A child was born after a divorce - is it necessary to prove paternity and what rights does the baby have?

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Perhaps the most intractable question that arises during the divorce process is who will the minor children stay with? After all, children are not apartment cars, cups, spoons and sofas, chests of drawers, which can be given a material value and divided equally. Every child is an individual.

Their future fate depends on which parent - dad or mom - the court leaves the children with after the divorce, and how they communicate with the other parent. The court has a great responsibility to provide answers to these difficult, acute and painful questions.

Who should the child stay with after divorce?

In the public consciousness, two opposing arguments have been formed regarding the division of children between father and mother. On the one hand, there is a firm conviction that the child will remain with the mother due to physical and mental ties, on the other, the confidence that the material capabilities and influence of the father will help him keep the child. None of these stereotypes are true.

According to the law, both spouses have equal rights and responsibilities towards the child; neither of them has an advantage over the other.

In order to determine the further place of residence of the child, the court comprehensively studies the circumstances of the case and takes into account many individual factors, and does not simply “leave it to the mother” or “give it to the father.”

Fathers' rights to children after divorce

What rights does a biological father have over a child?

The rights of both parents in relation to the child are not lost in the event of divorce.

A father who does not live with the child may demand:

Access to information about him. The father can receive information from an educational or medical institution. State authorities can refuse to provide it only if there is a threat to the life and health of the child.
Unhindered communication. If the mother restricts access to the child at any time, it is necessary to draw up a schedule for the father to visit the child and the procedure for organizing their communication
Restrictions or permissions for mothers to take their children abroad. Controlling the movement of children both within the country and abroad is the inalienable right of the father. Permission is required if travel is for permanent residence or without the accompaniment of a second parent. You do not need to obtain your father's permission for a short-term tourist trip.
Possibility to give permission or impose a ban on changing the child’s surname. You can change the surname of children without the consent of the father only if the following circumstances exist (Article 131 of the Code of Civil Procedure):

his whereabouts are unknown;
he is declared incompetent;
deprived of parental rights;
due to the limitation of the father's rights.

There are conditions under which a father may have limited rights in relation to his children. They occur in the following cases:

Failure to fulfill obligations to provide financial support for a child.
Alcohol abuse or drug use.
Abuse of rights.
Cruelty to a minor.
Committing a deliberate crime causing damage to human life or health.

All these conditions are grounds for complete deprivation of parental rights. The decision is made through the court, and from the moment it is made, the father loses all rights in relation to his children.

In addition, restriction of the father’s rights is possible if communication with him negatively affects the condition of the minor, both psychologically and physically.

In this case, the father can no longer communicate freely with the child at any time. Their meetings take place in the presence of the mother and for a time set by her, in a place determined by the court. At the same time, the father retains the responsibility to provide financial support for the child.

Can children be separated in a divorce?

In the theory of family law and legal practice, the concept of “division of children” is not used. The court does not divide the children between father and mother, but considers the issue of the place of residence of minor children and the procedure for their upbringing and maintenance by each of the parents.

However, parents of several children ask a specific question: is it possible to divide the children among themselves? That is, one parent gets one child, the other gets another child. For example, father has sons, mother has daughters, or vice versa. Is it possible to separate children?

The law does not establish a ban on the division of children between spouses, but does not insist on it either. If parents have several children, the fate of each child will be decided individually. If the court sees that dividing the children between the parents is appropriate (primarily in the interests of the children), it has the right to do so.

Of course, in this case, the court takes into account all significant circumstances, including the wishes of the parents, their financial capabilities and moral qualities, as well as the opinion of the children (if they have reached 10 years of age). The main thing is to take into account absolutely all the circumstances.

Example

A married couple with two children was divorcing: a 12-year-old daughter and a 14-year-old son. The boy loved to go hiking - this hobby was developed in him by his mother, an avid hiker. Dad is a real homebody who prefers working at the computer to active recreation. No, he did not play computer games or surf the Internet. He was interested in programming, and quite seriously. The daughter also became interested in her father’s occupation.

How do you think the court “divided” property and children during a divorce? Of course, the computer as a means of work went to the father, and the camping equipment went to the mother. The daughter stayed to live with her mother, the son left with his father. Was the court based on the interests of the children? Certainly! However, not all circumstances were taken into account.

Arbitrage practice

If the “children’s” issue is particularly acute, the couple will face a long and complex trial. Moreover, often spouses, guided by “good” motives, use illicit methods of struggle, for example, they try in every possible way to denigrate the other side or find imaginary evidence that the second spouse is not able to adequately care for the child due to special circumstances.

What to do if the mother does not work

The lack of a permanent place of work is not a formal obstacle to the transfer of children to be raised by their mother. For women with children under 3 years of age, this point is not taken into account at all. However, a mother of older children who does not have a stable source of income should take care to prove her financial solvency to the court. Arguments in its favor could be:

conducting business activities as an entrepreneur;
passive sources of income (interest on deposits, dividends, payments on securities, etc.);
having your own home, expensive property, such as a car;
constant help from close relatives.

In any case, the court will make a decision based on whether the mother’s total income, which is calculated taking into account the amounts of social benefits and alimony, is sufficient to provide the child with a decent standard of living.

What to do if the mother is on maternity leave

Thanks to Russian legislation, mothers of young children who decide to divorce are quite well protected financially and socially. According to the norms, the husband must pay alimony for his wife raising a joint child until he reaches the age of three.

Accordingly, the question of whether a woman has enough funds to support her baby is not even raised, because:

if the husband has a decent salary, the alimony he will pay to his wife and child will be enough for a decent life;
If the spouse has no sources of income, then he will not be able to apply for raising a minor.

An additional argument in favor of the wife will be that children experience strong emotional dependence on their mother. Separation from her will definitely have a negative impact on the psychophysiological development of the baby. Therefore, children under 3 years of age are usually not given to fathers to raise.

The exceptions are mothers who are alcoholics, drug addicts, or those who lead an immoral lifestyle. They cannot be trusted with children in principle.

Who will the child stay with if he is registered with his father?

A father who wants to ruin the life of his “former” other half can use the fact that his daughter or son is registered in his living space as an argument in his favor. However, judges have long not attached importance to the place of registration of the child. When choosing who a minor will stay with, the decision is made based on completely different factors.

Ultimately, a wise judge will hand over the child to be raised by the parent who can provide him with a happy childhood and raise him to be a worthy citizen.

Read: How to get a divorce in another city: registry office or court, where to go

Settlement agreement between parents regarding children during divorce

A settlement agreement is the most reasonable, civilized, painless option for the separation of children, both for children and parents. In a simple written form, a husband and wife can provide for all issues regarding children after a divorce:

the child’s place of residence – with his father or mother;
the order of communication between the child and the parent living separately (frequency, duration and place of meetings);
participation of father and mother in raising the child;
expenses of each parent for the maintenance of the child.

It’s good if the spouses are able to peacefully agree on who the child will stay with. This should be done when they have not yet lost mutual respect, the ability to conduct a dialogue, sensibly assess the situation, and put the child’s interests above their own. And not when mutual grievances and claims no longer allow reaching a compromise.

If the spouses’ agreement does not contradict the interests of the children, the magistrate’s court will approve it by its decision.

Agreement about the child

Protecting the interests of both parents and the child, the legislation of the Russian Federation provides that, regardless of whether the spouses are current or former, they can independently resolve all issues relating to the lives of their joint children under 18 years of age. In this case, an Agreement on Children is signed. His main requirement is not to contradict the interests of minors. The agreement should describe:

Children will live with the cream
What are the rights and responsibilities of the second parent?
Who makes the final decision regarding the school the child attends, which sections he attends, etc.
The procedure for material support (payment of alimony and other financial expenses for the child)
How much time can the other parent spend with the children?

This document can include any items, including: with whom does the child prepare his homework, what tutors does he go to, who plays computer games with him. Of course, these examples are exaggerated, but the more detailed everything is described initially, the fewer questions and disputes will arise in the future. Therefore, if at a certain stage the spouses reach an impasse, it is worth contacting a family law lawyer. In the event that both parents come to a specialist and do not know what to do correctly, the specialist will help you understand all the intricacies of the case and write an agreement, taking into account the interests of all parties as much as possible.

The document is drawn up in any form in two copies and notarized.

Agreement on children, sample form

These are ideal circumstances. But what to do

Trial

Disputes about “dividing children” often arise on the basis of deep interpersonal problems of spouses who, hiding behind the interests of the children, are trying to prove to each other that they are right and sort things out.

If “children’s” issues give rise to disputes and disagreements that cannot be resolved peacefully , the spouses will have to go to court. They may face a long and difficult struggle for their children. The court is guided solely by the interests of the children.

Application to court

The statement of claim for divorce should set out the circumstances of family life and present convincing arguments about who the child should live with after the divorce, supporting this with the necessary evidence. Simultaneously with the application for the child’s place of residence, an application for alimony must be submitted.

Each spouse must prove to the court that he is the one capable of providing the child with the best living and development conditions - material, physical, mental.

Judicial procedure

The judicial procedure for divorce, during which children are divided, takes place in accordance with Article 78 of the RF IC and the Law “On the Protection of the Rights of the Child”.

In order to decide which parent should leave the child, the court comprehensively studies the circumstances of the case and takes into account many factors:

Child's opinion . If the child is 10 years old, the court finds out his opinion about where he wants to live, which parent he wants to stay with, which parent he loves more, which relative (on his mother’s or father’s side) he is more attached to.

As for children under 10 years old, the default assumption is that they will be better off with their mother. This belief is based on one of the principles of the Declaration of the Rights of the Child - a small child should not be separated from its mother except in special cases.

Parents' wishes . The court must find out whether the father really wants the child to stay with him, whether he is ready to raise and support the child. The same goes for the mother. If the father is attached to the child, sincerely wants to live with him, engage in his development and upbringing, and strives with all his might to prove this to the court, he has many chances to win in a dispute with the mother. And vice versa.

Expert opinion

Dmitry Nosikov

Lawyer. Specialization: family and housing law.

Many fathers want to take the child away from the mother solely for the purpose of revenge, resentment, or demonstration of their own ambitions. The active “division of children” in all its manifestations begins already in the process of divorce. But if, before the start of the divorce process, such a father did not pay attention to the child, was not interested in the issues of his development and upbringing, simply put, did not treat him, did not take him for walks, did not read fairy tales, he should not count on a positive court decision.

Moral character of parents . The court determines the physical and mental health status of the parents, finds out whether they abuse drugs or alcohol, have other bad habits, are addicted to gambling, or lead an immoral lifestyle;

Material capabilities of parents . The court also takes into account which parent has more opportunities to create good living conditions, provide quality nutrition, comprehensive development, education, and entertainment for the child;

Social environment. It is also important how the child’s communication with other people - friends and relatives (brothers and sisters, grandparents) will be organized;

Region of residence . For example, if parents live in different cities or countries, the court also considers the economic, climatic, and cultural conditions of the region to choose the optimal place for the child to live.

Other circumstances. For example, the character, habits, interests and lifestyle of each family member.

The role of guardianship authorities in divorce proceedings

During the court hearing of a case of divorce with minor children, the presence of guardianship and trusteeship authorities is mandatory. A representative of this authority examines the living conditions of children and parents, on the basis of which he draws up and submits an inspection report . This document is one of the decisive ones in the process of determining the place of residence of children.

Psychological and pedagogical examination

In some cases, in order to take into account all the features of relationships in the family, outline the psychological portraits of the child and parents and determine the best option for resolving a dispute about children, the court may require the assistance of a competent and independent expert commission consisting of teachers and psychologists.

If the parents cannot agree

In this case, trial cannot be avoided. Determining the child’s place of residence, the procedure for communicating with the second parent, providing for children, etc. can be resolved both within the framework of the divorce process and in separate office proceedings.

Important! An application can be submitted to the magistrate's court only if the spouses have reached full understanding regarding the divorce and there are no objections. In other cases, you should contact the district court. The magistrate court does not resolve disputes regarding children.

In the case where the parents want to get a divorce and find out all the nuances about the children in one process, this must be indicated in the statement of claim. It is drawn up by one of the spouses, and the number of copies corresponds to the number of parties to the process, including the court.

The statement of claim is filed with a court of general jurisdiction authorized to resolve these issues. It must indicate not only the reasons for the divorce, but also justify the desire of one of the parents for the child to stay with him, alimony, etc.

Sample statement of claim to the court for divorce and determination of the place of residence of children

Accordingly, before going to court it is necessary to prepare a number of documents:

Statement of claim indicating all positions of interest to the plaintiff
Passport
Marriage/divorce certificate
Birth certificates of children
Certificate of family composition
Additional documents that allow the court to form an impression (certificate of income and financial situation, job description, certificate of no criminal record, etc.)

There are often cases when, during a divorce, parents verbally agreed on the place of residence of the children, their maintenance, and the order of meetings. However, over time, the situation has changed and one of the parents does not fulfill his obligations towards minor children. In this case, the legislator allows the second to go to court, regardless of how much time has passed since the divorce.

It is worth considering the fact that in this process, in any case, the guardianship and trusteeship authorities must be present. In the overwhelming majority of cases, it is their conclusions and characteristics that the court relies on when resolving disputes regarding children. Their task: to help the court resolve a difficult situation in the interests of the child.

Why does a child stay with his mother during a divorce? Arbitrage practice

Art. 54 of the RF IC states that children have the right to be raised by both parents. This is what happens in prosperous families. But in case of divorce, the child remains with one of the parents.

As mentioned above, the law does not give one parent an advantage over the other - both mother and father have the same rights to the child. However, practice shows that in the vast majority of cases, after a divorce, the child remains with the mother. Why?

Expert opinion

Semyon Frolov

Lawyer. 7 years of experience. Specialization: family, inheritance, housing law.

There is a widespread belief that it is advisable to leave children under 10 years of age with their mother, because a child at this age needs maternal care more than paternal care. As a rule, a woman has the innate ability and experience in caring for and raising a child. The mutual physical and mental attachment of mother and child to each other is also important. At such an early age, the father plays a much smaller role for the child. In addition, the father, as a rule, devotes a lot of time to work and cannot provide the child with proper care, education, and development. This is what most court decisions on handing over the child to the mother are based on.

Read more in the article “How to divorce your husband if you have children.”

Exceptions are cases of serious illness, addiction or immoral lifestyle of the mother, when it is in the interests of the child to remain with the father . If the father is convinced that the child should stay with him, he will have to prove to the court why the mother is not worthy of this. As a rule, this measure is resorted to in the most extreme cases, and if the father’s demands are justified, the court takes his side. You can read more about this in the article “How to divorce your wife if you have a child.”

Arbitrage practice

In most cases, after a divorce, the child remains with the mother. But there is judicial practice indicating the reality of the opposite outcome of the case.

Example

Andreev V.G. filed a claim with the Moscow City Court to determine the place of residence of a minor child born in marriage with his ex-wife, P.K. Vlasova. Andreev V.G. asked the court to leave the child with him. In support of his claims, the plaintiff argued that the child’s mother does not provide proper care for the child, which is confirmed by the testimony of the teachers of the kindergarten that the child attends. The plaintiff also claims that Vlasova P.K. interferes with communication with the child and does not allow him to participate in raising his son. During the judicial review, it was found out that the defendant gave the child to be raised by her mother, a pensioner and a disabled person of group 3. The court found that the plaintiff’s financial situation (permanent official job) and the presence of his own real estate allow him to create favorable living conditions for the child. Claims of Andreev V.G. were satisfied.

What questions will the court have to answer and what documents need to be provided?

When deciding which parent the children will stay with, the court will be guided by the Family Code, Civil Procedure Code and, first of all, the interests of minors. The guardianship and trusteeship authorities will first inspect the child’s place of residence and communicate with relatives and teachers. Their findings and conclusions will be among the key ones in court.

Decision-making regarding children should be as balanced and reasoned as possible. Therefore, the court takes into account all circumstances relating to the quality of life of a minor with one of the parents. The following will be investigated in court:

How old is the child
His attachment to one of his parents
The presence of brothers, sisters in the family and their relationships and affections with each other
Parents' financial status
Parents' living conditions
Do one/both parents live in a new registered or unregistered marriage and the child’s relationship with his stepfather/stepmother
The ability of each parent to provide a quality parent-child relationship (employment at work, business trips, having a new family)
Moral and moral qualities of each of the parents (absence/presence of criminal records, bad habits)
Characteristics of parents from their place of work, from neighbors
Living conditions of the child
Availability of the necessary infrastructure for the child (school, kindergarten, clinic)

This list may be supplemented at the discretion of the court. It is in the interests of the parent who wants the court to determine the child’s place of residence with him or her to provide the most complete set of additional documents.

Who will the child stay with after a divorce - his mother or his father?

It is impossible to give an unambiguous answer to the main question, who is preferable for children - a mother or a father. And not only because there are different fathers and different mothers, not because circumstances develop differently. But because every child needs both parents to live a full life!

And even if the parents can no longer live together, it is very important that after the divorce the child is given the opportunity to communicate with both his mother and father.

I also want both judges and ex-spouses to more often remember the ancient parable about King Solomon, who wisely managed to resolve the controversial issue of a child.

Two women came to King Solomon with a newborn child.
Each of them claimed that the baby belonged to her. The king said: “If you both consider the child yours, it must be divided equally between you,” ordered the baby to be cut in half and given half to each woman. Then one woman exclaimed: “Praise be to you, wise king! Your decision is wise and fair, let it be as you ordered.” The second woman, sobbing, threw herself at the king’s feet: “I beg you, ruler, have mercy on my child! Give it to this woman, but don’t kill him!” King Solomon lifted the woman from her knees and said: “Take your child. You are his real mother! Attention!

Due to frequent changes in legislation, information sometimes becomes outdated faster than we can update it on the website.
All cases are very individual and depend on many factors. Basic information does not guarantee a solution to your specific problems.

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Author of the article

Irina Garmash

Family law consultant.

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Who does he live with and who does he date?

At the court hearing, the issue is decided not only about determining the child’s place of residence, but also about the procedure for his visits with the second parent.

Some facts

If at a court hearing it is revealed that the plaintiff does not have emotional contact with a minor child, the court may involve a psychologist to make an opinion. Thus, the psychologist will work with the child and then determine the significance of communication with the parent

If there is no dispute about who the child stays with when the parents divorce, but there are disagreements about the order of meetings and participation in his upbringing, then a lawsuit can be filed to establish such an order.

The plaintiff will be able to present to the court his own schedule of when he would like to communicate with the child and even indicate in detail what he plans to do with him in the allotted time. The court will be able to take it into account when making a decision, or it may refuse to approve it.

After determining who the child remains with, you can apply for child support. We talk about the procedure for applying for alimony here.

If the spouses were unable to agree either on the place of residence of their child or on the order of meetings with him, then the judge will make decisions on them at his own discretion, taking into account all the circumstances studied.