What documents are needed for joint custody of a child after divorce?

Divorce is an unpleasant procedure that negatively affects the moral state of the spouses, but also their child or children. According to statistics, in the last decade the number of divorces in the Russian Federation has almost doubled compared to the previous century.

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As a result, it is advisable to amend the Family Code of the Russian Federation to resolve the issue between former spouses as peacefully as possible. One important aspect of the divorce process is children: who do they stay with during the divorce?

Russian legislation provides for several ways to “divide” parental responsibilities after divorce.

Legislative regulation

At the moment, Russian legislation provides for joint custody in the event of a divorce over minor children. In such a situation, everything is regulated by the current regulatory framework. The main provisions are enshrined in the Civil Code of the Russian Federation. There are also certain points that are prescribed in the Family Code of Russia, and in addition there are additional Federal laws and Government Decrees and Decrees of the Supreme Court of Russia. Basic information is enshrined in Articles 31 to 34 of the Civil Code of the Russian Federation. It is on the basis of these provisions that the possibility of joint guardianship outside of marriage is provided.

Important. Decisions regarding the provision of opportunities for joint custody are provided only if there is a desire on at least one side (mother or father), which subsequently makes it possible to achieve this through the court.

European realities

The practice of joint custody exists in Europe. It allows both parents to participate equally in raising children and communicate with them. There are two types:

1. Legal. The minor permanently resides with one parent. The second has a real opportunity to actively participate in his life. All decisions concerning the child are made by the former spouses together. A minor can come to visit the other parent for several days. Issues of education, religion, and moral education are resolved jointly.
2. Physical. The order of residence of the child with each parent is established. He spends the same amount of time with them.

This form is possible if the parents live close to each other, the child will be able to continue going to kindergarten or school.

Joint custody of a child in divorce

Maintenance of a child after the dissolution of the marriage by both parents provides for their full participation in the upbringing of their offspring, despite the divorce. This allows you to strengthen the physical and mental health of a minor, who is often subject to suffering when their parents divorce. In practice, double custody does not imply alimony, since both trustees regularly take part in the life of their offspring and fulfill the duties of parents to the full extent. In this case, such guardianship can be by mutual consent in the following form:

1. Legal guardianship.
2. Physical custody.

Each individual situation involves the fulfillment of specific parental responsibilities in an appropriate way. Dual custody of children or a child during a divorce allows the trustees to independently determine the procedure and rules for raising their minor offspring within the framework of the current legislation of Russia.

Important. Not long ago, such a practice was not encountered in the Russian Federation, where it was mandatory for a child to be left with one of the trustees after a divorce, but everything changed significantly when the corresponding amendments to the legislation were adopted.

Physical

In this case, we are talking about a form of guardianship that provides for the child’s equal stay with both caregivers. In practice, the order of residence is established alternately with the mother and father, while the time of stay is set the same without prejudice to any party. Psychologists do not speak favorably about this option, since due to constant moving, psychological trauma can occur, which will significantly affect the subsequent development of the baby.

Legal

In such a situation, permanent residence with one of the guardians and temporary residence with the second parent are provided. Also, another guardian takes an active part in the life of a minor, constantly engaged in raising his offspring. It provides that all decisions regarding the development and upbringing of the offspring are made by mutual consent, which cannot be violated after joint custody. This option is more acceptable for the child’s psychological health.

Important. Joint custody is an innovation in Russian jurisprudence, which is why this point has not been fully worked out, which contributes to certain conflict situations between former spouses.

Possible options

Today, the legislation of the Russian Federation provides for guardianship after divorce by one of the parents, or both at the same time.

The most popular scenarios:

• The child remains with the mother. It has long been believed that a mother can provide good care and education to her baby. As a rule, the court takes the mother’s side in divorce proceedings;
• The child remains with the father. The judge must take into account the opinion of the child (if he is over ten years old). In some situations, the baby is closer to the father, and he wants to stay with him. There are also cases when the mother cannot provide full care for the child, or she leads an immoral lifestyle: then the court will most likely take the side of the father;
• Separation of children. If the former spouses have several children together, the possibility of dividing them is considered: some remain to live with their mother, others with their father. This takes into account the well-being of both parents, the wishes of the children and other factors;
• Joint custody. A common way in Europe to resolve the issue regarding children in divorce proceedings. It is assumed that both parents will have equal rights and responsibilities towards the child, despite the divorce. Read more about this in the next section.

When deciding the issue of who the child will remain with after a divorce, the main task of the court is to make the most optimal decision and satisfy all the needs of the child.

Therefore, first of all, the opinions of children are taken into account, and then other factors (material wealth of parents, their characteristics, etc.).

The degree of participation of guardianship authorities in divorce

Since the process provides for a certain distribution of opportunities for guardianship of a minor, the guardianship authorities and the board of trustees are directly involved here, namely:

1. monitor compliance with the rights and interests of the minor;
2. exercise supervision over the implementation of the adopted guardianship resolution;
3. take into account the interests of both parents;
4. provide other provisions regarding guardianship.

All this is necessary for joint custody to be valid in practice, without prejudice to the interests of one of the parties.

Child custody decision: factors to consider

When deciding who a child will live with, courts consider various factors. The primary consideration is always the child's best interests. If children have reached the age of 14, then their opinion on which parent they want to live with is taken into account during the divorce. The court must take into account:

• children's wishes (from the age of 14, when he is able to express his preferences);
• mental and physical health of parents;
• religious and/or cultural considerations;
• the ability to create a stable home environment;
• support and opportunities for interaction with extended family members of either parent;
• creating conditions for living, recreation and study;
• age and gender of the child;
• evidence of parental drug, alcohol, psychological or sexual abuse.

Determination of Primary Caregiver

In addition to the above factors, courts will give preference to parents who can demonstrate that they play a major role in the child's life. The child should live with the parent with whom he has a better emotional connection. This emotional connection is important for a child to successfully move through the various stages of his development.

When determining which parent is the primary caregiver, courts look at direct child care responsibilities, such as:

• bathing, grooming and changing;
• cooking food;
• buying clothes;
• wash;
• health protection;
• promoting participation in extracurricular activities;
• teaching reading, writing and mathematics.

As you can see, the responsibilities of mothers are listed. The father is appointed as the primary guardian if the woman does not meet all these criteria. Although in world practice, for a long time, women’s responsibilities have not been decisive in children’s upbringing.

Depending on the state in which the guardianship determination is made, other factors may be considered important. Even things like exposure to tobacco smoke or poor academic performance and poor discipline at school may also be considered.

What to do if the spouse does not comply with the court decision?

Very often, despite joint custody, a woman prevents her ex-husband from communicating with her son or daughter. She does this under various pretexts, constantly finding excuses, but in reality, this is just the result of a woman’s resentment. What should a man do in this case?

• talk seriously with your ex-wife, if the conversation does not work out, involve a lawyer;
• create a specific schedule for your meetings with your children;
• if there are no ways to cooperate, go to court.

Try to wait out the pause after the divorce. Often a woman needs time to cool down and calm down.

It is clear that the side that lives separately always suffers. It is very important at this moment to forget everything bad, to discard negative emotions and feelings. It is primarily in the interests of the man to set up a relationship with his ex-wife

Perhaps the most emotionally difficult part of divorce for couples with children is dealing with custody issues. But in any case, parents should put aside their differences and make sure that they are acting in the interests of their children.

Documents required for joint custody of a child after divorce

In order to raise a minor together with your ex-spouse, you will need to prepare a whole list of documents. As a rule, the law requires the availability of the following official papers:

• a statement of claim to the court, since the proceedings take place through the justice authorities at the place of registration;
• A passport of a citizen of the Russian Federation is required for those who initiated joint guardianship;
• birth certificates of all minor children who are related to this process;
• confirmation of paternity establishment (if the initiator of the event is the father of a minor);
• An extract from the house register at the plaintiff’s place of residence will be required, as well as a medical certificate confirming the absence of diseases and disorders;
• You will also need to obtain a certificate of no criminal record, and in addition confirmation of official work;
• receipt of payment of the state fee for the consideration of the guardianship case by the court.

It should be understood that the claim form is provided directly to the court upon initial application, where a statement of claim is filed to resolve the current situation.

Important. If necessary, the court may request other documents, in which case the review process will be postponed to a later date.

How to achieve the right to participate in the life of a child living with a former spouse?

The best solution would be a peaceful agreement on raising children. If the spouses have managed to agree on how they will raise the child after the divorce, then they need to draw up an agreement. They can indicate in the agreement the period during which the child will live with the mother, and then with the father, and draw up a schedule.

The drawn up agreement, together with the statement of claim, is submitted to the magistrate's court. If the parents' agreement does not conflict with the interests of the minor, the judge will make a decision in accordance with the agreement. A child who is already 10 years old has the right to vote.

There are cases when one of the parents, for example a mother, is against joint custody - the ex-wife does not allow the children to see their father. In this case, the man must file a claim in the district court. For this you need the following documents:

• passport;
• birth certificate of a minor;
• certificate of marriage and divorce;
• act of inspection of housing conditions;
• certificate of health of the minor;
• income certificate.

If the mother cannot prove that communication with the father negatively affects the health and mental state of the child, then the court will assign him a certain time to meet with the father. Refusal to comply with a court order is a serious violation. Repeated bans on seeing your child may lead to the initiation of legal proceedings to transfer the minor to the custody of his father.

Which parent is the guardian of the adopted child after divorce?

In practice, such a procedure provides for full joint guardianship, or the appointment of a specific guardian and the subsequent full participation in the life of the child of the second participant in the process. As a rule, guardianship is assigned to the parent with whom the minor remains after the dissolution of the marriage. If a physical option is provided, then both trustees will act as guardians, but most often a legal form is provided, with children often remaining with their mothers, and fathers in turn doing everything necessary for the proper upbringing and development of their offspring.

Advantages

The termination of a relationship between parents always turns into a tragedy for a child, regardless of his age. Firstly, during a divorce, the way of life changes dramatically, and secondly, it is often necessary to choose between two parents.

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Such a task is impossible for most children, because love for father and mother is usually expressed equally. In addition, the baby may feel abandoned and unwanted.

According to psychologists, a child’s divorce is sometimes even more painful for a child than for former spouses.

The main advantage of joint custody is that both parents take an equal part in raising and caring for the child, so he does not feel alone.

Registration of equal rights to a child is a modern and rational approach to the divorce process, which will prevent spoiling the child’s psychological health. Therefore, now more and more former spouses are choosing this method of resolving the issue.

Who do minor children stay with when their parents divorce?

In this case, we are talking about a rather complicated moment, since there is no exact answer here. If a voluntary divorce occurs, then the baby is assigned to one of the voluntary parents who is ready to take on such responsibility. In the case of divorce proceedings, it is often the mother who faces this prospect. However, the process takes into account wealth, standard of living and housing availability, as well as social status. If there are more prospects for a decent life with the father, then the court will give such a right in his favor with subsequent additions. The child’s wishes should be highlighted separately, since they are also taken into account when choosing a guardian.

Important. Since the Russian Federation is a legal state, all aspects here are regulated by current legislation, where the rules for appointing guardianship of minors are clearly established.

If a dispute arises

When implementing joint custody, controversial and conflict situations may arise - the parties may have mutual claims about the child’s living conditions, methods of raising him, the amount of funds allocated, etc. If the dispute cannot be resolved voluntarily, it will be considered in court at the request of either parent.

Let us highlight the most common grounds for going to court:

• refusal to transfer the child for temporary residence to the second parent, in the absence of legal and reasonable reasons;
• prohibitions and restrictions imposed on one of the parents when communicating with the child;
• insufficient funds for child support allocated under the terms of the agreement;
• a sharp deterioration in the housing and other living conditions of the child at the place of permanent residence.

If controversial issues arise, the court will make a decision on the procedure for exercising parental rights. In fact, this means the termination of mutual joint custody, since failure to comply with a judicial act will entail the use of coercive measures, including administrative sanctions.

How is a child’s place of residence determined during a divorce?

If a legal option for joint guardianship is envisaged, then in such a situation the specific place of residence of the child is established. Let's take a closer look at how this option is determined:

1. First of all, the total area is taken into account.
2. The living area of ​​the premises is also taken into account.
3. Usable housing area for each resident.
4. The number of people registered in the object and their age, as well as their relationship.
5. The condition of the object, which is intended as future housing.
6. Development of infrastructure near the structure.
7. How far from the place the child is studying.

All these points are taken into account when determining the future place of residence of a minor. Of course, here there is an analysis of the presented options from the mother’s and father’s side.

Legal grounds

clause 7 art. 10 of Law No. 48, the guardianship and trusteeship authority has the right to appoint several guardians for a minor at once. Such a decision can only be made based on the interests of the child. This option is especially suitable for placement in a foster family consisting of a husband and wife. The functions of caring for an orphan, divided between a man and a woman, create an environment that corresponds to the type of family.

From the moment joint guardianship is legalized, the upbringing, maintenance, and representation of the interests of the ward falls on all appointed educators equally. Each of the patrons is responsible for improper performance or failure to fulfill assigned duties. The law makes it possible to divide the tasks of raising a child among citizens on an individual basis. Specific functions should be assigned to individual subjects in accordance with their capabilities, employment, and physical characteristics. The distribution is provided for in the following possible documents:

• in the guardianship agreement;
• in a special act of the PLO.

Important! Guardians have the right to delegate their powers or part of them to one of their number. Then one person will be in charge of the minor’s affairs. To do this, you need to draw up a power of attorney on behalf of all partners and have it notarized.

Nuances of the process in court

Any procedure for the appointment of joint custody without mutual consent implies the need for legal proceedings. Here you may encounter the following number of features:

• All legal costs are borne by the claimant.
• The parties have the right to use legal methods to protect their interests.
• It is recommended to use the services of lawyers.
• A court decision can always be appealed to a higher authority.
• At the trial, the opinion of the minor is also taken into account.
• The parties have the right to provide additional materials for the case.

All proceedings regarding joint custody take place within the framework of the civil procedural process, where the opinions of all parties are taken into account, and the regulatory framework of the Russian Federation is also taken into account.

Important. If necessary, litigation can be avoided, but in such a situation the parties must reach a mutual agreement.

How to act

Spouses who want to independently decide how to care for a child have several legal ways to do this. The possibility of concluding a special agreement is provided for in Art. 24, art. 66 RF IC. The articles of the code regulate the basic requirements that a written agreement must meet. In particular, the legislator proposes the following scenarios:

• when considering the case, inform the judge about the absence of controversial issues regarding common children and the readiness to close this issue without the intervention of a justice authority;
• conclude an agreement on the basis of Art. 24 of the RF IC, which defines the principles of education and financial support for minors;
• sign a documentary consent regarding the specifics of the exercise of parental rights in accordance with Art. 66 IC of Russia.

Question:

Does the court have the right not to recognize an agreement concluded between parents?

Answer:

When considering a case, the court must examine the content of the contractual act and check its compliance with the law. The agreement must receive judicial approval and be strictly adhered to by the parties. In some cases, employees of trustee structures may become involved in the process. Their task is to check the living conditions of the guardians and draw up their personal portrait.