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A child has the right to express his opinion when resolving any family issues that affect his interests, regardless of his age. In addition, children may be heard in court proceedings. These rights are enshrined in Article 57 of the Family Code of the Russian Federation.
However, in practice, this does not mean at all that if parents divorce, the children must also be taken to court. Today we will talk about in what cases during divorce the child’s opinion will be taken into account and how his age affects this.
At what age does a child’s opinion take into account in a divorce?
Content
According to the general rule established by Art. 57 of the RF IC, the child’s opinion in court proceedings regarding determining the place of residence of a minor is taken into account from the age of ten. Young children are not allowed to participate in court hearings.
During the trial, the plaintiff or defendant has the right to file a petition for a psychological examination of the child’s attachments to his parents. In this case, an expert is involved in the case, who, within the time established by the court, conducts conversations with the child, gives the child tests and asks questions of interest. Meetings with a specialist are carried out both in the presence of one or both parents, and without their presence.
Based on the research, the psychologist draws conclusions about the child’s attachment to each of the parents, declares what decision would be the best solution for the child and draws up the corresponding expert opinion.
If necessary, a psychologist may be called to a court hearing to testify and explain the expert opinion.
The participation of a psychologist is mandatory if the statement of claim to determine the place of residence of a child concerns a minor who has reached the age of 10 years but has mental disabilities. The opinion of such a child is not taken into account; a psychologist, as well as guardianship and trusteeship authorities, are involved in the process.
The child’s psychological attachment to his mother and father is taken into account, as well as the parents’ ability to provide proper care for their special child.
How can I change my testimony if I have already signed everything?
Unfortunately, we hear this question very often. It is asked, as a rule, immediately after the initiation of a criminal case, reclassification from a witness to a suspect, or at the prosecution stage, when it has become obvious that the punishment may not be as lenient as it seemed at first.
If, before initiating a criminal case, you had to sign a so-called “interrogation protocol” or an explanation, then the situation is not critical. The survey is not an investigative action; it is carried out within the framework of the law regulating the activities of the detective.
In judicial practice, it so happens that an interview is of less importance as evidence than an interrogation conducted within the framework of the criminal procedural code.
If the interview was carried out under pressure, and this is often what happens, after the initiation of a criminal case, “interrogation” can be done in a completely different way.
If a competent investigator has already found a suspect and wants to “make a group” (establish a group crime) or has opened a “factual” case (without an identified person involved), then the witness after interrogation may well become a suspect.
It is important to remember here that the procedural code gives the witness almost the same rights as the suspect, and the most important of them is the opportunity to use the services of a defense lawyer in a timely manner.
The most difficult situation is when the case is about to be transferred to the prosecutor, that is, the indictment is almost ready or has already been prepared.
As a rule, a person has been interrogated several times by this point, and changing his testimony is the same as “signing” himself an extra few years.
Changing the testimony does not contribute to the investigation of the crime and takes away the possibility of a special procedure for legal proceedings and some mitigating circumstances.
Therefore, there are practically no cases when a person is interrogated without a lawyer. In any case, I have not seen this in Crimea. Any investigator will call a lawyer to conduct an interrogation. And then the worst thing can happen.
What the Bar Chamber of the Republic of Crimea is actively fighting is that a “pocket” lawyer can come into play.
This is the kind of lawyer who makes friends with the investigator and “resolves” issues of refusal to initiate a criminal case or persuades a person to confess.
For a lawyer in Crimea, such a violation may serve as grounds for deprivation of status.
Unfortunately, there are a lot of court verdicts where the court is critical of the defense’s arguments that the defendant testified with a lawyer who entered the case in violation of the duty schedule. At the same time, repeated interrogation with a previous complaint or challenge to a lawyer can give quite objective results if used before the trial.
There are not many lawyers in Crimea and even fewer lawyers in Simferopol, however, you can accidentally find a “pocket” one. If you find yourself in an unpleasant situation and find yourself in front of a police officer, if you do not trust the lawyer invited by the investigator, still exercise the right to call your family, who will help you find a lawyer.
Is the child’s opinion taken into account during a divorce through the registry office?
According to the norms of the RF IC, divorce in the registry office is possible only in the absence of children. Even if the spouses have no disputes, but there is a minor child, you need to go to court.
Another situation is possible - creating a family with a parent who has a child from a previous marriage. In fact, a spouse who is not biologically related to him has no rights to him (except for subsequent adoption). In this case, the opinion of the minor will not be taken into account in court, and the place of residence will not have to be determined - he will remain with his natural mother or father, even if he is strongly attached to his wife, from whom he is divorcing.
Are the opinions of children under 10 taken into account?
If a child is under 10 years of age and the parents are divorcing in court while simultaneously trying to resolve the issue of determining his place of residence with one of them, his opinion will not be fundamental. However, the courts still listen to the arguments of minors, but they are not invited to the hearings.
Representatives of the guardianship authorities can find out the child’s opinion when conducting an inspection of living conditions. At this time, the environment in which the parents live is studied and a conversation is held with the children. Everything is recorded in a document submitted to the court.
There is a second option - the court appoints a psychological examination on the initiative of one of the parents. During it, psychologists work with the child and find out which of the divorcing spouses he is more attached to.
How is the examination carried out?
The appointment of a comprehensive psychological and psychiatric examination is carried out by court decision.
How it all looks step by step:
- The mother or father submits a request for an examination.
- The judge creates a list of questions that experts must answer in their conclusion.
- A court ruling is drawn up and sent to an expert organization with state accreditation.
- During the conversation, the specialist talks to the parents, then conducts a survey of the minor.
Based on the results, the specialist finds out to whom the child is more attached, his psychological state, what conflicts there were previously in the family and with whom it is better for the minor to stay.
Important! The decision is not made on the basis of the conclusion alone. It is issued after a detailed study of the circumstances in the complex.
Can the court refuse a divorce if the child is against it?
Often children try to “force” their parents to keep the family together, saying that they do not want them to divorce. However, the court cannot take into account the child’s opinion on divorce: according to Art. 16 of the RF IC, a marriage can be terminated at the request of one or both spouses.
The only case when the opinion of a minor over 10 years of age is taken into account without fail is when resolving the issue of leaving him with his mother or father simultaneously with the divorce process or after it.
Is it possible to determine a child’s place of residence without a trial?
Parents can avoid proceedings and draw up an agreement to determine the place of residence of their son or daughter (Article 65 of the RF IC). The absence of disagreements on this issue and the desire to resolve everything peacefully is enough.
Legal advice: the agreement does not require notarization, but it is better to have it drawn up by a notary. The presence of his seal and signature will significantly reduce the chances of challenge if problematic situations arise in the future.
Let's consider how to properly draw up an agreement and what is required for this.
Procedure for drawing up an agreement
To resolve the issue of a child’s residence by agreement, it is enough to follow several steps:
- Decide who the minor will stay with, what communication procedure to establish for the second parent living separately.
- Draw up two copies of the agreement, indicating all the details.
Important! If the document is certified by a notary, the signing takes place in his presence.
Sample agreement
The agreement must provide comprehensive information:
- FULL NAME. parties, passport details, residential address;
- Full name, date of birth of the minor, details of the certificate;
- The purpose of the document is to determine the place of residence with one of the parents (the specific spouse with whom the child remains is indicated);
- The procedure for exercising parental rights: when a party living separately can see a son or daughter, what rights does he have;
- Rights and obligations of the parties;
- Grounds for changing or terminating the agreement;
- Validity period of the document;
- Signatures of the parties.
The agreement is drawn up in two copies. One stays with the mother, the second with the father.
Sample agreement on determining the place of residence of a child and the exercise of parental rights in relation to him: alt: Agreement on determining the place of residence of a child and the exercise of parental rights in relation to him
Documentation
To draw up an agreement, it is enough to have with you:
- Passports of both parents;
- Passport of a child over 14 years old;
- Birth certificate of a child under 14 years of age.
If the parties contact a notary, a receipt for payment of the notary fee will be required.
State duty
When notarizing an agreement, it is not the state duty that is paid, but the notarial fee established by Art. 22.1 “Fundamentals of legislation on notaries.” You will have to pay 500 rubles for certification of the document.
Note! The price includes only the certificate of agreement. If parents want a notary to draw it up from scratch, they will have to pay an additional 5-7,000 rubles. The exact price of the service is set independently by the notary chambers of each region.
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Arbitrage practice
Most often, children are left with their mothers, and the order of communication in relation to fathers is determined. The opinion of a child over 10 years of age is taken into account, but due to limited legal capacity, it does not always become fundamental for an objective consideration of the case.
Example:
The couple is getting a divorce in the district court, and at the same time the issue of leaving the son with one of the parents is being decided. The mother wants to take him for herself, but the father is against it. The child is 12 years old and claims that he does not want to stay with her due to his strict upbringing. His father allows him everything, never swears, there are no scandals.
During the proceedings, it turned out that by strict upbringing, the son meant his mother’s demands to do his homework every day, not sit at the computer for a long time, and try to study well. The father was never interested in the child’s education, but a couple of times a month he went for walks and fishing with him.
Based on the results of the proceedings, the court sided with the mother, considering that the minor would be better off with her.
If the child claims that he feels uncomfortable with one of the parents due to psychological incompatibility, abuse, and indicates a desire to stay with the other, the court will take his opinion into account.
Let's look at a few examples of court decisions:
- Decision No. 2-2956/2019 2-2956/2019~M-2056/2019 M-2056/2019 dated June 24, 2020 in case No. 2-2956/2019;
- Decision No. 2-1340/2019 dated June 26, 2020 in case No. 2-1340/2019;
- Decision No. 2-1741/2019 2-1741/2019~M-1261/2019 M-1261/2019 dated June 27, 2020 in case No. 2-1741/2019.
Limitation of rights
The only real limitation on a child's right to express an opinion is his inability to express. Only then can the court, in order to protect the legal rights and interests of the child, limit it, for example, by making a decision without taking into account the position.
The state relies on generally accepted priorities regarding issues of development, health, education of children, their psychological comfort and well-being, and children, as we know, are not always capable of adequate perception of reality and awareness of their own needs. Therefore, any restriction is aimed exclusively at good goals that meet true needs and desires.
