Agreement on the procedure for communication, maintenance and upbringing of a child

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.

Children's rights

Not all rights and responsibilities arise after reaching adulthood. Children are provided with some guarantees from the moment of birth. So, by virtue of Article 55 of the RF IC, young citizens have the right to communicate with both parents, as well as other relatives, the list of which can be very extensive. In particular, regardless of the interpersonal relationship between father and mother, they are obliged to provide the child with the opportunity to communicate with:

• grandparents;
• brothers and sisters, even if they were born in another marriage of one of the parents;
• aunts and uncles;
• other persons who, even if they were distantly related, were previously constantly present in the child’s life.

But which of the divorced couples remembers the rights of the child? After all, so many grievances and claims have accumulated against the ex-spouse, and yet the jointly acquired property must be divided, alimony must be collected and, at the same time, remembering the words of the mother-in-law. And in which of these moments are the interests of the child taken into account? But what about the right to be raised by both parents, to be protected, cared for, loved by both dad and mom?

Settlement agreement and agreement for children - what is the difference?

Any agreement regarding the upbringing of children is often called a settlement agreement. From a layman’s point of view, everything is clear - the parties make peace and agree on paper about mutual rights and obligations.

However, a nuance is important here: a settlement agreement is a consequence of resolving a legal dispute; it is concluded in court and approved by the court. Such as, for example, a settlement agreement to determine the child’s place of residence.

All other agreements reached and sealed by parents on paper cannot, from a legal point of view, be called a settlement agreement.

A voluntary agreement on children is drawn up without the participation of judicial authorities and is subject to notarization.

When and by whom is it concluded?

Art. 66 of the Family Code of the Russian Federation indicates that a settlement agreement is concluded only in the case of separation of the child and one of the parents. It does not matter whether the spouses are officially divorced or have just filed an application, the document can be signed even at the stage of legal proceedings.

Either parent can propose an agreement. If there are no insurmountable contradictions between the parties that should be resolved only during the proceedings, the judge also has the right to persuade the participants in the process to sign an agreement.

How to draw up and write an agreement correctly

There are no special requirements by law for drawing up such an application. However, due to the fact that the document involves defining three important areas of parental relationships at once, it is hardly possible to draw it up without the help of a lawyer.

The Family Code does not establish requirements for such an agreement. Certain provisions are prescribed in Art. 100-101 of the RF IC for alimony agreements.

Parents will have to be guided by them when concluding a comprehensive message about children, containing the issue of child support obligations.

Form

The agreement is made in writing. The mandatory requirement for notarization is stated only in Art. 100 of the RF IC regarding parental agreements on the payment of alimony.

The principle “From the particular to the general” applies here - a comprehensive agreement between the parents, which considers issues of communication and education along with alimony, will have to be certified by a notary.

You can avoid notarization of the contract by excluding the provision on alimony.

Important! No one and nothing prohibits parents from sealing the agreement reached with a notary even without mandatory requirements in the law. But the notary will in any case check the agreement for compliance with the law.

If the agreement contains illegal conditions, restrictions or other provisions that violate the rights of the child or one of the parents, such a document will not be certified.

Contents, composition

For a document regulating the relationship between parents in raising a child, the following list of required details can be determined:

• date and place of conclusion of the agreement;
• Title of the document;
• FULL NAME. parents, their passport details, registration addresses and places of actual residence;
• FULL NAME. the child, his date of birth (raising the child is the “subject” of the agreement);
• terms of the agreement, restrictions, procedure;
• personal signatures of the parties, date of signing.

These are mandatory document details. But with the conditions, everything is much more complicated - there can be dozens of them, touching every area of ​​the child’s life.

Parents can divide the areas between themselves. Mom may be responsible for treatment, father - for sports development, sections and tourism. Everything is in the hands of the parents.

The rights and responsibilities of both parents in general are also spelled out.

Most often this concerns:

• notifying each other of their intention to spend time with the child;
• notifications of delays in the child's return or transfer;
• informing about various emergencies, injuries, problems;
• Arrival and departure procedures for long periods of time.

Parents determine the full terms and conditions of the document independently. The law does not establish any requirements here.

The only limitation is the protection of the children's interests and the interests of each parent. The document cannot strictly limit communication with a minor or impose a ban on meetings.

A competent lawyer who will correctly formulate all the conditions can help in creating an exhaustive list of conditions.

Additionally, the conditions, duration and procedure for communication between the child and close relatives of the parent who does not live with the child may be stipulated.

We are talking about grandmothers, grandfathers, sisters, brothers (not including full-blooded ones). Restrictions based on desire alone are not allowed; relatives also have the right to communicate with the baby, as prescribed by law.

Limitations in the agreement

In addition to establishing the procedure for interaction between parents on various issues, the document may also reflect restrictive conditions.

Some of them may be related to the health or personal qualities of the child:

• restrictions on travel into nature due to an allergy to mosquito bites;
• a ban on riding high-altitude rides due to the child’s fear due to an earlier incident;
• restrictions on visiting cafeterias and restaurants due to food allergies or diseases of the gastrointestinal tract.

A parent who takes a child for a joint holiday is obliged to follow all the conditions with which he agreed. Violating them (especially intentionally) can result in termination of the agreement and a breakdown in communication with the child. Up to the deprivation of parental rights (if his actions pose a threat to the normal development of the child).

The document also specifies restrictions on the time and periods of communication with the child.

It can be:

• day or time restrictions for the parent;
• an indication of the minimum or maximum number of meetings or contact hours;
• a list of days of “unconditional” communication and days when the second parent will not be able to communicate with the child.

As mentioned above, the agreement between the spouses is free and the main requirement for all conditions is the absence of unreasonable restrictions and violations of the rights and interests of both the child and any of the parents.

Example . It is impossible to limit communication between a father and a child at the request of the mother. But it is reasonable to establish a ban on traveling outside the city on weekdays - this way the minor will be guaranteed the opportunity to study peacefully.

If agreement cannot be reached

If there is an irreconcilable conflict and it is impossible to reach a common opinion, the father or mother has the right to apply to the court with a request to determine the procedure for exercising parental rights and responsibilities. The same happens in case of non-compliance with the provisions of an already concluded agreement.

At the request of one of the parents, the judge considers controversial issues and makes a decision on them, taking into account the following circumstances:

1. Age and needs of the child.
2. Financial situation and living conditions of parents.
3. The employment schedule of both father and mother and their children.

A judicial act has greater legal significance than an agreement, but obtaining it will take more time and effort, since in order to substantiate his position the applicant will have to collect evidence, present it in court and participate in legal proceedings.

Which court to go to: generic and territorial jurisdiction

Civil cases to determine the order of communication with a child fall under the jurisdiction of district courts.

The statement of claim should be filed with the court of the district in which the defendant lives (registered at his place of residence).

An alternative jurisdiction is possible only if the plaintiff is the parent with whom the minor child is located (those cases when the parent with whom the child lives wants to establish the time of meetings of the second parent with the child), and one of the requirements in the statement of claim is termination marriage.

In other words, the plaintiff can choose jurisdiction only if two conditions are present simultaneously:

• The lawsuit seeks divorce
• The plaintiff has a minor child with him

In all other cases, the plaintiff’s choice of jurisdiction for a claim to determine the order of meetings with a child is not provided; a claim to determine the order of communication with a child is filed strictly in accordance with general jurisdiction - to the court at the place of residence of the defendant (Article 28 of the Code of Civil Procedure of the Russian Federation).

Statement of claim to determine the order of communication with a child

The trial to establish the time of meetings and the procedure for communicating with the child is carried out according to the rules of claim proceedings.

A claim to determine the order of communication between a child and a parent living separately can be brought as if in a registered marriage, i.e. during the actual breakdown of the family, and after divorce.

Of course, the procedure for communicating with a child after a divorce becomes the subject of litigation much more often.

In the statement of claim, the plaintiff proposes an option for the order of his communication with the child (children), and may ask to establish days, hours, periods when he can freely spend time with the child, take him for walks, take him to his home, etc.

It should be remembered that the age of the child is important when the court establishes the order of communication.

If the child is too young (under 3 years old), is breastfed, has illnesses that require certain care, etc., the order of meetings, frequency and amount of time of communication with the parent living separately will be established taking into account all these circumstances.

For example, if we are talking about a one-year-old child, the court is unlikely to determine the possibility of the second parent taking him away for several days a week. In this case, communication is possible for a certain number of hours per week, including with the presence of the mother.

When drawing up a claim to establish the order of communication between a child and a parent living separately, it is necessary to take into account the age of the child, i.e. Initially, real requirements should be stated so that they do not have to be clarified in court.

The court makes a decision taking into account all significant circumstances, and first of all is obliged to proceed from the interests of the child himself. Both parents must understand this.

Often, the parties come to peace already during the trial; the judge also encourages them to do this, since he is obliged to take measures for the peaceful outcome of the case.

A settlement agreement on the procedure for communicating with a child can be concluded at any stage of the trial, and even after the court has made a decision.

The guardianship and trusteeship authorities must take part in the case and give their written opinion on the merits of the dispute. Employees of the guardianship department go to the child’s place of residence to inspect the living conditions at the address. Also, the guardianship authority at the plaintiff’s place of residence inspects his living conditions.

Based on the results of checks, communication with parents, and taking into account a number of other aspects, the guardianship authority provides the court with its written opinion regarding the possibility of determining the order of communication with the child declared by the plaintiff.

When a child reaches 10 years of age, the law allows the court to conduct a conversation with him personally, i.e. heard during the trial, and take into account the child’s opinion (Article 57 of the Family Code of the Russian Federation). The child’s opinion is not decisive, but is only taken into account by the court and taken into account when making a decision. The child is interviewed strictly in the presence of the teacher.

Before deciding whether to involve the child himself in the process, the court finds out the opinion of the guardianship and trusteeship authority, whether such an interview will harm the child’s psyche, or whether the presence of the court will have an adverse effect on him.

Alimony and maintenance

Theoretically, parents can agree on child support on a voluntary basis without giving the document executive force.

But such an agreement is valid as long as both parents fulfill it in good faith.

If the father pays child support, and the mother argues otherwise, or the father evades payment, he will still have to go to court. The notarized agreement can be submitted to the FSSP for forced collection of funds for the child.

Read more about how to properly formalize voluntary payment of alimony.

Questions for a lawyer

Is it possible to oblige a mother to bring her child?

When deciding which parent has the opportunity to bring the child to the place of communication, the following are taken into account:

• having a car;
• employment;
• child mode;
• health status.

If the mother works full time and does not have a car, and also lives in another city, the court will not oblige the woman to take the child 100 kilometers every weekend, especially if the father is fully able to work. But if the father is disabled, and the mother has a car and a free schedule, the court may accommodate the father.

What are the consequences of disrupting the mother's visitation schedule?

A woman can refuse to communicate with her child only if she has good reason to suspect that the father’s visits negatively affect the psychological state of the child’s health, which is important for a father who abuses alcohol. If there are no prerequisites for banning the father’s visits, the man can turn to bailiffs for help, and then file a claim to determine the child’s place of residence with him. In a similar situation with a mother who is a violator of the law, the baby will be handed over to the father.

Can the schedule be changed and how?

Parents can change the visitation schedule independently by concluding an agreement. If disputes arise, you must go to court again.

If the father does not comply with the visitation schedule, what are the consequences?

The court decision is mandatory, but no one can force the father to visit the child. But such a disdainful attitude towards the heir will not pass without consequences. If the father himself filed a statement of claim to determine the visitation schedule, and then stopped fulfilling it, the mother, if there are other grounds, may raise the question of depriving him of parental rights. As an adult, a child may refuse financial assistance.