Points in judicial practice on the issue of deprivation of a child from his father during divorce

Children suffer the most when parents separate. And the question of how to leave a child with the father during a divorce may well become relevant.

Usually in Russia, teenagers stay with their mother, and the father leaves. However, he retains the rights and obligations to support and raise his offspring. But what to do if the marriage breaks up, and the father does not want to be a “come and go”? How can I allow my child to live with me if my marriage is annulled?

Several decades ago, public opinion and the court were completely on the side of the mother and the question of who to let the baby live with did not arise. And the men themselves were not very keen to take on the burden of raising a child. But now the situation has completely changed. If desired, the father can try to win the dispute through arbitration.

How can children stay with their father during a divorce?

After the dissolution of their marriage, ex-spouses spend most of their time dividing common property and arranging legal proceedings. But this is not the most unpleasant part of the divorce process. They have yet to decide who gets the child in the divorce.

A minor family member, according to the country’s code, remains with one of the spouses, and the other can visit him and spend an unlimited amount of time with him, as well as take him home for weekends and holidays. Basically, by court decision, the mother is in charge of permanent upbringing. But what to do if the spouse does not want to part with his child? Then you need to find a competent lawyer who knows how to leave the child with the father after a divorce. In addition, the man is obliged to present to the court undeniable evidence that will cast his ex-wife in an unfavorable light, which will help deprive her of parental rights in this way.

In general, this is an extremely difficult matter, but, as the practice of the last decade shows, it is possible.

How to leave a child with his father through the court: step-by-step instructions

If a man is unable to reach an agreement with his ex-wife about the transfer of children to him for upbringing and maintenance, he should go to court according to the instructions:

1. Collection of evidence. This is a preparatory stage, because they must be provided along with the statement of claim.
2. Submitting a claim and other documents to the court.
3. Participation in court hearings. If the child is over 10 years old, the judge will ask his opinion regarding determining the place of residence with one of the parents. If less than 10 years old, guardianship officials conduct a conversation with the child.
4. Obtaining a court decision. If it is positive, the child must be handed over to the man from the date indicated on it. The woman has 10 days to challenge the document.

If the child is one year old and the mother leads a normal life, but does not have enough money for living, the court will not give the baby to the father. In addition, a woman can request alimony not only for him, but also for herself, provided that she needs financial support. If a woman leads an immoral lifestyle, at the initial stage, before going to court, it is recommended to report this to the guardianship authorities. After the inspection, the staff draws up a final report, which the father may need during legal proceedings.

Why might a father want to keep his children?

Before a spouse embarks on the path of long legal proceedings over who the child remains with during a divorce, he needs to once again weigh the pros and cons, to understand whether this will be better for his child. Perhaps the desire to take in a minor family member is caused only by the fact that the spouse limits meetings with the children? In this case, it is better to try to come to an agreement with your ex-wife or start a fight to determine the schedule of visits through the court.

But if the desire is dictated by sincere concern for one’s children and the child’s rights upon divorce are infringed if he remains with his mother, then it is really necessary to begin a legal process to challenge the place of residence of the minor. The only main condition is that full communication with both parents be maintained. And even if the court decision is not in favor of the husband, it is still necessary that fathers and children do not stop their frequent meetings after a divorce. This will help the child survive the trauma of a break in the relationship between parents.

How is the opinion of a minor taken into account in a divorce?

The child’s personal attachments play an important role. But from a legal point of view, the court is not always obliged to take his opinion into account.

Opinion of a child under 10 years old

Many parents are interested in whether the child’s own opinion should be taken into account during a divorce.

The child’s own opinion should be taken into account only after he reaches the age of ten. Before the case is considered in court, professional psychologists talk with the child, finding out which parent the minor prefers to stay with. The task of specialists is to determine:

• no imposition of choice - if the baby wants to stay with dad, succumbing to threats or promises;
• the sincerity of what was said;
• his ability to make independent decisions.

The last of these circumstances is confirmed by psychological and pedagogical examination.

A minor may be questioned in court. In this case, a teacher must be present to monitor the correctness of the survey. The conversation is conducted in the absence of parents to exclude the possibility of their influence.

Despite the child’s wishes, the court may make a contrary decision in the following cases:

1. if the fact of influencing a minor in order to sway him in one direction or another is proven;
2. if the child has made a decision in favor of a parent who does not have the necessary capabilities for the upbringing and development of a minor;
3. when a child chooses a parent who is characterized by bad habits or unfavorable moral character.

The opinion of a child under ten years of age may not be taken into account by the court. In this case, the decision is made taking into account the arguments presented by the parties, representatives of the guardianship service and the prosecutor's office. The minor is not interviewed.

Opinion of a teenager over 14 years of age

In accordance with the provisions of Art. 20 of the Code of Civil Procedure of the Russian Federation, upon reaching fourteen years of age, the child himself has the right to decide whether to remain with his mother or father after a divorce. In addition, a minor may decide to live separately, subject to such opportunities and parental permission.

A fourteen-year-old teenager has the opportunity to file a lawsuit demanding the choice of the parent with whom he wants to stay, and to independently defend his rights if an agreement between the spouses after the divorce or a decision of a judicial authority provides for a contrary decision.

Note! Upon reaching 14 years of age, a minor has the right to independently choose which spouse to remain with after a divorce.

When considering a case regarding the place of residence of a minor after a divorce, the priority for the court is to protect the rights and interests of the child. And although more often the baby is left with the mother, the father has the right to count on winning in such proceedings if it is determined that this will benefit the minor.

What should a spouse do if he wants to keep his child?

If, after all, a man decides to live together with his child, he needs to know the algorithm of actions that will help him understand how to leave the children with their father in the event of a divorce.

You will first need to discuss this issue with the child's mother before starting the divorce process. Perhaps she will agree to voluntarily leave the children with her ex-husband. This can be done in writing, by voicing a request that the ex-spouse inform her of her decision. Such a message must be sent by registered mail with notification.

Also, the question of how to leave children with their father during a divorce can be answered by the guardianship and guardianship authorities. When contacting them, the man must express the reasons for his desire to live together with the child. The support of these organizations can convince the ex-spouse to resolve this issue out of court. A copy of the application to these authorities must be left for the court as direct evidence of the seriousness of the father’s intentions.

In the event that a trial is inevitable, the man must pay due attention to collecting all checks, receipts and other documents confirming payment for certain services, confirming the father’s efforts to provide for the children. In addition, the guardianship authorities must confirm that the father has the opportunity to live together with his minor family member, that is, he must have a sleeping and working place for the child.

Voluntary agreement

Based on Part 1 of Art. 24 of the Family Code of the Russian Federation, in the event of termination of marriage, spouses may enter into a voluntary agreement on the place of residence of a minor child. This document is submitted to the court for consideration and allows the former spouses to independently resolve the issue of leaving the child to one of the parents.

Even if the agreement was drawn up in simple written form without the participation of a notary, it still has legal force. Therefore, the parties are obliged to comply with all the conditions stipulated therein.

Features and conditions for drawing up a voluntary agreement

This agreement is concluded in writing and is considered legal if its contents reflect the will of the signatories. It operates on the principle of “from the particular to the general” - a comprehensive agreement of both parents, considering issues of upbringing and communication along with alimony. If the woman signed it under the pressure of her husband, then this transaction is canceled.

The court is also obliged to study the parental agreement and check it to ensure that all the interests of the minor are fully respected. Details that are required to draw up a voluntary agreement:

• Full name of parents and child;
• passport details of the spouses;
• date of birth of the minor;
• terms of the agreement, procedure, restrictions;
• date and place of conclusion of the contract;
• personal signatures of the parents, as well as the date of signing.

In addition to determining the place of residence of a daughter or son, former spouses can stipulate in the contract:

1. participation in the educational process and upbringing;
2. the amount of child support that the mother is obliged to pay;
3. place and time of visits with the child, as well as spending vacations, holidays and weekends together.

The Family Code does not provide for any requirements for drawing up this agreement. Only its individual points are spelled out in Art. 100, 101 of the RF IC for an agreement on alimony.

When can a lawsuit be resolved in a man's favor?

And yet, how to leave children with their father during a divorce? The most compelling reason why a court can deny a mother cohabitation with her minor child is failure to fulfill her primary parental responsibilities. For example, this could be alcoholism, mental illness or other deviations.

It will not be difficult to prove a woman’s inadequate condition. It will be enough for the father to provide certificates from the hospital or testimony from neighbors who can confirm all this.

In some situations, less significant factors may also influence the resolution of a lawsuit. For example, if the spouse does not have extra time for her child or does not have enough finances to support him. There is still an opportunity to win the case by proving that his mother leads an immoral lifestyle or that it would be dangerous for the children to live with his ex-wife.

It is undoubtedly possible for a husband to win a court case during a divorce. How you can leave the child to the father should be advised by a qualified lawyer who will help collect the right set of evidence that can convince the legal authorities to leave the children to the ex-spouse.

The court's decision

At the fifth hearing in the case, the judge made a decision by which she dissolved the marriage of the plaintiff and defendant, determined the place of residence of the daughters with their father and the order of communication between the mother and them.

Court decision to determine the place of residence of two children with their father.

Thus, almost all of our requirements were satisfied. A few days later, the judge made the decision in final form, and a month later it entered into legal force.

Cases of determining the place of residence of children with their fathers are quite rare in Russian judicial practice. In most cases, the court ends up on the side of the mothers, especially if the children are young. Therefore, if such a task arises, you should carefully prepare for the process and take into account all possible circumstances of the case. Only a professional family lawyer can help you implement this, please contact + 7 (495) 722-99-33

What are the court's actions upon divorce?

In the event that the parents were unable to reach an agreement among themselves, or the signed agreement does not take into account all the rights of the child or one of the former spouses, then the order of residence of the children is established by the authorities. The court’s task is to respect all the interests of minor family members after a divorce, as well as take into account their opinion, desire and how attached they are to one or another parent.

This authority is also obliged, before rendering its verdict, to determine the material capabilities of the former spouses and their moral qualities. But without taking into account the opinion of employees of the guardianship and trusteeship authorities, it is not possible to solve problems with whom the children will live and communicate with the child after a divorce from the other parent.

When a child is left with his father after a divorce

A number of factors play a role in deciding the place of residence of children, and they are considered only in their entirety. The final decision is made by the judge on the basis of current legislative acts, including the Family Code of the Russian Federation and the “Review of the practice of resolving disputes related to the upbringing of children by courts” dated July 20, 2011. Taken into account:

1. The degree of care and attention from the father.
2. The child’s attachment to other family members: mother, sisters and brothers, other relatives. The possibility of subsequent communication with grandparents and loved ones is assessed.
3. The father's behavior in society, his emotional and psychological state. A check is carried out to determine whether the parent is registered with a psychoneurological or drug treatment clinic.
4. Location. The guardianship and trusteeship authorities evaluate not only the residential premises for compliance with sanitary standards, but also take into account the presence of social infrastructure, proximity to educational institutions, sports and recreational complexes. The possibility of the child living in a region with different climatic conditions is assessed.
5. Parent's marital status. The presence of a father in another family can negatively affect the father’s attitude towards the child and the minor’s attitude towards the new family.
6. Bringing the parent to criminal liability and having a criminal record.
7. The moral character of a man, his commitment to gambling, alcohol and drugs.

During the trial, the personal characteristics of not only the father, but also the mother are assessed.

Why can a child be taken away from a mother?

The chances of children remaining with their mother are low in the following cases:

1. A woman does not fulfill parental responsibilities due to alcohol and drug abuse. The father must provide the court with evidence of his wife's immoral behavior and its harmful influence on minors. This could be a certificate from a neurological clinic about being on compulsory treatment, or witness testimony.
2. A woman does not have the opportunity to educate. For example, if the work schedule does not allow for ensuring the safety of a minor, diversifying his leisure time, improving his health and expanding his worldview by attending sports sections and hobby groups.
3. The wife's new marital status does not allow her to devote time to the children and infringes on their rights. For example, if a woman remarried, and the stepfather uses harsh methods of education (physical force, intimidation, humiliation) against his stepdaughter or stepson, the court will consider it appropriate to transfer the minor to the father to raise him.
4. Unsatisfactory state of health, for example, the presence of a serious illness that requires systematic hospitalization or excludes the possibility of fulfilling parental responsibilities.
5. Behavior that threatens the life and health of a minor.

Example. Citizen A. filed a lawsuit to determine the place of residence of the children with him. He indicated that his ex-wife abuses alcohol. A certificate of his wife’s alcoholism, issued by a narcologist, was attached as evidence to the claim. The husband called on neighbors as witnesses to his wife’s immoral behavior. It was established that the wife did not provide assistance to her son due to alcohol intoxication when the minor received a head injury. The guardianship and trusteeship authorities issued a conclusion indicating that the children wish to live with their father, they sympathize with the mother, but she is not an authority for them. The court made a decision to recognize the children's place of residence with their father and limit the woman's parental rights.

In general, there is no universal list of arguments based on which one can say with certainty whether the child will be left to the father. The exception is cases when the mother is limited in parental rights and then deprived of them if the woman’s behavior indicates the following facts (Article 69 of the RF IC):

• abuse of maternal status;
• committing illegal actions that pose a threat to the life or health of children, husband or other family member;
• actions implying an attempt on the sexual integrity of a child;
• presence of bad habits.

If the above facts are documented, raising children by a mother is unacceptable.

Useful tips for father

There are some conditions that are not reflected in the law, but they will undoubtedly be useful to a man if he wishes to keep his child after a divorce.

It is necessary to establish stable psychological contact with children, since this can be assessed by relevant experts, and based on their findings, the court will make its decision.

During a divorce, there is no need to prove which of the former spouses is better, but it is simply necessary to justify that the child will be more comfortable living with his father.

Under no circumstances should the husband prevent the mother from visiting her children. This may be assessed negatively by the court.

Next, you will need to determine the range of questions confirming that the minor is guaranteed to be better off with his father.

Low-income status after divorce

If the financial situation of one parent is deplorable and it is impossible to survive with the child on alimony, it is necessary to contact the local government authorities.
Experts will assess the situation and will be able to register this parent as in need of improved living conditions. The state, on the basis of Article No. 40, Part 3 of the Constitution of the Russian Federation, must facilitate the provision of residential premises to this category of citizens free of charge or at an affordable price.

Also, referring to Part 2, Article No. 49, Part 2 of the Housing Code of the Russian Federation, low-income citizens have the right to receive housing from the municipal housing stock under social tenancy agreements.

Every woman wants to calmly raise a child after a breakup, and not survive and solve problems associated with finding housing. If a mother and her children have nowhere to live, this becomes a real disaster.

Mutual agreement between parents

There is the simplest and least traumatic way to solve the problem of living with children after a divorce. To do this, the former spouses need to sit down at the negotiating table. In this case, there will be no need for outside intervention and litigation during the divorce process.

The result of such an agreement should be a mutually signed document called a “Children Agreement.” It stipulates the child’s place of residence after the divorce and all conditions for communication with him. The agreement is usually concluded before the hearing of the case or during the process itself.

What does a father need to establish custody?

First, try to negotiate peacefully with your wife - sometimes a woman, for her own reasons, is not at all against the child staying with the father.

You can send her a registered letter with a notification in which you must detail your proposal for further responsibility for the child. Try to rid your arguments of emotions and be extremely objective. At the end of the letter, do not forget to write that you are waiting for a response within the specified period. And that in case of her refusal (or lack of response) you will initiate legal proceedings.

For the judiciary, the main thing is the well-being of the child after the parents’ divorce. Therefore, they will carefully analyze the grounds for granting guardianship. To achieve this, the father should be well prepared:

• Collect evidence of financial security: the amount of income must exceed the sum of the subsistence minimums of the father, child and other persons dependent on the parent. Income certificates from official work, bank statements or transfer receipts (if you have additional income), purchase receipts, etc. are suitable.
• Consent of guardianship and trusteeship authorities. For the court, this argument often becomes decisive. The Family Department must check your home for the presence of normal conditions for a child: sleeping place, play and work area, general condition of the apartment or house. They will also interview your neighbors to profile both parents.
• If one of the arguments in favor of the father is the mother’s antisocial behavior, her inadequate attitude towards her son or daughter, this will have to be proven. You will be helped by confirmations from the same guardianship authorities (provided that you have already contacted this department before), certificates from other authorized bodies, written confirmations from neighbors, relatives and friends.
• The same should be done if the mother is susceptible to a disease that jeopardizes the child’s stay with her or does not allow her to adequately support the baby. Doctor's certificates and other medical evidence will be required.
• The father must be sure that the child himself is not against living with him. If the son or daughter has already reached the age of consciousness (10 years or older), they will be questioned by the court. And their wishes will be taken into account first.

Possible cases

In addition to common situations, the court can also rule in favor of the father if the mother does not fulfill the responsibilities of raising children without any good reason. For example, when the ex-wife is trying to improve her personal life and spends most of her free time in entertainment venues, trying to make new acquaintances. At this time, the child can be sent to close relatives or grandmother.

In addition, a minor family member may himself wish to stay with his father, since he is more attached to him than to his mother. Guided by these facts, the judicial authority can render its verdict in favor of the ex-spouse.

Features of filing a claim

The main focus in the issue of obtaining the right to raise a minor is on collecting evidence and obtaining approval:

• with the trusteeship department;
• psychiatrist;
• psychologist;
• teachers.

The latter play an important role in court, when the child is asked with whom he would like to stay after the separation of mom and dad. If the child is under 10 years old, his opinion will be heard by the court, and at an older age the court will prioritize the desires, preferences and disposition of the child.

Drawing up claims

The statement of claim is drawn up in strict accordance with the requirements for legal documents of a similar nature, as set forth in civil procedural legislation.

The application data includes:

1. Information about the court.
2. Information about the plaintiff (full name, place of registration, passport data).
3. Similar information about the defendant (i.e. the child’s mother).
4. Information about the circumstances of marriage and divorce.
5. Information about the minor (his personal data, full name, date and place of birth, address).
6. Justification of the requirements for the transfer of a child after divorce to the father.
7. Indication of the articles of law that allow this.
8. The wording of the request to leave the pupil with the father, to determine child support and the procedure for communication.
9. The following is a list of applications.
10. They put a date and signature.

Download the Statement of Claim to determine the place of residence of a child upon divorce of parents (35.0 KiB, 373 hits)

The list of applications must be exhaustive:

• passport;
• document on marital status;
• certificate for the child;
• certificate of family composition, indicating the child’s place of residence;
• information about the plaintiff’s earnings and other income;
• documents for real estate, other property at the disposal of the plaintiff;
• certificate of inspection of living conditions;
• certificates from doctors about the father’s health, absence of addictions, drugs, and psychological disorders;
• reviews from the place of work, positive testimonies from colleagues, friends, neighbors.

Any papers in favor of the father must be presented.

General Tips

It must be remembered that the court considers all testimony of the child as a priority argument. If children are over fourteen years old, then this authority supports their choice.

If there has been psychological or physical abuse of a child by an ex-husband or wife, you will need to contact a professional lawyer to help you select the right evidence, since this is a sensitive issue.

Divorce after the birth of a child is undoubtedly much more difficult to endure. But in this case, you need to take into account not only your interests, but also the needs of the children, as well as what will be best for them in this difficult life situation.

Let's sum it up

As conclusions, we have compiled for you a short digest of all aspects of the situation when a child remains with his father after a divorce:

• The future fate of the children can be negotiated peacefully. By notifying the court about this, the spouses will avoid protracted litigation and will not waste their nerves.
• If the case goes to court, then he will always be on the side of the child. The internal strife of parents in such a situation fades into the background.
• If the father insists that the child live with him, and the mother is against this, then the man should prepare for a long and persistent defense of his innocence. Unfortunately, the Russian judicial machine is clumsy and often takes the mother’s side, despite seemingly logical arguments.
• Get all possible evidence that your son or daughter will be better off with you. The conclusion of the guardianship authorities, testimony of neighbors and relatives, confirmation of stable income - this and much more will add points in your favor.
• During the trial, try to be as tactful as possible. Even if irreconcilable differences arise between you and your spouse, do not make them public or demonstrate them in the courtroom. Inappropriate behavior, quarrels, altercations, unnecessary emotions - all this will be negatively perceived by the judge.
• Parents, no matter what the gap between them, should always think about the child and his well-being. If he wants to stay with his mother, it is better for the father to calm down his ambitions and pride - the emotions will subside, but the baby’s injuries will remain.

Judgment

The conflict between parents who cannot decide among themselves which of them will have common children to live with is resolved through the court.

You can also file a claim if the voluntary agreement concluded by the parents infringes on the interests of the father or the mother violates the terms of communication between the child and the father after the divorce.

The sequence of actions consists of several stages:

Preparation. Here the father should carefully consider how exactly he will justify his demand to give him the children. And draw up a statement of claim accordingly. In addition, the time before filing a claim and the time between filing a claim and the court hearing are devoted to collecting evidence of their position.

Filing a claim. The father can file a claim both during the divorce process and after it. The statement of claim indicates one or more reasons why living with the father is most consistent with the children's interests. Such reasons may be:

• negative qualities of the mother (bad habits, insufficient attention to children, etc.);
• the father has better living conditions and more income;
• the child will not have to change school, give up sections and extra classes (if the mother leaves and wants to take the child with her);
• the father pays more attention and time to the children (takes them to school or kindergarten, to classes, spends weekends with them);
• The mother, due to her official duties, often goes on business trips or works at night, and the child is left alone or in the care of unsuitable persons.

Trial . The court takes into account all factors - the conditions that the father and mother can create for the child, relationships in the family, and most importantly - the opinion of the child himself. Already a ten-year-old schoolchild has the opportunity to express to the court his desire to live with his father or mother. And the court will definitely take this opinion into account when making its final decision. So, during all the legal troubles, sorting out relations with your ex-wife, collecting information and interviewing witnesses, do not forget to pay attention to the very subject of the dispute - the child.

What evidence of the father's position does the court take into account? If a son or daughter actually lives with their father, then they will need certificates about the composition of the family from the house management, and testimony from neighbors. Does the father take the student to lessons and attend meetings? The class teacher and teachers will confirm. Are you going to take your heir to the circus? Take a photo together there with an automatic date. During all the preparations for the process, document every joint step, try to have witnesses to your common activities.

Guardianship and trusteeship officials can become allies of the father in the fight for his right to raise his children. You should definitely go and meet him before the trial. Describe your problems and seek support. If the child's living conditions are really bad, the E&P department, after checking the facts, can also act as a witness in the trial. And these testimonies are very valuable.

If the father works, and his job does not allow him to pick up the child from school or do homework with him, indicate in your argument who will take on these responsibilities. You can involve your grandmother, other relatives, or hire a governess (you can present as evidence an agreement with a hiring agency or with the nanny herself).