for children of a certain age.
Conditions for maintaining a daily routine. If the child school age, then if he is staying with another parent, he should not miss classes, clubs, or sections.
Big remoteness of place of residence plaintiff from the child. It is unlikely that frequent long trips to visit a parent are in the interests of a minor.
Hostile and conflictual relationships between parents. The more open conflict between parents is shown in the trial, the fewer meetings await you with your child.
This rule is very important - under no circumstances should you show a conflict with your ex-spouse in such a lawsuit - you are guaranteed a minimum of meetings. The more friendly you are towards the other parent, the more and more often you will be allowed to see the child.

The plaintiff in the statement of claim must correctly state that his communication with the child does not contradict the interests of the latter, but on the contrary, will suit the child solely for the benefit, and also that favorable conditions have been created for the temporary stay of the minor with him.

Often, mothers or fathers who remain with the child after a divorce try in every possible way to prevent the children from being taken out of the house to meet with the other parent and insist on scheduling meetings under their supervision. In this case, you should not resist, because the main goal is to get days and hours of meeting with the child, and the remaining moments will smooth out on their own over time.

The most common consultant questions and answers

After 20 years of marriage, my wife and I decided to divorce; from our marriage we had a common fourteen-year-old son, Artemy. During the court hearing to consider the issue of determining his place of residence, he unequivocally stated that he wanted to live with me. However, the judge, in my opinion, was skeptical of his opinion and left him to live with his mother. Is this legal? After all, the son was already 10 years old and the court had to take into account his opinion.

This court decision is legal only if the conclusion of the guardianship and trusteeship authorities is on the side of your spouse. According to Art. 57 of the Family Code of the Russian Federation, guardianship and trusteeship authorities have the right to give an opinion, acting with the consent of a child who has reached the age of 10 years. However, in addition to the child's gaze when accepting this decision a number of other questions are considered: how well will a minor be with one or another parent, because he is a future full-fledged member of society who must be raised and developed accordingly. In your case, the court decided that the son would be better off with his mother, and this is completely legal. You have the right to take your son to your place for the weekend and spend your time with him. free time, if this does not contradict his interests.

My husband and I decided to get a divorce; we had a marriage son born Anatoly, he is currently 16 years old, he is disabled from childhood (suffers from childhood cerebral palsy), he does not care for himself and needs constant help. In fact, I was always the one taking care of him. In an oral conversation, the husband stated that he would file a lawsuit in order to take his son to his home for the weekend. This scared me very much, because being with him my son would not receive what he deserves. necessary care. Is it possible that the court will satisfy the claim of the ex-spouse?

The most important condition when considering such statements of claim The judge is responsible for observing the interests and rights of the minor child. In order for children to be able to spend weekends with their father, it is necessary to create full-fledged comfortable conditions for the child, taking into account his age and health status. However, in this specific case, a person with a similar diagnosis is very tightly attached to the parent who constantly cares for him, so your temporary absence may negatively affect his emotional state. Most likely, the court will allow your husband to communicate with your son only on your territory and exclusively in your presence. Prepare for the court the necessary medical certificates with the child’s diagnosis, doctors’ recommendations for care, and the court will accept correct solution.

At what age is a child’s opinion taken into account in court?

According to Art. 57 of the Family Code of the Russian Federation, a child has the right to express his opinion when deciding in the family any issue affecting his interests, as well as to be heard during any judicial or administrative proceedings. , reached age ten, is obligatory, except in cases where it is contrary to his interests.

Exists two ways in case of divorce:

between former spouses. This document is submitted to the court to take into account the opinions of the spouses;
If the spouses do not come to a common opinion, then the court assumes this responsibility.

If there are common minor children, it always happens judicially. The opinion of children who have reached ten years of age is taken into account by the court, but it is not binding on the judge, that is, a decision contrary to the child’s wishes can be made. It is not always possible for a minor child to take a comprehensive view of living with one or another parent; in order for him to grow up as a worthy member of society, proper upbringing and care is necessary.

When making a decision on the residence of a minor child The judge takes into account:

the relationship between the child and each family member, including father and mother;
relationships with other relatives;
characteristics of each of the former spouses (presence or absence of a criminal record, moral and social behavior, psychiatric illnesses;
material and living conditions, with the help of which a favorable climate for study and recreation will be created for the child;
the child's attachment to his sisters and brothers. In case of close contact between them, children cannot be separated, otherwise they will suffer psychological trauma.

To take into account all the conditions described above, the court is provided with a written opinion from the guardianship and trusteeship authority, with which of the former spouses, in their opinion, the minor child should live.

Before summoning children to a court hearing, the judge finds out what impact this will have on them; if negative, then only the opinion of the guardianship and trusteeship authority is taken into account. Available interviewing a child in a court hearing with the participation of a teacher and without possible influence from interested parties.

Conclusion of the guardianship and trusteeship authority

In order for a parent living separately to count on permanent residence in his territory, it is necessary the presence of the following conditions, which are checked with access to the place of residence by the guardianship and trusteeship authorities:

availability of comfortable living quarters;
comfortable stay for the child ( sleeping area, workplace(for school-age children), availability of educational games and toys);
A stable income is desirable.

The guardianship and trusteeship authorities, having received a court order within the framework of your trial, go to the places of residence of both spouses, examine them, . Based on what was seen (i.e., what is reflected in the acts), the guardianship and trusteeship authority prepares for the court conclusion about the possibility/impossibility of providing meetings with the parent and objective confirmation of this. It is the conclusion of the guardianship and trusteeship authority that is the main document on which the judge bases his final decision.

The dissolution of a marriage is quite a painful process, especially with children. Sometimes it is difficult for a man and a woman to decide with whom the child remains after a divorce. When examining this dispute, the representative of justice takes into account many criteria, and sometimes even the opinion of the offspring himself. Having children, you won’t be able to get a divorce at the registry office; you’ll have to this procedure exclusively through the courts.

Law and practice

Russian legislation does not give an exact answer as to who the child remains with during a divorce. According to the law, the mother has no priority when spouses divorce.

Who should I stay with? Small child after a divorce, is determined by many accompanying circumstances.

Important! Only a combination of factors contributes to making a decision in the proceedings - with whom the child will remain in the event of a divorce.

Often the court decides to leave the children to the mother, due to the inseparability of motherhood and childhood. Moreover, fathers are more likely to evade obligations regarding their offspring and documents can be filed against them. Also, it is the man who usually becomes the cause of divorce for reasons of infidelity, drunkenness, etc.

Therefore, a man cannot be classified as a person who is ready to take care of the baby properly. According to practice, few representatives of the stronger sex are ready to take the child for themselves.

Divorcing parents are better informed about all the nuances associated with children. Perfect option, when the determination of the child’s place of residence during a divorce is specified in the agreement. Then, parents have the right to set their own address of residence.

An agreement determining the place of residence of a child during a divorce contains information:

designation of the living space where the offspring will live after the official breakup;
which parent will he stay with?
size, shape and .

When the spouses do not come to a common agreement, the issue is resolved by a representative of justice at divorce proceedings.

There are main reasons why a judge may make a decision:

inappropriate acts of a woman:
dissolute behavior;
alcoholism or addiction to drugs;
mental imbalance.
if a woman avoids obligations regarding her offspring;
at ill-treatment mother with child;
the woman herself is not ready to take the baby;
the mother is officially recognized as an incompetent person;
the woman is constantly on business trips;
if the mother does not work;
the father wants and can raise the child;
when an examination proves that the baby is more attached to his father.

The more positions are present in the case, the more likely it is that the offspring will be left to live with the man.

Important! When a child is under 3 years old, he is unlikely to be left with a man. During this period, the baby needs constant care from the mother.

If a representative of justice is sure that the child will be better off with his father, he can satisfy the man’s request. According to 2016 statistics, this is only 7% of cases.

No one will take away the children of an adequate woman; they will remain with her.

Cases of child separation

When there is more than one offspring in a family, this does not mean that determining the child’s place of residence after a divorce is decided by an equal number. Also, the court does not have the right to blindly divide children during a divorce or leave them to one legal representative.

Judicial authorities can carry out the division of children in a divorce based on:

interests of offspring;
maintaining material security and quality of life;
the desire and ability of the father to take care of the children.

Let's give an example of how children are divided during a divorce. The judge has the right to decide to leave a teenage boy with his dad, since they have a lot common interests, and they are attached to each other. And the judge leaves his little daughter to live with her mother. After all, the child’s years and gender require the woman’s participation.

Important! When the justice authority is sure that it is impossible to divide the children, since it will be stressful for them, it is better to leave them with one legal representative.

According to the law, if a child was born in marriage, his birth certificate is automatically filled in by the mother and father - the spouses. When a baby is born outside of a registered relationship, the father must recognize his child himself. When he refuses to do this, you can sue him for . The judge will request DNA testing.

What is indicated in the father column of the birth certificate is not always true. When such a couple gets divorced, and the woman knows for sure that her husband is not the father of the child, she can request a DNA test and prove that the man has no rights to the baby. But, she must understand that then she will not be able to demand child support from him.

The second case when a DNA examination may be required is if the baby was born out of wedlock and there is a dash in the column about the father. Then, in order for the child’s father to take the child, he must first request a DNA test, which will prove his involvement in the child.

Accordingly, DNA testing may be useful in deciding the issue of the child’s residence. The cost of this manipulation is quite high. Payment is made by the interested party.

Parent's rights

Despite the breakdown of relations, both legal representatives have identical rights regarding their offspring:

material support;
care;
training and development of the offspring;
implementation of protection of the rights and interests of children.

Even if the legal representative does not live with his child, he has the right to know everything about him, including information about his studies and health. A man, just like a woman, can go to school and get information about his progress by presenting a document confirming his relationship.

After the parents divorce, the person not living with the child, even if the other half is against it. This can be considered a violation of the rights of the child and the parent.

There are two instances in which a meeting can be held on the issue of who will get the children if their parents divorce:

the world justice body will make a decision on the basis of a special agreement drawn up by the parents;
District courts deal with cases in which there are disputes.

When spouses have a dispute about who their offspring will live with, they need to contact the district justice representative.

Also, when filing an application, it is necessary to determine which judge to contact. Each of them reviews the affairs of his area. In most cases, the claim must be filed in the defendant's place of residence. But, there are exceptions that allow cases to be heard at the residence address of the plaintiff with whom the child lives.

Highlights of the trial procedure

Typically, who the children stay with is determined during the divorce process. When disputes arise about who the child stays with during a divorce, the judge pays attention to the following factors:

The desire of the offspring, if he is already ten years old. At the same time, the representative of justice must understand what led the offspring to such a decision. He must evaluate not only the material side, but also the moral character of each of the parents. Maybe the child chooses for cohabitation the parent who gives him more freedom of action. Often, the wealthier parent is rarely at home due to being on business trips, and as a result, the child is left alone at home.
Readiness of legal representatives. The court must find out who is more ready to take full responsibility for the baby. After all, many men try to take the child away from the mother for the purpose of revenge or resentment.
The moral character of men and women. It is important to find out if there is drug and alcohol abuse.
Financial support for the parent. It will be uncomfortable for a child to live without money. Small children require large financial investments. They need to be raised and trained. In addition, you need to take care of treatment, clothing and food.
Years of a child. Until the age of three, the court almost always leaves children with their mother.
Place of residence. The climatic conditions of specific regions of residence are not always suitable for a child.
Child registration.
Other circumstances. For example, interests, habits and lifestyle.

A claim including a demand to leave the child to the plaintiff must contain a description of compelling circumstances:

good living conditions for the baby;
degree of attachment;
availability of material security;
designation of housing inspection reports;
conclusion on the possibility of leaving the offspring with the plaintiff.

It is impossible to find a specific list of possible evidence in the laws of the Russian Federation, so such a list is not limited. The more arguments the plaintiff gives, the greater the chance that the child will remain with him.

In all courts where there are disputes about who gets the children during a divorce, there is a guardianship representative present. Therefore, when a claim for the division of children is filed in the district court, the representative of justice sends a copy of it to the guardianship authority and involves this authority in the case.

The participation of guardianship specialists consists of the following actions:

analysis of housing of both parties;
recording the results in a special act;
provision of a document to the court;
voicing the conclusion and your opinion on the issue raised regarding the child.

When the judge has doubts about the evidence provided, he orders a special examination to identify the greater affection of the offspring. It is also prescribed when there is a suspicion of child manipulation.

Is it possible to change a court order?

Even if there is a child left after a divorce from one parent, there is a chance to change everything. Sometimes, after the transfer of an offspring, the conditions of its existence deteriorate greatly:

decrease in earnings;
parental evasion of responsibilities;
if the child is left alone;
addiction to drugs and alcohol is expressed.

When violations of the interests of the offspring are established, the second legal representative has the right to demand a change in the child’s place of residence. Such applications are also considered by district authorities with the involvement of the guardianship authority. Therefore, even if the parents have already divorced, you can always file a corresponding claim.

Why a child stays with his mother during a divorce is often of interest to men. The established practice is based on a closer connection between a woman and her child. Few mothers can infringe on the interests of their offspring. Usually, it is the mother who constantly takes care of the children. At the same time, a huge number of male representatives are trying in every possible way to evade their immediate responsibilities regarding the baby.

Unfortunately, divorce is a common occurrence these days. And one of the important and difficult questions to be resolved in the process is: “Who does the child stay with after the divorce?”

It is difficult for children to understand and accept that mom and dad no longer want to live together. This means they will have to see some of them less often. The parents themselves do not improve the situation by sorting things out, and sometimes even trying to win the child over to their side. It is rare that any spouse is able to resolve this dispute peacefully. That is why in Russian Federation If there are minor children in the family, divorce is carried out only through the court.

Parents often ask lawyers who their child should stay with after a divorce. There is no clear answer to this question. It is important to understand that determining the place of residence of children is not a competition of income and connections of parents, or a contest of eloquence. When making a decision, the court will primarily be guided by the interests of the child and will make the most favorable choice for him.

Settlement agreement

The ideal option to establish with whom the child will remain after the divorce is to draw up a settlement agreement. The possibility of drawing up such a document is specified in Art. 66 of the Family Code of the Russian Federation.

Balanced, sensible people who understand that a child’s fate is not a reason for adult squabbles are capable of taking this step.

Agreement on children upon divorce - this is the name of the document that the spouses draw up jointly in in writing and certified by a notary. Usually it consists of two agreements: on the child’s place of residence and on child support payments. Ready-made forms can be easily found in electronic or paper form.

The settlement agreement must include:

Location;
meeting schedule and communication procedures with the other parent;
joint participation in education;
procedure for financial support for a minor child.

You can apply this agreement to the magistrate’s court, which will approve it if the document does not contradict the interests of the child.

The settlement agreement can be changed or terminated only by mutual consent participants. Any of the former spouses can offer adjustments if their life circumstances change. If the other party refuses to make changes, this question is decided in court.

If the parents were unable to conclude an agreement, the issue of the child’s place of residence will be considered in the district court.

After the divorce of father and mother, the children's lifestyle will no longer be the same. And this circumstance can cause them psychological trauma and moral suffering.

The least traumatic for the child's psyche is joint custody - a phenomenon that is still little known in Russia.

It can be physical and legal. The first involves the child alternately living with both parents. Ideal if ex-spouses live close to each other and follow similar parenting strategies.

With legal joint custody little man permanently lives with one of the parents, but the other takes an active and equal part in all significant events of the child’s life: study, treatment, recreation, etc.

Trial

The judicial procedure for the “separation” of children after the parents’ divorce is regulated by Article 78 Family Code RF and federal law“On the protection of the rights of the child” (as amended by the laws of July 20, 2000 No. 103-FZ, of August 22, 2004 No. 122-FZ, of December 21, 2004 No. 170-FZ). This process is quite lengthy and complex. Public proceedings can cause stress and negative emotions for all members of a disintegrating family.

To make a final decision, the court will need to consider factors such as:

opinion of a child over 10 years old;
parents' wishes;
living conditions of the spouses, their financial security;
moral character and health status of family members.

The right to be a full participant legal proceedings, that is, to state their thoughts and arguments, is provided to children from the age of 10. The older a teenager is, the more likely it is that he will make an independent decision about who he will be better off with and express his opinion, which will certainly be taken into account by the court. Children usually understand very well when one of the parents is pretending to be good for their own purposes.

It is a mistake to believe that the financially better off spouse will definitely win in court. A high income most often implies a busy work schedule, and therefore a lack of free time. This is very important when raising children.

Studying the conditions of a possible place of residence is the responsibility of the guardianship and trusteeship authorities, which must necessarily participate in the trial.

To make a decision, the court will need to study the act of checking living conditions, the preparation of which is the responsibility of the guardianship authorities. Their representatives must study and analyze the family environment and property conditions in the place of residence of each parent. Such examination is carried out solely for the purpose of protecting the rights of minor children.

Having arrived in person at the destination, inspectors:

will appreciate the provision of living space, sleeping space and necessary furniture, a place for games and activities;
will check the sanitary and technical condition of the housing;
will pay attention to appearance and the baby’s mood;
They will find out who else lives at this address.

Most often, the date and time of the visit is agreed upon with the residents.

Who will the infant stay with?

By definition, the baby must stay with the mother, since she is the one who provides him with nutrition, hygiene and care. But there are exceptions to any rule.

The father will be able to pick up the baby if, for example, he is on artificial feeding, and his mother does not pay him due attention, leads an asocial lifestyle, and is registered with a drug treatment or psychoneurological dispensary.

If there are several children in the family

If spouses have two or more children, during a divorce the court will individually determine the place of residence of each of them, depending on which parent is closer to which parent and whose interests and hobbies they share. Also important is the question of how siblings will perceive separate upbringing.

If we analyze life examples of who the court leaves children with after a divorce, we can conclude that most often the decision is made in favor of the mother. And this is not gender discrimination at all.

It is genetically proven that a woman is more strongly attached to her child; she devotes more time to his upbringing and development, while a man is busy material support families. Of course, the gender of the child also influences the closeness between family members: girls trust their mothers, and boys need their father’s support. But this circumstance is little taken into account by the court. Therefore, the spouse in whose favor the decision was made to allow the children to live needs to be wiser and not interfere with their meetings with the parent living separately.

There are cases when a man successfully defends his position in a dispute about who the child should stay with after a divorce. In this case, the mother makes child support payments and follows the established order of meetings.

Having decided to divorce, the spouses must admit that the children are not to blame for their breakup, but they are the ones who suffer the most. The fate of the baby directly depends on the outcome of the divorce. Whichever parent he stays with will raise him and actually build his future life. Therefore, adults in this situation need to think not about themselves and their ambitions, but try to make a balanced and optimal decision.