As a rule, ex-husband and wife face many disagreements, including financial, housing, and others. Probably the most difficult of these is the question of which party the child will live with.
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Such disputes are settled in court. What are the specifics of the procedure and how great are the father’s chances of achieving cohabitation with the child?
Briefly about divorce and children
In legal language it is referred to as divorce. A husband and wife can separate in two ways.
If a couple does not have children and agrees to separate, then the easiest option is to contact the registry office. Then people will become free from family ties within one month.
You can get a divorce through the registry office if the couple also has children.
However, there must be good reasons for this:
- Incapacity of the second spouse.
- Declaring him missing.
- Imposing a sentence of imprisonment.
Naturally, each of these facts must be confirmed by a court decision.
But let's return to divorce in the presence of children in court. To get a divorce, you need to file a claim for divorce in the magistrate's court. Read more about how to do this here.
Current legislation does not establish clear criteria for determining with whom children usually remain after a divorce.
It is believed that if the child is small, it will be easier for him to stay with his mother; therefore, it is difficult to oblige the ex-wife to bring the child. Options are available for older children. Moreover, if the child is 10 years old, then his wishes regarding his future place of residence must be taken into account.
There is another option to agree on the order of communication with the child and his upbringing after the divorce. In it, parents can agree not only with whom the children will stay and their place of residence.
Terms of agreement:
- mutual participation in raising children;
- the order of meetings on weekends and holidays;
- the opportunity to spend time with the child during the holidays;
- material support, financing of education, recreation, treatment.
If such a document exists, the court takes into account its content when preparing the final text of its decision.
What does the law say?
Questions about the cohabitation of a child after a break in relations between spouses are regulated by the Family Code. The Insurance Code contains a provision that ex-husband and wife have equal rights and obligations in relation to the child.
Among them are the following:
- child education;
- the opportunity to spend time with the child when living separately;
- taking part in the child’s life;
- receive information regarding the child’s health, education and needs;
- represent the interests of a minor child in the judiciary and other government agencies.
The Declaration of the Rights of the Child and judicial practice demonstrate that in most cases a minor citizen remains to live with his mother.
However, legal norms are not categorical; the declaration contains provisions that priority in living together with a child is given to the party that can create more comfortable conditions for the development, education and recreation of a minor child.
Parents' rights after divorce
Despite the termination of legal family relations, the rights of each parent to their children are retained in full. As part of the topic raised in the title, we will look at what rights remain for children.
So here is their main list:
- The right to participate in the life of the child, his upbringing, visits, financial support.
- The right to receive subsidies and other types of support due to parents from the state or local authorities.
- The right to alimony in case of old age.
In addition, in the event of the death of a child, his father (even a divorced one) will be included in the circle of priority heirs. The exception is the deprivation of parental rights during the life of the father. And if he manages to renew them, then the possibility of registering an inheritance will remain.
Expert commentary
Roslyakov Oleg Vladimirovich
Lawyer, specialization civil law. More than 19 years of experience.
Ask a question
Deprivation of parental rights does not relieve a person from child support obligations; he must pay monthly payments established by the court.
Is it possible to sue a child from its mother?
I want to take my children away from their mother, what should I do?
You can get a general idea of how to sue the children of a drinking wife during a divorce in Russia from the Russian Family Code.
Chapters 4 and 12 deserve special attention. They describe the general procedure for ending a marriage (including the fate of the child) and the rights of parents in relation to children.
So, one of the reasons is the favorable living conditions that the father can provide. In this case, the maximum package of documents confirming these circumstances should be attached to the statement of claim or counterclaim.
Evidence for court:
- Income certificates.
- Copies of tax returns (if the ex-spouse is self-employed).
- Availability of savings in banks.
- Securities and shares.
You should also familiarize the judge with information about the availability of real estate, a car, and other property.
Determining the child’s place of residence can occur simultaneously with the decision on the divorce of his parents.
However, this issue may become the subject of a counterclaim in the case where the wife was the first to go to court. The judge will then make a joint decision on the two applications.
It often happens that in the claim the spouse initially does not raise the issue of the children’s place of residence. In the claim for divorce they write that there is no dispute regarding the children.
However, then the father begins to encounter all sorts of obstacles in his relationship with them.
Expert commentary
Roslyakov Oleg Vladimirovich
Lawyer, specialization civil law. More than 19 years of experience.
Ask a question
In this case, determining his place of residence in court is the best way out of the problem situation.
Is it possible to leave the child to the father?
If you carefully read the Family Code of Russia, which regulates the legal relationship between parents and children, you can come to a simple conclusion: both parents have equal rights to raise a child. This right is guaranteed by Article 61 of the RF IC, which states: the rights of parents are equal.
But for some reason the Russian judicial system prefers to ignore this fact and systematically leaves children with their mothers, even if:
- the father wants the child to stay with him;
- the child himself wants to live with his father, and not with his mother.
Why this happens is a topic for a separate book, one might even say. We are interested in what provisions of family law a father can use to exercise his right guaranteed by Art. 61 IC RF.
Unfortunately, the father will have to work quite hard to prove his right to raise the child. After all, you will have to overcome the resistance of the mother and the judicial system as a whole. This means that without a good lawyer, the process can drag on for years and never lead to the expected result. After all, time works exclusively against the father, who is separated from his offspring: the mother is unlikely to calmly look at the fact that her ex-husband (cohabitant) is going to sue the child. Most likely, the heir will be set against the parent.
But if we put aside the lyrics, then I advise lawyers to immediately, even during the divorce, declare their desire for the child. This can be used as an argument in the future. By the time of the divorce, it is unlikely that the father will have time to collect evidence that the child should stay with him.
In what cases does a child stay with his father?
Can they take my daughter? There are several situations in which a man can retain his rights in relation to a child. They are determined both by law and actual circumstances.
Parenting agreement
Unlike an alimony agreement or a prenuptial agreement, this type of agreement can be concluded in regular written form. It predetermines which parent the child will live with after a possible divorce.
The court will accept this agreement as a guide to action if it does not infringe on the rights of minors. Otherwise, the place of residence will be determined at the initiative of the judge based on the application of one of the disputing parties.
Deprivation of parental rights
This process can begin if there are grounds and in the manner prescribed in Articles 69 and 70 of the Family Code. The plaintiff can be either the father or the guardianship authority. If this public service goes to court, the father can act as a third party.
At the same time, he can provide his arguments in favor of the fact that the child should continue to remain with him. Certificates, conclusions, and other evidence - all this will definitely be useful at the stage of the trial.
Inability of the mother to fulfill her obligations properly
How to take your son from your wife? A child can be transferred to the father’s care if the mother is unable to fully care for him due to worsening living conditions, loss of work, or serious illness.
The above also applies to the revealed facts of violence against a son (daughter).
To file a claim, the father must collect a voluminous package of documents, which includes:
- medical reports;
- information from the wife’s place of work;
- a certificate from the local police officer (if the reason for going to court was illegal actions against a child).
This list may be supplemented depending on the specific situation.
Grounds for depriving a mother of parental rights
The reasons why a father can take a child from his mother, depriving her of parental rights are:
- drug abuse and chronic alcoholism, if necessary, the fact can be examined with the participation of a medical examination, testing, and the involvement of a narcologist in the case;
- the presence of an official conclusion about mental disorders in which it is dangerous for the child to remain with the mother due to the risk of unlawful actions or even a threat to the baby’s life;
- lack of interest in upbringing, so the child is often left at home alone, which is especially dangerous for preschool children, or due to the heavy workload, he is raised by third parties - grandparents, aunts, uncles, girlfriends, neighbors;
- failure to fulfill parental responsibilities - providing adequate nutrition that meets the child’s needs, having a supply of seasonal clothing, the child receives the necessary education and is developed according to age indicators;
- cruel treatment of a child, confirmed by a medical examination and the presence of witnesses - includes both physical torture and moral pressure, insults from the mother;
- the desire of the child himself to live with his father, after a conversation with a child psychologist, the latter draws up an act that can be included in a lawsuit for consideration by the court and gives the father an advantage in legal proceedings against the mother.
Note!
The decision to deprive the rights to a child is made exclusively by the court, guided by the Family Code of the Russian Federation under Article 69, or to significantly limit rights in accordance with Article 73.
Registration procedure
To finally clarify whether a father can sue a child from his mother and how to take children from his ex-wife during a divorce, we will tell you the procedure. It may include several successive stages.
To decide where to go, first of all, you should outline for yourself the grounds for transferring the child to the father.
So, if they are caused by deprivation of parental rights, then you should first make a visit to the guardianship authority at the address of the child’s current residence.
Its specialists will conduct a conversation with the woman, examine the conditions in which the children live, and issue their opinion regarding the advisability of transferring the child from mother to father.
After this, the father must appeal to the district court where the mother lives.
What documents are needed for this? Each situation is individual.
Therefore, we present to your attention their main list:
- Evidence of marriage and its termination.
- Child's birth certificate.
- Documentary confirmation of the father’s earnings and the availability of the necessary property for the normal upbringing of children.
- Information about the financial situation of the ex-wife and her earnings.
- Medical certificates (if the father wants to pick up the child due to the illness of his ex-wife or abuse of bad habits).
The claim must be prepared in copies not only for the defendant, but also for the guardianship authorities and the prosecutor's office. There is no state fee for going to court.
Main factors when resolving the issue
What exactly are we talking about? If you are wondering how a father can take a child from his mother, he will have to try hard. After all, the judicial authorities will primarily protect the interests of the minor. It follows that if living with dad will cause more harm to the baby than with mom, you can forget about bringing the idea to life.
Among the factors that are taken into account by the court are:
- age of the minor;
- interests of children;
- Juvenile attachment;
- personal qualities of both parents;
- parents' education and upbringing;
- material and living conditions of the parties.
In addition, judicial authorities are required to ask the child’s opinion regarding who he wants to live with. To do this, the minor must be 10 years old.
When can you leave your child with dad?
How can a father take a child from his mother? In Russia, doing this is very problematic. There are a number of reasons why you can make your goal a reality. There aren't very many of them. In addition, the existence of one or another reason for leaving the child with the father must be proven. We need irrefutable evidence. Without them, you can forget about implementing the task.
Thus, if a father wants to take a child from his mother, he must prove the presence of one or more factors:
- the mother of the minor is an alcoholic or drug addict;
- Mom has a mental illness;
- the mother is not interested in the child and his life;
- a minor often stays with a nanny or grandmother;
- The baby himself wants to live with his dad.
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In addition, the mother's wild lifestyle may become the basis for the child to stay with the father. The only problem is proof of mom's dishonesty.
What does the court pay attention to?
There are several factors that courts consider when deciding whether to release a child to the father or not.
For example, the material and property status of a man is examined, whether he has a permanent or temporary income. The composition of the new family is taken into account. After all, other people can live in the parent’s living space.
When the father decides to take the child, he must take care of evidence that the mother cannot devote proper attention to his upbringing. Facts confirming the threat to the life and health of the child while being with the mother will also be important.
Such evidence includes:
- information from the guardianship authority;
- testimony from the woman's neighbors;
- other materials obtained through legitimate means.
Judges also take into account the period of existence of the marriage. After all, a fleeting union from a subjective point of view may not work in a man’s favor. At the same time, the attention given to the child is taken into account. However, everything must be supported by evidence.
Tips on how to behave for a father who wants to fight
As we promised in the introduction to this article, we suggest that you familiarize yourself with 7 recommendations for protecting your own rights. They relate to both the judicial procedure for determining the place of residence of the child with the father, and actions before it.
Tip 1. Gather all the necessary documents
They must confirm their level of income, as well as the availability of comfortable conditions for the further raising of children.
Examples include:
- certificate in form 2-NDFL;
- documents for the apartment;
- information from the housing office or management company regarding the area of the apartment and the composition of people registered there.
It is advisable to provide the court with medical certificates confirming the absence of chronic diseases and addictions, such as alcoholism or drug abuse.
For the court, written characteristics of the father from his place of residence and work will be of interest as evidence.
Tip 2. Establish contact with guardianship authorities
It is especially useful when the child’s father wants to take the child for himself due to deprivation of the mother’s parental rights. The above applies to cases where a woman dies or is declared incompetent.
The guardianship authority will most likely participate in the upcoming trial. Therefore, it is important to coordinate your own legal position with him.
In addition, the guardianship service can examine the father’s living conditions and, based on the results, provide the court with an opinion on the advisability of transferring the child to him.
Tip 3. File a claim to determine the child’s place of residence
This applies to situations where the child is planned to be taken away after the divorce. If the divorce process is still ongoing, then a lawsuit is filed in the district court. It does not require payment of a state fee, since it is closely related to the protection of the interests of children.
The issue of a child living with his father can also be raised in a statement of claim to deprive the mother of parental rights. In this case, the requirement to transfer the son or daughter into care should be a separate item.
Be that as it may, in the claim the father must provide evidence that he is able to properly raise and provide for the child, as well as create a decent standard of living for him.
Tip 4. Collect evidence of your own participation in raising your child
First of all, these include confirmation of payment of alimony (bank receipts, checks for postal transfers, receipts from the mother for receiving cash).
It is also useful to store documents for purchasing clothes, paying for treatment, going to the movies, and museums. You can make videos of father and child spending time together.
Witness testimony will also be useful, confirming that the man is not indifferent to the child. They, among other things, can be presented in court by both the child’s grandmother and grandfather.
Tip 5. Strive to sign an agreement
In some cases, it makes sense to stipulate all agreements about the fate of children in writing, without waiting for a lawsuit. In particular, the agreement may stipulate that after all divorce documents are completed, the child will remain with the father.
Another thing is that the mother may then insist that the agreement was signed under the influence of threats, a temporary disorder of reason or delusion. In such a situation, the child’s father should be prepared for lengthy legal proceedings.
Tip 6. Get qualified legal support
Life shows that not every father can competently defend his rights in court. And, therefore, qualified legal assistance will not hurt.
After all, a specialist’s arsenal includes not only knowledge of the laws, but also knowledge of judicial precedents. This is very important, since judges often take the practice of other judicial institutions as a basis.
In addition, the lawyer has psychological resistance to the aggressiveness of the other party. It often manifests itself in legal proceedings, and here one cannot do without professional restraint.
Tip 7. Maintain regular contact with your child
In this way, on a subconscious level, he may still have a desire to continue to stay with his father. This factor can also be used when further building relationships with your son or daughter.
As we have already noted, if a child is already 10 years old or older, he has the right to express his position before the court about where he wants to live next. And if the judge does not take into account the stated position, then he must justify this in his reasoning part of the decision.
This circumstance will allow the father to appeal the court decision to the appellate authority.
The husband sued the children! What to do and in what case can I appeal?
A parent who is dissatisfied with the final court verdict has the opportunity to appeal it with a written appeal .
A 10-day period is given for this, from the date of the court decision. Such a claim must be filed at the child’s place of residence. Often, the living conditions of a child with one or another parent may worsen, and factors influencing the upbringing and development of the child and his psychological state may also change. That is why disputes about who the children will live with can be reconsidered several times.
