The ex-wife prevents communication with the child - what should a father do in such a situation?

After the divorce, few people remain in good and warm relations with their ex-spouse.

Unfortunately, it is women who most often allow negative emotions to influence their (and not only their) subsequent lives - a feeling of resentment and disappointment pushes them to actions that primarily affect children, who are already deprived of the opportunity to communicate daily with their father.

How to solve this problem?

In cases where persuasion is useless, the ex-spouse has only one option left - filing a lawsuit in court to establish a procedure for communicating with the child.

Consideration of cases in this category is always a long and unpleasant process, but there is simply no other way. The opportunity to see your child is worth it. In addition, the schedule of communication with the child established by a court decision is mandatory, so the ex-wife will no longer be able to prevent communication in the future.

The amount and terms of communication time imposed by the court depend on many factors. The court will take into account everything: the child’s age and state of health, the child’s level of employment at school and various educational and sports institutions, the degree of attachment of the child to his parents, the previous volume and nature of communication, the distance of the father’s residence from the child’s place of residence, as well as the father’s financial situation and his new marital status.

What to do if the father (mother) of your child does not allow you to communicate with him

As a rule, parents are divided into two types: those who fight for the child (usually, sooner or later they still sit down at the negotiating table and agree on everything) and those who fight against each other, using the child as the main weapon, turning the legal field in the mine. And here, until one surrenders/undermines himself, the second will not calm down. Often the child grows up faster than this happens.

All high-conflict disputes that I work with have one common tendency: someone was not prepared for what was happening, he did not collect incriminating evidence against the other, did not withdraw property from the family, did not save money for lawyers, did not look for a safe refuge for yourself and the child. And when the hour comes from not knowing what to do, he begins to make mistakes. In this regard, I am often asked: “Can this be avoided and what is needed for this?” Of course, it is impossible to constantly live with a backup script in your bedside table, but I can give some advice on what to do if the father (mother) of your child has already taken him from you and does not provide information about him, his location and does not allow you to communicate.

1. Do not sign any agreements on raising a child, except those approved by the court, since such agreements are voluntary and not subject to enforcement. That is, if one of the parents does not want to adhere to the agreements reached, the other parent will not do anything about it.

2. Immediately file a lawsuit in court. Since parents have equal rights and responsibilities towards their children, law enforcement agencies will not search for the child or initiate any criminal proceedings once they determine that the child is with the other parent. Such a claim can be filed in the district court at the place of residence of the Plaintiff, if in addition to the place of residence of the child, he also asks to collect alimony. This is important, for example, in cases where the parent does not know the exact place of residence of the other parent. If there is no question of collecting alimony, then the claim is filed at the place of residence of the Defendant.

3. In addition to the requirement about the child’s place of residence, make a request to determine the procedure for communicating with him to the parent living separately. Even if there is a court decision determining the child’s place of residence, issues related to the exercise of parental rights essentially remain unresolved, which subsequently becomes the reason for new legal proceedings. The simultaneous statement of these two requirements, firstly, is aimed at saving procedural time in resolving the dispute as a whole, and secondly, it minimizes the possibility of abuse of parental rights, most often manifested in creating obstacles in communication with the child and (or) concealing his location, in conditions of the absence of a court decision on the schedule of communication with the child, when questions about who should return the child to whom and when remained outside the scope of the court’s decision on his place of residence. Also, do not forget to submit a request “to remove the child from the other parent” if the child is not with you at the time the decision is made. Formulating this requirement differently (“to oblige the child to return...”) may complicate the process of enforcing the court decision.

4. Request interim measures. Many recommend, along with the claim, to immediately file a demand for the court to take interim measures to return the child to his usual environment, that is, return the child to the parent with whom he usually lived at the time of the dispute and (or) to determine the procedure for communicating with the child during the period of the dispute . At the same time, the practice of considering such applications by the courts is such that, with the exception of rare cases (for example, when the child is young), they determine the child’s place of residence for the period of the dispute with the parent with whom he is actually located at the time of consideration of the application for interim measures. If the requirement for the order of communication is not stated in the claim, then the court will not determine it in the order of ensuring it. At the same time, the law does not deprive you of the right to submit such an application at any stage of the case in court, for example, when the child was returned by you in order to avoid his movements in the future.

5. To substantiate your claims, refer in your claim not only to the legislation of the Russian Federation, but also to the Declaration of the Rights of the Child, the Convention on the Rights of the Child, the European Convention on Human Rights (Article 8), and the practice of the ECHR.

6. Collect documents to argue your legal position. You can take characterizing material about yourself and your child: from your place of work and place of residence (from a local inspector, from internal affairs departments, management companies, etc.); from educational institutions, sports clubs and additional education institutions that the child attended; from medical institutions where the child received (is receiving) medical care, including in the archives of ambulance substations about visits made to the child based on requests received; in expert institutions as an extra-procedural application to conduct a certain type of examination in relation to a parent, a parent and his child, or only a child in order to obtain expert opinions on the issues raised; to assess the content, form and procedure for drawing up previously issued opinions by other expert institutions in order to obtain reviews of them; about the possibility of carrying out certain examinations and their costs, and the like. You can also contact the guardianship and trusteeship authorities with statements regarding violations of the child’s rights to communicate with you as a parent and provide the court with the results of inspection materials based on the facts of statements received and inspections carried out in principle that affect the rights and legitimate interests of the child. Additionally, I recommend contacting the office of the Ombudsman for Children’s Rights (central and regional) regarding their participation in the case before the court in the form of taking direct participation as a third party and presenting an appropriate conclusion on the merits of the dispute or in the form of presenting an expert opinion on the fact received from parent of the application. Don't forget to call witnesses for questioning in court.

7. Record all telephone conversations with the other parent and save all correspondence. They may be useful to you in court.

8. Record video messages to the child, post them on the Internet, for example, save them on a Yandex disk, and send them to the other parent with a request to show them to the child and record a video response. Send gifts to the child at a known location, and send money to the parent with the purpose of payment “for the child.”

9. Taking measures to restrict the child’s travel outside the Russian Federation makes sense only if the threat of the child’s removal really exists and only in conjunction with filing an application for cancellation of the child’s foreign passport and a ban on issuing a new foreign passport. At the same time, when using this legal instrument, do not forget that the restriction applies to both parents and it will be possible to remove it in the future only by going to court.

10. Remember that the peaceful resolution of the dispute and the interests of the child are a priority in such matters, therefore, when making decisions, always proceed from them and try to negotiate. No one will resolve your conflict better than you yourself, since it is not enough to get the desired court decision, it is also important to execute it

What the law says

The father has the right to communicate with the child and participate in his life and upbringing on an equal basis with his ex-wife.

The child’s mother does not have the right to prevent both the child’s father and her ex-husband’s relatives from communicating with the child.

Article 66 of the Family Code of the Russian Federation establishes the right of a father living separately to communicate with children and participate in their upbringing:

1. 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. The parent with whom the child lives should not interfere with the child’s communication with the other parent, if such communication does not harm the child’s physical and mental health or his moral development.

Other relatives also have the right to communicate with the child: grandparents, sisters and brothers and other family members. This right is not in any way affected by the fact of divorce between the parents or even the complete absence of marital ties between them.

The right of relatives to communicate with the child

If the mother does not allow him to see the child, she violates not only the rights of the father, but also the interests of the minor. Children can communicate with both parents, as well as grandparents, brothers, sisters and other relatives. This is not affected by divorce or moving to another country.

Relatives have every right to contact the child. Otherwise, the guardianship authority will oblige the mother of the minor to remove all obstacles to meetings and conversations with grandparents and other family members.

If the ex-wife does not allow not only her husband, but also his relatives, to see the child, you need to file a claim for violation of rights. This can be done by either the father or any of the relatives. When considering the case, the court will necessarily take into account the opinion of the minor.

Relatives have every right to meet the child.

Both parents need to know this

If the child’s mother continues to interfere with their communication, she, in accordance with Art. 5.35 of the Code of Administrative Offenses of the Russian Federation faces a fine of 2,000 to 3,000 rubles for the first time, and a fine of 4,000 to 5,000 rubles for the second time or even arrest for five days.

3. In case of failure to comply with a court decision, the measures provided for by the legislation on administrative offenses and the legislation on enforcement proceedings are applied to the guilty parent. In case of malicious failure to comply with a court decision, the court, at the request of a parent living separately from the child, may make a decision to transfer the child to him based on the interests of the child and taking into account the opinion of the child.4. A parent living separately from the child has the right to receive information about his child from educational organizations, medical organizations, social service organizations and similar organizations. The provision of information may be refused only if there is a threat to the life and health of the child on the part of the parent. Refusal to provide information may be challenged in court.

How to limit a child's communication with his father?

Of course, after a divorce, both father and mother have equal rights in relation to their children. However, it is not uncommon for them to break up, having a bad relationship, and want to annoy each other, even using their common children in this.

Unfortunately, if this is just a desire, not supported by anything, nothing will work out.

In addition, neither the Family Code nor other regulations have established a specific list of grounds on which a mother (or father) can limit the ex-spouse’s communication with the child. But in practice, considering similar disputes, these may be the grounds set out in Article 69 of the RF IC:

failure to fulfill obligations to pay alimony payments, if they are appointed by the court, or if there is a corresponding agreement certified by a notary
violent actions against children (children), including psychological ones
reluctance (or rather refusal) to accompany the child to preschool, school, medical and other institutions, the attendance of which is necessary for him
alcohol or drug addiction
other facts indicating failure of the former spouse to fulfill parental obligations

The above reasons may become the basis not only for restriction, but also for deprivation of the former spouse’s parental rights.

In addition, if the father:

has a bad effect on the child
cultivates in him cruelty, aggressiveness, passion for unhealthy hobbies
negatively affects his learning
instills disrespect for elders and relatives (including mother)
ignores mother's interests, holds back child
and so on.

All of the above circumstances will also be a reason for limiting the father’s communication with the child. Of course, this can only be done in court, by filing an appropriate application.

HEALTHY:

Trial of the case in court

Claims to determine the procedure for communicating with a child are considered by district courts at the place of registration of the defendant - the parent with whom the child lives after the divorce.

The statement of claim is not subject to state duty.

Since the consideration of cases in this category is directly related to the protection of the interests of children, the guardianship and trusteeship authorities must certainly participate in the process. This is enshrined in Articles 66 and 78 of the RF IC. The guardianship and trusteeship authorities are obliged to assess the state of living conditions of both parents and give an opinion regarding the schedule of communication with the child under consideration.

Important: when a child reaches the age of ten, his opinion must be taken into account when considering this issue.

When making a decision, the court is primarily guided by the interests of the child. The court will determine the amount of communication time, frequency and place of meetings. Which best suit the interests of the child.

Will the police help if the father is not allowed to see the child?

The district police officer is obliged to take all possible measures regarding any complaint to the police that he receives. But the district police officer cannot apply any influence and force the restoration of communication, due to the lack of the necessary authority.

Inaction on the application can be blamed on law enforcement agencies, because an audit often reveals many other things that are not related to a simple dispute about children, which must be resolved in court.

As a result of the inspection, most likely the applicant will receive only a decision to refuse to initiate a criminal case and a recommendation to apply for judicial protection to determine the order of communication with the child (more details at the link).

Therefore, our lawyer often recommends that if you want to quickly get the opportunity to see your child, you should go straight to the court at the location of the Defendant, rather than wasting time on statements to the police indicating that they are not allowing you to see the minor.

What factors are assessed by the court?

1. Age

The main factor is the age of the child. For a three-year-old child, a long separation from his mother can be painful, so the court will most likely order the father to have frequent but short-term meetings with him in the presence of his mother. If the child is over 7-8 years old, he is completely independent and attached to his father, then the plaintiff has the right to count on the child’s company for the entire weekend and even on a joint vacation with the child.

2. Health status

The health status of both the child and the parent who insists on long meetings is carefully assessed by the court and taken into account when making a decision. For example, if a child has a serious illness (epilepsy, asthma, etc.), and the father does not have the necessary skills to act in a critical situation, the court will reduce the frequency and duration of meetings as much as possible. However, in this situation, the father’s medical education, on the contrary, will be a positive factor.

3. Territorial remoteness

The distance between the parents' places of residence and the time the child spends on the road are also assessed by the court. For example, parents live in different parts of the city and the journey takes more than an hour, possibly even with transfers. In this situation, the court will most likely fix only weekends and holidays in the communication schedule, since the child needs a routine and proper rest before going to school.

4. Degree of attachment

The child's attachment to his father also deserves the court's close attention. If the mother can prove in court that communication with the father has a negative impact on the emotional state of the child, the possibility of long-term meetings will be in big question.

5. Organization of everyday life and financial situation

The lifestyle of a father living separately, the organization of his life and his financial situation are also assessed by the court and guardianship authorities. It is important that the father’s house has everything the child needs - a place to sleep, books, toys, educational games, necessary food and medicine, and so on...

The new marital status of the child's father is also of great importance. If he entered into a new marriage and had children, it is important what kind of relationships the child has with new people, and whether communicating with them causes him psychological trauma.

That's all the main points, perhaps.

If you still have questions, I am always happy to answer them in the comments under the article or in private messages.

Test. Are you a good father?

Do you want to check how predisposed you are to your child? What is your connection on a psychological level? With the help of the test that we have prepared, you can find out. So that the result does not upset you, give honest answers.

1. Are you happy about your child’s successes? Do you praise him?

2. Do you think that a child cannot have secrets and has no right to feel offended if, for example, you open a letter that he received?

3. Do you apologize to your child if you were unfairly punished or deprived of pleasure?

4. Do you explain the reason for banning this or that?

5. Do you enjoy spending time with him?

6. Are you trying to develop his powers of observation?

7. Do you consider the fact that when you yourself were his age, you did not do this and were not interested in it, a sufficient reason for condemnation?

8. Are you calm when you are angry with your child?

9. Can you tear yourself away from work or an interesting program if your child asks for advice or help?

10. After your order, is everything carried out unquestioningly?

11. Do you forget about your promises, especially those that for him are a reward for something difficult?

12. Do you read books about education?

13. Do you think that a child’s white lies are acceptable?

14. Do you think it is sometimes necessary to include drill in education?

15. Do you answer your child’s questions something like this: “It’s too early for you to know that”?

16. Do you think that pocket money should be given not a predetermined amount, but as much as he asks?

17. Do you know better what a child needs?

18. Is it harmful to involve a small child in adult life?

19. Do you use sarcastic remarks towards your child?

20. Can a child win an argument with you?

21. Do you scold your child if he is not fully fed?

22. Are you friendly with your child’s friends?

23. Do you give your child independence in a new activity?

24. Do you condemn harshness and strictness in raising children?

25. Do you allow help around the house (for example, cleaning), even if there is no or very little use from it?

26. Do you think that children can have their own secrets?

27. Does it happen that you soften the initial decision, realizing that it is too harsh or unfair?

If you have any questions, you can write them in the comments. We wish you all the best!

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What influences the court's decision?

There is a list of objective factors that have a serious impact on the court’s decision and the order of communication between the father and the child without the consent of the ex-wife. These include:

The age of the minor is a central factor influencing the decision. For example, if a child is 3 years old, regardless of age, in most cases he remains with his mother and separation will have a negative impact on the individual. In this regard, the judge may schedule short meetings with the minor and his mother. When a teenager turns 12 years old, most often the court allows the opportunity to leave with dad for weekends and holidays.
The health and physical condition of the child and parents is a factor that influences the possibility of meetings. For example, if a child suffers from epilepsy, is disabled, or has a serious illness, meetings will likely become less frequent and shorter in duration.
The actual remote residence of parents affects the frequency and duration of meetings, because prolonged travel will reduce the frequency of visits. For example, the distance between cities is 700 km, which means it won’t be possible to travel every week.
The attachment of a minor to one of the parents - this also includes support for one of the spouses in material, financial terms, and participation in upbringing.
The financial situation of each party, their lifestyle.
Marital status of former spouses - the presence of a new relationship with an ex-wife or husband can negatively affect the growing person.

During the trial, all factors and circumstances of the case are assessed. Despite the fact that children do not choose their parents, it is the court that considers who is more worthy of raising the child. The more arguments and evidence, the greater the likelihood of a positive court decision with the opportunity to see the child without the consent of the ex-wife.

Father's rights to a child after divorce

Attention
Art. 63 of the RF IC indicates that each parent has the right and responsibility to raise their minor children. Mom and dad bear full responsibility for the upbringing, development and personality development of their child. From the moment the baby is born, each parent is obliged to take care of the condition, health, spiritual, physical and mental development of their baby.

In addition, the following rights of the father in relation to the child can be highlighted:

Priority right to the education and upbringing of your minor child.
Taking part in choosing an educational institution and form of education, taking into account the interests of the minor.
Receive information from medical, educational, social and other institutions without the consent of the wife.
Express consent or refuse to allow the child to travel abroad.
Express an opinion in the process of choosing a minor's surname.
Represent the interests of your child in various authorities, including in civil law relations.
Spend weekends, holidays and vacations once a year with a minor.

These rights are not secured by a single list in a specific article of the RF IC. There are a number of rules providing for certain rights of parents, including Art. 63 of the RF IC, dedicated to the rights to raise and educate children. Art. 67 of the RF IC guarantees the right of a minor to communicate with his relatives. Art. 59 of the RF IC provides for the need to take into account the opinion of the father when changing the child’s surname.