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?
Termination of marital ties is a rather 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 sorting out this dispute, the representative of justice takes into account many criteria, and sometimes even the opinion of the offspring himself. Having children, it will not work to get a divorce in the registry office; you will have to complete this procedure exclusively through the court.
Law and practice
Russian legislation does not give an exact answer with whom the child remains during a divorce. According to the law, the mother has no priority when the spouses divorce.
With whom a small child should remain after a divorce is determined by many accompanying circumstances.
Important! Only a combination of factors contributes to making a decision on the proceedings - with whom the child will remain during the divorce.
Often the court decides to leave the children to the mother, due to the inseparability of motherhood and childhood. Moreover, fathers to a greater extent evade obligations regarding offspring and documents can be submitted for them. Also, it is the man who usually becomes the reason for the divorce due to infidelity, drunkenness, etc.
Therefore, a man cannot be attributed to 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 off about all the nuances associated with children. The ideal option is when the determination of the place of residence of the child during a divorce is spelled out in the agreement. Then, parents have the right to determine the address of residence themselves.
The agreement determining the place of residence of the child during a divorce contains information:
- designation of the living area where the offspring will live after the official break in relations;
- Which parent will he stay with?
- size, shape and.
When the spouses do not come to a common agreement, the issue is resolved by the representative of justice in the divorce proceedings.
There are main reasons why a judge may make a decision:
- inappropriate deeds of a woman:
- dissolute behavior;
- alcoholism or addiction to drugs;
- mental imbalance.
- if a woman evades obligations regarding the offspring;
- when a mother abuses a child;
- the woman herself is not ready to take the baby;
- the mother is officially recognized as a legally incompetent person;
- a woman is constantly on business trips;
- if the mother does not work;
- the father wants and can raise the baby;
- when the conclusion of the examination proves that the baby is more attached to the father.
The more positions are present in the case, the more likely it is that the offspring will be left to live with a 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 of the mother.
If the representative of justice is sure that the child and dad will be better, he can satisfy the man's demand. According to 2016 statistics, this is only 7% of cases.
No one will take the children from an adequate woman, they will remain with her.
Cases of sectioning children
When there is more than one offspring in the family, this does not mean at all that the determination of the place of residence of the child 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 one legal representative.
The judiciary may carry out the division of children in a divorce, based on:
- offspring interests;
- maintaining material security and quality of life;
- the desire and ability of the father to take on the upbringing of children.
Here is an example of how children are divided in a divorce. The judge has the right to decide to leave the teenager boy with his dad, as they have many common interests and are attached to each other. And the little daughter, the judge leaves to live with her mother. After all, the years of the child and gender require the participation of a woman.
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.
By law, if a child was born in marriage, his birth certificate automatically fills in the mother and father - the spouses. When a baby is born outside of a registered relationship, the father himself must recognize his child. When he refuses to do this, you can sue him for. The judge will request a DNA test.
Not always what is indicated in the father of the birth certificate is true. When such a couple divorces, and the woman knows for sure that her husband is not the father of the child, she can request a DNA examination 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, if the baby was born out of wedlock, and there is a dash in the column about the father. Then, in order for the father of the child to be able to take him for himself, he must first request a DNA examination, which will prove his involvement in the child.
Accordingly, conducting a DNA examination 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 person concerned.
Parent's rights
Despite the break in relations, both legal representatives have identical rights regarding offspring:
- material support;
- care;
- offspring training and development;
- 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 receive information about academic performance by presenting a document confirming kinship.
After the parents divorce, a person who does not live with the child, even if the other half is against it. This can be attributed to the 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 when the 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 the spouses have a dispute with whom the offspring will stay, they need to contact the district justice representative.
Also, when submitting an application, it is necessary to determine which of the judges to apply to. Each of them considers the affairs of his section. In most cases, the claim is required to be filed at the defendant's place of residence. But, there are exceptions that allow you to sort out cases at the address of residence of the plaintiff, with whom the child lives.
Highlights of the judicial procedure
Usually, with whom the children remain, it is established in the divorce proceedings. When disputes arise as to who the child remains with in 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 to live together with the parent who gives him more freedom of action. Often, a more affluent parent is rarely at home due to being on business trips, 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 from the mother for the purpose of revenge or resentment.
- The moral character of man and woman. It is important to find out the presence of drug and alcohol abuse.
- The financial support of the parent. It will be uncomfortable for a child to live without money. Young children require large financial investments. They need to be nurtured and taught. In addition, you need to take care of treatment, clothing and food.
- Years of the child. Until the age of three, the court almost always leaves babies 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 that includes a request to leave the child to the plaintiff must contain a description of the compelling circumstances:
- good living conditions for the baby;
- degree of affection;
- availability of material security;
- designation of housing inspection acts;
- 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, therefore such a list is not limited. The more arguments the plaintiff brings, the more likely it is that the child will stay with him.
In all courts where there are disputes - who will have children in a divorce, there is a representative from custody. Therefore, when a lawsuit is filed with the district court on the division of children, the representative of justice sends a copy of it to the guardianship authority and involves this instance in the case.
The participation of guardianship specialists consists in the following actions:
- analysis of the housing of both parties;
- fixing the results in a special act;
- providing a document to the court;
- voicing the conclusion and their opinion on the issue raised regarding the child.
When the judge has doubts about the evidence provided, he appoints a special examination to identify the greater affection of the offspring. It is also prescribed when there is a suspicion of manipulation of the child.
Can a court order be changed?
Even if a child remains after a divorce from one parent, there is a chance to change everything. Sometimes, after the transfer of the offspring, the conditions for its existence deteriorate greatly:
- decrease in earnings;
- parental evasion;
- if the child is left alone;
- addiction to drugs, 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 place of residence of the child. Such applications are also considered by district authorities with the involvement of the guardianship authority. Therefore, even if the parents are already divorced, you can always file an appropriate 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 bond 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 kids. At the same time, a huge number of male representatives are trying in every possible way to evade their immediate duties regarding the baby.
Perhaps the most intractable question that arises in the process of divorce is who will be left with minor children? After all, children are not cars-apartments, not cups-spoons and sofas-dressers, which can be given a material assessment and divided equally. Every child is an individual.
From which of the parents - with dad or mom - the court leaves the children after a divorce, how they will communicate with the other parent, their future fate depends. The court has a great responsibility to answer these difficult, acute and painful questions.
With whom should the child stay after the divorce?
In the public mind, two opposing arguments have been formed about the division of children between father and mother. On the one hand, there is a firm conviction that the child will remain with the mother due to physical and mental ties, on the other hand, the confidence that the father’s material capabilities and influence will help him keep the child for himself. None of these stereotypes are true.
By law, both spouses have equal rights and obligations in relation to the child, neither of them has an advantage over the other.
In order to determine the future place of residence of the child, the court comprehensively examines the circumstances of the case and takes into account many individual factors, and not just “leaves the mother” or “gives it to the father”.
Can children be separated in a divorce?
In the theory of family law and legal practice, the concept of “section of children” is not used. The court does not divide children between father and mother, but considers the issue of the place of residence of minor children and the procedure for their upbringing and maintenance by each of the parents.
However, parents of several children ask a specific question - is it possible to divide children among themselves? That is, one parent gets one child, the second - another child. For example, dad - sons, mom - daughters, or vice versa. Can children be separated?
The law does not establish a ban on the division of children between spouses, but does not insist on it either. If parents have several children, the fate of each child will be decided individually. If the court sees that the division of children between parents is expedient (primarily in the interests of children), it has the right to do so.
Of course, in this case, the court takes into account all significant circumstances, including the wishes of the parents, their material capabilities and moral qualities, as well as the opinion of the children (if they have reached the age of 10). The main thing is to take into account absolutely all the circumstances.
A married couple divorced with two children: a 12-year-old daughter and a 14-year-old son. The boy loved to go hiking - this hobby was developed in him by his mother, an avid tourist. Dad is a real homebody, who prefers working at a computer to active rest. No, he did not play computer games or surf the Internet. He was fond of programming, and quite seriously. The daughter also showed interest in her father's occupation.
How do you think, how did the court “separate” property and children during a divorce? Of course, the computer, as a means of work, went to the father, and tourist equipment, to the mother. The daughter stayed with her mother, the son left with his father. Did the court proceed from the interests of the children? Certainly! However, not all circumstances were taken into account.
How to separate children in a divorce?
So, in accordance with the law, the separation of children during a divorce can be carried out in two ways:
- signing by parents settlement agreement on all "children's" questions;
- appeal to the districtcourt to determine the place of residence of children, the procedure for communication and participation in the upbringing of children, bearing the costs of maintaining the children of each of the parents and other issues.
Settlement agreement of parents on children in case of divorce
The settlement agreement is the most reasonable, civilized, painless, both for children and parents, option for separating children. In a simple written form, a husband and wife can provide for all matters relating to children after a divorce:
- place of residence of the child - with the father or with the mother;
- the order of communication of the child with the parent living separately (frequency, duration and place of meetings);
- participation of the father and mother in the upbringing of the child;
- expenses of each parent for the maintenance of the child.
Well, if the spouses are able to peacefully agree on who the child will remain with. This should be done when they have not yet lost mutual respect, the ability to conduct a dialogue, to reasonably assess the situation, to put the interests of the child above their own. And not when mutual grievances and claims no longer allow reaching a compromise.
If the agreement of the spouses does not contradict the interests of the children, the world court will approve it by its decision.
Trial
The dispute about “dividing children” often arises on the basis of deep interpersonal problems of spouses who, hiding behind the interests of children, are trying to prove their case to each other and sort out the relationship.
If “childish” issues give rise to disputes and disagreements that cannot be resolved peacefully, the spouses will have to go to court. Perhaps they will have a long and hard struggle for children. The court is guided solely by the interests of children.
Application to the court
The statement of claim for divorce should state the circumstances of family life and provide convincing arguments about with whom the child should live after the divorce, supporting this with the necessary evidence. Simultaneously with the application for the place of residence of the child, an application for alimony must also be submitted.
Each of the spouses must prove to the court that it is he who is able to provide the child with the best conditions for life and development - material, physical, mental.
Judicial procedure
The judicial procedure for divorce, during which children are divided, takes place in accordance with Article 78 of the RF IC and the Law “On the Protection of the Rights of the Child”.
In order to decide which of the parents to leave the child, the court comprehensively examines the circumstances of the case, takes into account many factors:
- Child's opinion. If the child is 10 years old, the court finds out his opinion about where he wants to live, with which parent he wants to stay, which parent he loves more, which of his relatives (on his mother's or father's side) he is more attached to.
As for children under 10 years old, the default is that they will be better off with their mother. This belief is based on one of the principles of the Declaration of the Rights of the Child - a small child should not be separated from his mother except in special cases.
- The wish of the parents. The court must find out whether the father really wants the child to stay with him, whether he is ready to raise and support the child. The same goes for the mother. If the father is attached to the child, sincerely wants to live with him, engage in his development and upbringing, strives with all his might to prove this to the court, he has many chances to win in a dispute with his mother. And vice versa.
Many fathers want to take the child away from the mother solely for the purpose of revenge, resentment, demonstrating their own ambitions. The active "section of children" in all its manifestations begins already in the process of divorce.
But if, before the start of the divorce proceedings, such a father did not pay attention to the child, was not interested in the issues of his development and upbringing, simply speaking, he did not treat him, did not take him for walks, did not read fairy tales, he should not count on a positive court decision.
- The moral character of the parents. The court determines the physical and mental health of the parents, finds out whether they abuse drugs or alcohol, whether they have other bad habits, whether they are fond of gambling, whether they lead an immoral lifestyle;
- Financial resources of parents. The court also takes into account which of the parents has more opportunities to create good living conditions, provide quality nutrition, comprehensive development, education, and entertainment for the child;
- Social environment. It is also important how the child's communication with other people will be organized - friends and relatives (brothers and sisters, grandparents);
- Region of residence. For example, if the parents live in different cities or countries, the court also considers the economic, climatic, cultural conditions of the region in order to select the optimal place for the child to live.
- Other circumstances. For example, the character, habits, interests and lifestyle of each family member.
The role of guardianship authorities in the divorce process
During the judicial review of a divorce case with minor children, the presence of guardianship and guardianship authorities is mandatory. The representative of this instance examines the living conditions of children and parents, on the basis of which he draws up and submits to the court an examination report. This document is one of the decisive ones in the process of determining the place of residence of children.
Psychological and pedagogical expertise
In some cases, in order to take into account all the features of relationships in the family, outline the psychological portraits of the child and parents and determine the best option for resolving a dispute about children, the court may need the help of a competent and independent expert commission with teachers and psychologists.
Why does the child stay with the mother during a divorce? Arbitrage practice
Article 54 of the Family Code states that children have the right to be brought up by both parents. This is what happens in wealthy families. But in the event of a divorce, the child remains with one of the parents.
As mentioned above, the law does not give one of the parents an advantage over the other - both the mother and the father have the same rights to the child. However, practice shows that in the vast majority of cases, after a divorce, the child remains with the mother. Why?
Arbitrage practice
In most cases, after a divorce, the child stays with the mother. But there is judicial practice that testifies to the reality of the opposite outcome of the case.
Andreev V.G. appealed to the Moscow City Court with a claim to determine the place of residence of a minor child born in marriage with his ex-wife, Vlasova P.K. Andreev V.G. asked the court to leave the child with him. In support of his claims, the plaintiff argued that the mother of the child does not properly care for the child, which is confirmed by the testimony of the kindergarten teachers the child attends. The plaintiff also claims that Vlasova P.K. interferes with communication with the child and does not allow him to participate in the upbringing of his son. During the trial, it was found out that the defendant gave the child to be raised by her mother, a pensioner, a disabled person of the 3rd group. The court found out that the plaintiff's financial situation (permanent official work) and the presence of his own real estate allow him to create favorable living conditions for the child. Claims Andreeva The.T. were satisfied.
With whom will the child remain after the divorce - with the mother or father?
It is impossible to give an unambiguous answer to the main question, who is preferable for children - mother or father. And not only because there are different fathers and different mothers, not because the circumstances are different. Because every child needs both parents to live a full life!
And even if the parents can no longer live together, it is very important that after the divorce, the child is given the opportunity to communicate with both the mother and the father.
And I also want both judges and former spouses to more often recall the ancient parable about King Solomon, who wisely managed to resolve the controversial issue of the child.
Two women came to King Solomon with a newborn child. Each of them claimed that the baby was hers. The king said: “If you both consider the child yours, it must be divided equally between you,” ordered the baby to be cut in half and given to each woman half. Then one woman exclaimed: “Praise be to you, wise king! Your decision is wise and just, let it be as you ordered. The second woman, sobbing, threw herself at the feet of the king: “I beg you, ruler, spare my child! Give it to that woman, just don't kill it!" King Solomon lifted the woman from her knees and said, “Take your child. You are his real mother!"
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 Children's Rights Service 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 something else 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 off 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.
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 agreement
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.