After the divorce, a number of questions arise regarding the further communication of parents with children together. Usually the minor remains to live with one of them, and the second has the right to communicate, resolve issues about obtaining an education and others. In some situations, an agreement is drawn up to determine the child’s place of residence. How to design it correctly and what does it give to participants?
How to draw up and write an agreement correctly
An agreement to determine the child’s place of residence is concluded by the parents of common minors or adopted children during or after a divorce in the event that they want to avoid additional litigation.
The preparation of this document is based solely on the goodwill of the spouses and the legitimate interests of the children. Therefore, before you start writing it, you should consider that:
- The mother has no advantage by default - the minor’s place of residence can also be determined with the father.
- It will be better for a small child (especially an infant) to stay with his mother.
- If possible, you should not separate siblings (it is better to leave them with one parent).
- The material income of the parent living together should be enough to cover at least half of the costs of maintaining the child.
- It is important to consider the comfort and safety of children, as well as the amount of free time that the father or mother is willing to spend on raising and caring for them.
- The selected parent must have sufficient health, moral and ethical qualities (not suffer from alcoholism, drug addiction, or be characterized by immoral behavior).
Form
An agreement to determine the place of permanent residence of a minor does not require notarization by law. The parties can conclude it independently, without the participation of third parties.
In doing so, they need to know the following:
- The document is presented in writing, in two copies.
- You can write it by hand or using technical writing tools (PC).
- Each copy of the agreement must be signed by both parties.
If desired, spouses can contact a notary to certify the document. But this circumstance will not have any special significance, and the legal force of the agreement in any case will be inferior to a similar court decision.
Contents, composition
It is important to specify the following in the agreement:
- Input data - full name, residential address of the parties, place and time of preparation.
- The subject of the agreement is the main purpose of its preparation and an indication of who exactly the minor will live with.
- The procedure for exercising parental rights (optional) - a schedule of communication with a parent living separately.
- Rights and obligations of the parties - it is necessary to write about the intention of the former spouses to adhere to this agreement and promptly notify the parent living separately about a change in the child’s place of residence or the occurrence of unforeseen circumstances that impede their time together.
- Duration of provisions , exceptions, additional conditions - the circumstances under which mandatory clauses of the contract may be changed or temporarily not fulfilled are listed, and other important notes for the parties are indicated.
At the bottom of the document, the signatures of the parties are affixed, addresses and contact information are indicated.
Order of communication
If necessary, the agreement also contains more detailed information about further communication with the child. For example, exactly how much time a parent living separately will spend with the child, on what days of the week or month, where they will meet, and even the number of hours. This is done so that after the end of the trial the spouses no longer have any claims against each other.
A settlement agreement for children, a sample of which is provided below, can be signed at any time. But it is best to do this before the start of the trial, and present ready-made papers to the court. If there is a need to conclude an agreement when the trial has already begun, you can ask for a delay and during this time draw up an agreement.
The agreement is reviewed by the court and can be accepted or rejected. The decision depends on the correctness of its content. If the contract violates the will or needs of a minor in any way, the judge will have to reconsider the agreement based on Art. 24 of the Family Code of the Russian Federation.
If it is not possible to reach mutual agreement
A broken couple is not always able to put aside emotions and reach an agreement on such an important issue. Then one of the parents can apply to the court with a request for a forced settlement.
To do this, he will need to bring a claim to the district court with a list of attached documentation and try to prove that it is with him that the child will live better.
Despite the loyal attitude of the legislation, the drafting of a settlement agreement should be approached extremely responsibly, because in the coming years it will become the basis for determining the procedure for the fulfillment of parental responsibilities by former spouses.
Regarding the content and design features of the document, we recommend that you consult with the lawyers of the site ros-nasledstvo.ru. Their help will be completely free and will not take long to arrive.
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Parent's rights after divorce
In addition, the rights of parents to children after a divorce remain the same as they were during marriage. But a number of difficulties may arise with their implementation.
A parent who leaves the family retains the right to:
- obtaining information about the child’s health, academic performance and life;
- making decisions about education or treatment;
- communicating with the child, spending time together with him;
- other actions necessary to fulfill their parental responsibilities and exercise their rights.
Expert opinion
Stanislav Evseev
Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.
The main problem in establishing interaction between parents is their hostile relationship caused by the breakdown of the relationship. The child suffers from such conflicts.
In defense of his interests, it is much easier to refuse to settle scores and agree on the fulfillment of one’s duties peacefully.
Determining the place of residence of children
The main issue regarding children's upbringing after divorce and physical separation of parents is the choice of place of residence for minors. Article 65 of the RF IC gives priority to the independent solution of the task at hand; only if it is impossible to determine, it allows the involvement of guardianship authorities and the court. Existing methods:
- Agreement on determining the place of residence of children and other issues regarding upbringing, education and development. The document is drawn up by the parties independently in writing. If drawn up in violation of legal norms, it is considered void and has no legal force. A notarial agreement on the residence of a child is not mandatory; a visit to a notary is required if:
- the initiative comes from one of the participants;
- At the same time, the calculation and procedure for payment of alimony payments are provided.
- Decision by the justice authorities in the absence of an agreement on the child’s place of residence and alimony. If two standard methods are provided for the collection of alimony payments, then when determining the place of residence, the court is obliged to evaluate a number of factors that are often not subject to legal assessment:
- the degree of attachment to each of the parents, as well as to brothers and sisters, involving psychologists and conducting a socio-psychological examination by specialists if it is impossible to establish reliability by the guardianship council along with the judicial authority;
- the age of the child, who, upon reaching ten years of age, has the right to openly express his desire for residence and be heard when a verdict is made;
- moral and ethical qualities of parents, examined on the basis of characteristics of employers, certificates of no criminal record and registration in psychoneurological dispensaries, testimony of work colleagues, neighbors and employees of child care institutions visited by the child.
At any stage of the trial, it is possible to conclude a settlement agreement to determine the child’s place of residence, which is welcomed and accepted by the courts unconditionally in accordance with legal norms.
What does concluding an agreement give?
Even an agreement concluded in simple written form (without the participation of a notary) has the necessary legal force. The parties are obliged to fulfill the agreements they signed. Chapter 9 of the Civil Code protects the rights of each party to the transaction and stipulates cases when they can be challenged or declared invalid.
Thus, having written confirmation of the agreements in your hands, you have the right to demand their execution, including in court.
Voluntary agreement
The best option for both children and their parents would be an agreement without the participation of the court. To do this, it is enough to conclude an agreement on the place of residence of the children after the divorce before the start of the divorce process. Advantages of this solution:
- parents, knowing their children better than anyone, will be able to determine the best place for them to live - with their mother or father;
- spouses will save time and get a divorce much faster if they submit an agreement signed by both together with the application.
The form of the document is not established by law, so parents have the right to independently determine the points that will be indicated in it. However, the document cannot contain provisions that contradict the law. If such clauses were included in the agreement, the court will declare it void.
In simple written form
Although there is no single form of voluntary agreement, it must contain the following information:
- place and date of signing;
- personal data of the mother and father (full name, passport details, registration addresses);
- information about marriage and its dissolution;
- complete information about children;
- basic conditions;
- validity;
- rules for terminating the contract and making changes to it;
- signatures of both parties.
In the main part, it is necessary to describe the child’s place of residence, the degree of participation of the father and mother in his maintenance and upbringing. The frequency and duration of meetings with the child of the parent who will not live with him should be indicated. Sample document:
If the document specifies conditions regarding the payment of alimony, the allocation of funds for the treatment of a child or his education, it must have a general name. For example, “Agreement on Children”.
Does such an agreement need to be notarized?
Unlike, for example, an agreement on the division of joint property of spouses, such an agreement does not require mandatory notarization. This helps to significantly save on notary services.
But we still recommend that our clients use the services of a notary in a situation where it is necessary to consolidate agreements on the procedure for communicating with a child and determining his place of residence. Since the document usually contains provisions that are not the most favorable for one of the parties, it can be challenged in court in the future. A party to an agreement may claim that he was not aware of his actions or that he signed the document under the influence of a threat or material misconception. These and other reasons may lead to the agreement being declared invalid in court. When the agreement is notarized, such risks are greatly reduced.
You can include provisions for payment of alimony in the agreement to determine the child's living arrangements. This is only possible through a notary. In the absence of notarization, the agreement to pay maintenance - alimony - is void. If it is not possible to negotiate the provisions for payment of alimony with the help of a notarized agreement, you should apply to the court with a claim for their payment.
Settlement agreement to determine the child’s place of residence
Divorce is accompanied not only by the division of jointly acquired property, but also by the distribution of parental rights. Former spouses will have to decide with whom their common child will live. And the best way to resolve this issue is to draw up a settlement agreement. But in order to ensure that it does not bring with it new problems and in the future suits all parties, it is important to carefully consider its content and draw it up in compliance with the procedure established by law.
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