What to do if your husband wants (threatens) to take the child away

Courts quite often award children to mothers in the event of parental separation. But not all husbands agree with this, and having failed to achieve the truth in a trial, they resort to arbitrariness and forcibly take away the heir. In this article, we will look at such a difficult situation as a husband taking a child - what to do, where to go and whether the help of a lawyer in Moscow is needed in such circumstances.

1. Can the husband take the child?
2. The father took the child over 10 years old with his consent
3. The father took the child under 10 years old with his consent
4. The father took the child away without his consent
5. The marriage is not dissolved, the father took the children away

#1 Don't let things happen

Most of the women who contact us share the same mistake. At first, they did not attach much importance to the ex-husband’s attempts to get a child. Mothers usually reason like this: “I’m mentally healthy, not an alcoholic, I don’t go after men. Who would dare take my child away from me?” According to the logic of these women, circumstances are in their favor, which means there is no need to spend money on a lawyer or go to court. Believe me, you should not underestimate your opponent and rely on Themis’s tradition of taking the woman’s side. Many mothers got burned because of this. Even a court decision made in your favor and entered into force is not a reason to relax. The ex-husband can simply violate that same decision by taking the child for himself without asking and then, for example, taking it abroad.

Can the husband take the child?

In most cases, only the place of residence of children is determined at court hearings. The order of communication between a parent and a child who lives separately remains “on the conscience” of divorced or divorcing spouses. And from here a rather unpleasant moment arises for all parties to the conflict: the father, using his right to communicate with the child, guaranteed by Article 66 of the Family Code of Russia, actually removes the child. At the same time, the man may not apply for a review of the baby’s place of residence (for the time being).

However, in a situation where the child’s place of residence is determined and it does not coincide with the father’s place of residence, such arbitrariness is unacceptable. This is contrary to the law, a court decision (spousal agreement), limits the rights of the second parent and violates the legitimate interests of the child himself.

But this is in general order. In fact, in such circumstances there are too many nuances, and therefore, if the husband took the children, only an experienced lawyer can tell you what to do. Here we present the most general situations and ways to resolve them.

#2 Beware of treachery

Monitor your ex-husband's behavior. If the hostile tone suddenly changes to friendly, be vigilant. Perhaps this is a red herring. The real goal may be the removal of the child. This often happens: the father takes the child home with him after a walk, which the mother herself let the child go on. Let your child go for a walk with his father only if you are sure that he will return him at the appointed time. Be very careful if your ex-spouse suddenly develops a desire to take care of your health, pay for treatment or a sanatorium, or have you examined by his “good friends.” You risk ending up in a psychiatric clinic, tied to a bed, with a huge dose of a psychotropic drug in your blood and a very “scary” diagnosis in your medical record.

The father took the child away without his consent

In fact, this will already constitute the abduction of a child, but cannot be qualified under Art. 126 of the Criminal Code of the Russian Federation. The reason is the lack of selfish intent in the actions of the father who takes away his child. After all, the parent believes that he is acting in the interests of the child. Moreover, the age of a young person is of secondary importance, since for persons under 10 years old. Art. 57 of the RF IC is not applicable, and for persons older than this age, the article contains a reference to “taken into account” and is countered “if this does not contradict his interests.” Such an interesting Article 57 of the Family Code essentially gives equal opportunities to both mother and father (as well as the court and guardianship authorities) to arbitrarily interpret the situation and the child’s opinion about it.

But if the ex-husband took the children, what to do in such a situation, logic dictates:

• contact the police to establish the whereabouts of the children and return them home;
• contact the guardianship authorities to investigate the case;
• if there is a court decision determining the place of residence of the children - to the FSSP to initiate an enforcement search.

The main thing in this situation is not to remain idle, since if there is a significant loss of time, it will be quite easy for the ex-husband to legitimize his actions by simply proving that the children lived with him the entire time he was paying alimony. The mother made no attempt to return them, from which it is easy to conclude: the mother does not need children.

#3 No more illusions

Surprisingly, many women, after their husband took away the child, stop the real fight for parental rights. Everything turns into the appearance of vigorous activity. And now the fight is happening exclusively on paper. They write to whoever they can: courts, police, bailiffs, prosecutors, deputies. They even send their stories to the president himself on twenty pages. But in the best case, the response comes with a reply in the style of “your application has been accepted for consideration.” Remember, no amount of paperwork, even with a lawyer, will help you get your child back. Stop flattering yourself with the hope that some general or big official will cry after your letter and send special forces to save the baby from his father’s captivity. Do not try to force the local police officer or bailiffs to work with papers (if they are not banknotes). There is no point in competing with the bureaucratic machine in paperwork. The system is still invincible in this genre. Over the years, officials have perfected their ability to avoid work. You are a burden and an extra headache for them.

When can a child stay with his father?

The father has every chance of keeping the child in the following cases:

1. Immoral behavior of the child's mother in everyday life: dissolute lifestyle, alcoholism or drug addiction, unwillingness to provide for the child.
2. Deprivation of mother's parental rights.
3. Illegal (and documented!) behavior of the mother towards the child - beatings, evasion of her duties, leaving her in danger.
4. Lack of proper conditions for living and raising a child: lack of regular income, lack of living space, unsanitary conditions or unsuitable premises for living.
5. The conclusion of a forensic psychological and psychiatric examination about the child’s attachment to his father, or the clearly expressed opinion of a child who has reached the age of 10 about the desire to stay with his father.

In other situations, the age of the child matters:

1. From 0 to 10 years. If none of the listed signs are present in a particular situation, then the child’s mother should not be afraid of her husband’s threats - the court will almost never leave the child with him.
2. From 10 to 14 years. The judge takes into account the child's opinion. If a minor wishes to live with his father, the court can satisfy his demands.
3. From 14 to 18 years old. The child himself chooses which parent he will live with.

Thus, the main conflicts arise between spouses when determining the place of residence of a child aged 0 to 10 years. If the parents cannot resolve the issue, the court may order a psychological examination.

The specialist will study the child’s attachments. The court makes a decision based on the results of the examination.

Important! If the specialist does not reveal a clear attachment to one of the parents, then the minor will remain with the mother.

Read more about who children stay with after divorce in a separate publication.

#4 Be careful with lawyers

Yes, ex-husbands willingly and regularly bribe lawyers. Lawyers, in turn, earn their fees. You are assured that the trial is successfully moving toward victory, which is true, and the judge himself is on your side. A negative decision will come as a shock to you. The lawyer will just shrug his shoulders and drive off in a new car. At the same time, it is almost impossible to prove the fact of bribery. The solution here is simple: go to court in person. For every meeting. Personal presence in itself will play into your hands; the judge will take into account your interest. But the main thing is that you will see and hear everything yourself. You also have the option of making a voice recorder. The materials can then be submitted to an outside attorney for an independent evaluation.

Conflict between parents when divorcing children: a real threat or empty words

The divorce of two once close people, who also have small children together, is often accompanied by disputes about their future residence. After all, Art. 61 of the RF IC a priori provides for parents not only equal responsibilities, but also rights.

The above also applies to the address of the minor’s future place of residence.

After consideration of the claim for divorce, the first place comes to a voluntary agreement between the parents on where the child will continue to live. When there are no agreements, the court has the right to intervene on the basis of clause 3 of Art. 65 RF IC.

Factors to be taken into additional consideration:

• age of minors, their gender;
• personal attachment to mother or father;
• moral qualities of each parent;
• an opportunity for the full development of a minor.

On the other hand, there is such a picture. According to Art. 66 of the RF IC, the parent with whom the child currently lives must not create obstacles to communication and education of other close relatives. This is the stumbling block.

News appears in the press and on television with enviable frequency that the father has decided to forcibly take his son away from his mother. In this case, we can even talk about the use of physical violence.

It is important for a woman to protect her rights, based on the creation of decent conditions for education and development. Any valid action will do.

No. 5 Different weight categories of wallets

As in martial arts, the war for a child has its own weight categories. We are talking about the thickness of parental wallets. Such a dispute is rarely started by ordinary workers. A man with average earnings will quite agree to the role of “Sunday dad”, provided that the mother is completely adequate. As a rule, militant fathers have a powerful financial and administrative resource behind them. This means that he has the opportunity to hire the best lawyers, detectives, journalists and other necessary people. Such a father can easily bribe the police, guardianship authorities, not to mention the nanny or the child’s class teacher. It will not be difficult for this father to annoy your loved ones, destroy your business, ruin your career, even hire hooligans to intimidate you. Understand that for such fathers it is no longer just money, it is ammunition that he will not spare for you.

Illegal tricks that a husband can resort to in court

If there is no legal basis to leave a minor with his father, a man may undertake immoral and illegal methods.

Perjury

Invited witnesses from the father's side give false testimony against the mother, incriminating her in an inappropriate lifestyle.

However, there is a nuance: the witness and the spouse must have a family or friendly relationship, which is important to convey to the court.

A statement by witnesses about excessive alcohol consumption can be supported by a certificate or a description of the district police officer.

Fictitious expert opinion

Alas, it is not so difficult in our time to obtain a fictitious conclusion through corrupt means. Therefore, it is better to give preference to government agencies performing examinations, where this fact is practically reduced to zero.

If the father received a positive conclusion on the petition in an institution chosen by the court, without sufficient grounds, demand that the examination be repeated in another institution.

Bribing a child

When the father’s financial capabilities are greater than those of the mother, he begins to buy gifts for the baby, various gadgets, and tries to devote as much of his time to the baby as possible - in fact, this can be called bribing the child.

Minor children easily succumb to such influence. As a result of such actions, the minor may well say in court about his desire to continue to live with his father.

In such situations, the mother can obtain a psychological and psychiatric examination to prove the fact of exposure.

#6 Don't make a man mad

Of course, sometimes you really want to take a little revenge on your ex. To understand how much he lost. You may not pick up the phone, not respond to SMS, or cancel scheduled meetings between your child and dad. Moreover, they do it all cunningly, they say, the child himself was not very keen to see his dad. Sometimes a woman strives to show that after a divorce her personal life did not end, but even acquired new colors. And now your baby is dangling his legs on the shoulders of your new boyfriend. Such photos and videos, where, on top of everything else, the child calls an unfamiliar uncle “dad”, will only aggravate the situation. There is a great risk that one day you will not find your child on the playground, in the tennis section, at school or in kindergarten. You will be looking for your beloved son or daughter for a long time, and no boyfriends will help you. Therefore, refrain from barbs towards your ex-husband. Schadenfreude does no one any favors. The joy from such “injections” is doubtful, and the enmity with the ex-spouse can flare up in earnest. And first of all, your common child will suffer.

Appealing a judicial decision

Based on the results of the consideration of the case, the court makes a decision - to satisfy the plaintiff’s demands and transfer the child to his upbringing, or to refuse and leave him with his mother. The court decision is supported by a corresponding act, which, after the expiration of the deadline for appeal, enters into legal force and is subject to execution. After the decision has been made, any party that is not satisfied with the result has the right to file an appeal to have the case reviewed by a higher court (for a magistrate’s court - city/district, for a district - regional). If the appellate court does not overturn the decision, then it will be possible to appeal further.

Read: How to obtain consent for a child to travel abroad

No. 7 Prepare mentally for the status of the accused

Fathers have two key methods of dealing with their ex-wife: prison and a mental hospital. Moreover, prison is now a priority. Our bodies, of course, are not disinterested; they work according to the principle: “if there was a person, there would be an article.” The most popular “custom” articles in the war for a child are “fraud” (Article 159) and articles related to the storage, transportation and use of drugs (Article 228). Following them, however, by a wide margin are: causing bodily harm and threatening to kill. If the risk of criminal proceedings being initiated against you is high, it makes sense to submit a preventive statement to the Investigative Committee and the prosecutor's office. You should report that there is a dispute about the child's permanent place of residence. Also tell us about your fears regarding possible provocations against you. This, of course, will not protect you from accusations, but among other protective measures it will soften the blow and make life much more difficult for your opponents.

Trial

If an agreement cannot be drawn up, the husband must carefully prepare for the trial. The court may satisfy the father's request in situations where:

• a woman does not fulfill her maternal obligations due to her problems with alcohol, drugs, mental or other serious illnesses and complications. If these circumstances exist, the father provides the court with medical and other documents that confirm the fact that the mother has problems that do not allow her to fully ensure the interests of her son (daughter) after the divorce. It is worth resorting to the testimony of acquaintances, relatives and neighbors who will confirm that the ex-wife has problems. The father may indicate such facts as the reason for divorce in the statement of claim if he initiates the divorce process;
• the wife cannot fully provide normal living and upbringing of the children due to the lack of sufficient financial resources or a very high workload. These factors may have a lesser impact on the court’s decision, but if present, they should be used as additional evidence of the importance of a son (daughter) being close to his father;
• The ex-wife’s lifestyle is harmful and dangerous for the child. Such a circumstance can influence the court's decision only if the mother really leads an antisocial lifestyle and there are a large number of facts proving this circumstance.

See also: A lawn for every bunny, or How property is divided in case of divorce with children

The husband must carefully prepare for the trial

#8 Look for allies

Sympathizers surround you on all sides. Take a closer look. At school, kindergarten, clinic. All key points on the map of military operations are women's groups. there to say, even a judge in the vast majority of cases has a mother’s heart beating under her black robe. This is a very important point! Women's solidarity is a great strength. Try to take advantage of this advantage wisely. Be adequate, friendly, polite. Speak calmly, without rude words. Show modesty: dress simply but tastefully, don’t brandish your new smartphone or the keys to an expensive foreign car. They should sympathize with you, not envy you. And this is clearly not the case when you need to boast about material wealth. Simple and unspoiled aunts from the guardianship authorities should see a suffering mother in front of them, and not a rich bitch. They don't like people like that.

No. 9 Media - in your arsenal

Involve the media and social networks in the war. But remember, this is already heavy artillery. Sometimes she hits indiscriminately. Pointing accuracy is important here. First of all, it is important to exclude the possibility of lawsuits from the opponent. Avoid insults and slander, use only facts. The situation itself is already developing in your favor. You are a mother, a woman, the weaker sex. Tell everyone how you are fighting for your child, what intrigues they are plotting against you. Tell the world about this in simple human language. Contact the media editors, at least make a post on your wall on a social network. Believe me, many people will respond. Public outcry will attract the attention of the competent authorities to you and will serve as protection from dirty tricks on the part of your ex-husband.

Legal assistance for mother

If your spouse threatens to take away the child during a divorce, and you do not know how to resist this, since he is a fairly influential or rich person. The main thing is not to be afraid, he is just a person, and laws also exist for him. A competent practicing lawyer will be able to protect your interests in court. If you express a desire, the specialist will conduct preliminary negotiations with your spouse and explain to him your and his rights and responsibilities. Perhaps at this stage it will be possible to solve the problem. If the father categorically refuses to talk, the lawyer will collect evidence and defend your rights!

No. 10 Learn to live “in a state of siege”

If it becomes obvious that the ex-husband has firmly decided to take the child and an agreement cannot be reached, dig trenches. We will have to live in a state of siege for some time. It's nervous and difficult, but there is no other way. In this case, it is good to go somewhere with the child until the court makes a positive decision. If you move, change your mobile phone number. The new SIM card must not be registered to you. They sell such SIM cards near the metro all the time. Do not insert a new card into the old device, get a new one. Avoid planes and trains. Travel by car. If you do fly to another country, buy tickets from foreign airlines with several transfers. It is better to fly from Minsk, where you can easily reach by car. If you decide to stay in the country, write a statement to the Border Service of the FSB of Russia with a request to temporarily restrict your child from traveling abroad. During the acute phase of the confrontation, it is better to transfer the child to home schooling and abandon sections and clubs. Talk to the teachers, write a statement indicating all the persons who can pick up the child from the educational institution. Make sure that teachers have your phone number and let them call you in any alarming situation. It is better for a child to go for a walk with his mother and a second accompanying person (preferably a man). Look around carefully, don't go too far from home. If you see suspicious people in the yard, better be on the safe side. Talk to your child in advance about what to do in an emergency. Tell us about all the important phone numbers, addresses, and how to behave if you were taken away against your will. It would also be a good idea to provide your child with a miniature GPS tracker. It is advisable to equip the entrance to the house and the space in front of the front door with video cameras. Don't skimp on high-quality equipment with good resolution and a DVR with sufficient memory. In case of illegal actions by the father or his assistants, this will allow you to collect valuable evidence.

* You can find a complete list of rules for life in a “state of siege” in the book “War for Children”

Is it possible to deprive a mother of parental rights?

In order to officially take the child with them, some fathers go to the extent of depriving their ex-wife of parental rights through the court. At the same time, the application contains a requirement to establish a place of residence.

In Art. 69 of the RF IC specifies the reasons why one or both parents can be relieved of their rights in relation to minors. They are documented.

List of possible evidence:

• conclusions of the guardianship and trusteeship authority;
• medical reports;
• reports from law enforcement officials.

The list is supplemented depending on the reason that prompted you to go to court. Documents are collected in advance. This speeds up further consideration of the case.

Grounds for loss of parental status:

• lack of any participation in upbringing, providing children with everything they need;
• manifestation of physical, psychological, sexual violence against them; chronic abuse of alcohol and narcotic substances;
• inducing a teenager to commit illegal actions - petty theft, begging.

Before filing a claim, you must contact the guardianship service. She conducts an examination of the living conditions of the child, as well as his father, and then provides her written conclusions on the merits of the mother’s appeal.

The application is considered by a judge in the presence of the parties to the dispute, as well as the guardianship officer and the prosecutor. Written evidence, witness testimony, and expert opinions are examined. After this, a decision is made regarding the deprivation of parental rights and place of residence of the minor.

When the court upholds the claim, the mother loses legal ties with the child. In particular, she is deprived of the opportunity to see him and take part in his upbringing. In addition, the right to inherit property is lost in the event of his death at any age.

In this situation, a woman has two options for action. The first of these is to appeal the decision in an appeal. If there is no result, you should not give up.

After a certain time, the mother has the right to regain her rights. To do this, proof of correction is provided. The opinion of a minor is also taken into account in the case when he has already reached the age of ten years.