How to obtain parental custody in 2021

What is parental custody?

According to Art. 2 of the Federal Law of April 24, 2008 No. 48 “On Guardianship and Trusteeship”, guardianship is recognized as a form of arrangement for persons deprived of legal capacity by a court, in which the guardianship authorities appoint a guardian for such persons. According to Art. 29 of the Civil Code of the Russian Federation, recognition of incapacity is carried out in court and only in relation to persons who, due to suffering from mental illness, are not able to give an account of their actions. Therefore, the answer to the question of whether it is possible to obtain guardianship over the mother depends on whether she has a mental disorder, as well as the presence of a court decision declaring her incompetent. In case of limitation of legal capacity, only the establishment of guardianship is allowed, which provides for limited powers of the guardian.

By registering guardianship over a parent, a son or daughter becomes his legal representative, acting on his behalf in relations with other entities, and also performing all legally significant actions in his place.

According to Art. 31 of the Civil Code of the Russian Federation, this is done in order to protect the rights and interests of the ward. The establishment of guardianship is carried out by decision of the guardianship authority, on the basis of an application submitted by the person wishing to become a guardian.

Legislation

The basis of the legislation on guardianship and trusteeship is the Civil Code of the Russian Federation. So, it is precisely the provisions of Art. Art. 29-40 of the Civil Code of the Russian Federation determines the procedure for declaring a person incompetent, establishes the possibility and rules for the emergence of guardianship, regulates the role of guardianship authorities, establishes the criteria, rights, responsibilities and functions of the guardian, determines the conditions for the disposal of property, as well as the procedure for terminating guardianship.

These standards are detailed in the provisions of the Federal Law dated April 24, 2008 No. 48. In particular, it specifies the powers of the guardianship authorities, defines the legal status of persons vested with guardianship functions and the procedure for their selection, clarifies the features of the legal regime of the property of the ward parent and the benefits provided for children , the responsibility of the guardian and the procedure for terminating guardianship are established.

In addition, it is necessary to note the Decree of the Government of the Russian Federation of November 17, 2010 No. 927, which established a step-by-step procedure for selecting citizens wishing to become guardians, determined the rules for drawing up and concluding contracts with the latter, rules for their verification, reporting forms and other significant aspects.

Data bank of guardians or trustees

Currently, guardianship and guardianship of children is becoming an increasingly popular phenomenon. This is primarily due to changes in the financial situation of families and their ability to support the ward both morally and materially.

In order to be able to quickly place children in foster families, the state created and developed a unified database of guardians and trustees. Having received the consent of the guardian to fulfill his duties, the state can transfer the child into his care.

The database contains information about all persons who are ready to become guardians and trustees, as well as information about persons who have discredited themselves. In particular, if the guardian failed to fulfill the obligations assigned to him and was removed from the performance of guardianship duties, then he will no longer be entrusted with the child. His personal data is placed in a database, and if necessary, upon request, all the necessary information can be obtained in the shortest possible time.

Who can become a guardian

According to Art. 35 of the Civil Code of the Russian Federation, any adult capable person who has undergone special training and approved by the guardianship authorities has the right to formalize guardianship over the mother or father. Please note that, according to Part 5 of Art. 10 Federal Law No. 48 dated April 24, 2008, children in this case have a priority right to obtain guardianship over their parents over other entities who are not close relatives.

As part of this process, the moral qualities of the person are taken into account, as well as his ability to perform guardianship functions and relationships with the potential ward. However, children will not be able to become guardians if they:

were previously deprived of parental or guardianship rights;
have an outstanding conviction for crimes against life and health, as well as other grave and especially grave crimes;
do not have the financial or housing ability to care for a parent;
pursue mercantile goals when registering guardianship;
suffer from diseases that prevent the establishment of guardianship, and so on.

Procedure for appointing guardians or trustees

The appointment of a guardian or trustee is regulated in accordance with Article 10 of the Federal Law “On Guardianship and Trusteeship”. In order to assume the rights and responsibilities of a guardian, it is necessary to meet all the criteria that the state imposes on such persons. This is full legal capacity, the ability to positively influence the formation of the child’s personality, the ability to fully fulfill all the obligations of the guardian, not only in terms of material supplies, but also taking into account moral and moral aspects.

If the potential trustee (guardian) has passed due diligence, then he must subsequently provide all information and personal information about himself. Only after this can he be allowed to establish guardianship over the person who needs it.

It is worth paying attention to the fact that the preferential rights of a guardian belong to close relatives (grandparents, parents, spouses, etc.). They are the ones who can establish guardianship or guardianship in the first place. If for some reason this is not possible, then a guardian can be appointed by the competent authorities from among those citizens who are ready to take responsibility.

Procedure for obtaining guardianship

To find out where to start formalizing guardianship for an elderly parent, you need to refer to the provisions of Chapter 3 of the Federal Law No. 48 dated April 24, 2008, as well as the “Rules for the selection, registration and training of citizens wishing to become guardians of adults,” approved by the Decree of the Government of the Russian Federation dated November 17. 2010 No. 927. Based on the meaning of these documents, a person who wants to take care of his parent must go through a number of stages:

Recognition of a parent as legally incompetent.
Contacting the competent authorities and filing an application for the establishment of guardianship.
Preparation and submission of a package of necessary documents.
Passing an examination of the living conditions in which the incapacitated person will live.
Drawing up and receiving an inspection report.
The final adoption of a decision, formalized in a separate act.

Since certain aspects of this process have some peculiarities, we will dwell on them in more detail.

Where to contact regarding registration of guardianship

Recognize a citizen as incompetent, in accordance with Art. 29 of the Civil Code of the Russian Federation, only the court can. Only after the decision entered into force can guardianship be established over the parent.

In accordance with paragraph 2 of the above Rules, the functions of selecting, recording and training persons wishing to become guardians are assigned to the guardianship authorities. Therefore, a citizen who has expressed a desire to formalize guardianship for his parent must contact the guardianship authorities at his place of residence. Such an appeal is made in the form of a statement containing the clear will of the potential guardian.

In addition, the legislator allows for the possibility of applying for the selection and training of citizens to medical and social organizations vested with the powers of guardianship authorities. However, in this case we are talking about organizations in which incapacitated people are kept in boarding houses. In addition, the final decision is still made by the guardianship authorities.

Package of documents

To find out what documents are needed to formalize guardianship, we recommend that you refer to clause 4 of the above Rules. According to them, along with an application for establishing guardianship of a parent, candidates must submit to the guardianship authorities:

a certificate from the employer indicating the position and salary;
an extract from the apartment or house register or other document confirming the presence of residential real estate in use;
a police certificate confirming no criminal record;
a medical certificate confirming the absence of diseases that impede the exercise of guardianship functions;
Marriage certificate;
written consent from family members of the candidate guardian;
certificate of housing compliance with sanitary and technical standards;
autobiography;
document confirming completion of special training.

Everything that is needed for guardianship is submitted to the guardianship authorities personally by the candidate. In this case, a number of documents (for example, a certificate from the police or from work) can be requested by officials independently. The validity period of most documents is one year, with the exception of a medical certificate, which is valid for three months.

Consideration times and results

After submitting documents, within a week the guardianship authorities are required to conduct an examination of living conditions in order to identify facts that contradict the establishment of guardianship. The results of the examination are documented in the form of a report. Further, on the basis of this act and the submitted documents, within 15 days from the moment of their submission, the guardianship authority makes a decision on the appointment of a guardian (or the possibility of such an appointment) or on the refusal, which is sent to the applicant within 3 days. The act of refusal may be appealed by the applicant in court.

Rights and responsibilities of a guardian

To obtain guardianship over the father of a single mother, you should familiarize yourself with the range of rights and obligations outlined in the provisions of Art. 36 Civil Code, as well as Art. 15 Federal Law No. 48 dated April 24, 2008. According to them, the duties of a guardian include:

cohabitation with the ward, except in cases where separation is permitted by the guardianship authorities and does not contradict the interests of the ward;
protection of the rights and interests of the ward, execution of legally significant actions on his behalf;
care for the maintenance, care and treatment of the parent;
assistance in restoring capacity;
taking into account the opinion of the ward when performing guardianship duties;
conscientious management, protection and disposal of the property of the ward, and so on.

In addition, children who are guardians of their parents have rights, which include:

use of the ward's funds in his interests;
receiving state-guaranteed payments and benefits;
going to court to recognize the parent as legally competent;
voluntary refusal to exercise guardianship powers, and so on.

Learn more about the rights and responsibilities of a guardian.

Features of the legal status of a ward child

Usually in a foster family the child under care is loved as if it were their own. But from a legal point of view, he still has rights and obligations in relation to his blood family. The child claims the inheritance of his blood parents and is obliged to support them after reaching the age of majority if they turn out to be incapacitated.

The rights and obligations of the guardian and the ward cease as soon as the latter turns 18 years old.
If the trustee dies, then his status does not pass to the relatives - they will have to repeat the paperwork process in order to leave the child in the family.
The guardian must manage the property of the ward in his interests. For example, if a child has monetary assets, it is necessary to ensure their safety from inflation.
The guardian must report on the management of the assets of the ward, as well as the expenditure of benefits on him.
A person under guardianship has the right to receive housing from the state only if no real estate is assigned to him.
The ward has the right to enter a university without competition.
The ward does not inherit the property of the guardian if the guardian has not made a will in respect of him.

If you have decided to obtain custody of a child, but do not know where to start the registration procedure, contact our agency. Our lawyers will advise you on the conditions and procedure for transferring children to a family. If the guardianship authorities refuse to register you as a candidate for guardianship, we will help you prepare a written appeal justifying the illegality of their actions. Our lawyers will also help prepare a statement of claim in case of violation of the law by guardianship authorities, the management of a social security institution, or blood relatives of the child under guardianship.

Frequently Asked Questions about Child Custody

Payments and benefits

According to the general rule established by Art. 16 Federal Law No. 48 dated April 24, 2008, guardianship functions are performed free of charge.

Guided by the interests of the ward, the competent authorities have the right to conclude a paid guardianship agreement with the guardian, under which the latter will be awarded a remuneration. It is worth noting that in the case of parental guardianship, this option is unethical and is not used in practice.

In particular, according to the Decree of the Government of the Russian Federation dated June 4, 2007 No. 343, for subjects caring for disabled people of group I, pensioners who need full care, as well as persons who have reached the age of eighty, a compensation payment in the amount of 1.2 thousand is provided . rubles.

Thus, the guardian will be able to receive them if:

the ward belongs to one of the above categories;
The guardian himself is considered able-bodied and does not work and is not registered with the employment service.

No other payments are provided for parental guardians.

Read more about payments to foster families.

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Benefits for guardians

The law does not provide for any special benefits for guardians of incapacitated citizens other than the above payments. Any state guarantees are established only in relation to the incapacitated wards themselves. Additional guarantees can only be established by the legislation of the constituent entities of the federation.

In particular, in certain regions the following provisions are provided for guardians:

transport tax benefits established at the regional level;
benefits for medicines and medical supplies;
free legal assistance;
benefits when paying state duties;
discounts on utility bills and so on.

Please note that more state preferences are provided for persons performing guardianship functions in relation to orphans or disabled children.

We recommend that you familiarize yourself with the benefits for caregivers in more detail.

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Guardianship for the elderly

Despite the lack of specific wording in the law at the moment, elderly people are considered to be those who have reached retirement age: for women – 55 years, for men – 60 years. However, the rules for registering guardianship do not allow taking into account the age of potential wards - guardianship over elderly parents, as in all other cases, is possible only if they have a mental disorder, as a result of which the citizen is recognized by the court as incompetent. Regardless of the age of the parent, the basis for this may be such aging disorders as:

involutional depression and psychosis;
Parkinson's and Alzheimer's diseases;
dementia or senile dementia;
Huntington's chorea;
Hackebusch-Geyer-Heimanovich syndrome and so on.

Even if an elderly parent needs full-time care, this does not give grounds to recognize him as incompetent and establish guardianship over him. Over such persons, in accordance with the provisions of Art. 41 of the Civil Code of the Russian Federation, patronage can be established.

Read more about obtaining guardianship for an elderly person.

Refusal of guardianship

According to Art. 5 Federal Law No. 48 dated April 24, 2008, one of the main principles is the freedom to accept and freedom to refuse guardianship powers. According to Art. 11 of the above law, forced establishment of guardianship is unacceptable - the consent of the potential guardian is a prerequisite. In accordance with Part 3 of Art. 29 of the law, a guardian may be relieved of his duties at his own request. The law does not provide specific grounds for this - the desire to renounce guardianship can be the result of solely internal will.

Such a refusal is formalized through a free-form application submitted to the guardianship authorities at the place of residence. Based on the results of consideration of the application, the competent authorities draw up an act on the release of the person from fulfilling guardianship duties. After this, according to Art. 30 Federal Law No. 48 dated April 24, 2008, the guardian submits the necessary annual reports, and the previously concluded guardianship agreement terminates.

We recommend that you read the waiver of guardianship in more detail.

Guardianship of a child from an orphanage - details of registration

When you have a conclusion that you are a candidate for guardianship, you can contact the orphanage with a request to transfer the child. It is important to understand that social institutions where children are kept are closed to outsiders; you can only get there with a referral from the guardianship authorities. Before taking a child from an orphanage in another region, contact the guardianship authorities at your place of registration with a request to send a request to the guardianship at the child’s place of residence. As soon as the answer comes that the child is in the institution and they are waiting for you, you can go.

If you want to take a specific child, ask for a referral for him. If you have not decided on a candidate, write an application to the guardianship authorities to select a child. You can choose yourself using regional and federal data banks on orphans. But the guardianship authorities may have more up-to-date information - it’s better to look everywhere.

Before taking custody of a child from an orphanage, you can get to know him, study the materials of his personal file and medical record. The candidate for guardianship has the right to examine the child in a medical institution of his choice in order to get an idea of his health.

Materials from the personal file will help you understand the prospects of staying with the person under guardianship: can the parents insist on the removal of the child (if they are in prison and the term expires soon, they can, and if they are missing, then in six months you can file a lawsuit for deprivation parents' rights and adoption).

In some orphanages, management prevents children from being placed under guardianship, insisting on adoption. They act in the interests of the child, but not within the framework of the law. If you are prevented from obtaining custody of a child from an orphanage without objective reasons, you can safely go to court.

Arranging for guardianship of a child from an orphanage, children's hospital and maternity hospital is no different from usual. In the interests of the child, you can insist on preliminary guardianship with a simplified registration procedure, and collect the full package of documents later.